PROCEDURE

1.  The case originated in an application (no. 45729/05) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Mr Mitrophane Sturua (“the applicant”), on 29 November 2005.

2.  The applicant was represented by Mr N. Kvaratskhelia, a lawyer practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr D. Tomadze, of the Ministry of Justice.

3.  The applicant alleged that, contrary to Article 6 § 1 of the Convention, the disciplinary proceedings against him had been unfair, that his appeal had been heard by a body lacking impartiality and that he did not have access to a court.

4.  On 27 August 2007 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1953 and lives in Tbilisi.

6.  On 15 May 1999 the applicant was appointed President of the Abasha District Court for a ten-year term.

7.  On 3 December 2004 the Supreme Council of Justice initiated disciplinary proceedings against the applicant under section 2(2)-(e) of the Act of 22 February 2000 on Disciplinary Proceedings against Judges of Ordinary Courts (hereinafter, “the Disciplinary Proceedings Act” – see paragraphs 15-18 below). He was accused in particular of having retained a criminal case file for six months after withdrawing from the case on 29 October 2003.

8.  On 23 December 2004 a Panel of the Disciplinary Council of Judges (hereinafter, “the Panel”), composed of Mr K.K. (the President of the Panel and rapporteur), Mr G.Ch, Mr D.S. and Mr Th.Th., considered the case at an oral hearing. According to the transcript of the hearing, the applicant admitted to the act of negligence he had been accused of. After examining the circumstances of the case, the Panel found the applicant guilty of the misconduct in question. It considered his conduct all the more serious because the defendants in the case had been in detention at the time and because he had had a duty, under Article 6 of the Convention, to act promptly and without fault. The Panel took into account the nature of the misconduct, which it classified as serious, and the existence of another disciplinary measure against the applicant in the past, and decided to remove him from office.

9.  On 29 December 2004 the applicant lodged an appeal with the Disciplinary Council of Judges (hereinafter, “the Disciplinary Council”) on points of fact and law under section 60(1) of the Disciplinary Proceedings Act (see paragraph 17 below). He questioned the assessment of the circumstances of the case and the application of the legal provisions to the established facts in the decision of 23 December 2004. His appeal was examined at a plenary session of the Disciplinary Council composed of eight members, including the same four, Mr K.K., Mr G.Ch., Mr D.S. and Mr Th.Th, who had sat at the first hearing. As before, Mr K.K. acted as President and rapporteur in the examination of the applicant’s appeal.

10.  By a decision of 27 January 2005, the Disciplinary Council unanimously upheld the Panel’s decision of 23 December 2004 in its entirety. The appellate instance confirmed that the lower body had correctly established the facts and applied the relevant law to the factual findings.

11.  The applicant then lodged an appeal on points of law with the Supreme Court under section 74 of the Disciplinary Proceedings Act, as amended on 25 February 2005 (see paragraph 18 below). He argued that he had not been given notice that he could appear before the Panel and that there had been a delay in the Disciplinary Council examining his appeal. He also stated that under Article 6 of the Convention the four members of the Panel who had taken the decision of 23 December 2004 had not had the right to sit subsequently in the Disciplinary Council appeal hearing.

12.  In a judgment of 11 July 2005, the Supreme Court dismissed the applicant’s cassation appeal as ill-founded. Based on the transcript, it found that he had in fact been present at the Panel hearing on 23 December 2004 and had been able to state his case without impediment, contrary to his allegation. At the hearing the applicant had admitted to the act of negligence with which he had been charged. The Supreme Court rejected the allegation of a delay in the examination of the case by the Disciplinary Council by noting that the latter had given its ruling within the statutory time-limit of one month. The Supreme Court also found that the presence of four members of the Panel as participants in the subsequent Disciplinary Council proceedings had not contravened the requirements of sections 22 and 24 of the Disciplinary Proceedings Act (see paragraph 17 below).

II.  RELEVANT DOMESTIC LAW

A.  Guarantees on the irremovability of judges in the domestic law

13.  Pursuant to sections 48(1) and 49(1) of the Act of 13 June 1997 on Courts of Ordinary Jurisdiction, as in force at the time of the applicant’s appointment to the judicial post in 1999 (see paragraph 6 above), President of Georgia was empowered to appoint qualified candidates as judge for the ten years’ term of office.

14.  Articles 84 and 86 of the Constitution of Georgia, the provisions proclaiming the principles of independence and irremovability of judges, read, at the material time of the relevant events, as follows:

“1. A judge shall be independent in his/her activity and shall be subject only to the Constitution and law. Any pressure upon the judge or interference with his/her activity with the aim of influencing his/her decision shall be prohibited and punishable by law.

2. The removal of a judge from the consideration of a case, his/her early dismissal from office or transfer to another judicial position shall be permissible only in the circumstances defined by law.

3. No one shall have the right to hold a judge accountable for a case under his/her consideration.”

“2. The term of office of an appointed judge shall be no less than ten years. The procedures for selection of judicial candidates, their appointment to or early removal from office shall be determined by law.”

B.  The Disciplinary Proceedings Act

B.  The Disciplinary Proceedings Act

15.  As in force at the time of the opening of the disciplinary proceedings against the applicant, Section 2(2)-(e) of the Disciplinary Proceedings Act provided that a judge who had contributed to making the examination of a case protracted without any valid reason was considered to be in breach of his or her official duties.

16.  Prior to 30 June 2004, the Disciplinary Proceedings Act, notably section 62(2), explicitly forbade the members of the Panel which had examined a disciplinary case at first instance from sitting in the case when the Disciplinary Council reviewed it on appeal. In addition, section 66(1) stated that if the President of the Disciplinary Council had participated in a Panel then he or she should withdraw from presiding over a Disciplinary Council session during the appellate review of the same case. An amendment of 30 June 2004 removed the above-mentioned provisions by rewording sections 62(2) and 66(1).

17.  After the amendment of 30 June 2004, the most relevant provisions of a procedural nature in the Disciplinary Proceedings Act read as follows:

“1. The Disciplinary Council of Judges of Ordinary Courts shall be composed of eight members.

2. The members of the Council ..., of whom four shall be judges of ordinary courts, shall be elected by the Conference of Judges of Ordinary Courts by a majority vote, on a proposal from the Supreme Council of Justice ...

3. Within the Council, Panels of four members each shall be formed. ...

4. The Council shall have a President who is also one of its members. The President shall chair the Council’s sessions. ...”

“The term of office of members of the Disciplinary Council shall be four years.”

“Once a decision has been taken by a Disciplinary Panel to remove a judge from office, the judge in question shall be disqualified, in accordance with the procedure prescribed by law, from considering cases and from other activities arising out of the exercise of his or her office.”

“A decision by a Disciplinary Panel may be reconsidered on appeal before the plenary of the Disciplinary Council of Judges.”

“The Disciplinary Council shall consider the case ... within a month of the appeal being lodged.”

“... Hearings [before the plenary of the Council] shall be chaired by the President of the Council or, by decision of the President, by another member of the Council.”

