PROCEDURE

1.  The case originated in two applications (nos. 4292/04 and 4347/04) against  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Ms Ganna Petrivna Glova and Ms Nadiya Fedorivna Bregin (“the applicants”), on 15 and 5 December 2003 respectively.

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

3.  On 25 October 2004 the Court decided to communicate to the Government the complaints under Articles 6 § 1 and 13 of the Convention concerning non-enforcement of the judgments favourable to the applicants. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the applications at the same time as their admissibility.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  Both applicants were born in 1943. Ms Glova and Ms Bregin reside respectively in the villages of Podillya and Tovste, the Ternopil region, .

5.  In March 2000 the applicants instituted two separate sets of proceedings in the Zalishchytskiy District Court of Ternopil Region against the Zalishchytskiy State Department for Education seeking recovery of payments due to them. On 15 May 2000, the court found for Ms Glova and awarded her UAH 1,015. On 16 May 2000, the court found in part for Ms Bregin and awarded her UAH 1,595. On 13 June 2000, the  upheld both decisions of the first instance court. The decisions became final, but have been enforced only in part.

6.  In March 2003 the Zalishchytskiy State Department for Education requested the Zalishchytskiy District Court to suspend the enforcement of judgments of 15 and 16 May 2000 due to a lack of budget funds and an absence of a mechanism to pay the State’s debts to teachers. On 22 April 2003, the court allowed the requests and decided to suspend the enforcement proceedings until such a mechanism had been elaborated. On 24 June and 1 July 2003 respectively the Ternopil Regional Court of Appeal upheld the decisions of 22 April 2003. The applicants did not appeal in cassation to the Supreme Court.

7.  The judgments in favour of Ms Glova and Ms Bregin remain unenforced in part (UAH 275 and UAH 855 respectively).

II.  RELEVANT DOMESTIC LAW

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

THE LAW

I.  JOINDER OF THE APPLICATIONS

9.  The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.

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

10.  Relying on Article 13 and, in substance, Article 6 § 1 of the Convention, the applicants complained about the non-enforcement of the judgments given in their favour. These provisions read, insofar as relevant, as follows:

Article 6 § 1

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

Article 13

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

A.  Admissibility

1.  The Government’s preliminary objection

11.  The Government maintained that the applicants, having challenged the decision on suspension of the enforcement proceedings in the courts at two instances, failed to appeal to the Supreme Court on the points of law, which under the Court’s case-law should be considered as a failure to exhaust domestic remedies (see Vorobyeva v. Ukraine (dec.), no. 27517/02, dec. 17 December 2002). In the Government’s opinion, the applicants could also challenge any alleged inactivity or actions of the Bailiffs’ Service and seek compensation.

12.  The applicants maintained that they did not trust the Supreme Court and considered any further appeals ineffective.

13.  The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. It is not in dispute that the applicants did not avail themselves of the possibility to appeal in cassation against the judicial decisions suspending the enforcement proceedings in their cases. The Court therefore should look into the effectiveness of the remedy in question, regard being had not only to the possibility to raise the issue before the domestic courts, but also to the likelihood of obtaining redress.

14.  The Court notes that the circumstances of the present case are similar to others which it has examined where the State itself is a debtor. In those previous applications (see, among other authorities, Zhovner v. Ukraine, no. 56848/00, 29 June 2004, and Voytenko v. Ukraine, no. 18966/02, 29 June 2004), the enforcement proceedings were suspended de facto due to the lack of budgetary funds, while in the present case the enforcement proceedings were suspended also de jure (see paragraph 6 above). This difference, in the Court’s opinion, does not change the general situation, since the enforcement of judgments against a State authority, as it appears from the case file, can only be carried out if the State foresees and makes provision for the appropriate expenditures in the State Budget of Ukraine by taking the appropriate legislative measures. In the Ukrainian legal system, the Supreme Court of Ukraine does not have power to overrule the law, therefore, even if the formal suspension of the enforcement proceedings could be lifted, the enforcement proceedings would anyway depend on statutory restraints outside the courts’ competence.

15.  As to the other remedies invoked by the Government, the Court notes that similar points have already been dismissed in a number of Court judgments (see Voytenko v. Ukraine, no. 18966/02, §§ 2931, 29 June 2004; Chernyayev v. Ukraine, no. 15366/03, § 25, 26 July 2005, Romanchenko v. Ukraine, no. 5596/03, § 14, 22 November 2005). In such cases the Court has found that the applicants were absolved from pursuing the remedies invoked by the Government.

2.  The applicant’s complaints

16.  In the light of the parties’ submissions and the above considerations, the Court dismisses the Government’s preliminary objection and concludes that the applicants’ complaints under Articles 6 § 1 and 13 of the Convention raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It finds no ground for declaring this part of the application inadmissible.

B.  Merits

17.  The Court will now examine the merits of the applicants’ complaint about the unreasonable length of the non-enforcement of the judgments of 15 and 16 May 2000.

18.  In their observations, the Government contended that there had been no violation of Articles 6 § 1 or 13 of the Convention (as in the case of Romashov, cited above, §§ 28-33 and 37).

19.  The applicants disagreed.

20.  The Court notes that both judgments have remained unenforced for more than five years and eight months, and that there is no effective remedy at the applicants’ disposal to redress that delay.

21.  The Court recalls that it has already found violations of Articles 6 § 1 and 13 of the Convention in cases raising issues similar to the present application (see, for instance, the Romashov judgment, cited above, §§ 42-46, and Voytenko v. , no. 18966/02, §§ 46-48, 29 June 2004).

III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

23.  The applicants also complained that the non-enforcement of the judgments in their favour was in breach of Article 17 of the Convention, which provides as follows:

Article 17

“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

24.  The Court notes, however, that this complaint is wholly unsubstantiated. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

25.  Article 41 of the Convention provides:

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

A.  Damage

26.  Ms Glova claimed UAH 7,275 in respect of pecuniary and non-pecuniary damage. This amount comprises UAH 4,576 for the judgment debt, multiplied by 4.5 to cover inflation losses, and UAH 2,699 for non-pecuniary damage.

27.  Ms Bregin claimed UAH 9,000 in respect of pecuniary and non-pecuniary damage. This amount comprises UAH 7,177 for the judgment debt, multiplied by 4.5 times to cover inflation losses, and UAH 1,823 for non-pecuniary damage.

28.  The Government maintained that the applicants could have claimed compensation for inflation losses at the domestic level. They further contended that the applicants did not substantiate their claim for non-pecuniary damage.

29.  As regards the claims for compensation for inflations losses, in view to its findings in the instant case (see paragraph 15 above), the Court considers that the applicants were absolved from pursuing the litigation suggested by the Government. However, the Court notes that these claims are not supported by any documents which would enable the Court to determine the amount. Consequently, it rejects this part of the claim.

30.  In so far as the judgments in the applicants’ favour have not been enforced in full (paragraph 7 above), the Court considers that, if the Government were to pay the remaining judgment debts owed to Ms Glova and Ms Bregin, it would constitute full and final settlement of their claim for pecuniary damage.

B.  Costs and expenses

32.  The applicants did not submit any claim under this head. The Court therefore makes no award.

C.  Default interest

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

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Decides to join the applications;

2.  Declares the complaints concerning the non-enforcement of the judgments under Articles 6 § 1 and 13 of the Convention admissible, and the remainder of the applications inadmissible;

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

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

5.  Holds

(a)  that the respondent State is to pay Ms Glova, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the judgment debt still owed to her, as well as EUR 452 (four hundred and fifty-two euros) in respect of non-pecuniary damage;

(b)  that the respondent State is to pay Ms Bregin, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the judgment debt still owed to her, as well as EUR 305 (three hundred and five euros) in respect of non-pecuniary damage;

(c)  that the above amounts shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;

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

6.  Dismisses the remainder of the applicants’ claim for just satisfaction.

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


PROCEDURE

1.  The case originated in an application (no. 12047/05) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Baykal Kuveydar (“the applicant”), on 18 March 2005.

