PROCEDURE

1.  The case originated in an application (no. 6433/18) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Vasyl Mykolayovych Sokolovskyy (“the applicant”), on 30 January 2018.

2.  The applicant was represented by Ms O.V. Shapoval, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna from the Ministry of Justice.

3.  The applicant complained that he had not received adequate medical treatment in detention and that he had not had an effective domestic remedy for the above complaint. He further complained that the authorities had failed to give relevant and sufficient reasons to justify his pre-trial detention, that there had been no effective procedure to challenge the lawfulness of his detention, and that he had had no enforceable right to compensation for his allegedly arbitrary detention.

4.  On 2 February 2018 the applicant applied to the Court for an interim measure under Rule 39 of the Rules of Court, so that he could be transferred to a specialist medical facility for further neurological treatment. The Court rejected that request on 20 February 2018. The application was granted priority under Rule 41 of the Rules of Court.

5.  On 19 April 2018 notice of the above complaints was given 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

6.  The applicant was born in 1976 and is detained in Kyiv.

A.  Criminal proceedings against the applicant

7.  On 1 December 2016 the applicant was arrested by the police on suspicion of human trafficking.

8.  On 2 December 2016 the Babushkinskyy District Court of Dnipro (“the District Court”) ordered his detention. The relevant decision stated that he might otherwise abscond or hinder the investigation. The court further stated that the applicant, while at liberty, might influence witnesses and communicate with others online. No further details were provided by the court in that regard. The court also set bail of 2,000,000 Ukrainian hryvnias (UAH) as an alternative measure. On 5 December 2016 the applicant was released after payment of the bail.

9.  According to the applicant, upon his release he was immediately arrested by the police on similar charges (new episodes of human trafficking) within other criminal proceedings.

10.  On 6 December 2016 the District Court ordered his detention. The relevant decision stated that he might otherwise abscond or hinder the investigation. No further details were provided by the court in that regard. The court also set bail of UAH 3,000,000 as an alternative measure. On 23 December 2016 that decision was upheld on appeal.

11.  On 26 January and 22 March 2017 the District Court extended the applicant’s detention until 26 March and 20 May 2017 respectively, retaining the ability for him to be released on bail. The District Court gave similar reasons for his continued detention as those in its decision of 6 December 2016.

12.  On 4 May 2017 the criminal case against the applicant was forwarded to the District Court for trial.

13.  On 13 May 2017, in the course of the preparatory hearing, the District Court extended the applicant’s detention until 10 July 2017. The decision stated that he had no permanent place of residence, had been accused of a serious crime, might otherwise abscond or hinder the investigation by influencing witnesses or destroying or concealing evidence, or continue with his criminal activity. No further details were provided by the court in that regard.

14.  On 1 June 2017 the Higher Specialised Court for Civil and Criminal Matters changed the court competent to hear the applicant’s case to the Solomyanskyy District Court of Kyiv (“the trial court”).

15.  On 26 June 2017 the trial court resumed the preparatory hearing and extended the applicant’s detention until 24 August 2017. The court gave similar reasons for the applicant’s continued detention as those given by the District Court in its decision of 13 May 2017, without providing any further details.

16.  On 7 August, 3 October and 30 November 2017 and 24 January 2018 the trial court extended the applicant’s detention for the respective periods, the most recent period being set to expire on 24 March 2018. The trial court reiterated the reasons for the applicant’s continued detention given previously, without providing any further details. In the decision of 24 January 2018 it dismissed a request for release which the applicant had lodged that day. No reasons were provided for that decision.

17.  According to the available information, the applicant is being held in detention, while the case against him is still pending before the trial court.

B.  Medical care provided to the applicant

1.  The applicant’s state of health prior to his arrest

18.  According to the applicant, he has a long-term heart condition following a heart attack in 2011. In 2011 and 2016 he underwent stenting treatment.

19.  On 30 November 2016 he was taken to hospital by ambulance with severe chest pain. He was diagnosed with ischemic heart disease and unstable angina.

20.  On 1 December 2016 he was discharged from hospital as his state of health had improved.

2.  Medical care provided to the applicant while in detention

21.  Between 1 December 2016 and 24 June 2017 the applicant was detained in the Dnipro Pre-Trial Detention Centre (“the SIZO”). He did not submit any information about the medical treatment he received during that period.

22.  On 24 June 2017 the applicant was transferred to the Kyiv SIZO.

23.  According to the medical examination carried out that day, the applicant was diagnosed with ischemic heart disease, artherosclerotic and postinfarction cardiosclerosis, atherosclerosis of aorta (transmural myocardial infarction 2011), class III exertional angina (pectoris) and heart insufficiency. He was given recommendations regarding his further treatment. The parties did not provide the Court with details of the recommended treatment.

24.  On 26 June 2017 the penal authorities informed the applicant’s defence lawyer that the SIZO had no cardiologist on its staff.

25.  On 4 September 2017 the applicant consulted a SIZO surgeon.

26.  From 27 to 30 September 2017 the applicant underwent treatment at the Stragesko Cardiology Institute. According to the relevant medical records, the applicant was diagnosed with ischemic heart disease, class III exertional angina (pectoris) and stage 3 hypertension. He was prescribed medication and informed that he required monitoring by a cardiologist. According to the Government, the recommended treatment could be provided to the applicant within the SIZO.

27.  On 19 January 2018 the applicant consulted a cardiologist at the SIZO who recommended him inpatient treatment at a specialist cardiology facility. His overall condition was described as “moderately serious”. According to the Government, the medical treatment prescribed to him could be provided within the SIZO.

28.  On 22 January 2018 a forensic expert from the Kyiv City Clinical Bureau of Forensic Examinations issued a report, at the request of the applicant’s defence lawyer, stating that the applicant had, inter alia, the following chronic illnesses: stage 3 hypertension, heart failure, class III exertional angina (pectoris), ischemic heart disease, post-infarction cardiosclerosis, and a post-stent condition. The expert recommended, inter alia, that he be given ongoing medical treatment under the care of a doctor and a coronary intervention. He concluded that the applicant’s health would be put at a serious and potentially fatal risk if he were not provided with adequate inpatient treatment outside the SIZO.

29.  On 7 February 2018 the SIZO authorities replied to the request by the applicant’s defence lawyer stating, inter alia, that the SIZO had no cardiologist on its staff.

30.  On 11, 18, 19, 20 and 25 February 2018 the applicant complained to the SIZO authorities about the deterioration of his state of health and requested medical treatment outside the SIZO. In particular, he stated that he had been suffering pain in his chest and dizziness, and had lost consciousness a number of times. It appears that he did not receive any response to his requests.

31.  According to a certificate issued by the SIZO on 12 February 2018, the applicant remained under the care of the SIZO medical staff and did not require inpatient medical treatment. It was indicated in the certificate that the SIZO had no cardiologist on its staff.

32.  On 22 February 2018 the SIZO informed the prosecution authorities and the trial court about the applicant’s state of health. The SIZO stated that the recommendations concerning his monitoring by a cardiologist and further treatment at the specialist cardiology facility could not be implemented by the SIZO owing to the absence of a cardiologist on its staff.

33.  On 27 February 2018 the SIZO governor informed the applicant’s defence lawyer that the applicant was receiving symptomatic treatment. It was mentioned that the provision of specialist and high quality medical treatment was not possible at the SIZO, and that the applicant’s further detention was to be considered by the trial court.

34.  On 28 February 2018 the State-run facility “The Heart Institute” issued a consultative opinion, recommending that the applicant undergo inpatient cardiology treatment.

35.  On 1 March 2018 the SIZO again informed the applicant’s defence lawyer, with reference to previous medical opinions, that the applicant required ongoing monitoring by a cardiologist but that this was not possible at the SIZO because there was no cardiologist on its staff.

36.  On 6 March 2018 a forensic expert from the Kyiv City Clinical Bureau of Forensic Examinations issued a report, at the request of the applicant’s defence lawyer, reiterating the conclusions given in the previous report of 22 January 2018 (see paragraph 28 above).