“Decisions of the Disciplinary Council, sitting in plenary session, shall be taken by a simple majority vote. In the event of a tie, the President shall have the casting vote.”

18.  Prior to 25 February 2005, section 74 of the Disciplinary Proceedings Act stated that a Disciplinary Council appellate decision in disciplinary proceedings, which had reviewed the factual and legal wellfoundedness of a first-instance decision taken by a Panel, was final and enforceable. However, an amendment of section 74 on 25 February 2005 allowed the Supreme Court of Georgia, the cassation instance, to carry out a further review of Disciplinary Council appellate decisions. Such reviews can only be on points of law.

THE LAW

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

19.  The applicant complained that his case had not been heard by an impartial tribunal as the same judges had taken part in the first and appellate disciplinary proceedings. He relied on Article 6 § 1 of the Convention which reads, in its relevant parts, as follows:

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

A.  Admissibility

1.  The parties’ submissions

20.  Firstly, the Government contended that Article 6 of the Convention did not apply in the present case. Among other arguments, they relied on the Court’s decision in the case of Pitkevich v. Russia ((dec.), no. 47936/99, 8 February 2001) and maintained that disputes relating to dismissal from the judiciary fell outside the scope of the provision in question.

21.  The Government also submitted that the applicant had not exhausted domestic remedies, as required by Article 35 § 1 of the Convention. They stated that the applicant should have applied to the Constitutional Court of Georgia and requested that the impugned provisions of the Disciplinary Proceedings Act, which allowed for the same judges to sit both at first instance and at appeal, be repealed as being unconstitutional.

22.  The applicant disagreed with the Government’s objections, considering them to be misplaced and not supported by the Court’s relevant case-law.

2.  The Court’s assessment

23.  The Court reiterates that Article 6 § 1 of the Convention applies under its civil head to a dispute (“contestation” in the French text) over a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is also protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see Micallef v. Malta [GC], no. 17056/06, § 74, ECHR 2009, and Boulois v. Luxembourg [GC], no. 37575/04, § 90, ECHR 2012).

24.  The Court observes that, in the light of the domestic legislative framework as in force at the time of his appointment in 1999, the applicant could arguably claim to have had an entitlement under the Georgian law, including the Constitution, to protection against unjustified termination of his judicial mandate prior to the expiry of the relevant ten years’ term (see paragraphs 13 and 14 above). Furthermore, the outcome of the disciplinary proceedings in question was directly decisive for the manner of the exercise of the said right. Indeed, the applicant’s dispute with the Supreme Council of Justice, which body initiated the disciplinary proceedings him (see paragraph 7 above), could have led to the setting-aside of the impugned disciplinary sanction – removal from office. That being so, the Court considers that in the present case there was a genuine and serious dispute over a “right” which the applicant could claim at least on arguable grounds under domestic law (see Baka v. Hungary [GC], no. 20261/12, §§ 107111, ECHR 2016, and Tato Marinho dos Santos Costa Alves dos Santos and Figueiredo v. Portugal, nos. 9023/13 and 78077/13, § 39, 21 June 2016).

25.  The Court notes that in Vilho Eskelinen and Others v. Finland, it held that in order for a respondent Government to be able to argue before the Court that Article 6 § 1 of the Convention does not apply under its “civil” limb to employment disputes between the authorities and public servants, two conditions must be fulfilled. Firstly, the Government must show that the respondent State’s national law expressly excludes access to a court for the post or category of staff in question and, secondly, the exclusion must be justified on objective grounds in the State’s interest (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007II).

26.  The Court further observes that in the context of the first condition it is not prevented from classifying a particular domestic body, outside the domestic judiciary, as a “court” for the purposes of the Vilho Eskelinen test (see Oleksandr Volkov v. Ukraine, no. 21722/11, § 88, ECHR 2013). This test is equally applicable with respect to both ordinary civil servants and judges (see Baka, cited above, § 104). Furthermore, the Vilho Eskelinen test covers all types of employment disputes concerning civil servants and judges, including those relating to recruitment/appointment, career/promotion, transfer and termination of service (see Baka, cited above, § 105, with further references, and Olujić v. Croatia, no. 22330/05, §§ 31 44, 5 February 2009, where the Court held Article 6 to be applicable to the proceedings concerning the disciplinary dismissal of the President of the Supreme Court).

27.  Returning to the circumstances of the present case, the Court notes that the disciplinary charge against the applicant was examined by the Disciplinary Council of Judges at first instance and on appeal. At first instance, it sat as a four-member Panel while at the appellate level it examined the case in plenary session. The Disciplinary Council took reasoned decisions on the applicant’s dismissal, which were then reviewed by the Supreme Court of Georgia, sitting as an ordinary final court of cassation (see paragraphs 8-12 above). Given therefore that the disciplinary proceedings against the applicant were conducted by bodies which clearly performed a judicial function, with the Disciplinary Council clearly representing “a tribunal” within the meaning of Article 6 § 1 of the Convention, it cannot be concluded that domestic law “expressly excluded access to court” in the applicant’s case (see, mutatis mutandis, Oleksandr Volkov, cited above, §§ 89-91; H. v. Belgium, 30 November 1987, § 50, Series A no. 127B; and Belilos v. Switzerland, 29 April 1988, § 66, Series A no. 132). The first condition of the Vilho Eskelinen test has therefore not been met and Article 6 applies under its “civil” head to the impugned disciplinary proceedings (compare with Olujić, cited above, §§ 31-44; Saghatelyan v. Armenia, no. 7984/06, §§ 31-35, 20 October 2015; Gerovska Popčevska v. the former Yugoslav Republic of Macedonia, no. 48783/07, § 38, 7 January 2016; and Tato Marinho dos Santos Costa Alves dos Santos and Figueiredo, cited above, §§ 40-42).

28.  While the civil and criminal aspects of Article 6 are not necessarily mutually exclusive (see Albert and Le Compete v. Belgium, 10 February 1983, § 30, Series A no. 58), the Court, in line with its previous findings on the early dismissal of judges from their posts, finds that the disciplinary proceedings in the present case did not attract the applicability of the criminal limb of the provision in question (see Oleksandr Volkov, cited above, §§ 92-95).

29.  As regards the Government’s objection of non-exhaustion of domestic remedies (see paragraph 21 above), the Court reiterates that it has already found the lodging of an individual constitutional complaint in Georgia to be an ineffective remedy for the purposes of Article 35 of the Convention, mainly on account of the Constitutional Court’s inability to set aside individual decisions by the public authorities or courts which directly affect complainants’ rights (see Apostol v. Georgia, no. 40765/02, §§ 35-46, ECHR 2006-XIV; Mumladze v. Georgia, no. 30097/03, § 37, 8 January 2008; and Khoniakina v. Georgia, no. 17767/08, § 59, 19 June 2012).