2.  The applicant was represented by Mr S. Dursun, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

3.  The applicant alleged that he had not had a fair trial, in that the domestic court had refused his request to have witnesses on his behalf examined. He also complained about his alleged ill-treatment during his time in police custody, the court’s use of his police statements, which, according to him, had been taken under duress, and its reliance on evidence obtained through third persons’ telephone conversations.

4.  On 31 August 2010 the application was communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1973 and is currently serving a prison sentence in Edirne.

6.  On 8 February 2001 a certain İ.Y. and his son M.Y., filed a complaint with the Bursa Public Prosecutor’s office, claiming that they had been threatened by members of a criminal organisation, including the applicant, who had acted under his boss, O.K., and that they had had to give them a substantial amount of money and property as a result.

7.  On 20 March 2001 the Public Prosecutor at the Istanbul State Security Court requested the Bursa Security Directorate to investigate the matter within the context of an investigation concerning a bigger criminal organisation.

8.  On 21 March 2001 police officers from the Bursa Security Directorate conducted a search at the applicant’s house, during which they found an unlicensed semi-automatic weapon. The applicant was immediately arrested after the search.

9.  Subsequently, he was taken to the Bursa Directorate of Forensic Medicine, where he was examined by a doctor who noted that there were no signs of ill-treatment on his body. He was placed in police custody on the same day.

10.  On 23 March 2001, following the extension of his police custody by two days, the applicant underwent another medical examination. The report drawn up after that examination noted the names of several persons who had also been arrested as part of the same investigation and indicated that no injury could be found on any of them.

11.  On 24 March 2001 the applicant gave his police statements. He described the course of the events in detail and stated that he and certain people that he worked with had visited İ.Y. and M.Y. at their homes several times in order to obtain money by threatening them.

12.  On 25 March 2001 the applicant’s police custody was extended and he was medically examined once again together with twenty-five others. The doctor who conducted the examination simply noted that there were no traces of ill-treatment on any of the persons he had examined. The day after, 26 March 2001, another doctor issued a report in respect of the same people, stating that none of them had any complaints and that he could find no signs of injury on their bodies.

13.  On 28 March 2001 the applicant went through a final medical examination before he was detained on remand. This time, a report specific to him was drawn up, stating that he had not put forward any physical or psychological complaints during the examination and that there was no indication of ill-treatment on his body. In his application form, the applicant maintained that the doctor had taken account of his submissions and examined his genitals, but had not been able to find any traces of the electric shocks administered to him.

14.  On the same day the applicant gave his statements before the Public Prosecutor at the Istanbul State Security Court. He reiterated his account of the events, but denied certain parts of his police statements, whereby he had admitted to being a member of a criminal organisation and having threatened İ.Y. He did not indicate anything with regard to his alleged illtreatment.

15.  On 21 June 2001 the Public Prosecutor filed an indictment with the Istanbul State Security Court, accusing the applicant of armed robbery, membership of a criminal organisation and illegally carrying weapons. After having explained in detail the composition and acts of a criminal organisation, the Public Prosecutor indicated that the applicant was a member of another organisation, which had threatened and extracted money from İ.Y., a member of the first one. In his recapitulation of the events, the Public Prosecutor mentioned a certain A.V.O., who he claimed to have been involved in the money transactions at issue and to have been threatened by that second criminal organisation. He requested the opening of criminal proceedings against a total of thirty-one people, accusing them of being members of two separate criminal organisations.

16.  On 13 September 2001, at the first hearing before the Istanbul State Security Court, İ.Y. stated in the absence of the applicant (who was unrepresented) that he had asked for help from the applicant’s boss, O.K., to sell some of his property in order to pay his debts and that he had paid him a certain amount in return. He claimed that after the transaction, the applicant had threatened him to obtain more money.

17.  At the second hearing, held on 6 December 2001, the applicant stated before the court that the indictment had not been served on him and that he had not fully understood the charges against him. After having described the events, he maintained that he and his boss had helped İ.Y. pay his debts and that he had just asked him to pay their share, without making any threats. He further retracted the previous statements he had made before the police and the Public Prosecutor. Finally, he argued that he had been subjected to ill-treatment while in police custody, without giving any details about his allegation.

18.  During the same hearing, M.Y. submitted that his father, İ.Y., had been threatened by the applicant. The applicant was not given an opportunity to comment on these submissions.

19.  On 9 April 2002 the Public Prosecutor submitted his written opinion to the Istanbul State Security Court. He stated that the telephones of two of the accused had been intercepted and that the conversations between them and with the applicant had revealed that the latter had threatened İ.Y. upon an order from O.K. In describing the events at issue, the Public Prosecutor once again maintained that A.V.O. had been involved in the transactions and had been threatened by fellow members of the applicant’s criminal organisation. He further indicated that the unfolding of the events had been corroborated by the statements of all of the accused, but that they had all denied having threatened İ.Y. and M.Y. Finally, relying on the telephone recordings and the statements of the other accused, the Public Prosecutor proposed that the applicant should be found guilty as charged.

20.  Subsequently, the applicant submitted his statements to the court, requesting the examination of two witnesses, A.V.O., who had been mentioned in the Public Prosecutor’s written opinion, and a certain İ.D.

21.  At the hearing on 3 September 2002 the Istanbul State Security Court rejected the request, finding that the examination of the witnesses called by the applicant would have no effect on the outcome of the proceedings. After making a summary of all of the defendants’ statements, the court found the applicant guilty as charged, and sentenced him to twenty years and ten months’ imprisonment and a judicial fine. In its reasoning, it stated that the applicant’s guilt had been established on the basis of an overall assessment of the evidence at its disposal, without specifying which particular evidence it relied on.

22.  The applicant appealed against the judgment, arguing that the court had failed to hear any witnesses on his behalf and that it had restricted his right to defend himself during the course of the proceedings, in that it had not taken account of any of his submissions.

23.  On 12 April 2004 the Court of Cassation upheld the judgment after holding a hearing, during which the applicant was not present.

24.  The applicant was not represented by a lawyer at any stage of the proceedings, including the appeal proceedings before the Court of Cassation.

25.  On 11 October 2004 a committal order concerning the execution of the applicant’s sentence was prepared. It was notified to the applicant by the prison administration on 13 October 2004.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

26.  The applicant complained under Article 3 of the Convention that he had been subjected to ill-treatment during his time in police custody. In that connection, he claimed that he had been blindfolded, beaten and subjected to Palestinian hanging and had received electric shocks to his genitals several times. He further alleged that the medical examinations had not been conducted diligently and that his complaints had not been taken into account by the domestic authorities.

27.  The Government submitted that the applicant had not exhausted the domestic remedies in that he had not brought a case before the administrative courts with regard to his allegations of ill-treatment. They further maintained that the applicant had failed to comply with the sixmonth time-limit, arguing that he should have brought his complaint under Article 3 before the Court within six months after 28 March 2001, the day his police custody had ended. Finally, they contended that the applicant had failed to substantiate his allegations as none of the medical reports drawn up in his respect had indicated any signs of ill-treatment on his body, and that he had not raised his allegations before the domestic authorities at any point except for the hearing held on 6 December 2001.

28.  At the outset, with regard to the Government’s reference to the administrative remedy, the Court reiterates that in the area of unlawful use of force by State agents – and not mere fault, omission or negligence –, civil or administrative proceedings aimed solely at awarding damages, rather than ensuring the identification and punishment of those responsible, are not adequate and effective remedies capable of providing redress for complaints based on the substantive aspect of Articles 2 and 3 of the Convention (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 227, ECHR 2014 (extracts), and Müftüoğlu and Others v. Turkey, nos. 34520/10 and 2 others, § 52, 28 February 2017).

