PROCEDURE

1.  The case originated in an application (no. 20746/05) 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, Ms Natalya Vladislavovna Fedorchuk (“the applicant”), on 18 May 2005.

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

3.  On 24 October 2005 the Court decided to communicate the complaints concerning the length of the civil proceedings and the lack of remedies in that respect 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

THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1962 and lives in .

A.  Criminal proceedings

5.  In April 1997 the applicant instituted criminal proceedings against Mr V.S., accusing him of fraud and forgery. She contended that in 1995 she had prepared a notarially recorded power of attorney in his name with an intention to authorize him to sell her apartment. However, she had not handed the original document to him and left for , where she had worked until 1997. Having returned to , she had learned that Mr V.S. had sold her apartment to a certain Mr D.D., who had subsequently exchanged it for Mrs L.Ch.'s house.

6.  Subsequently, an expert established that the particular copy of the power of attorney, which had been used by Mr V.S. for concluding the sale agreement, contained the applicant's forged signature.

7.  On 30 April 1997 the criminal proceedings were suspended, as Mr V.S.'s whereabouts were unknown and he was placed on the national “wanted” list.

B.  Civil proceedings

8.  In April 1997 the applicant also instituted civil proceedings against Mrs L.Ch., Mr D.D., and Mr V.S., claiming restitution of the apartment.

9.  On 30 June 1997 the Suvorovsky District Court of  (Суворовський районний суд м. Херсона) allowed the applicant's claim. This judgment became final.

10.  On 28 November 1997 the Presidium of the  (“the ”; Херсонський обласний суд) quashed the judgment of 30 June 1997 following a supervisory protest of the Deputy Regional Prosecutor and remitted the case for a fresh consideration.

11.  On 30 August 2000 Mr D.D. and Mrs L.Ch. lodged a counterclaim, maintaining that Mr V.S. had been duly authorized to sell the apartment.

12.  On 5 September 2000 the  dismissed the applicant's claim and allowed the counterclaim. It recalled that the applicant had not officially revoked the authorization to sell her apartment, which had remained on the notary register, and so the forgery of a particular copy of the power of attorney had not made the sales agreement null and void. This judgment became final.

13.  On 18 December 2000 the  quashed this judgment following a supervisory protest introduced by the Deputy Regional Prosecutor and remitted the case for a fresh consideration.

14.  On 15 November 2002 the  dismissed the applicant's claim and allowed the counterclaim, having found that it could not invalidate the sales agreement solely on the basis of an expert opinion that a copy of the power of attorney had been forged. The applicant appealed pursuant a newly introduced appeal procedure.

15.  On 5 March 2003 the  dismissed the applicant's appeal. On 17 March 2003 the applicant appealed in cassation.

16.  On 19 November 2004 the Supreme Court rejected the applicant's request for leave to appeal in cassation.

17.  In the course of the proceedings, the first-instance court scheduled some fifty hearings. Some twenty of them were adjourned on account of the defendants' absences. Some seven adjournments were attributable to the applicant's absences or her requests for adjournments. Four hearings were adjourned on account of both parties' absence.

THE LAW

I.  COMPLAINT ABOUT THE UNREASONABLE LENGTH OF THE CIVIL PROCEEDINGS

18.  The applicant complained that the length of the civil proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

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

19.  The Government contested that argument.

20.  The Court notes that the proceedings at issue were instituted in April 1997. However, the period to be taken into consideration began only on 11 September 1997, when the recognition by  of the right of individual petition took effect. Nevertheless, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time.

21.  The period in question ended on 19 November 2004. It thus lasted seven years and two months for three levels of jurisdiction. The Court recalls, however, that it is appropriate to take into account only those periods when the case was actually pending before the courts, that is the periods when the authorities were under an obligation to determine the issue within a “reasonable time” (Golovko v. , no. 39161/02, § 49, 1 February 2007). Accordingly, the two-month period between 11 September and 28 November 1997 and the three-month period between 5 September and 18 December 2000, when there existed a final judgment in the case (paragraphs 10 and 13 above), should be excluded from the calculation. Thus, the period to be taken into consideration lasted six years and nine months.

A.  Admissibility

22.  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

23.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

24.  The Court finds that the complexity of the case and the applicant's conduct alone cannot explain the overall length of the proceedings. It considers that a number of delays (in particular, remittals of the case for a fresh consideration after the judgments therein became final, prolonged period of inactivity in considering the applicant's cassation appeal and failures of the first-instance court to ensure the defendants' presence) are attributable to the Government.

25.  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 Frydlender, cited above; Smirnova v. , no. 36655/02, 8 November 2005 and Golovko v. Ukraine, cited above).

26.  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.

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

II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

28.  The applicant further complained that she had no effective remedies for her complaint concerning the excessive length of the proceedings. She relied on Article 13 of the Convention.

29.  The Government considered that Article 13 was not applicable to the circumstances of the case as the applicant had not made out an arguable claim under Article 6 § 1.

30.  The Court refers to its findings in paragraphs 22 and 27 above and notes that this complaint is linked to the applicant's complaint under Article 6 § 1. The Court finds that it must be declared admissible.

31.  The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). The Government did not indicate any such remedy available to the applicant.

32.  The Court considers that in the present case there has been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding her right to have her case heard within a reasonable time, as set forth in Article 6 § 1 of the Convention (see Efimenko v. , no. 55870/00, § 64, 18 July 2006).

III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

33.  The applicant also complained under Article 6 § 1 about an allegedly unfair hearing and the outcome of the civil proceedings; about a lack of legal certainty in that the judges took opposing views; about partiality of the courts and the unreasonable length of the criminal proceedings against Mr V.S. Lastly, the applicant invoked Article 1 Protocol No. 1 to the facts of the present case.