37.  On 11 June 2018 the SIZO informed the applicant’s defence lawyer about her client’s state of health, reiterating the same information given on 1 March 2018 (see paragraph 35 above).

38.  The parties did not inform the Court of the treatment provided to the applicant after June 2018.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION

39.  The applicant complained that he had not been provided with adequate medical treatment and care while in detention in the SIZO and that he had not had an effective domestic remedy for the above complaint. He relied on Articles 3 and 13 of the Convention, which read as follows:

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

“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

40.  The Government submitted that the applicant had failed to exhaust effective domestic remedies in respect of his complaint of inadequate medical treatment. They considered that he should have lodged his health complaints with the prosecutor’s office and the domestic courts.

41.  The applicant submitted that he had regularly complained about his health issues to the SIZO and the trial court, but to no avail.

42.  The Court considers that that argument is closely linked to the substance of the applicant’s complaints concerning the lack of domestic remedies for his complaint of inadequate medical treatment. It must therefore be joined to the merits.

43.  The Court further notes that the above complaints are neither manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

1.  Exhaustion of domestic remedies and alleged violation of Article 13 of the Convention

44.   The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring a case against the State before the Court to first use the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption, reflected in Article 13 of the Convention, with which it has close affinity, that there is an effective remedy available to deal with the substance of an “arguable complaint” under the Convention and to provide appropriate relief. Moreover, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000XI, and Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24).

45.   The Court recalls that it has already found a violation of Article 13 in cases against Ukraine on the grounds that there were no effective domestic remedies in respect of complaints concerning conditions of detention and a lack of medical treatment (see, among other authorities, Melnik v. Ukraine, no. 72286/01, §§ 113-16, 28 March 2006; Dvoynykh v. Ukraine, no. 72277/01, § 72, 12 October 2006; Ukhan v. Ukraine, no. 30628/02, §§ 91-92, 18 December 2008; Iglin v. Ukraine, no. 39908/05, § 77, 12 January 2012; and Barilo v. Ukraine, no. 9607/06, §§ 104-05, 16 May 2013). With reference to the above-mentioned case-law and the circumstances of the present case, the Court finds that the Government have not shown that the applicant had in practice an opportunity to obtain effective remedies for his complaint, that is to say, remedies which could have prevented the violations from occurring or continuing, or could have afforded the applicant appropriate redress.

46.  The Court therefore concludes that there has been a violation of Article 13 of the Convention in conjunction with Article 3 of the Convention on account of the lack of an effective and accessible remedy under domestic law for the applicant’s complaint under Article 3 of the Convention, and, consequently, dismisses the Government’s objection as to the applicant’s failure to exhaust domestic remedies.

2.  Alleged violation of Article 3 of the Convention

47.  The applicant complained that he had not received adequate medical treatment for his heart condition. He stated in particular that, according to the medical recommendations, he had required specialist medical care, but had only been given symptomatic treatment at the SIZO medical unit owing to the absence of a cardiologist on its staff.

48.  The Government disagreed, stating that the medical care provided to the applicant had been in full compliance with the requirements of Article 3 of the Convention.

49.  The applicable general principles in respect of medical treatment in detention have been summarised in Hummatov v. Azerbaijan (nos. 9852/03 and 13413/04, §§ 11222, 29 November 2007); Ukhan v. Ukraine (cited above, §§ 7783); Petukhov v. Ukraine (no. 43374/02, §§ 9198, 21 October 2010); and Sergey Antonov v. Ukraine (no. 40512/13, §§ 7075, 22 October 2015).

50.  Turning to the circumstances of the present case, the Court notes at the outset that the medical condition the applicant suffered from (see paragraphs 23, 26 and 28 above) was serious enough to affect his everyday functioning and to even pose a risk to his life. He could therefore have experienced considerable anxiety regarding whether the medical care provided to him was adequate.

51.  The Court further notes that the applicant was recommended inpatient treatment at a specialist cardiology facility a number of times (see paragraphs 27, 28, 34 and 36 above). It appears that that recommendation was never implemented.

52.  In this connection, the Court notes that the authorities acknowledged that the SIZO medical unit was not sufficiently equipped and staffed to address the applicant’s heart condition (see paragraphs 24, 29, 31-33, 35 and 37 above). This indicates that the applicant received merely symptomatic treatment in response to his health problems. It further notes that it has previously established in cases against Ukraine a lack of qualified medical staff and/or equipment capable of adequately addressing applicants’ health needs in detention (see, for example, Yakovenko v. Ukraine, no. 15825/06, §§ 9697, 25 October 2007; Temchenko v. Ukraine, no. 30579/10, § 89, 16 July 2015; and Osipenkov v. Ukraine [Committee], no. 31283/17, § 27, 29 January 2019).

53.  While acknowledging that the applicant received some treatment in detention, the Court cannot subscribe to the Government’s argument that the level of medical care provided to him was sufficient. The documentary information provided by the Government in support of their observations refers to the applicant’s illnesses and doctors’ recommendations for treatment. It however does not refute the applicant’s grievances about the quality of treatment he received in detention (see paragraph 47 above).

54.  The foregoing considerations are sufficient to enable the Court to conclude that the State failed to comply with its obligations under Article 3 of the Convention. There has accordingly been a violation of that provision.

II.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

55.  The applicant complained that the domestic courts’ decisions ordering his detention had been arbitrary and had lacked reasoning. He further complained that the trial court had failed to properly examine his request for release lodged on 24 January 2018. Lastly, he complained that he had had no enforceable right to compensation for his allegedly arbitrary detention. He relied on Article 5 §§ 1 (c), 3, 4 and 5 of the Convention.

56.  Being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), and having regard to the substance of the applicant’s complaints under Article 5 §§ 1 and 3 concerning the arbitrariness and reasoning of the domestic courts’ decisions ordering his detention, the Court decides to examine them under Article 5 § 3 of the Convention.

The relevant provisions of Article 5 §§ 3, 4 and 5 of the Convention read as follows:

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

4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5.  Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

A.  Admissibility

57.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

1.  Article 5 § 3 of the Convention

58.  The applicant submitted that his detention had been unlawful and unjustified, as the courts had repeatedly referred to the same set of grounds for his detention without providing any details in that respect. He further stated that, despite being generally in compliance with domestic law, his continued detention had not been necessary in the circumstances. Lastly, he stressed that the courts had failed to consider alternative preventive measures after the case had been transferred to the trial court.

59.  The Government submitted that the domestic courts had carefully examined the circumstances of the case when deciding to detain the applicant and had provided well-reasoned decisions in compliance with both the domestic legislation and the Convention.

60.  The applicable general principles are set out in Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 84-91 and 102, 5 July 2016).

61.  The Court observes that there is no dispute between the parties that the applicant has been in uninterrupted detention since his arrest on 1 December 2016 (see paragraph 7 above).

62.  The Court further observes that, contrary to the Government’s assertion, the District Court’s decisions of 2 and 6 December 2016 did not contain clear and precise reasons for the applicant’s detention but simply referred to the investigator’s submissions, without any examination of the plausibility of the grounds invoked by the latter (see paragraphs 8 and 10 above). As regards the court’s reference to the risk of the applicant’s potential influence over witnesses and communication with others online if at liberty, the Court wonders how the existence of that risk correlates with the applicant’s ability to be released on bail (idem).

63.  Next, the Court observes that the courts’ reasoning did not evolve with the passage of time. In their further decisions to extend the applicant’s detention, namely those taken on 26 January, 22 March, 13 May, 26 June, 7 August, 3 October and 30 November 2017 and 24 January 2018, the courts reiterated the same set of grounds, namely the seriousness of the charges against the applicant and the risk that he might abscond and hinder the investigation by influencing witnesses or destroying or concealing evidence, or continue with his criminal activity. The Court notes that the decisions ordering the applicant’s detention were couched in general terms and contained repetitive phrases. They do not suggest that the courts made an appropriate assessment of the facts relevant to the question of whether such a preventive measure was necessary in the circumstances at the relevant stage of the proceedings.