29.  That being said, it considers that it is not necessary to examine further whether the applicant exhausted domestic remedies or complied with the six-month rule within the meaning of Article 35 § 1, since it considers in any event that this part of the application is inadmissible for the following reasons.

30.  The Court observes that during his time at police custody, the applicant underwent five medical examinations conducted by different doctors. None of the medical reports drawn up after those examinations indicated any signs of injury on the applicant. Although three of the reports were drafted for numerous people, the Court observes that the ones issued immediately before and on the last day of the applicant’s police custody concerned solely the applicant. In that respect, the Court has regard to the latter examination, during which the applicant submitted that the doctor had taken account of his allegations of having received electric shocks, but could not find any signs in support of those claims. It notes that the applicant has adduced no material which could call into question the findings in the medical reports and add probative weight to his allegations.

31.  The Court notes furthermore that the applicant did not raise the matter before the Public Prosecutor and did so only at the first hearing he attended before the Istanbul State Security Court, and without specifying his complaint. He did not bring his complaint before the domestic authorities at the subsequent stages of the proceedings either.

32.  Consequently, the Court finds that the applicant has failed to substantiate his allegations of ill-treatment. Moreover, in the absence of an “arguable claim” and any evidence on which to start an investigation about the applicant’s allegations, there is nothing to call into question the manner in which the domestic judicial authorities acted in that regard (see Soysal v. Turkey, no. 50091/99, § 52, 3 May 2007).

33.  It follows that the applicant’s complaint under Article 3 of the Convention is manifestly ill-founded pursuant to Article 35 § 3 and 4.

II.  ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION

34.  The applicant complained that the criminal proceedings against him had been unfair because he had been deprived of an opportunity to prove his defence and had not been able to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him, as provided in Article 6 §§ 1 and 3 (d) of the Convention, which reads as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

...

3.  Everyone charged with a criminal offence has the following minimum rights

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ... .”

A.  Admissibility

35.  The Government argued that the applicant had not complied with the sixmonth time-limit in that he should have lodged the application with the Court within six months after 12 April 2004, the date on which the Court of Cassation rendered the final decision with regard to the applicant’s conviction.

36.  The Court observes that on 12 April 2004 the Court of Cassation held a hearing and upheld the judgment of the Istanbul State Security Court. The applicant was not present during the hearing. Nor was he represented by a lawyer.

37.  The Court reiterates that where an applicant is entitled to be served ex officio with a written copy of the final domestic decision, the object and purpose of Article 35 § 1 of the Convention are best served by counting the sixmonth period as running from the date of service of the written judgment. The Court notes that, by virtue of Law no. 7201 on notifications, the prison administration is responsible for informing detainees of the outcome of their cases, particularly the final determination of any sentence of imprisonment. Consequently, taking into account that the applicant was not present at the hearing held by the Court of Cassation and did not benefit from any legal assistance during the course of the proceedings, the Court finds that the aim of Article 35 § 1 of the Convention is met by calculating the running of the six month period from 13 October 2004, the date on which he received the committal order. As the application was lodged on 18 March 2005, within six months following that date, the Court dismisses the Government’s objection under this head (see Töre v Turkey (dec.), no. 50744/99, 10 June 2004, and Karabulut v. Turkey, no. 56015/00, § 38, 24 January 2008).

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

B.  Merits

39.  The applicant reiterated his complaint and submitted that his sentence could have been significantly reduced had the court heard the witnesses on his behalf, in that their statements would have proved that he had not committed armed robbery.

40.  The Government argued that there had been no violation of the applicant’s right to a fair trial in that the domestic court had evaluated the facts and evidence at its disposal in line with the domestic legislation and had respected the applicant’s defence rights at every stage of the proceedings. Referring to the Court’s Georgios Papageorgiou v. Greece judgment (no. 59506/00, ECHR 2003VI (extracts)), they indicated that it was for the national courts, and in particular the court of first instance, to assess the evidence before them as well as the relevance of the evidence which the accused sought to adduce.

41.  The Court reiterates that the right to call witnesses is not absolute and can be limited in the interests of the proper administration of justice. Article 6 § 3 (d) does not require the attendance and examination of every witness on the accused’s behalf. Its essential aim, as is indicated by the words “under the same conditions”, is full “equality of arms” in the matter. With this proviso, it leaves it to the competent national authorities to decide upon the relevance of proposed evidence, in so far as this is compatible with the concept of a fair trial, which dominates the whole of Article 6 (see Engel and Others v. the Netherlands, 8 June 1976, § 91, Series A no. 22; Polyakov v. Russia, no. 77018/01, § 31, 29 January 2009; and Gregačević v. Croatia, no. 58331/09, § 60, 10 July 2012).

42.  The Court notes that it is not sufficient for a defendant to ask for certain witnesses to be questioned; he must, in addition, support his request by explaining why it is important for the witnesses concerned to be heard and their evidence must be necessary for the establishment of the truth (see Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003V). Thus, when the applicant has made a request to hear witnesses which is not vexatious, and which is sufficiently reasoned, relevant to the subject matter of the accusation and could arguably have strengthened the position of the defence or even led to the applicant’s acquittal, the domestic authorities must provide relevant reasons for dismissing such a request (see Polyakov, cited above, §§ 34-35; Topić v. Croatia, no. 51355/10, § 42, 10 October 2013; and Poropat v. Slovenia, no. 21668/12, § 42, 9 May 2017).

43.  While it is true that the applicant did not request the examination of witnesses on his behalf until the last hearing held on 3 September 2002, asking the court to hear A.V.O. and İ.D. just before that date, the Court considers, in view of his inability to have access to the indictment mentioning the former (see paragraph 17 above), that he could only do so following the submission of the Public Prosecutor’s written opinion which described A.V.O.’s role in the events (see paragraph 19 above). It cannot therefore be claimed that the applicant’s request to have examined witnesses in his defence was vexatious or that he made no reasonable effort to obtain their attendance.

44.  The Court observes that the Istanbul State Security Court rejected the applicant’s request by merely stating that the examination of the witnesses called by the applicant would have no effect on the outcome of the proceedings, which cannot be considered a reasoned decision in itself (see Topić, cited above, § 47). Furthermore, the Court of Cassation did not address the applicant’s argument concerning the trial court’s refusal to call witnesses.

45.  The Court notes that it is not clear from the case-file whether the applicant adequately reasoned his request to have A.V.O. and İ.D. heard by explaining the relevance and importance of those witnesses for the assessment of the case against him. Nevertheless, it observes that the applicant was not represented by a lawyer at any stage of the proceedings, and hence, did not benefit from any legal assistance when he requested the attendance of the two witnesses in criminal proceedings where he faced serious charges and the risk of a heavy criminal penalty. In this connection, the Court finds it noteworthy that A.V.O.’s involvement in the events was considered sufficiently significant by the Public Prosecutor at the Istanbul State Security Court, who mentioned him in both the bill of indictment of 21 June 2001 and his written opinion of 9 April 2002 (see paragraphs 15 and 19 above). Having regard to the prosecution’s recognition of the relevance of that witness (see, mutatis mutandis, Pello v. Estonia, no. 11423/03, § 33, 12 April 2007, where the relevance of the evidence concerned for the establishment of the truth had been recognised both in the bill of indictment and by the County Court), the Court considers that the State Security Court should have evaluated the applicant’s request to have A.V.O. heard by addressing the potential effects of his testimony and should have given reasons for its exclusion. However, it failed to do so and simply rejected the applicant’s request by indicating that the examination of the witnesses called by him would have no effect on the outcome of the proceedings (see paragraph 21 above). The applicant’s arguments in that regard were not taken into account by the Court of Cassation either.