30.  Consequently, the Court dismisses both of the Government’s inadmissibility objections and concludes that the applicant’s complaint concerning the impartiality of the Disciplinary Council is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

31.  The Government argued in essence that domestic law had offered sufficient guarantees about the independence and impartiality of the Disciplinary Council. It had been lawful for the same four members of the Council to sit first in the Panel and then in the plenary meeting. The plenary of the Disciplinary Council should not be viewed as an ordinary appellate instance. Overlap in the composition of the Disciplinary Council when sitting in two different bodies was inevitable in the light of the relevant domestic legal framework, but that fact could not taint the validity of the decisions taken by the collegial body by majority vote. In addition, there had been no indication of personal bias on the part of any of the impugned four members of the Disciplinary Council who had examined the applicant’s case at two stages of the same procedure. The fact that the same four judges had taken part in adjudication of the issues at two different stages did not in itself prove that they had been biased.

32.  The applicant maintained that his case had not been considered by an “independent and impartial tribunal”. In particular, those requirements had not been met by the Disciplinary Council when it had sat in its plenary formation. He argued that since four members of the plenary, including the President, had examined his case at first instance, they had not been able to ensure an adequate rehearing of the issues on appeal.

2.  The Court’s assessment

33.  The Court reiterates that Article 6 § 1 of the Convention requires a tribunal falling within its scope to be impartial. Impartiality normally denotes absence of prejudice or bias and its existence can be tested in various ways. The Court has thus distinguished between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect (see, amongst many other authorities, Piersack v. Belgium, 1st October 1982, § 30, Series A no. 53). Under the latter approach, what is decisive is whether the fear that a particular judge lacks impartiality can be held, irrespective of the judge’s real personal standpoint, to be objectively justified (see Wettstein v. Switzerland, no. 33958/96, § 44, ECHR 2000XII). Indeed, whilst it may often be difficult to procure evidence with which to rebut the presumption of the personal impartiality of a judge, the requirement of objective impartiality provides, in this respect, a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports of Judgments and Decisions 1996-III). In other words, the Court has recognised the difficulty of establishing a breach of Article 6 on account of subjective partiality and for this reason has in the vast majority of cases raising impartiality issues focused on the objective test. However, there is no watertight division between the two notions, since a judge’s conduct may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test), but may also go to the issue of his or her personal conviction (subjective test) (see Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005XIII; and Olujić, cited above, § 58).

34.  The Court observes that in the present case four members of the Disciplinary Council of Judges had first gathered as a Panel to examine, in the capacity of a judicial body of first instance, the well-foundedness of the disciplinary charge brought against the applicant. The Panel conducted a hearing, examined all the evidence and then delivered a reasoned decision on 23 December 2004 finding the applicant guilty of a disciplinary offence and punishing him with dismissal (see paragraph 8 above). The judicial decision contained an interpretation and application of the relevant legal provisions to the facts of the case.

35.  Subsequently, the same four judges were part of the eight-member plenary session of the Disciplinary Council which reviewed on appeal the issues of fact and points of law raised by the applicant under section 60(1) in relation to their decision of 23 December 2004. In other words, on appeal, the same four judges were called upon to reconsider their own decision in the same case in its entirety, to review whether or not they themselves had committed any error in their assessment of the facts or of legal interpretation (compare with San Leonard Band Club v. Malta, no. 77562/01, §§ 6166, ECHR 2004IX; Indra v. Slovakia, no. 46845/99, §§ 51-55, 1 February 2005; and HIT d.d. Nova Gorica v. Slovenia, no. 50996/08, §§ 37-42, 5 June 2014; contrast with Warsicka v. Poland, no. 2065/03, §§ 43-47, 16 January 2007, and Central Mediterranean Development Corporation Limited v. Malta (no. 2), no. 18544/08, §§ 35-38, 22 November 2011). The Court also notes that the eight-member plenary of the Disciplinary Council took, at the material time, appellate decisions by a simple majority, with its President possessing the casting vote in the event of a tie (see section 68(1) of the Disciplinary Proceedings Act, cited at paragraph 17 above). That meant that half of the bench, including its President, had been previously involved in examining the case at first instance (see, mutatis mutandis, Perote Pellon v. Spain, no. 45238/99, §§ 50-52, 25 July 2002; Cardona Serrat v. Spain, no. 38715/06, §§ 37 and 38, 26 October 2010; and Fazlı Aslaner v. Turkey, no. 36073/04, §§ 37-39, 4 March 2014). Furthermore, given that the Supreme Court’s review of the disciplinary proceedings was clearly limited to the assessment of the questions of law (see paragraphs 12 and 18 above), the Court has certain misgivings about the cassation instance’s ability to handle the matter effectively (compare with, mutatis mutandis, Oleksandr Volkov, cited above, §§ 126-128, and contrast with A. Menarini Diagnostics S.r.l. v. Italy, no. 43509/08, § 64, 27 September 2011). In the eyes of the Court, those circumstances are sufficient to allow it to hold that the applicant’s fears as to a lack of impartiality on the part of the Disciplinary Council were objectively justified.

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

II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

37.  Relying on Article 6 § 1 of the Convention, the applicant also complained, on the one hand, that he did not have access to a court and, on the other, that the outcome of the disciplinary proceedings had been based on an erroneous assessment of the facts and a wrongful application of the law by the Disciplinary Council and the Supreme Court of Georgia.

38.  As regards the complaint about the inability to have access to a court, the Government submitted that it was manifestly ill-founded given that, by virtue of the amendment of 25 February 2005 to section 74 of the Disciplinary Proceedings Act (see paragraph 18 above), the applicant had availed himself of the possibility to appeal to the Supreme Court of Georgia against the outcome of the disciplinary proceedings (see paragraph 11 above).

39.  The applicant disagreed with the Government’s above-mentioned arguments, maintaining that he had not benefited from a proper judicial review of the disciplinary charge against him.

40.  Having regard to its findings about the applicability of Article 6 § 1 of the Convention to the disciplinary proceedings in question, the Court reiterates that the Disciplinary Council of Judges, albeit a body outside the ordinary judiciary, clearly constituted in itself “a tribunal” for the purposes of Article 6 § 1 of the Convention (see paragraphs 26 and 27 above).

41.  As regards the applicant’s complaint about the outcome of the disciplinary proceedings, the Court reiterates that it cannot act as a fourth instance and will not therefore question the domestic judicial bodies’ findings of fact and law, unless their findings can be regarded as arbitrary or manifestly unreasonable (see, for instance, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, 5 February 2015). In the present case, the Court does not see any appearance of arbitrariness in the conclusions of the domestic courts.

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

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

43.  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

44.  The applicant claimed 15,000 Georgian laris (GEL) (approximately 6,400 euros (EUR) at the relevant time) in respect of non-pecuniary damage.

45.  The Government submitted that the amount claimed was excessive.

46.  The Court accepts that the applicant suffered non-pecuniary damage which is not sufficiently compensated for by the finding of a violation (see, for instance, Toziczka v. Poland, no. 29995/08, § 56, 24 July 2012, and Fazlı Aslaner, cited above, § 62). Making its assessment on an equitable basis and having regard to the circumstances of the case, the Court awards the applicant EUR 3,500 under this head.