64.  Furthermore, with the exception of the decisions of 26 January and 22 March 2017 (see paragraph 11 above), the domestic authorities did not consider any other preventive measures as an alternative to detention (see Osypenko v. Ukraine, no. 4634/04, §§ 77 and 79, 9 November 2010).

65.  The Court has often found a violation of Article 5 § 3 of the Convention in cases against Ukraine on the basis that the domestic courts referred to the same set of grounds, if there were any, throughout the period of the applicant’s detention (see, for example, Kharchenko v. Ukraine, no. 40107/02, §§ 80-81 and 99, 10 February 2011, and Ignatov v. Ukraine, no. 40583/15, § 41, 15 December 2016).

66.  Having regard to the above, the Court considers that by failing to address the specific facts of the applicant’s situation and by relying essentially and routinely on the seriousness of the charges against him, the authorities extended the applicant’s detention pending trial on grounds which cannot be regarded as “sufficient” and “relevant”.

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

2.  Article 5 § 4 of the Convention

68.  The applicant complained that the trial court had failed to properly examine his request for release lodged on 24 January 2018.

69.  The Government argued that the applicant had had at his disposal an effective procedure to challenge the lawfulness of his detention.

70.  The Court observes that the applicant’s grievances were focused on the trial court’s failure to give relevant reasons in its decision of 24 January 2018 when examining in the same proceedings the prosecutor’s request to extend his detention and his request for release. In this connection, the Court notes that it has already examined this issue under Article 5 § 3 of the Convention (see paragraphs 62-67 above). It sees no need to deal with the same point under Article 5 § 4 of the Convention as well (see, mutatis mutandis, Ignatenco v. Moldova, no. 36988/07, § 91, 8 February 2011, and Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and , § 525, 25 July 2013). Accordingly, no separate examination of the applicant’s complaint under Article 5 § 4 of the Convention is required.

3.  Article 5 § 5 of the Convention

71.  The Court observes that the applicant’s complaint in this regard is similar to the complaints examined by the Court in a number of other cases against Ukraine (see, as the most recent example, Sinkova v. Ukraine, no. 39496/11, §§ 79-84, 27 February 2018). The Court concludes that he did not have an enforceable right to compensation for his unlawful detention, as required by Article 5 § 5 of the Convention. There has therefore been a violation of that provision.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

72.  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

73.  The applicant claimed 2,000,000 Ukrainian hryvnias (UAH) (65,150 euros (EUR)), representing the amount which he paid as bail, and UAH 11,972.87 (EUR 390) for the expenses incurred for his medication. He further claimed EUR 10,000 in respect of non-pecuniary damage.

74.  The Government considered the claims unsubstantiated and excessive.

75.  The Court finds that there is no causal link between the payment of bail and the violation alleged; it therefore rejects the above claim. As to the applicant’s claim in respect of medical expenses, the Court finds it unsubstantiated. On the other hand, it awards him EUR 10,000, the full amount sought in respect of nonpecuniary damage, plus any tax that may be chargeable.

B.  Costs and expenses

76.  The applicant also claimed EUR 8,000 for the legal costs incurred before the Court. He asked that they be paid directly into his representative’s bank account. He also claimed EUR 50 for administrative expenses.

77.  The Government considered the amount claimed unsubstantiated.

78.  Regard being had to the documents in its possession and to its caselaw, the Court awards EUR 1,000 under this head. This amount is to be paid directly into the bank account of the applicant’s representative, Ms O.V. Shapoval, as requested by the applicant (see, for example, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, 15 December 2016).

C.  Default interest

79.  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 concerning the non-exhaustion of domestic remedies in respect of the applicant’s complaint of the lack of adequate medical care in detention and rejects this objection after an examination of the merits;

2.  Declares the applicant’s complaints under Articles 3 and 13 of the Convention concerning the lack of adequate medical care in detention and the lack of an effective domestic remedy for the above complaint, and his complaints under Article 5 §§ 3, 4, and 5 of the Convention admissible;

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

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

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

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

7.  Holds that there is no need to examine separately the complaint under Article 5 § 4 of the Convention;

8.  Holds

(a)  that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(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;

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

Done in English, and notified in writing on 4 July 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 30452/96) against the  lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Ms Yüksel Takak (“the applicant”), on 15 November 1995.

2.  The applicant was represented by Mr İ. Kavak, a lawyer practising in . The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Convention institutions.

3.  The applicant alleged, in particular, that she was denied a fair hearing on account of the presence of a military judge on the bench of the Izmir State Security Court which tried and convicted her and the limited jurisdiction of this court. She further alleged that her conviction had been based on her statements which she had withdrawn and that she had not been allowed to examine a witness against her.

4.  The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

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

6.  By a decision of 18 May 1999 the Court declared the application admissible.

7.  On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section (Rule 52 § 1).

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

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

9.  The applicant was born in 1966 and lives in .

10.  On 11 March 1994 the applicant was taken into custody by the officers from the Izmir Security Directorate Anti-Terror branch on suspicion of aiding and abetting an illegal terrorist organisation, the PKK.

11.  On 17 March 1994 the applicant was brought before the judge at the . Before the court she pleaded not guilty and maintained that she did not accept the statements that she had made at the Security Directorate. She further denied the testimony of a witness, A.A., against her. Subsequently, the court ordered her release on account of insufficient evidence to remand her in custody.

12.  On 7 April 1994 the public prosecutor at the  filed an indictment with the court charging the applicant under Article 169 of the Criminal Code and Article 5 of Law no. 3713 (the Prevention of Terrorism Act 1991 as amended) with aiding and abetting the PKK.

13.  On 24 November 1994 the  convicted the applicant as charged and sentenced her to three years and nine months' imprisonment. She was further debarred from public service for three years. The court based its judgment on the following evidence: some ammunition found by the police, various weapons and the ballistics reports confirming the applicant's use thereof, invoices, a notebook used for recording expenditures of the PKK, photos of the applicant taken with some PKK militants, the statements made by the applicant at the Security Directorate, the statements made by S.A., A.A., M.T. and F.A. at the Security Directorate, the Public Prosecutor's office and before the court and finally the testimonies of T.T., N.F., A.O., H.K. and B.O., who were being tried by the same court for charges with other offences.

14.  On 25 September 1995 the Court of Cassation upheld the 's judgment of 24 November 1994.

15.  On 1 November 1995 the  chief public prosecutor suspended the execution of the applicant's sentence until 28 April 1996 as she had given birth.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

16.  The Court refers to the overview of the domestic law derived from previous submissions in other cases, in particular Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002) and Gençel v. Turkey (no. 53431/99, §§ 11-12, 23 October 2003).

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

17.  The applicant complains under Article 6 § 1 of the Convention that she was denied a fair hearing by an independent and impartial tribunal on account of the presence of a military judge on the bench of the Izmir State Security Court which tried and convicted her. She further complains under the same heading that the  had limited jurisdiction and that it based its judgment on statements made by her which she had withdrawn. She finally submits under Article 6 § 3 (d) of the Convention that she was denied the right to examine one of the witnesses against her.

18.  The Court notes that it examined similar cases in the past and found a violation of Article 6 § 1 (see Özel, cited above, §§ 33-34, and Özdemir v. Turkey, no. 59659/00, §§ 35-36, 6 February 2003).

19.  The Court sees no reason to come to a conclusion different from that reached in these cases. It is reasonable that the applicant, who was prosecuted in a  for aiding and abetting an illegal organisation, should have been apprehensive about being tried by a bench which included a regular army officer and member of the Military Legal Service. On that account, she could legitimately fear that the  might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case. In other words, the applicant's fears as to the State Security Court's lack of independence and impartiality can be regarded as objectively justified (see Incal v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, p. 1573, § 72 in fine).