46.  Even though the Court cannot speculate as to what extent an examination of the two witnesses would have strengthened the position of the defence, it considers that the equality between the prosecution and the defence must prevail throughout the trial. The circumstances of the case thus required that the applicant be given an opportunity to examine or have examined one or more witnesses of his choice (see Vaturi v. France, no. 75699/01, § 58, 13 April 2006, and Băcanu and SC « R » S.A. v. Romania, no. 4411/04, § 81, 3 March 2009). The Court therefore concludes that the constraints affecting the rights of the defence in the present case were such that the applicant cannot be said to have received a fair trial.

47.  There has therefore been a violation of Article 6 §§ 1 and 3 (d) of the Convention.

III.  OTHER ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION

48.  The applicant further complained under Article 6 § 1 of the Convention that he had been denied a fair hearing in that the domestic court had taken into account unlawful evidence, gathered through other persons’ conversations, without there being a decision to intercept his telephone conversations. He also argued that his police statements had been taken under duress and that their use by the trial court in his conviction violated his right to a fair trial.

49.  Having regard to its finding of a violation under Article 6 §§ 1 and 6 (d) of the Convention (see paragraph 47 above), the Court considers that there is no need to make a separate ruling on the admissibility and merits of the applicant’s remaining complaints with regard to the fairness of the proceedings (see Sadak and Others v. Turkey (no. 1), nos. 29900/96 and 3 others, § 69, ECHR 2001VIII, and Abdulgafur Batmaz v. Turkey, no. 44023/09, § 54, 24 May 2016).

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

50.  Article 41 of the Convention provides:

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

A.  Damage

51.  The applicant claimed 148,900 euros (EUR) in respect of pecuniary damage and EUR 75,000 in respect of non-pecuniary damage.

52.  The Government contested these claims, considering the requested amounts unsubstantiated and excessive.

53.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant must have suffered pain and distress which cannot be compensated solely by the Court’s finding of a violation. Ruling on an equitable basis, it awards him EUR 1,500 in respect of nonpecuniary damage (see Balta and Demir v. Turkey, no. 48628/12, § 69, 23 June 2015).

54.  The Court further notes that Article 311 of the Code of Criminal Procedure allows for the reopening of the domestic proceedings in the event that the Court finds a violation of the Convention (see Balta and Demir, cited above, § 70).

B.  Costs and expenses

55.  The applicant also claimed EUR 3,000 for the costs and expenses and EUR 8,000 for his lawyer’s fee.

56.  The Government contested these amounts and submitted that the applicant had failed to support his claims with documentary evidence.

57.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant did not submit any contracts, receipts or other vouchers on the basis of which a specific amount could be established. Accordingly, the Court does not make any award under this head.

C.  Default interest

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the complaint under Article 6 §§ 1 and 3 (d) of the Convention admissible and the complaint under Article 3 of the Convention inadmissible;

2.  Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention;

3.  Holds that there is no need to examine the other complaints under Article 6 of the Convention;

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of settlement;

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

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

Done in English, and notified in writing on 19 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 9244/02) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Kenan Tandoğan (“the applicant”), on 31 July 2001.

2.  The applicant was represented by Mr and Mrs Kırdök, lawyers practising in . The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

3.  On 17 November 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1973 and lives in .

5.  On 31 March 1994 the applicant was taken into custody by police officers from the anti-terror branch of the Istanbul Security Directorate on suspicion of membership of an illegal organisation, the Dev-Sol (Revolutionary Left).

6.  On 9 April 1994 the applicant was brought before the  and remanded in custody. He was placed in Ümraniye Prison.

7.  On 2 May 1994 the public prosecutor at the  filed a bill of indictment against the applicant and nine other persons. The public prosecutor charged the applicant with attempting to undermine the constitutional order, an offence defined under Article 146 of the Criminal Code.

8.  Subsequently, the case brought against the applicant was joined with another case pending before the .

9.  Following the riots in the Ümraniye Prison to protest against F-Type prisons, in December 2000 the applicant was sent to Kandıra F-type Prison.

10.  On 25 December 2000 in connection with the incidents that took place in the Ümraniye Prison, the judge at the Üsküdar Magistrate's Court ordered the applicant's detention on remand in absentia. In the detention order, it was stated that the applicant was accused of homicide, armed riot against prison administration and damaging prison property.

11.  On 12 January 2001 the applicant was brought before the Kandıra Magistrate's Court and the detention order dated 25 December 2000 was read out to him. He was also reminded that he could appeal against this decision before the .

12.  On 23 March 2001 the Üsküdar public prosecutor filed a bill of indictment with the  against the applicant and 398 other persons on account of the incidents in Ümraniye Prison. The prosecutor requested the court to convict the accused persons under Articles 264, 304, 450, 456 and 457 of the Criminal Code of homicide, of having started a riot in the prison and of damage to public property.

13.  In the meantime, on 9 February 2001, the  ordered the applicant's release pending trial within the context of the proceedings brought against him with the charge under Article 146 of the Criminal Code. However, he was not released as his detention on remand had been ordered on 25 December 2000 in connection with the incidents in the Ümraniye Prison.

14.  On 14 February 2001 the applicant filed a petition with the Üsküdar Magistrates' Court. In his petition, he maintained that, although his release had been ordered by the state security court, he was not released and that he assumed that the reason for his continued detention was the Üsküdar Magistrate's Court's detention order. The applicant contended that he was not aware of the reasons for this order and requested to be brought before a court and to be released.

15.  On 6 July 2001 the  held its first hearing and ordered the release of the applicant –together with twelve other accused- pending trial.

16.  On 7 July 2001 at around 8.30 p.m. the applicant was released from prison.

17.  In 2004 the State Security Courts were abolished following a constitutional amendment and the applicant's case before the  was transferred to the .

18.  On 27 October 2004 the  held that, since the applicant was a minor when the crimes in question had been committed, the case should be examined by the Istanbul Juvenile Court. It accordingly declared non-jurisdiction.

19.  On 14 November 2006 the  held its first hearing and decided that it lacked jurisdiction to examine the case. The case was accordingly remitted before the Court of Cassation to determine which court had jurisdiction to examine the case.

20.  According to the information in the case file based on the latest submissions by the parties, the case is apparently still pending before the Court of Cassation.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

In respect of the applicant's first detention on remand

21.  The applicant complained that his detention on remand exceeded the “reasonable time” requirement of Article 5 § 3 of the Convention, which in so far as relevant reads as follows:

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

22.  The Government contested that argument.

A.  Admissibility

23.  The Government argued that the applicant has not exhausted the domestic remedies as he had not awaited the outcome of the proceedings before the domestic courts before lodging his application with the Court. In their view, if the applicant were to be acquitted at the end of the proceedings, he could request compensation pursuant to Law No. 466 on the Payment of Compensation to Persons Unlawfully Arrested or Detained.

24.  In the instant case, the applicant complained under Article 5 § 3 of the Convention that the length of his detention on remand had been excessive.

25.  The Court has already held that Law No. 466, which provides for an action for damages taken against the State in respect of the detention of a person who is subsequently acquitted, concerns Article 5 § 5 only (see, among many others, Yağcı and Sargın v. Turkey, judgment of 8 June 1995, Series A no. 319-A, § 44). Therefore, the compensation which could be awarded to the applicant, if he were to be acquitted at the end of the proceedings, cannot be considered to constitute recognition of or a redress for the specific violation alleged by the applicant, namely the excessive length of his detention on remand (see Duyum v. , no. 57963/00, § 58, 27 March 2007).

26.  The Court accordingly dismisses the Government's objection.

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

B.  Merits

28.  The Court notes that, in the instant case, the period to be taken into consideration began on 31 March 1994 with the applicant's arrest and ended on 9 February 2001, when the  ordered his release. It thus lasted approximately 6 years and 10 months. During this period, the domestic courts prolonged the applicant's detention on remand using identical, stereotyped terms, such as “having regard to the nature of the offence, the state of evidence and the duration of detention”.