B.  Costs and expenses

47.  The applicant claimed GEL 7,900 (approximately EUR 3,380 at the relevant time) in respect of his representation before the Court. In support of this claim, he submitted a contract for legal services that he had concluded with his representative on 26 February 2008 together with an itemised invoice breaking down the services provided into hours and fees – fortythree hours and forty minutes at a rate of GEL 180 (approximately EUR 77) per hour. The itemised list also indicated the dates and exact types of legal services rendered.

48.  The Government argued that the applicant’s claims were mostly unsubstantiated and excessive.

49.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,380 for costs and expenses in the proceedings before the Court.

C.  Default interest

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the complaint under Article 6 § 1 of the Convention concerning the alleged lack of impartiality of the Disciplinary Council 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, 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;

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

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


PROCEDURE

1.  The case originated in an application (no. 49929/99) 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 Polish national, Wiesław Chodecki (“the applicant”), on 10 August 1998.

2.  The Polish Government (“the Government”) were represented by their Agents Mr K. Drzewicki, and subsequently, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.

3.  On 9 October 2003 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the applicant’s detention on remand 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.

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

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1955 and lives in .

6. On 12 June 1994 he was arrested on suspicion of murdering his common-law wife.

7. On 13 June 1994 the Sosnowiec District Prosecutor (Prokurator Rejonowy) charged the applicant with homicide and remanded him in custody until 12 August 1994 in connection with the investigation against him. The prosecutor considered that, given the serious nature of the offence in question, keeping the applicant in custody was necessary to ensure that the process of obtaining evidence followed its proper course. On the same day the prosecutor ordered an autopsy.

8. On 23 June 1994 the applicant appealed and requested his release.

9. On 24 June and 4 July 1994 the prosecutor ordered expert opinions. On 6 July 1994 the prosecutor ordered a reconstitution of the events which had taken place on the day of the death.

10. On 11 July 1994 the  (Sąd Wojewódzki) dismissed the applicant’s appeal of 23 June 1994. It found the same justification for the applicant’s detention: the reasonable suspicion against him, the serious nature of the offence in question and the fear that the applicant might tamper with the evidence.

11. On 28 July 1994 the Sosnowiec District Prosecutor prolonged the applicant’s detention until 12 September 1994.

12. On 29 July 1994 the Sosnowiec District Court ordered that two psychiatric reports be obtained in order to establish the applicant’s criminal responsibility.

13. On 27 and 28 August 1994 the prosecutor ordered that two other medical reports be obtained.

14. On 5 September 1994 the  prolonged the applicant’s detention on remand until 30 October 1994, relying on the existence of a reasonable suspicion that he had committed the offence in question. The court referred also to the fact that two expert reports had to be prepared. They were submitted to the court on 9 September and 24 October 1994.

15. On 24 October 1994 the applicant obtained access to the case-file.

16. On 28 October 1994 the District Prosecutor submitted the bill of indictment to the . The prosecutor asked the court to hear evidence from 38 witnesses.

17. The trial court held hearings on 12 January, 16 March, 21 March, 28 March, 1 June, 8 June, 20 June, 12 October and 12 December 1995, as well as on 28 March 1996.

18. On 28 March 1996 the  gave judgment. The court convicted the applicant as charged, and sentenced him to twelve years’ imprisonment.

19. On 30 May 1996 the applicant appealed.

20. On 13 August 1996 the Katowice Court of Appeal (Sąd Apelacyjny) quashed the first-instance judgment and remitted the case for re-examination. It pointed out that the conviction was based on circumstantial evidence and that certain facts required further clarification.

21. In the course of the retrial, the  held hearings on 10 December 1996, 27 February, 28 February, 26 March, 30 April, 8 May and 28 October 1997, as well as on 14 and 22 January 1998. The hearing scheduled for 17 February 1998 was adjourned.

22. At the hearings of 30 April 1997, 28 October 1997 and 17 February 1998 the applicant’s counsel applied for his release, but to no avail.

23. On 1 June 1998 the court prolonged the applicant’s detention until 30 November 1998. It made reference to the reasonableness of the suspicion that he had committed the offence in question. The court stressed the serious nature of that offence and the necessity to consider further evidence.

24. On 10 June 1998 the applicant’s lawyer appealed against that decision. He contested the reasonableness of the charge against his client, maintaining that it was solely based on presumptive evidence. He also submitted that the applicant’s prolonged detention no longer served the purpose of securing the proper course of the proceedings since all necessary evidence had been obtained by the courts.

25. On 24 June 1998 the Katowice Court of Appeal dismissed both appeals. It pointed out that the principle referred to by the applicant, whereby detention exceeding two years could be prolonged only by the Supreme Court, did not apply to his case. The court observed that that principle concerned only the proceedings before the trial court and it was no longer valid once that court had delivered its judgment, even if the judgment was subsequently quashed by the appellate court.

26. On 30 July 1998 the applicant appealed against this decision.

27. On 3 August 1998 the Katowice Court of Appeal informed the applicant that no appeal lay against a decision given by an appellate court.

28. On 24 September 1998 the  gave judgment. It again convicted the applicant of homicide and sentenced him to ten years’ imprisonment. The court deducted from the sentence the period spent by the applicant in detention.

29. On 26 November 1998 the applicant’s lawyer appealed.

30. On 27 November 198 the  prolonged the applicant’s detention on remand until 29 January 1999 in view of the applicant’s conviction and sentence the month before.

31. On 8 December 1998 the applicant challenged that decision before a court which did not have the necessary jurisdiction. Accordingly, on 11 January 1999 the matter was transferred to the Katowice Court of Appeal, which on 25 February 1999 dismissed both of his appeals.

32.  On 26 April 1999 the applicant’s lawyer lodged a cassation appeal with the Supreme Court concerning the conviction and sentence.

33. On 6 March 2000 the Supreme Court dismissed that appeal.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

34.  At the material time the rules governing detention on remand were contained in Chapter 24 of the Law of 19 April 1969 “Code of Criminal Procedure” (Kodeks postępowania karnego) (“the Code”) entitled “Preventive measures” (Środki zapobiegawcze). The Code is no longer in force. It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998. The Code listed as “preventive measures”, inter alia, detention on remand, bail and police supervision.

35.  Article 209 set out the general grounds justifying the imposition of preventive measures, as follows:

“Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”

36.  Article 217 § 1 defined the grounds for detention on remand. The relevant part of this provision, in the version applicable until 1 January 1996, provided as follows:

“1. Detention on remand may be imposed if:

(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when he has no fixed residence [in Poland] or his identity cannot be established; or

(2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; or

(3) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or

(4) an accused has been charged with an offence which creates a serious danger to society...”

37.  On 1 January 1996 sub-paragraphs 3 and 4 of Article 217 § 1 were repealed and the whole provision was redrafted. From that date onwards the relevant sub-paragraphs read:

“(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or

(2) [as it stood before 1 January 1996].”