20.  Accordingly, the Court concludes that there has been a violation of Article 6 § 1.

21.  Having regard to its finding that the applicant's right to a fair hearing by an independent and impartial tribunal has been infringed, the Court considers that it is unnecessary to examine the applicant's other complaints under Article 6 §§ 1 and 3 (d) (see Incal, cited above, § 74, and Çıraklar v. Turkey, judgment of 28 October 1998, Reports 1998-VII, § 45).

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

22. 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.  Damages

23.  The applicant claimed a total of 225,000 pounds sterling (GBP) for pecuniary and non-pecuniary damage, equivalent to 326,949 euros (EUR).

24.  The Government did not submit any observations on these claims.

25.  Regarding the question of pecuniary damage, the Court considers in the first place that it cannot speculate as to what the outcome of the proceedings before the State Security Court might have been had the violation of the Convention not occurred (see Findlay v. the United Kingdom, judgment of 25 February 1997, Reports 1997-I, § 85). Moreover, the applicant's claim in respect of pecuniary damage was not borne out by any evidence. It is therefore inappropriate to award the applicant compensation for pecuniary damage.

26.  With regard to non-pecuniary damage, the Court considers that the finding of a violation constitutes in itself sufficient compensation for any non-pecuniary damage suffered by the applicant (see Çıraklar, cited above, § 49).

27.  Where the Court finds that an applicant has been convicted by a tribunal which is not independent and impartial within the meaning of Article 6 § 1, it considers that, in principle, the most appropriate form of relief would be to ensure that the applicant is granted in due course a retrial by an independent and impartial tribunal (see Gençel, cited above, § 27).

B.  Costs and expenses

28.  The applicant claimed a total of GBP 38,500, equivalent to EUR 55,944.70, for costs and expenses incurred in the proceedings before the domestic authorities and before the  institutions.

29.  The Government did not make any submissions on these claims.

30.  The Court will make an award in respect of costs and expenses in so far as these were actually and necessarily incurred and were reasonable as to quantum (see, as a recent authority, Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002).

31.  Making its own estimate based on the information available, the Court awards the applicant EUR 3,000 in respect of costs and expenses.

C.  Default interest

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

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Holds that there has been a violation of Article 6 § 1 of the Convention as regards the complaint relating to the independence and impartiality of the ;

2.  Holds that it is not necessary to consider the applicant's other complaints under Article 6 of the Convention;

3.  Holds that this finding of a violation constitutes in itself sufficient just satisfaction for non-pecuniary damage;

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros) in respect of costs and expenses, plus any tax that may be chargeable;

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

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

Done in English, and notified in writing on 1 April 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 16092/05) against  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mrs Kateryna Fedorivna Balandina (“the applicant”), on 20 April 2005.

2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.

3.  On 13 December 2005 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1945 and lives in Kharkiv.

5.  On 5 May 2000 the Dzerzhynskiy District Court of Kharkiv (Дзержинський районний суд м. Харкова) awarded the applicant 4,489.02 hryvnyas (UAH) against her former employer, the Frunzenskiy District Municipal Renovation Company (Державне комунальне ремонтно-будівельне підприємство з ремонту житлового фонду Фрунзенського району м. Харкова) in salary arrears and other payments.

6.  This judgment was not appealed against, became final, and the enforcement proceedings were instituted to collect the judgment debt.

7.  On 16 June 2000 the Kharkiv City Council (Харківська міська рада) ordered liquidation of the debtor-company and on 22 September 2000 the enforcement writ was transferred to the liquidation commission.

8.  On various occasions the applicant complained to the State authorities about the failure of the debtor-company to pay her the judgment debt and was informed that the collection of the debt was not possible on account of the debtor-company's lack of funds. The judgment remains unenforced to the present date.

II.  RELEVANT DOMESTIC LAW

9.  The relevant domestic law is set out in the judgment of 27 July 2004 in the case of Romashov v. Ukraine (no. 67534/01, §§ 16-19).

THE LAW

I.  ALLEGED VIOLATIONS OF ARTICLES 6 § 1, 13 AND ARTICLE 1 OF PROTOCOL No. 1

10.  The applicant complained about the State authorities' failure to enforce the judgment of the Dzerzhynskiy District Court of Kharkiv given in her favour. She invoked Articles 6 § 1 and  13 of the Convention and Article 1 of Protocol No. 1, which provide, insofar as relevant, as follows:

Article 6 § 1

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

Article 13

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

Article 1 of Protocol No. 1

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

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

A.  Admissibility

11.  The Government raised objections, contested by the applicant, regarding exhaustion of domestic remedies similar to those already dismissed in a number of the Court's judgments regarding non-enforcement of judgments against the public companies (see e.g. among many others, Sychev v. Ukraine, no. 4773/02, §§ 42-46, 11 October 2005 and Romashov v. Ukraine, cited above, no. 67534/01, §§ 28-32). The Court considers that these objections must be rejected for the same reasons.

12.  The Court concludes that the applicant's complaints raise issues of fact and law under the Convention, the determination of which requires an examination on the merits. The Court finds no ground for declaring them inadmissible. The Court must therefore declare them admissible.

B.  Merits

13.  In their observations on the merits of the applicant's case, the Government contended that there had been no violation of her Convention rights.

14.  The applicant disagreed.

15.  The Court notes that the delay in the enforcement of the judgment given in the applicant's favour has exceeded seven and a half years.

16.  The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising similar issues, where a debtor was a public enterprise (see e.g., Kucherenko v. , no. 27347/02, §§ 26-27, 15 December 2005).

17.  Having examined all the material in its possession, 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.

18.  There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

19.  The Court does not find it necessary in the circumstances to examine under Article 13 of the Convention the same complaint as under Article 6 § 1.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

20.  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

21.  The applicant claimed the unsettled judgment debt and 10,000 euros (EUR) in respect of non-pecuniary damage.

22.  The Government contested these claims.

23.  The Court finds that the Government should pay the applicant the unsettled judgment debt by way of compensation for pecuniary damage. It further finds that the applicant must have suffered non-pecuniary damage on account of the violations found. Ruling on an equitable basis, the Court awards the applicant EUR 2,000 under this head.

B.  Costs and expenses

24.  The applicant did not submit any claim under this head. The Court therefore makes no award.

C.  Default interest

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

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the application admissible;

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

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

4.  Holds that there is no need to examine the complaint under Article 13 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,

(i)  the unsettled debt still owed to her;

(ii)  the sum of EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;

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

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

Done in English, and notified in writing on 6 December 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 34499/06) 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 Croatian national, Mrs Ilonka Perić (“the applicant”), on 8 August 2006.

2.  The applicant was represented by Mr M. Zrilić, a lawyer practising in . The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.

3.  On 10 April 2007 the Court decided to communicate the complaint concerning the applicant’s right to a fair trial 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

THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1919 and lives in Opatija.

5.  On 23 October 2002 the applicant brought a civil action in the Opatija Municipal Court (Općinski sud u Opatiji) against D. K. and J. K., seeking termination of a contract for lifelong maintenance (ugovor o doživotnom uzdržavanju). She enclosed a copy of the contract in question, drawn up on 3 August 1993, and its annex of 30 November 1999. The contract stipulated that the defendants were to care for the applicant until her death in order to acquire all her property post mortem. She also asked that two witnesses, E. P. and Š. T., be heard. The defendants submitted receipts for monthly payments for the applicant’s maintenance and asked that four witnesses be heard.

6.  At the hearing held on 6 February 2003 the Municipal Court heard evidence from the parties and after that, in the presence of the applicant’s counsel, scheduled the next hearing for 17 March 2003. The applicant’s counsel fell ill and had to be hospitalised pending urgent surgery. On 11 March 2003 he sent a fax to the Municipal Court excusing himself from the hearing scheduled for 17 March and asked for an adjournment of the hearing. However, the Municipal Court proceeded with the hearing and heard two witnesses, Lj. M. and Š. M., the parents of one of the defendants. It also scheduled a further hearing for 23 April 2003 and ordered that two other witnesses, also called on behalf of the defendants, be heard. Neither the applicant nor her counsel were notified of the hearing.