29.  The Court has frequently found violations of Article 5 § 3 of the Convention in cases raising similar issues to those in the present application (see, for example, Atıcı v. Turkey, no. 19735/02, 10 May 2007; Solmaz, cited above; Dereci v. Turkey, no. 77845/01, 24 May 2005; Taciroğlu v. , no. 25324/02, 2 February 2006).

30.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, it considers that in the instant case the length of the applicant's pre-trial detention was excessive and contravened Article 5 § 3 of the Convention.

31.  There has accordingly been a violation of this provision.

In respect of the applicant's second detention on remand

A.  As regards the applicant's complaint raised under Article 5 § 2

32.  The applicant complained that he was not informed of the reasons of his second detention on remand and of the charges against him.

33.   The Government maintained that the applicant's allegation that he had not been informed of the reasons of his detention on remand and of the charges against him was unsubstantiated. They stated that the applicant was informed of the reasons of his detention on remand and the charges against him on 12 January 2001 when the Kandıra Magistrate's Court judge read out to him the content of the detention order dated 25 December 2000.

34. The Court recalls that, by virtue of Article 5 § 2, any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4. Whilst this information must be conveyed “promptly”, it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see, for instance, H.B. v. Switzerland, no. 26899/95, § 44, 5 April 2001).

35.  In the present case, following the incidents that took place in the Ümraniye Prison in December 2000, the applicant was accused of homicide, of participating in a riot and of damaging prison property. On 25 December 2000 the Üsküdar Magistrate's Court ordered his detention on remand in abstentia. In the meantime, the applicant was transferred from Ümraniye Prison to Kandıra Prison. On 12 January 2001 when the applicant was brought before the Kandıra Magistrate's Court, the detention order dated 25 December 2000 was read out to him. This detention order indicated that he was accused of homicide, armed riot against prison administration and damaging prison property.

36.  The Court notes that when the Üsküdar Magistrate's Court delivered the detention order on 25 December 2000, the applicant was already detained on remand in the Ümraniye Prison. In the Court's view, the authorities therefore had the possibility of providing his presence before the domestic court when delivering the detention order. However, in the context of this case, the Court finds that the detention order was read out to the applicant on 12 January 2001 and it indicated the essential ground for his detention. As a result, the information furnished to the applicant by the Kandıra Magistrate's Court satisfied the requirements of Article 5 § 2.

37.  It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

B.  As regards the applicant's release following the release order dated 6 July 2001

38.  The applicant complained under Article 5 § 1 that he had been unlawfully and arbitrarily kept in detention for twenty eight hours between the end of the trial on 6 July 2001 at about 4 p.m. and his release on 7 July 2001 at about 8.30 p.m. Article 5 § 1, in so far as relevant, reads as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)  the lawful detention of a person after conviction by a competent court;

(b)  the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...”

39.  The Government argued that the period of time in question had been normal, in view of the fact that there were several administrative formalities that had to be carried out before the applicant's release. Before releasing the applicant, the authorities had to verify whether he was wanted for another crime or whether there was another detention order against him. They further maintained that the authorities had not acted arbitrarily or deliberately delayed the applicant's release.

40. The Court reiterates that the list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his or her liberty (see, among other authorities, the Giulia Manzoni v. Italy judgment of 1 July 1997, Reports 1997-IV, p. 1191, § 25).

41.  While it is true that for the purposes of Article 5 § 1 (c) detention ceases to be justified “on the day on which the charge is determined” and that, consequently, detention after acquittal is no longer covered by that provision, “some delay in carrying out a decision to release a detainee is often inevitable, although it must be kept to a minimum” (see the Giulia Manzoni, cited above, § 25 in fine). However, the Court must, scrutinise complaints of delays in release of detainees with particular vigilance. It is incumbent on the respondent Government to provide a detailed account of the relevant facts (see, Labita v. Italy ([GC], no. 26772/95, ECHR 2000-IV, § 170 and Bojinov v. , no. 47799/99, § 36, 28 October 2004).

42.  The Government stated that the delay in the applicant's release had been caused due to administrative formalities. The Court reiterates that administrative formalities connected with release cannot justify a delay of more than several hours (see, Nikolov v. , no. 38884/97, § 82, 30 January 2003). In the present case, the applicant was released nearly twenty eight hours after the 's release order. In the absence of a strict account of the relevant events, hour by hour, the Government's contention that the delay in the applicant's release had been justified cannot be upheld (Bojinov, cited above, § 39).

43.  In these circumstances, the applicant's continued detention following the release order did not amount to a first step in the execution of the order for his release and therefore did not come within subparagraph 1 (c), or any other sub-paragraph, of Article 5.

44.  Accordingly, there has been a violation of Article 5 § 1 on that account.

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

45.  The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings brought against him. Article 6 § 1 provides as relevant:

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

46.  The Government contested that allegation.

47.  The Court notes that the period to be taken into consideration began on 31 March 1994 when the applicant was taken into police custody and, according to the information in the case file, the proceedings are still pending before the Court of Cassation on the date of adoption of the present judgment. They have thus lasted over thirteen years.

A.  Admissibility

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

B.  Merits

49.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II)

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

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

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

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

52.  Article 41 of the Convention provides:

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

A.  Damage

53.  The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage.

54.  The Government contested this claim.

55.  Ruling on an equitable basis, the Court awards the applicant EUR 13,500 in respect of non-pecuniary compensation.

B.  Costs and expenses

56.  The applicant also claimed 250 New Turkish liras (YTL)
 - approximately EUR 140 - in respect of costs and expenses, and YTL 10,200 - approximately EUR 5,700 - in respect of lawyers' fees.

57.  The Government contested these claims.

C.  Default interest

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

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the complaints raised under Article 5 §§ 3 and 1, and Article 6 § 1 admissible and the remainder of the application inadmissible;

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

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

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

5.  Holds

(a)  that the respondent State is to pay the applicant within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into New Turkish liras at the rate applicable at the date of settlement and free of any taxes or charges that may be payable:

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

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

Done in English, and notified in writing on 20 September 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 29483/09) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Semir Güzel (“the applicant”), on 6 May 2009.

2.  The applicant was represented by Mr M. Beştaş and Ms M. Danış Beştaş, lawyers practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent.

3.  On 7 January 2014 the complaint concerning alleged interference with the applicant’s right to freedom of expression and of assembly was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1968 and lives in Diyarbakır.

5.  At the time of the events in question the applicant was the vicepresident of HAK-PAR (Hak ve Özgürlükler Partisi – the Rights and Freedoms Party).

6.  On 4 January 2004 the party held its first ordinary congress at a restaurant in Ankara, where the applicant was elected by the delegates to act as the meeting’s chairman.

7.  On 28 February 2005 a public prosecutor at the Ankara public prosecutor’s office filed an indictment with the Ankara Criminal Court of First Instance against thirteen members of HAK-PAR, including the applicant, for acting in violation of section 81 (c) of Law no. 2820 during the congress on the grounds, inter alia, that there had been banners in Kurdish and that most of the speeches given by the delegates had been in Kurdish.

8.  The applicant acknowledged before the first-instance court that he had not intervened as the chairman when certain delegates had spoken in Kurdish. In this connection, he submitted that, as a founder member of HAKPAR, he believed that Kurdish should be used in all areas of life; that those who spoke Kurdish were speaking in their mother tongue; and that he believed that it was neither legal nor ethical for him to intervene to force people to speak in a language other than their mother tongue. He maintained that such speeches could not have constituted an offence, when taking into account laws that had been enacted in compliance with the conditions for membership of the European Union, and the provisions of the European Convention on Human Rights. In this connection, the applicant also submitted that the relevant provisions of Law no. 2820 were contrary to the Constitution.