Paragraph 2 of Article 217 provided:

“If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years’ imprisonment, or if a court of first instance has sentenced him to at least three years’ imprisonment, the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.”

38.  The Code envisaged a margin of discretion in maintaining a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the precept that detention on remand was the most extreme preventive measure and that it should not be imposed if more lenient measures were adequate.

39. On 4 August 1996 an amendment to the Code of Criminal Procedure entered into force, according to which time-limits for detention on remand were introduced.

40. From that date onwards, Article 222 of the Code read, in so far as relevant, as follows:

” 3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning ordinary offences. In cases concerning serious offences this period may not exceed two years.

4. In particularly justified cases, the Supreme Court may, upon the request of the court competent to deal with the case ... prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings within the time-limits referred to in paragraph 3.”

41. Article 263 of the 1997 Code provides, in so far as relevant:

“3. The length of detention on remand until the delivery of a first judgment by the trial court shall not exceed two years.

4. Detention on remand may be prolonged for a fixed period exceeding the periods provided for in paragraphs 2 and 3 only by the Supreme Court at the request of the court dealing with a case ... – if it is necessary because of the suspension of criminal proceedings, the prolonged psychiatric observation of an accused, the prolonged preparation of an expert opinion, the collection of evidence in a particularly complicated case or abroad, a delay in the proceedings caused by an accused, as well as other obstacles which could not be overcome.”

THE LAW

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

43.  The Government contested that argument.

A.  Admissibility

44.  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

1.  The Government’s submissions

45. The Government submitted that the period of the applicant’s detention falling within the scope of Article 5 § 3 of lasted 3 years, 10 months and 27 days. However, in their opinion, keeping him in custody was justified for the entire period. First of all, there had been a reasonable suspicion based on evidence that the applicant had committed homicide, for which he had been charged. There was also a considerable risk of criminal collusion because several witnesses from the applicant’s close environment had to be heard during the investigation. Therefore, the authorities conducting the case had to prevent the applicant from interfering with the process of obtaining evidence.

46. Secondly, given the complexity of the issues involved, in particular the number of witnesses and expert opinions ordered during the proceeding, the authorities had shown due diligence in dealing with the case.

47. Finally, the applicant’s detention had been subject to frequent review by the domestic courts. The courts had examined his applications for release diligently and had given detailed reasons.

2.  The applicant’s submissions

48. The applicant generally disagreed with the Government’s submissions.

49. He argued that the period of 3 years, 10 months and 27 days he had spent in detention was not compatible with the “reasonable time” requirement.

50. He claimed that one of the reasons for keeping him in custody given by the courts had been the alleged risk that he could have interfered with the process of hearing evidence from witnesses. However, the court had only heard evidence from witnesses during the investigation in 1994 and not thereafter. In the applicant’s opinion, this fact confirmed that he could have been released much earlier.

3.  The Court’s assessment

I.  Period to be taken into consideration

51.  The Court notes that the applicant was remanded in custody on 12 June 1994. On 28 March 1996 the trial court convicted him of homicide. As from that date he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and therefore that period of his detention falls outside the scope of Article 5 § 3 (cf. Český v. the , no. 33644/96, § 71, 6 June 2000). On 13 August 1996 the Court of Appeal quashed the applicant’s conviction. Following that date his detention was again covered by Article 5 § 3. It continued until 24 September 1998, when the trial court again convicted the applicant. Consequently, the period to be taken under consideration lasted nearly 3 years and 11 months.

II.  Reasonableness of the period in question

a)  General principles

52.  The Court reiterates that the question whether a period of detention is reasonable cannot be assessed in the abstract but must be considered in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110-111, ECHR 2000-X).

53.  Under Article 5 § 3 the national judicial authorities must ensure that the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for a departure from the rule in Article 5, and must set them out in their decisions on the applications for release.

54.  The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. The Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings (see, for instance, Jabłoński v. Poland, no. 33492/96, § 80, 21 December 2000).

b)  Application of the above principles to the present case

55. The authorities gave several grounds for the applicant’s detention. Firstly, they relied on a reasonable suspicion that he had committed the serious offence with which he had been charged. They added that the applicant should be kept in custody in order to ensure that the process of obtaining evidence followed its proper course (see paragraphs 7, 14 and 23 above).

56. The Court agrees that the suspicion against the applicant of having committed the serious offence could have initially warranted his detention. It also accepts that the need to ensure the proper conduct of the proceedings justified keeping him in custody at least as long as most of the evidence from the witnesses had not been taken.

57.  However, with the passage of time, those grounds inevitably became less relevant. Nevertheless, when rejecting the applicant’s requests for release, the domestic courts still relied on the same reasons (see paragraphs 10 and 23 above).

58.  In this respect it should be noted that during the entire period of the applicant’s pre-trial detention, the authorities did not envisage the possibility of imposing on the applicant other measures – such as bail or police supervision – expressly foreseen by Polish law to secure the proper conduct of criminal proceedings (see paragraphs 34-38 above).

59.  In that context, the Court would emphasise that under Article 5 § 3 the authorities, when deciding whether a person should be released or detained, are obliged to consider alternative measures of ensuring his appearance at trial. Indeed, that provision proclaims not only the right to “trial within a reasonable time or to release pending trial” but also lays down that “release may be conditioned by guarantees to appear for trial” (see the Jabłoński judgment cited above, § 83).

60. Furthermore, it appears that the authorities referred to the risk of collusion in the very general manner and without indicating how his release would upset the course of the proceedings. The  heard evidence from witnesses only during the investigation in 1994 and not later on. Therefore, the applicant’s prolonged detention no longer served the purpose of securing the proper course of the proceedings.

61.  In the circumstances, the Court concludes that the grounds stated in the impugned decisions were not sufficient to justify the applicant being kept in detention on remand for nearly 3 years and 11 months.

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

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

63.  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

64.  The applicant submitted that the length of his detention put a severe strain on him. However, he was not able to either quantify the pecuniary damage or even supply any documents confirming the costs and expenses incurred during the proceedings. He asked the Court to make the relevant assessment in the light of its case-law.

65.  The Government did not comment on the applicant’s claim.

66. The Court accepts that the applicant may have suffered some non-pecuniary damage as a result of the protracted remand period, which is not sufficiently compensated by the finding of violation of the Convention. In the circumstances of this particular case and deciding on an equitable basis, it awards the applicant EUR 1,000 under the head of non-pecuniary damage.

B.  Costs and expenses

67. The applicant did not make any claim under this head.

C.  Default interest

68.  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 remainder of the application admissible;

2.  Holds that there has been a violation of Article 5 § 3 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 according to Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into Polish zlotys at the rate applicable at the date of the settlement;

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

Done in English, and notified in writing on 26 April 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 6134/03) 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 Polish national, Mirosław Gospodarczyk (“the applicant”), on 12 February 2003.

2.  The applicant, who had been granted legal aid, was represented by Mr S. Kwietniowski, a lawyer practising in Zielona Góra. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

3.  The applicant alleged in particular that he had been deprived of his right of access to a court, contrary to Article 6 of the Convention.