7.  The counsel did attend the hearing of 23 April 2003, which he had learned about by chance when at the Opatija Municipal Court on that day for other reasons. The Municipal Court heard two witnesses for the defendants, A. A. and I. P., as scheduled, but refused the proposal of the applicant’s counsel that five other witnesses be heard. The relevant parts of the transcript of the hearing read as follows:

“Counsel for the plaintiff asks that the plaintiff’s neighbours M. C., S. R., V. G., N. I. and N. Z. be heard as witnesses about the circumstances of the applicant’s daily life and the care she has received from them in the past two years and in particular in the period of four months following her release from a hospital, when she was immobile.

...

Counsel for the plaintiff withdraws his request that E. P. be called as a witness since, according to the plaintiff, that person is not able to attend a hearing at the court.

The judge decides that evidence is not to be heard from Š. T., E. P., M. C., S. R., V. G., N. I. and N. Z. and no further evidence is to be presented.”

The Municipal Court proceeded by closing the proceedings and pronouncing its judgment, dismissing the applicant’s claim. The relevant part of the judgment read as follows:

“In view of the above, the court considers that the factual background has been fully established on the basis of the parties’ testimony and in particular in the contract for lifelong maintenance and its annex and the enclosed receipts for payment. For that reason the court declined to hear evidence from the witnesses called on behalf of the plaintiff, because these witnesses cannot tell the court anything of influence on its judgment, save for the fact that they, owing to the plaintiff’s age, have been increasingly assisting her on a daily basis. For precisely that reason the court is not relying on the evidence heard from the witnesses Lj. M., Š. M. and A. A.”

8.  A subsequent appeal by the applicant was dismissed by the  (Županijski sud u Rijeci) on 10 December 2003.

9.  On 12 February 2004 the applicant lodged a constitutional complaint alleging, inter alia, that her right to a fair trial had been infringed, because the hearing of 17 March 2003 had been held in the absence of her counsel who had duly excused himself due to his urgent hospitalisation and that she had thus been prevented from questioning two witnesses. Furthermore, neither she nor her counsel had been notified of the hearing scheduled for 23 April 2003. Although her counsel did attend the hearing, which he had learned about by chance on the very same day, he had not been able to prepare himself to question the two further witnesses who had been heard at that hearing. Thus, she had been prevented from questioning any of the four witnesses, all of whom had been heard on behalf of the defendants. Finally, she complained that the Opatija Municipal Court had refused to hear any of her seven witnesses. On 21 June 2006 the  (Ustavni sud Republike Hrvatske) dismissed the complaint as ill-founded.

THE LAW

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

10.  The applicant complained that the civil proceedings instituted by her were unfair, relying on Article 6 § 1 of the Convention which reads as follows:

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

11.  The Government contested that argument.

A.  Admissibility

12.  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

13.  The applicant contended that in the civil proceedings instituted upon her action the Opatija Municipal Court had refused to hear any of her six witnesses while it had heard four witnesses on behalf of the defendants. She further argued that she had been prevented from questioning two witnesses, Lj. M. and Š. M, heard on behalf of her opponents, and also that she had not been adequately represented at the hearing held on 23 April 2003 since neither she nor her counsel had been notified of the date of the hearing. Although her counsel had attended the hearing, of which he had learned by chance, having been at the Opatija Municipal Court on that date for other reasons, he had not known that two witnesses were to be heard at that hearing and therefore he had had no chance to prepare himself properly to question those witnesses.

14.  The Government asserted that the applicant had enjoyed the benefits of a fair trial, stressing that the trial court had accepted the following as evidence from the applicant: her own testimony and a copy of the contract for lifelong care with its annex; while on behalf of the defendants it had heard four witnesses and had seen the receipts for payment of monthly sums for the applicant’s maintenance. They further contended that the relevant domestic law empowered trial courts to decide what evidence to admit. In the proceedings at issue the trial court had established relevant facts from the evidence heard by the parties and the documents submitted. Hence, there had been no need to hear the witnesses called on behalf of the applicant. Furthermore, the trial court had given adequate reasons for dismissing the applicant’s further evidence.

15.  As to the applicant’s contention that she had not been given an opportunity to question two witnesses, namely Lj. M. and Š. M, the second defendant’s parents, the Government maintained that the trial court had expressly stated that its judgment had not relied on the evidence heard from these witnesses.

16.  As to the applicant’s allegations that neither she not her counsel had been duly informed of the hearing held on 23 April 2003, the Government submitted that the applicant’s counsel had nevertheless attended the hearing in question, questioned the witnesses and asked that five further witnesses be heard, which showed that the applicant had been sufficiently and adequately represented at that hearing.

17.  The Court reiterates that while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46, and Garcia Ruiz v. Spain [GC] no. 30544/96, ECHR 1999-I, § 28). Similarly, it is in the first place for the national authorities, and notably the courts, to interpret domestic law and the Court will not substitute its own interpretation for theirs in the absence of arbitrariness. This principle applies, inter alia, to the application of procedural rules concerning the nomination of witnesses by parties (see Tamminen v. , no. 40847/98, § 38, 15 June 2004). In this connection, the Court further reiterates that it is not within its province to substitute its own assessment of the facts for that of the national courts. However, under the Court’s case-law, the requirements of fairness of the proceedings include the way in which the evidence is taken and submitted. The Court’s task is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken and submitted, were fair within the meaning of Article 6 § 1 (see, inter alia, Dombo Beheer B.V. v. the Netherlands, judgment of 27 October 1993, Series A no. 274, pp. 18,19, §  31.).

18.  The requirements inherent in the concept of fair hearing are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge. This is borne out by the absence of detailed provisions such as paragraphs 2 and 3 of Article 6 applying to cases of the former category. Thus, although these provisions have a certain relevance outside the strict confines of criminal law (see, mutatis mutandis, Albert and Le Compte v. Belgium, judgment of 10 February 1983, Series A no. 58, p. 20, § 39), the Contracting States have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases (see Pitkänen v. , no. 30508/96, § 59, 9 March 2004).

19.  Nevertheless, certain principles concerning the notion of a fair hearing in cases concerning civil rights and obligations emerge from the Court’s case-law. Most significantly for the present case, it is clear that the requirement of equality of arms, in the sense of a fair balance between the parties, applies in principle to such cases as well as to criminal cases (see Feldbrugge v. the Netherlands, judgment of 29 May 1986, Series A no. 99, p. 17, § 44 and Dombo Beheer, cited above, p. 19, § 33). In that connection the Court considers that as regards litigation involving opposing private interests, equality of arms implies that each party must be afforded a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. It is left to the national authorities to ensure in each individual case that the requirements of a fair hearing are met (see Dombo Beheer, cited above, p. 19, § 33).

20.  As to the present case, the Court notes that the applicant initially, when bringing her civil action, proposed that evidence be heard from two witnesses, E. P. and Š. T. Later on, at the hearing held on 23 April 2003, the applicant withdrew her request that E. P. be heard, and proposed that the court hear evidence from further five witnesses, M. C., S. R., V. G., N. I. and N. Z. She stated that the relevance of their evidence was that they could provide information on the care provided to her by persons other than the defendants, who had undertaken an obligation to care for the applicant in order to acquire all her property post mortem. Thus, the evidence heard from these witnesses would, in the applicant’s view, show that the defendants had failed to provide her with adequate care and hence had failed to fulfil their contractual obligations, which entitled the applicant to seek the termination of the contract in question.

21.  As to the reasons given by the domestic courts for not admitting the evidence adduced by the applicant, the Court notes that, even though a domestic court has a certain margin of appreciation when choosing arguments in a particular case and admitting evidence in support of the parties’ submissions, an authority is obliged to justify its activities by giving reasons for its decisions (see Suominen v. , no. 37801/97, § 36, 1 July 2003).