9.  On 7 December 2005 the first-instance court dismissed an application from the defendants to suspend the proceedings and transfer the case to the Constitutional Court for examination of the compatibility of the relevant provisions with the Constitution.

10.  On 14 February 2007 the Ankara Criminal Court of First Instance convicted the applicant of the charges. In particular, the court considered that the applicant had, despite warnings from a government superintendent present at the congress, continued to allow certain delegates to give their speeches in Kurdish, in breach of section 81 (c) of Law no. 2820. The applicant was sentenced to one year’s imprisonment.

11.  On 23 March 2011 the Court of Cassation quashed the judgment of the first-instance court on the ground that the latter had failed to give any consideration to whether the conditions for suspending the delivery of the judgment against the defendants, pursuant to Article 231 of the Code of Criminal Procedure, had been met.

12.  On 6 December 2011 the Ankara Criminal Court of First Instance ordered that the criminal proceedings against the applicant and the other defendants be terminated, on the ground that the statutory time-limit prescribed under domestic law had expired.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

13.  Section 81 (c) of Law no. 2820 on the regulation of political parties (published in the Official Gazette of 24 April 1983) reads as follows:

“Political parties

(c)  cannot use a language other than Turkish when writing and printing party constitutions or programmes, at their congresses and open-air or indoor meetings, and while engaged in propaganda activities; they cannot use or distribute placards, phonograph recordings, audio and video tapes, brochures and statements written in a language other than Turkish; they cannot remain indifferent to such actions and acts when committed by others. However, it is possible to translate party statutes and programmes into foreign languages other than those forbidden by law.”

14.  At the material time, section 117 of Law no. 2820 provided for a minimum of six months’ imprisonment for those who committed acts prohibited by Chapter IV of Law no. 2820.

15.  On 12 January 2012 the Constitutional Court declared section 117 unconstitutional and abrogated it (merits no: 2011/62, decision no: 2012/2). In its decision, the Constitutional Court held, inter alia, that the ban laid down in sections 78-96 of the law in question applied to political parties, which were legal entities. However, those provisions, by virtue of the application of section 117, were found to be also applicable to individuals. The court considered that the prosecution of individuals for acts prohibited for political parties was in violation of the principle of legal certainty relating to crimes and penalties, as set forth in Article 38 of the Constitution. In particular, it considered that it was unclear which of the prohibitions laid out in Chapter IV of the Law could be applicable to individuals. It noted that the sanction to be applied was indiscriminate in that no distinction was made as to the status or position of a person within a political party. The Court therefore held that such provisions, which left a wide range of people engaging in political activities facing the threat of a criminal penalty, without differentiating between them, were not sufficiently foreseeable for individuals.

16.  The aforementioned decision was published in the Official Gazette on 5 July 2012 and took effect on 5 January 2013.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION

17.  The applicant complained that he had been tried and convicted because he had failed to prevent some of the delegates at a meeting of a political party which he was chairing from speaking Kurdish, their mother tongue, instead of Turkish. He alleged that this was a breach of his rights under Articles 10 and 11 of the Convention,

18.  The Court deems it appropriate to examine the complaint solely from the standpoint of Article 10 of the Convention, which reads as follows:

“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ...

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime ....”

A.  Admissibility

19.  The Government argued that the applicant was not a victim within the meaning of Article 34 of the Convention because the criminal proceedings initiated against him had subsequently been discontinued on the ground that they had become time-barred. Accordingly, they requested that the Court declare the application incompatible ratione personae with the provisions of the Convention and reject the application.

.  The applicant did not specifically address this point in his observations.

.  The Court considers that the Government’s objection concerning the applicant’s victim status is inextricably linked to its examination of the question whether there has been an interference with the applicant’s right to freedom of expression under Article 10, and therefore to the merits of the case. Accordingly, the Court joins this question to the merits (see, for example, Altuğ Taner Akçam v. Turkey, no. 27520/07, § 51, 25 October 2011, and Dilipak v. Turkey, no. 29680/05, § 38, 15 September 2015).

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

B.  Merits

1.  The parties’ observations

23.  The applicant maintained his allegations. In his observations, he observed, in particular, that the object of section 81 (c) of Law no. 2820 was to prevent the creation of minorities, and that therefore it did not cover the language of an existing minority, the Kurds. He further submitted that the mere fact that certain delegates at the party meeting spoke in Kurdish could not be construed as having served the aim of creating a minority. The applicant insisted that the relevant provisions of Law no. 2820 were incompatible with the Constitution and the Treaty of Lausanne. He maintained that the content of the speeches had been within the scope of freedom of expression and that the mere fact that the party delegates had chosen to speak in a language which had been better understood by most of the participants at the meeting was not in breach of the Constitution or international treaties. In this connection, the applicant emphasised that HAKPAR was a party representing Kurds. He was of the view that the interference with his rights and freedoms resulted from a desire to prevent Kurds from using their own language and, thus, to diminish Kurdish culture and language.

24.  The Government drew the Court’s attention to the Constitutional Court decision of 12 January 2012 (see paragraph 15 above). They submitted that a breach of section 81 (c) of Law no. 2820 no longer constituted an offence. In support of their argument they submitted copies of two Court of Cassation judgments.

25.  As to the merits, the Government submitted that section 117 of Law no. 2820 constituted the legal basis for the initial sentence imposed on the applicant and that this interference pursued “legitimate aims”, such as the protection of national security, territorial integrity or public safety, or the prevention of disorder or crime, within the meaning of Article 10 § 2 of the Convention. The Government relied on cases such as Zana v. Turkey (25 November 1997, § 50, Reports of Judgments and Decisions 1997VII); Karataş v. Turkey ([GC], no. 23168/94, § 44, ECHR 1999IV); and Sürek v. Turkey (no. 1) ([GC], no. 26682/95, § 52, ECHR 1999IV). The Government left it to the Court to assess whether the interference in question was “necessary in a democratic society”.

2.  The Court’s assessment

26.  The Court reiterates that any question of an alleged interference with an applicant’s right to freedom of expression hinges upon the prior establishment of whether the applicant has been directly affected by a measure which renders him a victim of a violation of his rights under Article 10 of the Convention (see Altuğ Taner Akçam, cited above, § 65).

27.  It further reiterates that Article 10 of the Convention protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see, among other authorities, Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06, and 28964/06, § 53, ECHR 2011). Indeed, a review of the Court’s case-law shows that Article 10 of the Convention has been held to be applicable not only to the more common forms of expression, such as speeches and written texts, but also to other and less obvious media through which people sometimes choose to convey their opinions, messages, ideas and criticisms (see, in particular, Murat Vural v. Turkey, no. 9540/07, § 44, 21 October 2014, and the examples provided therein in §§ 45-51). Moreover, in certain circumstances, the Convention organs have also considered that the right to freedom of expression by implication also guarantees a “negative right” not to be compelled to express oneself (see, for example, K v. Austria, no. 16002/90, Commission Report of 13 October 1992, § 45; Strohal v. Austria, no. 20871/92, Commission decision of 7 April 1994; and a contrario, Gillberg v. Sweden [GC], no. 41723/06, §§ 86 and 94, 3 April 2012). Thus, an assessment of whether an impugned form of conduct falls within the scope of Article 10 of the Convention should not be restrictive, but inclusive (see, Murat Vural, cited above, § 52).

.  In the light of its case-law, the Court considers that, in deciding whether a certain act or form of conduct falls within the ambit of Article 10 of the Convention, an assessment must be made of the nature of the act or conduct in question, in particular of its expressive character seen from an objective point of view, as well as of the purpose or the intention of the person performing the act or engaging in the conduct in question (ibid., § 54).