4.  On 7 July 2006 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1948 and lives in .

6.  On 26 October 1998 the applicant purchased a house and a plot of land located in Niedoradz in the Otyń municipality, for which he paid 28,684 Polish zlotys (PLN).

7.  In December 1999 the applicant discovered that the plot in question was 36 sq. m smaller than the size specified in the contract.

8.  On an unspecified date in 2002 the applicant lodged a claim against the municipality with the , seeking PLN 412,666 in compensation for the alleged difference between the actual size of the property and the one declared in the notarial deed. He claimed that due to the fact that the plot was in fact smaller he could not construct a special sanitary tank there and consequently could not open a bakery, which he had originally planned to do. He also sought exemption from the entire amount of court fees which were set at PLN 22,233.30. The applicant claimed that his monthly income was only an invalidity pension of PLN 449.51. He submitted that after paying rent for his cooperative flat, his net income amounted to PLN 200.

9.  The  requested the applicant to supplement his declaration of means. Subsequently, the applicant submitted that he owned a house in Niedoradz which according to him had a value of PLN 120,000, and that he had a cooperative flat in Zielona Góra, a plot of land (570 sq. m), a small retail outlet and a van (valued at PLN 10,000) used for temporary work. He claimed that he had purchased the Niedoradz property using his savings and family loans, and that he intended to use it to create employment for him and his family. He also informed the court that he had invested PLN 92,000 of his own money in the house.

10.  On 22 July 2002 the  refused his application for exemption from court fees. It held, in so far as relevant:

“Pursuant to Article 113 § 1 of the Code of Civil Procedure exemption from court fees may be sought by a party who is unable to bear them without entailing a substantial reduction in his or her standard of living. The plaintiff does not satisfy this requirement. It is evident to the court that the plaintiff has a substantially higher income than the declared pension which he knowingly does not disclose, in that his retail outlet and his van must generate profits. These profits must be substantial because otherwise he could not have a cooperative flat and three other properties and could not invest nearly PLN 100,000 in other business projects and maintain them. The plaintiff continuously conceals his real profits and they are substantial, because nobody could believe that he lives on PLN 200 per month.

Exemption from court fees is a privilege serving to legally protect the indigent, and the plaintiff is a very affluent person in Polish terms”.

11.  The applicant appealed against that decision and pleaded that he was in an exceptional situation. He submitted that he had acquired the Niedoradz property, which was the subject of his dispute with the municipality, and had invested PLN 92,000 in it with a view to conducting business activity there. However, he could not execute his business plans since the property did not conform to certain unspecified requirements and as a result his financial situation had worsened. He further submitted that he had to pay back a loan of PLN 40,000 obtained from his brother for renovation of the house. He produced a statement signed by his brother which attested that the applicant had received the loan and had not paid it back as of 1 August 2002.

12.  The applicant further submitted that he had a cooperative flat, but that he was in arrears of rent in the amount of PLN 3,532.35. In addition, he maintained that his and his wife’s retail outlet was making losses. He produced their joint tax return which attested that in the 2001 tax year he had sustained a loss of PLN 14,628.23. Furthermore, the applicant claimed that he was financially supported by his family, in particular his mother who provided him with PLN 600 each month. He produced a statement from his mother to that effect.

13.  On 14 August 2002 the Poznań Court of Appeal upheld the contested decision. It held, in so far as relevant:

“The appeal should be considered unfounded. In particular, the first-instance court was right when holding that the applicant’s declaration of means was unreliable. In that declaration of means the applicant did not state, inter alia, that he was conducting a business activity, and he explained that circumstance only in the appeal proceedings. It is also not difficult to notice the differences between the applicant’s declared income and the value of his assets. It is a well-established principle in the case-law that being an owner of a[n immovable] property excludes the possibility of granting exemption from court fees (judgments of the Supreme Court of 23 October 1934, no. C II 1441/34 and of 1 February 1937, no. C II 2379/36).

The applicant can pay the court fees for his action since he has considerable assets and given that he has recently, as he claims, invested PLN 124,000 in one of his properties. What is more, the fact at the origin of the dispute, namely that the property acquired by the applicant from the municipality is in fact smaller than declared in a notarial deed, has been known to the applicant since 1999. Thus, he could have made savings with a view to funding his litigation.”

14.  Consequently, the applicant was summoned to pay the court fees for proceeding with his claim against the municipality. On 21 October 2002 the  returned the applicant’s statement of claim since he had not paid the fees in question. The applicant appealed against that decision. However, he was informed that his appeal would not be considered until he had paid PLN 4,446.70 in court fees.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

15.  The legal provisions applicable at the material time and questions of practice are set out in paragraphs 23-33 of the judgment delivered by the Court on 19 June 2001 in the case of Kreuz v. Poland (no. 28249/95, ECHR 2001-VI; see also Jedamski and Jedamska v. Poland, no. 73547/01, §§ 2939).

THE LAW

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

16.  The applicant complained under Article 6 § 1 that the excessive court fees required from him in order to proceed with his claim had been in breach of his right of access to a court for the determination of his civil rights. The relevant part of Article 6 § 1 provides:

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

17.  The Government contested that argument.

A.  Admissibility

18.  The Court notes that the application 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

1.  The parties’ submissions

(a)  The applicant

19.  The applicant maintained that the sum required from him for proceeding with his claim had been unusually high and disproportionate to his means. He submitted that the first-instance court had considered his declaration in an arbitrary way since it had not requested him to provide additional explanations.

20.  The applicant stressed that the sole fact that he had had assets could not have deprived him of his right to be exempted from court fees.

He further could not have been asked to sell his property as it would have been detrimental to the maintenance of his family.

21.  The applicant concluded that his right of access to a court had been breached.

(b)  The Government

22.  The Government firstly recapitulated the general rules concerning exemption from court fees.

23.  They secondly noted that the court fee was justified and calculated with reference to the value of the claim. The applicant should have realised that the value of his claim would have influenced the court fee required from him.

24.  They further stressed that the applicant’s claim had been of a speculative nature, since it had been much higher than the original value of the property. Furthermore, the applicant had not provided the court with any evidence that he had indeed invested PLN 92,000 in the house.

25.  They also noted that the value of the applicant’s assets had been high and totally disproportionate to the declared income. The domestic courts confirmed that his declarations had been unreliable since they had not included information about the applicant’s conduct of a business activity.

26.  It was true that the Poznań Court of Appeal had relied on an old legal doctrine which had been developed in the context of different socio-economic conditions. However, this principle had not been decisive in this case, as the main reason for the Court of Appeal’s decision was the difference between the applicant’s declared income and the value of his assets.

27.  In sum, the Government invited the Court to find that there had been no violation of Article 6 of the Convention.

2.  The Court’s assessment

(a)  Principles deriving from the Court’s case-law

28.  The Court observes that in its judgment in Kreuz v. Poland (cited above, § 60) it dealt with the question whether the requirement to pay substantial fees to civil courts in connection with claims could be regarded as a restriction on the right of access to a court.