22.  In the instant case the Opatija Municipal Court justified its refusal to hear evidence from six witnesses called on behalf of the applicant by saying that the factual background of the case had been sufficiently established from the parties’ statements and the supporting documents, namely the contract for lifelong maintenance and its annex and the receipts for payments made by the defendants to the applicant. In this connection, the Court notes that the contract in question together with its annex was submitted by the applicant as an enclosure when her civil action was lodged on 23 October 2002. The receipts for payment were submitted by the defendants at the beginning of the trial and the parties’ evidence was heard at the hearing held on 6 February 2003.

23.  Thus, according to the Opatija Municipal Court’s arguments, the facts had already been sufficiently established on 6 February 2003, which was the only reason for not admitting any further evidence proposed by the applicant. The Court notes however that after that date four more witnesses called on behalf of the defendants were heard as follows: at the hearing held on 17 March 2003, in the absence of the applicant and her counsel, Lj. M. and Š. M., the parents of one of the defendants, were heard, while on the hearing held on 23 April 2003 R. P. and A. A. were heard.

24.  The Court notes that, while refusing to hear any of the six witnesses called on behalf of the applicant, the trial court nevertheless heard four witnesses called on behalf of the defendants even after it considered that the factual background of the case had already been fully established. In this connection the Court observes that, although it is not its task to examine whether the court’s refusal to admit the evidence submitted by the applicant was well-founded, in its assessment of compliance of the procedure in question with the principle of equality of arms which is a feature of the wider concept of a fair trial (see Ekbatani v. Sweden, judgment of 26 May 1988, Series A no. 134, p. 14, § 30), significant importance is attached to appearances and to the increased sensitivity of the public to the fair administration of justice (see Borgers v. Belgium, judgment of 30 October 1991, Series A no. 214B, p. 31, § 24).

25.  Bearing in mind the above considerations viewed in the light of the applicable principles, the Court finds that the applicant did not have a fair trial in the proceedings in question, in so far as the trial court refused to hear evidence from any of the six witnesses called on behalf of the applicant, for reasons which contradicted the trial court’s agreement to hear evidence from four witnesses called on behalf of the defendants.

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

26.  In view of the above findings the Court does not need to examine the remainder of the applicant’s complaints of fairness of proceedings.

II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

27.  The applicant complained that she had had no effective remedy in respect of her Article 6 complaints. She relied on Article 13 of the Convention which reads as follows:

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

28.  The Court notes that the applicant was able to lodge an appeal against the first instance judgment and a constitutional complaint whereby she was able to advance the same complaints that she is now presenting before the Court The fact that the remedies used by the applicant were unsuccessful does not render them ineffective for the purposes of Article 13 of the Convention.

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

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

30.  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

31.  The applicant claimed 100,000 Croatian kunas (HRK) in respect of non-pecuniary damage.

32.  The Government deemed the sum claimed excessive and unfounded as there had been no causal link between the violations complained of and the applicant’s financial expectations.

33.  The Court cannot speculate about the outcome of the trial had it been in conformity with Article 6 and therefore, an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of the guarantees of that Article. The Court, accepting that the lack of such guarantees has caused the applicant non-pecuniary damage which cannot be made good by the mere finding of a violation, awards her 2,000 euros (EUR) in that respect.

B.  Costs and expenses

34.  The applicant also claimed HRK 4,392 for the costs and expenses incurred before the domestic courts and HRK 13,505 for those incurred before the Court.

35.  The Government made no comments in this respect.

36.  According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 1,800 for the proceedings before the Court.

C.  Default interest

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

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the complaint concerning the applicant’s right to a fair trial admissible and the remainder of the application inadmissible;

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

3.  Holds

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

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

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

Done in English, and notified in writing on 27 March 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 25555/10) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Igor Pascari (“the applicant”), on 26 April 2010.

2.  The applicant, who had been granted legal aid, was represented by Mr V. Zamă, a lawyer practising in Chisinau. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.

3.  The applicant alleged, in particular, that the courts had determined a criminal charge against him in proceedings in which he had not been involved.

4.  On 15 September 2011 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1983 and lives in Chisinau.

6.  The applicant is a bus driver. On 14 August 2009 he was involved in an accident with a car in which no one was injured. According to the findings of the police, the driver of the other vehicle involved in the accident, P.C., had changed lanes without paying attention to the applicant’s bus, which had been overtaking it in the other lane. The applicant had not had enough time to brake and had hit P.C.’s car on the rear left side. On the same date the chief inspector of the traffic police issued a decision finding P.C. responsible for the accident under Article 242 § 1 of the Traffic Code (see paragraph 12 below), fined him 800 Moldovan lei (MDL) (the equivalent of 50 euros (EUR)) and gave him five penalty points.

.  On an unspecified date P.C. contested that decision.

.  By a judgment of 29 September 2009 the Anenii Noi District Court dismissed P.C.’s objection and upheld the decision of the chief inspector of the traffic police. The applicant was not involved in the proceedings. Only P.C. and the police officer who had been present at the site of the accident were present and the latter opposed P.C.’s objection. P.C. challenged the District Court’s decision.

.  On 19 November 2009, the Bender Court of Appeal reversed the decision of the first-instance court, finding the applicant guilty of causing the accident. The court found that the applicant had not kept a safe distance between his bus and the vehicle in front of him and stated as follows:

“... according to article 49 of the Route Code, the driver of a vehicle shall keep a safe distance between his vehicle and the vehicle in front of him, in such a manner as to avoid collision in case of sudden braking by the foregoing vehicle.

These rules were not observed by the driver of the vehicle which was behind, namely by the driver of the bus [...], Mr Igor Pascani, and by no means by Mr P.C.”

The applicant was again not involved in the proceedings and only found out about them at a later date. Under domestic law he was not able to challenge the Court of Appeal’s decision.

.  As a result of the above judgment and based on its conclusions, on 22 January 2010 the chief inspector of the traffic police issued a new decision by which he found the applicant guilty of the breach of Article 49 of the Traffic Code causing the accident of 14 August 2009. The operative part of the decision stated as follows:

“...Pascari Igor is declared guilty of having committed the offence provided by Article 242 § 1 of the Code of Administrative Offences (CAO), however, according to Article 30 § 3 of the CAO no sanction shall be applied in view of the statutory limitation period.”

.  It appears from the documents submitted by the parties that following the accident the owner of the bus recovered the cost of its repairs from P.C.’s insurance company. After the judicial proceedings in which the applicant was found responsible, P.C. attempted to recover the cost of the repairs of his car from the other party’s insurance company. However, it appears from the case file that the company suspended payment until the case has been finally determined by the Court.

II.  RELEVANT DOMESTIC LAW

12.  According to Article 242 § 1 of the Code of Administrative Offences (CAO), a breach of traffic rules which only causes damage is punishable by a fine of MDL 800 and five penalty points.

.  According to article 49 of the Route Code, the driver of a vehicle shall keep a safe distance between his vehicle and the vehicle in front of him, in such a manner as to avoid collision in case of sudden braking by the foregoing vehicle.

14.  In accordance with Article 36 of the CAO, when drivers have a total number of fifteen penalty points against them their licence can be suspended for between six months and one year.

THE LAW

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

15.  The applicant complained that, contrary to Article 6 § 1 of the Convention, the criminal charges against him had been determined in court proceedings in which he had not been involved. Article 6 § 1 reads as follows:

A.  Admissibility

16.  The Government submitted that the applicant had failed to exhaust domestic remedies, namely a compensation claim against the insurance companies which had insured both vehicles involved in the accident.

17.  The Court considers that claiming compensation from the insurance company is entirely unrelated to the complaint, which is that the applicant was criminally convicted without being involved in the proceedings. Accordingly, the Court dismisses the Government’s objection of non-exhaustion of domestic remedies as ill-founded.