.  In the instant case, the Court notes that criminal proceedings were initiated against the applicant, the vice-president of a political party and the chairperson of a congress of the party in question, for not preventing some of the delegates from speaking Kurdish, in breach of section 81 (c) of Law no. 2820. The applicant acted in this way despite warnings from a government superintendent, which, from an objective point of view, may be seen as an expressive act of defiance towards an authority representing the State. Furthermore, the Court notes that in the course of the criminal proceedings against him the applicant made it very clear that he had not used his power as chairperson to intervene when certain delegates spoke in Kurdish because of his view that Kurdish should be used in all areas of life; that those who spoke Kurdish were speaking in their mother tongue; and that he believed that it was neither legal nor ethical for him to intervene and to force people to speak in a language other than their mother tongue. In the light of the foregoing, the Court concludes that through his particular conduct the applicant exercised his right to freedom of expression within the meaning of Article 10 of the Convention (see, in the context of Article 11 read in the light of Article 10, Ezelin v. France, 26 April 1991, § 41, Series A no. 202). That provision is thus applicable in the present case.

.  The Court further observes that the applicant was charged under section 117 of Law no. 2820 and sentenced by the firstinstance court to one year’s imprisonment. The criminal proceedings against the applicant were subsequently terminated on the ground that the statutory time-limit prescribed under domestic law had expired and the conviction therefore no longer stood. However, the applicant, an active politician, continued to face the threat of a criminal sanction, entailing a prison sentence, for nearly seven years during the course of the criminal proceedings. Moreover, during the same lengthy period, he was also left in incertitude as to whether or not he ran the risk of new set of criminal proceedings being instituted against him for similar offences, that is not preventing the use of the Kurdish language in the contexts of meetings of a political party, if he was elected to act as a chairman in political party meetings. In view of the above, the Court considers that the application of the prohibition contained in section 81 (c) of Law no. 2820 at the material time amounted to interference with the right to freedom of expression of such a nature that it directly affected the applicant (see, mutatis mutandis, Dilipak, cited above, § 49).

.  For the above reasons, the Court dismisses the Government’s preliminary objection concerning the applicant’s alleged lack of victim status.

32.  Such an interference will contravene Article 10 of the Convention unless it is “prescribed by law”, pursues one or more of the legitimate aims prescribed by paragraph 2 of Article 10, and is “necessary in a democratic society” for achieving such an aim or aims.

33.  The Court reiterates that the expression “prescribed by law”, within the meaning of Article 10 § 2, requires firstly that the impugned measure should have some basis in domestic law; however, it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences, and that it should be compatible with the rule of law (see, among other authorities, Dink v. Turkey, nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, § 114, 14 September 2010).

34.  One of the requirements flowing from the expression “prescribed by law” is foreseeability. Thus, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable citizens to regulate their conduct; they must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 141, ECHR 2012, and Delfi AS v. Estonia [GC], no. 64569/09, § 121, ECHR 2015). Such consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable (see Perinçek v. Switzerland [GC], no. 27510/08, § 131, 15 October 2015).Whilst certainty is highly desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see, for example, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007IV).

35.  As regards accessibility, the Court notes that the provisions in question satisfied this condition, as Law no. 2820 on the regulation of political parties had been published in the Official Gazette of 24 April 1983.

36.  On the issue of foreseeability, the Court observes that the wording of section 81 (c) of Law no. 2820 created a blanket prohibition on the use by political parties of any language other than Turkish for their constitutions or programmes, at congresses and meetings and whilst engaging in propaganda activities. It further held that “they cannot remain indifferent to such actions and acts when committed by others”. Section 117 of Law no. 2820 provided for a minimum six-month prison sentence for anyone who performed acts prohibited by section 81 (c) of Law no. 2820.

37.  The Court observes that the Constitutional Court subsequently declared section 117 unconstitutional and abrogated it. The Constitutional Court found that the prosecution of individuals for carrying out acts prohibited for political parties was in violation of the principle that crimes and punishments should be prescribed by law, as laid out in Article 38 of the Constitution.

38.  Although requested by the Court to do so, the Government have failed to submit any examples of domestic judicial cases showing how the provisions applicable at the material time were interpreted.

39.  In view of the above, the Court finds section 81 (c) of Law no. 2820 to be far from precise as to what type of inaction could form a basis for criminal prosecution and to whom it would apply. Accordingly, it considers that the wording of section 81 of Law no. 2820 was not clear enough to have enabled the applicant to foresee that he would face criminal proceedings, pursuant to section 117 of Law no. 2820, owing to his failure to intervene when certain delegates gave speeches in Kurdish when he was acting as the chairman of the general congress of his political party.

40.  Accordingly, the interference with the applicant’s freedom of expression was not prescribed by law. That being so, the Court is not required to determine whether this interference pursued a legitimate aim or whether it was proportionate to the aim pursued.

41.  The Court concludes, therefore, that there has been a violation of Article 10 of the Convention.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

42.  Article 41 of the Convention provides:

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

A.  Damage

43.  The applicant claimed an award in respect of pecuniary damage, the amount of which he left to the discretion of the Court, as a result of the lengthy criminal proceedings initiated against him. He further claimed 60,000 Turkish liras (TRY) (approximately 20,800 euros (EUR)) in respect of non-pecuniary damage incurred as a result of breaches of Articles 6, 10 and 11 of the Convention and Article 3 of Protocol No.1.

44.  The Government invited the Court not to make an award in respect of pecuniary damage because they considered that the applicant had not made any claims for a determined amount. They left it to the Court’s discretion whether to make an award to the applicant in respect of non-pecuniary damage.

45.  The Court, in the absence of any further elaboration by the applicant, does not discern any causal link between the violation found and any pecuniary damage and therefore does not make any award for pecuniary damage.

46.  It finds, however, that he must have suffered pain and distress which cannot be compensated for solely by the Court’s finding of a violation. Having regard to the nature of the violation found, the Court finds it appropriate to award him EUR 7,500 in respect of non-pecuniary damage.

B.  Costs and expenses

47.  The applicant claimed TRY 12,000 (approximately EUR 4,166) for costs and expenses incurred before the domestic courts and the Court, including lawyers’ fees. In support of his claims, the applicant submitted a breakdown of the hours spent by his lawyers in representing him before the domestic courts and the Court. The sums were calculated in accordance with the fee scales recommended by the Diyarbakır Bar Association.

48.  The Government contested these claims, submitting that the requested amounts were unsubstantiated.

49.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant has not demonstrated that he has actually incurred these costs and expenses before the domestic courts. It therefore rejects his claims under this head.

.  As to the costs and expenses incurred before the Court, regard being had to the detailed schedule of costs prepared by his lawyer and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000.

C.  Default interest

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Joins to the merits the Government’s objection regarding victim status and dismisses it;

2.  Declares the application admissible;

3.  Holds that there has been a violation of Article 10 of the Convention;

4.  Holds

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

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

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

Done in English, and notified in writing on 13 September 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 43664/16) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Tatyana Vladimirovna Shmeleva (“the applicant”), on 25 July 2016.

2.  The applicant was represented by Mr I. Sharapov, a lawyer practising in Moscow. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3.  The applicant alleged that her son had died as a result of torture inflicted on him in police custody, and that there had been no effective investigation in this respect.

4.  On 30 August 2016 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1958 and lives in St Petersburg. She is the mother of the late Mr Denis Aleksandrovich Vyrzhikovskiy.

6.  On 1 October 2010 police officers apprehended the applicant’s son and his friend, Ms Z. and took them to the Moskovskiy District Department of the Interior of St Petersburg (УВД по Московскому району г. СанктПетербурга). No record of their arrest was drawn up.

7.  For approximately six hours the applicant’s son was ill-treated by police officers He was repeatedly punched in the stomach and hit to the head, right palm and both calves. He was also subjected to the so-called “swallow” method of torture (“ласточка”), with his head, hands and legs being pulled together towards the spine.