29.  In this connection the Court held that the amount of the fees assessed in the light of the particular circumstances of a given case, including the applicant’s ability to pay them, and the phase of the proceedings at which that restriction had been imposed, were factors which were material in determining whether or not a person had enjoyed his right of access and had “a ... hearing by [a] tribunal”.

(b)  Application of the above principles to the present case

30. The Court will now determine whether, in the particular circumstances of the present case, the fee actually requested constituted a restriction that impaired the very essence of the applicant’s right of access to a court.

31.  The Court firstly notes that the case concerned the applicant’s claim for compensation against the Otyń municipality. The fee in the case was determined as a fraction of the value of the claim, namely the amount of compensation sought.

32.  The Court observes that the applicant was ordered to pay PLN 22,233.30.

33.  The Court further notes that it is true that the taking and assessment of evidence are primarily matters for the domestic courts and that the Court’s role is to ascertain whether those courts, when exercising their power of appreciation in that sphere, acted in accordance with Article 6 § 1. In this respect it observes that the judicial authorities refused to accept the applicant’s argument that he was unable to pay the court fees, given the difference between the value of his various assets and the declared income. They further stressed that the applicant could not be considered indigent given the fact that he owned a house, a cooperative flat, a plot of land, a retail outlet and a van (see paragraphs 9 and 10). They were of the opinion that his declaration of means had been unreliable and that he had not disclosed all his income. On that basis, they concluded that the applicant had sufficient funds to pay the court fee in question.

34.  The Court agrees with the Government’s position that the applicant himself was responsible for the fact that he had been ordered to pay the sum in question in court fees, as he had claimed an amount very significantly higher than the original value of his property.

35.  The Court further observes that even conceding that the applicant’s income was small, he had assets (see paragraphs 9 and 10).

36.  Consequently, in accordance with the principle of subsidiarity, the Court is of the opinion that it does not appear that in the present case the domestic courts’ approach when assessing the applicant’s financial situation and his ability to pay the fees was arbitrary or discriminatory.

37. For the above reasons, the Court concludes that the refusal to exempt the applicant from the fee for lodging his claim was not a disproportionate restriction on his right of access to a court.

38.  It accordingly finds that there has been no violation of Article 6 § 1 of the Convention.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the application admissible;

2.  Holds that there has been no violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 17 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 39405/03) 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, Mr Valeriy Pavlovich Chervonets (“the applicant”), on 12 November 2003.

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

3.  On 3 April 2007 the Court decided to communicate the complaints concerning the length of the criminal proceedings and the non-enforcement of the judgment given in the applicant’s favour to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1940 and lives in Kharkiv.

A.  Enforcement proceedings in the applicant’s civil case

5.  On 23 October 2002 the Dzerzhinsky District Court of Kharkiv (hereinafter “the Dzerzhinsky Court”), upon the applicant’s claim, ordered the Department of the State Pension Fund in Dzerzhinsky District of Kharkiv (Дзержинське районне відділення Пенсійного Фонду України у м. Харків, hereinafter “the Pension Department”) to recalculate in Ukrainian hryvnas the applicant’s salary, which he received in 1985-1989 in Soviet roubles, in order to establish the correct amount of his pension according to the Decree of the Cabinet of Ministers of 13 January 1993 (hereinafter “the Decree”). The defendant was also obliged to pay the applicant the recalculated amount as his regular pension.

6.  This judgment became final on 23 November 2002 and the writ of execution was issued on 24 November 2002.

7.  On 25 February 2003 the Bailiffs’ Office in Dzerzhinsky District of Kharkiv (hereinafter “the Bailiffs”) issued the warrant for the enforcement of the judgment by 4 March 2003.

8.  On 8 April 2003 the Bailiffs re-issued the warrant.

9.  As the Pension Department twice submitted calculations of the applicant’s pension which were not based on the Decree, on 17 June and 28 August 2003 the Bailiffs fined the officials of the Pension Department for failure to enforce the judgment.

10.  In December 2003 the applicant and the Bailiffs requested the Public Prosecutor of the Dzerzhinsky District of Kharkiv (hereinafter “the Public Prosecutor”) to institute criminal proceedings against the officials of the Pension Department for intentional non-enforcement of the judgment of 23 October 2002.

11.  On 13 April 2004 the Public Prosecutor rejected this request for want of proof of a crime.

12.  On 4 March 2005 the Dzerzhinsky District Court rejected the applicant’s complaint against this decision.

13.  On 23 April 2004, upon the applicant’s request, the  issued a ruling explaining the judgment of 23 October 2002. It indicated the coefficients that should be used by the Pension Department in order to recalculate the applicant’s pension according to the Decree.

14.  The Pension Department did not appeal against this ruling within the statutory time-limit and the same court, by rulings of 14 June and 21 September 2005, returned the Department’s belated appeal without considering it.

15.  During 2004-2005, following numerous written requests by the Bailiffs, the Pension Department submitted recalculations of the applicant’s pension, which were not based on the ruling of 23 April 2004.

16.  On 6 February 2006 the bailiff personally handed to the official of the Pension Department the ruling of 23 April 2004 and requested him to enforce it by 13 February 2006. The bailiff drew up a written report.

17.  On 10 February 2006 the Public Prosecutor, on behalf of the Pension Department, lodged with the Supreme Court a cassation appeal against the rulings of 14 June and 21 September 2005.

18.  On 13 February 2006, following the request of the Public Prosecutor, the Bailiffs suspended the enforcement proceedings.

19.  On 22 March 2006 the Head of the Bailiffs quashed this decision on the ground that lodging a cassation appeal in itself could not suspend the enforcement of the final judgment.

20.  On 24 March 2006 the enforcement proceedings were resumed.

21.  On 5 and 19 May 2006 the Bailiffs fined the officials of the Pension Department for failure to enforce the judgment of 23 October 2002 and the ruling of 23 April 2004.

22.  On 25 May 2006 the Bailiffs requested the Public Prosecutor to institute criminal proceedings against the officials of the Pension Department for intentional non-enforcement of the judgment of 23 October 2002 and ruling of 23 April 2004.

23.  On 11 August 2006 the Public Prosecutor rejected this request for want of proof of a crime.

24.  On 30 May 2007 the  rejected the Public Prosecutor’s cassation appeal against the rulings of 14 June and 21 September 2005.

25.  On 8 August 2007 the  rejected the Public Prosecutor’s request to review the case in the light of newly disclosed circumstances and to suspend the enforcement proceedings.

26.  On 4 October 2007 the Kharkiv Regional Court of Appeal (hereinafter “the Court of Appeal”) upheld this ruling.

27.  The judgment of 23 October 2002 remains unenforced.

B.  Criminal proceedings against the applicant

28.  On 5 December 2002 the Public Prosecutor instituted criminal proceedings against the applicant for threatening a judge of the  (Article 376 of the Criminal Code). The applicant was obliged not to leave his place of his permanent residence.

29.  On 26 February 2003, upon termination of the pre-trial investigation, the Public Prosecutor transmitted the criminal case to the .