18.  The Government further contended that the applicant’s complaint under Article 6 § 1 was incompatible ratione materiae because the proceedings from which the applicant had been absent were not criminal proceedings for the purposes of Article 6 of the Convention.

19.  The applicant disagreed with the Government and noted that in Ziliberberg v. Moldova (no. 61821/00, §§ 29-36, 1 February 2005), the Court had found that acts which were considered offences under the CAO were criminal in nature for the purposes of the Convention.

20.  The Court observes that the general principles concerning the applicability of Article 6 were summarised in Ziliberberg (ibid., § 29).

21.  It further finds, with the applicant, that the act considered as an offence and punished by Article 242 of the CAO is directed towards all citizens and not towards a given group possessing a special status. It also notes that the fine and penalty points provided for by that provision are not intended as pecuniary compensation for damage but are punitive and deterrent in nature. That is particularly true when taking into consideration the effect of the penalty points, which can lead to the suspension of a driving licence for between six and twelve months (see paragraphs 12 and 13 above). The Court reiterates that a punitive character is the customary distinguishing feature of criminal penalties (ibid., § 33).

22.  The Court further notes that eventually the applicant was not punished in the way provided for by Article 242 § 1 of the CAO due to a technicality. However, it observes that what is decisive is the potential penalty rather than the one actually imposed (see Demicoli v. Malta, 27 August 1991, § 34, Series A no. 210) and notes that it was a matter of technicality that the applicant was not penalised.

23.  In the light of the foregoing, the Court considers that Article 6 § 1 is applicable in the instant case under its criminal head. It therefore dismisses the Government’s second objection.

24.  Lastly, 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

25.  The applicant argued that the failure to involve him in the proceedings in which his guilt for the accident of 14 August 2009 had been determined had constituted a breach of his right to a fair trial, guaranteed by Article 6 § 1 of the Convention.

26.  The Government did not make any submissions about the merits of the case.

27.  The Court notes that there is no dispute between the parties about the fact that the applicant was not involved in the proceedings which ended with the decision of the Bender Court of Appeal of 19 November 2009. It further notes that it is clear from the case file that the Bender Court of Appeal determined, inter alia, that the applicant was responsible for causing the accident of 14 August 2009. Although that finding did not amount to a final determination of his guilt, it had a decisive effect on such a determination. Indeed, the police based its decision of 22 January 2010 entirely on the conclusions reached by the Bender District Court of 19 November 2009 without making any further investigation or reaching any new conclusions of its own (see paragraphs 9 and 10 above). In fact, the chief inspector was obliged to conform to the to the appeal court’s judgment and could not have reached any other conclusion. Moreover, the judgment of 19 November 2009 had the effect of res judicata in respect of both the applicant and P.C., if only for making the latter immune from responsibility for the accident. Since in a car accident involving two vehicles, there should be at least one person responsible, the final exclusion of P.C.’s responsibility by the Bender Court of Appeal implicitly predetermined the applicant’s guilt. In those circumstances, the Court must conclude that there has been a breach of Article 6 § 1 of the Convention.

III.  ALLEGED VIOLATION OF ARTICLE 1 of protocol no. 1 to THE CONVENTION

28.  The applicant also complained that the unfairness of the criminal proceedings against him had had the effect of infringing his right to the peaceful enjoyment of his possessions, as secured by Article 1 of Protocol No. 1 to the Convention, which provides:

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

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

29.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and therefore declares it admissible. However, in view of its findings under Article 6 § 1of the Convention (see paragraphs 25-27 above), the Court does not consider it necessary to examine the complaint separately.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

30.  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

.  The applicant did not make any claim in respect of pecuniary damage and submitted that at this stage of the proceedings such damage was impossible to assess. He therefore asked the Court to reserve the issue of pecuniary damage for a separate judgment. The applicant also claimed 5,000 euros (EUR) in respect of non-pecuniary damage.

.  The Government objected and argued that the amount claimed was excessive.

33.  In view of the violations found above and of the circumstances of the case, the Court does not consider it necessary to reserve the issue of pecuniary damage. It rejects the applicant’s claim in that respect.

34.  On the other hand, the Court considers that the applicant must have been caused a certain amount of stress and frustration as a result of the breach of his right to a fair trial. Making its assessment on an equitable basis, it awards the applicant EUR 2,500 in respect of non-pecuniary damage.

B.  Costs and expenses

35.  The applicant also claimed EUR 590 for the costs and expenses incurred before the Court.

36.  The Government objected and argued that the amount claimed was excessive.

.  Regard being had to the circumstances of the case and to the documents submitted by the applicant, the Court considers it reasonable to award the entire amount claimed.

C.  Default interest

38.  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

1.  Declares, by a majority, the application admissible;

2.  Holds, by four votes to three, that there has been a violation of Article 6 § 1 of the Convention;

3 Holds, by four votes to three, that there is no need to examine the complaint under Article 1 of Protocol No. 1 to the Convention;

4.  Holds, by four votes to three,

(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, unanimously, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 30 August 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges P. Lemmens, K. Turković and G. Ravarani is annexed to this judgment.

1.  We regret that we cannot share the view of the majority that there has been a violation of Article 6 § 1 of the Convention in this case. We consider that the majority apply Article 6 § 1 in a way that is wholly inconsistent with the Court’s case-law and disregards the limits of the res judicata effect.

The proceedings at issue

2.  In order to analyse the legal issues raised by the complaint, it is important to correctly determine the facts, in particular the scope of the proceedings at issue.

On 14 August 2009 a road accident took place, involving P.C., the driver of a car, and the applicant, the driver of a bus owned by V.B.

On the same date the chief inspector of the traffic police found that P.C. had violated the traffic rules and imposed a fine on him. Seeking to be relieved of criminal responsibility and exempted from the imposed fine, P.C. challenged that decision. He was unsuccessful before the District Court of Anenii Noi (judgment of 29 September 2009), but eventually won his case before the Court of Appeal of Bender (judgment of 19 November 2009). The latter court held that the applicant had not observed the traffic rules and that he was responsible for the accident. The court accordingly annulled the decision of the chief inspector.

We would like to underline that the judicial proceedings brought by P.C. were aimed solely at obtaining a ruling on the “criminal” liability of the one accused person, namely P.C. himself. The applicant was not a party in those proceedings as there had not been any charge against him and there had not been any request by any of the parties to join him to the proceedings.

On 22 January 2010 the chief inspector of the traffic police issued a new decision. Basing himself on the judgment of the Court of Appeal, he declared the applicant guilty of a breach of the traffic rules, but did not apply any sanction, the reason for this being that the criminal prosecution was time-barred. The applicant did not challenge that decision.

3.  In his application, the applicant also mentioned the civil consequences of the decision to hold him responsible.

He indicated that after the decision of the chief inspector of 14 August 2009, P.C.’s insurer paid 2,702 Moldovan lei (MDL) (approximately EUR 124) to V.B. for the damage to the bus. Following the decision of the chief inspector of 22 January 2010, P.C. sought payment of his car repairs from V.B.’s insurer. The insurance company replied that it would await the decision of our Court in the present case. The applicant calculated that the insurer would compensate only part of the damage, leaving himself liable for MDL 40,894 (approximately EUR 1,870). P.C.’s insurance company, for its part, indicated that it expected V.B. to pay back the money which he had received.

None of the claims of P.C. or his insurer seems to have led to any civil proceedings.

Inapplicability of Article 6 § 1 to the proceedings before the Court of Appeal

4.  The majority hold that Article 6 § 1 is applicable in the instant case (see paragraphs 18-23 of the judgment).

We have no problem accepting that the proceedings which started with the chief inspector’s decision of 14 August 2009 concerned a “criminal charge” within the meaning of Article 6 § 1. The “criminal” nature of a charge based on the traffic rules and resulting in an administrative fine being imposed is also not disputed by the Government. However, this is not the point at issue. The question is whether the relevant proceedings concerned a charge against the applicant.