8.  Two police officers then took the applicant’s son and Ms Z. to another police station. Ms Z. later testified to having seen a bruise on Mr Vyrzhikovskiy’s forehead and to his having been in pain and having had difficulties getting into a police car.

9.  Early in the morning on 2 October 2010 Mr Vyrzhikovskiy was taken from the station to a hospital. He died there eight days later. An autopsy report stated that the cause of death was “a severe fat pulmonary embolism aggravated by bronchopneumonia with cerebral edema resulted from a comminuted humeral head fracture with a tear of joint capsules and massive bruises, suffusion and strain of soft tissue and the subcutaneous fat layer.” A pathologist also found the following ante mortem injuries on Mr Vyrzhikovskiy’s body, all directly linked to his death: massive bruises covering hands, chest, upper back, neck, armpits and most of his face and ears; bruises on the left hip, right palm, right part of the stomach, right thigh, left knee, both calves; abrasions and bruises on the buttocks. All injuries had been inflicted by hard blunt objects.

10.  On 12 October 2010 criminal investigation was initiated. The applicant was granted victim status in the proceedings. Several police officers were charged with manslaughter and abuse of powers entailing a substantial violation of individual rights, committed using violence.

10.  On 12 October 2010 criminal investigation was initiated. The applicant was granted victim status in the proceedings. Several police officers were charged with manslaughter and abuse of powers entailing a substantial violation of individual rights, committed using violence.

11.  On 26 March 2014 the Moskovskiy District Court of St Petersburg found the officers guilty as charged and sentenced them to various terms of imprisonment. On 1 October 2014 the St Petersburg City Court partially quashed the judgment and acquitted officers of manslaughter for lack of evidence. While having found it established that the injuries had been inflicted on the applicant’s son intentionally in the police custody, the City Court remitted the case for an additional investigation in order to identify those responsible for his death.

12.  On 2 March 2015 the investigation was suspended because the timelimit for the investigation had expired and it was impossible to identify the perpetrators and to carry out any investigative measures in the absence of an accused. On 12 November 2015 the Oktyabrskiy District Court of St Petersburg upheld that decision as lawful. The decision became final on 27 January 2016.

II.  RELEVANT DOMESTIC LAW

13.  For the relevant domestic law see Khismatullin v. Russia, no. 33469/06, §§ 27-33, 11 December 2014 and Keller v. Russia, no. 26824/04, §§ 54-61, 67-71, 17 October 2013.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

14.  The applicant complained that her son had been killed in the police custody and that the authorities had failed to carry out an effective investigation into the events. She relied on Article 2 of the Convention, which, in its relevant part, reads as follows:

“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

15.  The Government did not contest the applicant’s arguments. They acknowledged that the facts of the case disclosed a violation of Article 2 of the Convention.

A.  Admissibility

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

B.  Merits

17.  The Court reiterates that while there is no absolute obligation under Article 2 of the Convention for all prosecutions to result in conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow offences involving violent deaths to go unpunished (see, mutatis mutandis, Öneryıldız v. Turkey [GC], no. , § 96, ECHR 2004-XII; Okkalı v. Turkey, no. , § 65, ECHR 2006-XII (extracts); and Türkmen v. Turkey, no. , § 51, 19 December 2006).

18.  In this connection the Court notes that the main purposes of imposing criminal sanctions include both retribution, as a form of justice for victims, and general deterrence aimed at the prevention of new violations and upholding the rule of law. However, neither of these aims can be obtained without the alleged perpetrators being brought to justice. Failure by the authorities to pursue the prosecution of the most probable direct perpetrators undermines the effectiveness of the criminal-law mechanism aimed at the prevention, suppression and punishment of unlawful killings. Compliance with the State’s procedural obligations under Article 2 requires the domestic legal system to demonstrate its capacity and willingness to enforce the criminal law against those who have unlawfully taken the life of another (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005-VII; Jelić v. Croatia, no. 57856/11, § 90, 12 June 2014; and Ghimp and Others v. the Republic of Moldova, no. 32520/09, § 43, 30 October 2012).

18.  In this connection the Court notes that the main purposes of imposing criminal sanctions include both retribution, as a form of justice for victims, and general deterrence aimed at the prevention of new violations and upholding the rule of law. However, neither of these aims can be obtained without the alleged perpetrators being brought to justice. Failure by the authorities to pursue the prosecution of the most probable direct perpetrators undermines the effectiveness of the criminal-law mechanism aimed at the prevention, suppression and punishment of unlawful killings. Compliance with the State’s procedural obligations under Article 2 requires the domestic legal system to demonstrate its capacity and willingness to enforce the criminal law against those who have unlawfully taken the life of another (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005-VII; Jelić v. Croatia, no. 57856/11, § 90, 12 June 2014; and Ghimp and Others v. the Republic of Moldova, no. 32520/09, § 43, 30 October 2012).

19.  Taking into account the Government’s acknowledgement of a violation of Article 2 of the Convention along with the above principles, the circumstances of the present case, and the finding of the domestic authorities that the applicant’s son died as a result of injuries inflicted on him in police custody (see paragraph 11 above), the Court concludes that the State was responsible for his death and that there has been no effective investigation into the events surrounding it.

20.  There has, accordingly, been a violation of Article 2 under both its substantive and procedural limbs.

II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

21.  The applicant also complained that her son had been tortured by the police officers after his apprehension on 1 October 2010 and that the investigation into the events had been ineffective. She invoked Article 3 of the Convention, which reads:

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

22.  The Government acknowledged a violation of Article 3.

A.  Admissibility

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

B.  Merits

24.  The Court observes that the Government did not dispute the applicant’s allegations that her son had been subjected to ill-treatment at the hands of the police after his arrest. The Russian courts also established that Mr Vyrzhikovskiy’s injuries had been inflicted intentionally in police custody (see paragraph 11 above).

25.  In view of the Government’s acknowledgment of ill-treatment and taking into account the findings of the domestic courts, the Court finds that the State was responsible for the ill-treatment of the applicant’s son.

26.  In the present case it was undisputed between the parties that for hours the applicant’s son was subjected to severe beatings and the so-called “swallow” method of torture. The Court finds that the treatment to which the applicant’s son was subjected, given its severity and duration, and the consequences thereof, amounted to torture (see Gäfgen v. Germany [GC], no. 22978/05, §§ 89-90, ECHR 2010).

27.  The Court concludes that there has been a breach of Article 3 of the Convention under its substantive limb.

28.  In the light of the finding relating to the procedural aspect of Article 2 of the Convention (see paragraph 19 above), the Court does not deem it necessary to make a separate finding under Article 3 of the Convention in respect of the alleged ineffectiveness of the investigation.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

29.  Article 41 of the Convention provides:

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

A.  Damage

30.  The applicant claimed 60,000 euros (EUR) in respect of nonpecuniary damage.

31.  The Government considered that any award should be made in compliance with the Court’s case-law.

32.  Making its assessment on an equitable basis, the Court awards the applicant EUR 60,000 in respect of non-pecuniary damage.

B. Costs and expenses

33.  The applicant made no claim for costs and expenses. Accordingly, the Court makes no award under this head.

C.  Default interest

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 2 of the Convention on account of the death of the applicant’s son as a result of injuries inflicted on him at the hands of the police;

3.  Holds that there has been a violation of Article 2 of the Convention on account of the authorities’ failure to carry out an effective investigation into the death of the applicant’s son;

4.  Holds that there has been a violation of Article 3 of the Convention in that the applicant’s son had been subjected to torture in police custody;

5.  Holds that there is no need to examine separately the complaint under Article 3 of the Convention regarding the quality of the investigation into the events leading to the applicant’s son’s death;

6.  Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 60,000 (sixty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

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

Done in English, and notified in writing on 28 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.