30.  On 5 March 2003 the Court of Appeal, following the motion of the President of the Dzerzhinsky Court, transferred the case to the Chervonozavodsky District Court of Kharkiv (hereinafter “the Chervonozavodsky Court”).

31.  November 2003 the  rejected the applicant’s complaint against the Public Prosecutor’s decision of 5 December 2002 as the case was pending before the first instance court.

32.  In the course of its examination of the applicant’s appeal against the ruling of 20 November 2003, the Court of Appeal established that the applicant had not been not duly informed about the date of hearing before the Dzerzhinsky District Court and on 13 January 2004 requested the Judicial Administration to investigate this matter.

33.  On 16 March 2004 the Court of Appeal upheld the ruling of 20 November 2003. On the same date, it issued a ruling to the Judicial Administration setting out procedural omissions by the judge of  who had examined the case.

34.  On 10 February 2005 the Supreme Court rejected the applicant’s cassation appeal against the ruling of 20 November 2003.

35.  On 30 November 2005 the  terminated the criminal proceedings against the applicant as time-barred.

36.  On 5 December 2005 the applicant lodged an appeal seeking to be acquitted.

37.  On 16 February 2006 the Court of Appeal quashed the ruling of 30 November 2005 and remitted the case for a fresh consideration.

38.  In May 2006 the proceedings were resumed before the .

39.  Between May 2006 and February 2007 five out of six hearings scheduled were adjourned due to the witnesses’ and the victim’s failure to appear before the court.

40.  In February 2007 the case was assigned to another judge.

41.  The proceedings are still pending before the first instance court.

II.  RELEVANT DOMESTIC LAW

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

THE LAW

TO THE NON-ENFORCEMENT OF THE FINAL JUDGMENT GIVEN IN THE APPLICANT’S FAVOUR

43.  The applicant complained under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 about the lengthy non-enforcement of the judgment of 23 October 2002. The Articles invoked, in so far as relevant, provide 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 or to secure the payment of taxes or other contributions or penalties.”

A.  Admissibility

44.  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

45.  In their observations, the Government submitted that the Bailiffs took all necessary measures aimed at enforcement of the judgment at issue and contended that there had been no violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in the applicant’s respect. They also maintained that the length of the enforcement proceedings was due to the defendant’s numerous appeals against the decisions and rulings of the domestic courts.

46.  The applicant disagreed. He argued, in particular, that the Pension department and the Public Prosecutor intentionally lodged apparently inadmissible appeals and requests with the aim to protract the enforcement proceedings.

49.  The Court recalls that it has already found violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in a number of similar cases (see Romashov, cited above, §§ 42-46, and Voytenko v. , no. 18966/02, §§ 53-55, 29 June 2004).

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

52.  The Court does not find it necessary in the circumstances to examine the same complaint under Article 13 of the Convention (see Derkach and Palek v. Ukraine, nos. 34297/02 and 39574/02, § 42, 21 December 2004).

II.  AS TO THE LENGTH OF THE CRIMINAL PROCEEDINGS AGAINST THE APPLICANT

53.  The applicant also complained that the length of the criminal proceedings had been incompatible with the “reasonable time” requirement, laid down in Articles 6 § 1 and 13 of the Convention, which read as follows:

Article 6 § 1

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

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.”

54.  The Government contested that argument.

55.  The period to be taken into consideration began on 5 December 2002 It has thus lasted almost five years and four month to date; procedural decisions were taken at three instances, the substantive case was dealt with at two instances, and the proceedings are now pending at first instance.

A.  Admissibility

56.  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

57.  The Government maintained that the case was complicated and that the protracted length of the proceedings was imputable to the applicant’s appeals against the rulings of the domestic courts. They also maintained that the hearings were postponed on numerous occasions due to the witnesses’ and victim’s failure to appear before the courts.

58.  The applicant disagreed. He stressed that the authorities had been fully responsible for excessive duration of the case.

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

60.  The Court considers that, having regard to the nature of the crime with which the applicant was charged, the present case cannot be considered as complicated. The Court also takes into account the repeated adjournment of the hearings due to the witnesses’ and victim’s failure to appear before the court. However, the domestic court failed to take any steps to assure the presence of the said persons in order to proceed with the case.

61.  The Court further notes that even though the proceedings had to be suspended because of the applicant’s appeal against the ruling of 20 November 2003, the overall length of the proceedings cannot be considered as reasonable in particular taking into account the fact that since May 2006 the case has been pending before the first instance court without any measures being taken.

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

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

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

65.  Having regard to its findings under Article 6 § 1, the Court concludes that it is not necessary to rule whether, in this case, there has been a violation of Article 13 of the Convention (see, in the civil context, Kukharchuk v. Ukraine, no. 10437/02, §§ 39-40, 10 August 2006).

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

66.  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

67.  The applicant claimed 5,500 euros (EUR) in respect of pecuniary and EUR 1,500 in respect of non-pecuniary damage caused by the lengthy non-enforcement of the judgment of 23 October 2002. He also claimed EUR 1,000 in respect of non-pecuniary damage caused by the lengthy criminal proceedings against him.

68.  The Government contested these claims.

69.  As to the applicant’s claim in respect of pecuniary damage caused by the lengthy non-enforcement of the judgment of 23 October 2002, the Court considers that the applicant remains entitled to claim in the course of domestic proceedings compensation in lieu of execution of the said judgment. At the same time, the Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (Metaxas v. , no. 8415/02, § 35, 27 May 2004 and Iatridis v.  (just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000XI). Therefore, the Court concludes that the State’s outstanding obligation to enforce the judgment given in the applicant’s favour is not in dispute (see Blanutsa v. Ukraine, no. 35274/03, § 39, 20 September 2007, and Fateyev v. , no. 39265/02, § 37, 6 September 2007).

70.  As to the remainder of the applicant’s claims for just satisfaction, the Court, making its assessment on an equitable basis, as required by Article 41 of the Convention, awards the applicant EUR 2,500 (two thousand and five hundred euros) in respect of non-pecuniary damage.

B.  Costs and expenses

71.  The applicant also claimed EUR 100 for the costs and expenses incurred before the Court.

72.  The Government contested the claim.

73.  The Court considers that the sum claimed should be awarded in full.

C.  Default interest

74.  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 in respect of the lengthy non-enforcement of the judgment of 23 October 2002;

3.  Holds that there has been a violation of Article 1 of Protocol No. 1 in the same respect;

4.  Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the length of the criminal proceedings against the applicant;

5.  Holds that there is no need to examine the complaints under Article 13 of the Convention;

6.  Holds

(a)  that the respondent State is to fulfil the judgment of 23 October 2002 given by the Dzerzhinsky District Court of Kharkiv in the applicant’s favour as well as to pay him, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following sums, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 2,500 (two thousand and five hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable;

(ii)  EUR 100 (one hundred euros) for costs and expenses, plus any tax that may be chargeable to the applicant;

(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;

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

Done in English, and notified in writing on 24 April 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.