Indeed, “charge”, for the purposes of Article 6 § 1, is defined as the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence, a definition that also corresponds to the test whether the situation of the suspect has been substantially affected (see Deweer v. Belgium, 27 February 1980, § 46, Series A no. 35; Eckle v. Germany, 15 July 1982, § 73, Series A no. 51; Reinhardt and Slimane-Kaïd v. France, 31 March 1998, § 93, Reports of Judgments and Decisions 1998II; Escoubet v. Belgium [GC], no. 26780/95, § 34, ECHR 1999VII; and McFarlane v. Ireland [GC], no. 31333/06, § 143, 10 September 2010). In their submissions, the Government referred to the Court’s case-law, and argued on that basis that Article 6 § 1 was not applicable.

There is no doubt that the proceedings before the Court of Appeal concerned a charge brought against P.C. The latter had a right to respect for the guarantees provided by Article 6 § 1. By contrast, as indicated above (see paragraph 2), there had been no charge against the applicant in those proceedings. The procedural guarantees of Article 6 § 1 were therefore totally irrelevant for him.

In our opinion, the Government’s objection based on the incompatibility ratione materiae of the application with the Convention is well-founded. In so far as the applicant complains of a violation of Article 6 § 1 as a result of the decision of the Court of Appeal, the application should have been declared inadmissible.

Effects of the findings of the Court of Appeal with respect to the applicant

5.  In finding that there was a violation of Article 6 § 1 as a result of the Court of Appeal’s decision, the majority refer to the fact that that court determined that the applicant, not P.C., was responsible for causing the accident, and that this decision was res judicata in respect of both P.C. and the applicant (see paragraph 27 of the judgment). The majority thus consider that the decision of the Court of Appeal had a far-reaching erga omnes effect attached to each and all of its findings.

We note, first of all, that the majority’s decision is based on an interpretation of the domestic rules on res judicata in criminal cases. However, the contents and scope of domestic law on this point have not been discussed by the parties. In our opinion, it is questionable whether the majority are correct in assuming that the chief inspector was obliged to conform to the Court of Appeal’s judgment to the extent that he could not have reached any other decision on the applicant’s conduct in the light of the applicable traffic rules.

6.  Indeed, res judicata is generally attached only to those findings that form the necessary basis for the court’s conclusion. The proceedings before the Court of Appeal concerned the “criminal” liability of P.C. The decision that P.C. was not guilty of having violated the traffic rules is undoubtedly a decision that constitutes res judicata. We are not sure that the same can be said about any findings with respect to the applicant. Should not all findings other than the ones relating to the “criminal” liability of P.C. be considered obiter dicta, with no binding force at all? Should this not be particularly true of findings relating to a third party who was not charged and who accordingly was not able to defend himself against any charge?

It is true that in order to relieve P.C. of responsibility the Court of Appeal stated that the applicant was the only one of the two drivers involved in the accident who was responsible for the accident. However, it seems to us that this statement concerning the applicant’s responsibility would fit within the category of obiter dicta, as that finding was not necessary for assessing P.C.’s criminal liability. Indeed, the acquittal of P.C. was not dependent on a finding that the applicant was criminally liable. To hold otherwise would ignore the whole spectrum of situations that might arise in concreto, in which neither party may be responsible or where certain circumstances may exclude the criminal responsibility of both drivers, such as force majeure.

Moreover, contrary to what the majority suggest (see paragraph 27 of the judgment), even in the event of a car accident involving two drivers, the acquittal of one driver on the basis that the accident was caused by the other driver does not necessarily mean that that other driver is criminally liable.

7.  A consequence of the right to adversarial proceedings is that the quality of res judicata cannot be invoked against a person with respect to assessments of fact or law made in proceedings to which that person was not a party. Assessments made in a given case must remain relative and their effect limited to those proceedings (see Navalnyy and Ofitserov v. Russia, nos. 46632/13 and 28671/14, § 105, 23 February 2016; see also, from the point of view of the right to a court having jurisdiction to examine all the factual and legal issues relevant to the determination of the dispute before it, Beaumartin v. France, 24 November 1994, § 38, Series A no. 296B; Terra Woningen B.V. v. the Netherlands, 17 December 1996, § 54, Reports of Judgments and Decisions 1996VI; and Chevrol v. France, no. 49636/99, § 82, ECHR 2003III). Accordingly, in the present case it would not be compatible with the right to a fair trial if a criminal or civil court were automatically to follow the Court of Appeal’s view that the applicant was responsible for the accident without full and proper examination at a trial in which the applicant would be able to challenge that view.

However, the present application does not lend itself to an examination of whether either Moldovan law or any subsequent decision by a Moldovan authority complies with this aspect of the right to a fair trial.

In the first place, while the chief inspector, following the judgment of the Court of Appeal, found the applicant guilty of a breach of the traffic rules, the applicant did not challenge that decision. He therefore did not avail himself of the opportunity to challenge any alleged automatic reliance by the chief inspector on the Court of Appeal’s statement before a competent court. In addition we note that the Court is not required to examine the impugned legislation in abstracto, but must confine itself to the circumstances of the case before it. In any event, as stated above, the parties have not discussed the contents and scope of domestic law relating to res judicata in criminal cases.

Secondly, no civil claim has yet been brought against the applicant, either by P.C. or by P.C.’s insurer (see paragraph 3 above). His complaint in this respect is premature. At the present time the applicant cannot claim to be already a victim of a violation of his right to a fair trial with respect to the possible civil consequences of the Court of Appeal’s finding. It is in this sense that we also understand the objection of the Government, who argue that the applicant has not exhausted all remedies at his disposal to obtain compensation for the damage he may have sustained himself or to defend himself against claims for compensation for the damage sustained by other parties (see paragraph 16 of the judgment, which, however, in our opinion expresses the objection too narrowly). In so far as the applicant complains about the civil consequences of the Court of Appeal’s decision, the Government’s objection should have been accepted and the application declared inadmissible.

Respect for the applicant’s right to presumption of innocence?

8.  The foregoing does not necessarily exclude the possibility that the applicant is already in a position to complain of a violation of his human rights as a result of the decision of the Court of Appeal.

Indeed, Article 6 § 2 of the Convention guarantees the right to be presumed innocent. This provision is relevant with respect to premature statements made by public authorities or public officials suggesting that a person is guilty before that person has been charged and his guilt established by the competent judicial authority (see, among many others, Allenet de Ribemont v. France, 10 February 1995, § 35, Series A no. 308, and Lavents v. Latvia, no. 58442/00, § 125, 28 November 2002). The presumption of innocence may be infringed on account of premature expressions of a person’s guilt made within the scope of a judgment against another person, for instance a separately prosecuted co-accused (see Karaman v. Germany, no. 17103/10, § 42, 27 February 2014).

In a case about the criminal liability of a person involved in a situation in which other persons are also involved, it may be indispensable for the assessment of the guilt of the person who is on trial to refer to the role of third persons. However, if facts relating to the role of third persons have to be introduced, the court should avoid giving more information than necessary for the assessment of the criminal responsibility of the person who is accused in the trial before it (see Karaman, cited above, § 64; see also Bezek v. Germany (dec.), nos. 4211/12 and 5850/12, § 36, 21 April 2015, and Navalnyy, cited above, § 104).

9.  The applicant did not allege a violation of Article 6 § 2. We therefore will not discuss whether an issue could be said to have arisen in the present case. We would like to point out, however, that in order to assess whether or not there has been a violation of Article 6 § 2, regard would have to be had not only to the language used by the Court of Appeal, but also to the nature and the context of the proceedings before that court (see Allen v. the United Kingdom [GC], no. 25424/09, § 126, ECHR 2013).

For the purposes of the present opinion it is sufficient to note that if the majority had seen a problem, they could only have examined that problem from the point of view of Article 6 § 2 (provided that the application lent itself to such an examination) and not, as they did, from the point of view of Article 6 § 1.