34.  Having carefully considered the applicant's submissions in the light of all the material in its possession, the Court finds that, insofar as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

35.  It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§  3 and 4 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

36.  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

37.  The applicant claimed 47,800 dollars (38,700 euros (EUR)) in respect of pecuniary damage and EUR 15,000 in respect of non-pecuniary damage.

38.  The Government contested these claims.

39.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 600 in respect of non-pecuniary damage.

B.  Costs and expenses

40.  The applicant also claimed 22,500 hryvnyas (EUR 3,780) in legal fees incurred in connection with her domestic and Convention proceedings. She presented receipts for a total amount of 14,000 hryvnyas (EUR 2,350).

41.  The Government contested the claim.

C.  Default interest

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

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the complaints concerning the excessive length of the civil proceedings and lack of effective remedies in this respect 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 that there has been a violation of Article 13 of the Convention;

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 800 (eight hundred euros) in respect of non-pecuniary damage, costs and expenses, 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;

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

Done in English, and notified in writing on 15 November 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 49526/07) 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 Anatoliy Vasylyovych Kuzmenko (“the applicant”), on 1 November 2007.

2.  The applicant was represented by Mr D.Y. Piddubko, a lawyer practising in Chernigiv. The Ukrainian Government (“the Government”) were represented, most recently, by their Agent, Mr I. Lishchyna.

3.  The applicant alleged, in particular, that he had had no access to a court in order to ventilate his complaint concerning an unlawful search of his flat.

4.  On 23 October 2013 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1974 and lives in Chernigiv.

6.  On 25 January 2007 the Desnyanskiy District Court in Chernigiv (“the District Court”) issued a warrant to search the applicant’s flat for a mobile telephone, which had been reported stolen. The relevant part of the ruling read:

“Acting investigator has applied to the court with a request to authorize search of the dwelling of [the applicant] ... with a view to locating a mobile telephone “Nokia7270” stolen from private entrepreneur [K.] ... [theft] having taken place on 2 December 2006 at night.

During the hearing, the acting investigator and the prosecutor have supported their request ...

Having heard the acting investigator [and] the opinion of the prosecutor, and having examined the material of the criminal case, the court concludes that ... [it] has been provided with sufficient data indicating a possibility that the Nokia 7270 mobile telephone may be at the [applicant’s] place of residence.”

7.  On 30 January 2007 the police searched the applicant’s flat in his presence and seized three mobile telephones, which, according to the applicant, belonged to him and his family members. As appears from a poorly legible copy of the list of the seized items prepared by the police, two of these telephones were apparently of Samsung and one – of Nokia make. According to the applicant, on an unspecified date the seized telephones were returned, and neither he nor any of his family members were ever indicted or involved in any other way in the criminal proceedings giving rise to the search warrant.

8.  On 3 March 2007 the applicant lodged an administrative complaint with the District Court, alleging that his home had been searched arbitrarily and seeking moral damages for breaching inviolability of his home.

9.  On 5 March 2007 the District Court refused to examine the above complaint, citing a lack of jurisdiction. It noted that all complaints regarding the unlawfulness of procedural actions by law-enforcement authorities taken in connection with a criminal investigation had to be lodged within the framework of relevant criminal proceedings based on Articles 234 and 236 of the Code of Criminal Procedure of Ukraine (“the CCP”), then in force.

10.  The applicant appealed against that decision. He alleged that there was no meaningful opportunity for him to obtain redress on the basis of the CCP provisions, since a criminal court could only examine complaints concerning the actions of investigation authorities in the context of its examination of a criminal case. In the applicant’s situation, such a remedy would not be effective, since he had no procedural status in the criminal proceedings at issue, and had never been informed of the progress of those proceedings. Moreover, it was not certain whether or when the case would reach trial stage. However, as the applicant considered himself to have been a victim of an arbitrary search, regardless of the outcome of the relevant criminal investigation, he also considered that he had standing to bring an administrative complaint under Articles 2 and 4 of the Code of Administrative Justice of Ukraine (“the CAJ”).

11.  On 15 May 2007 the Kyiv Administrative Court of Appeal rejected the appeal by the applicant, having essentially endorsed the findings of the first-instance court.

12.  The applicant appealed in cassation. He reiterated the arguments raised in his ordinary appeal and additionally submitted that his claim against the police for non-pecuniary damages could not be examined and resolved within the framework of criminal proceedings against a third party.

13.  On 13 May 2009 the Higher Administrative Court of Ukraine rejected the applicant’s cassation appeal.

II.  RELEVANT DOMESTIC LAW

A.  Constitution of Ukraine

14.  The relevant provisions of the Constitution of Ukraine read:

“Everyone shall be guaranteed the inviolability of his or her dwelling.

Any entry into, examination of or search of the dwelling or other possession of a person shall not be permitted other than in accordance with a reasoned court decision.

In urgent cases connected to the saving of human life and the preservation of property, or the direct pursuit of criminal suspects, the law may provide for a different procedure for entering into, examining or searching the dwelling or other possession of a person.”

“Human and citizens’ rights and freedoms are protected by the courts.

Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers. ...

Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.”

B.  1960 Code of Criminal Procedure of Ukraine (“the CCP”) (repealed with the effect from 19 November 2012)

15.  The relevant provisions of the CCP, as formulated at the material time, read:

“...Acts and decisions of bodies of inquiry may be appealed against to a court.

Complaints concerning the acts and decisions of bodies of inquiry shall be examined by a first-instance court in the course of a preliminary hearing in the case, or during its examination on the merits, unless otherwise provided for by this Code.”

“A search shall be carried out if there are sufficient grounds to believe that the means of committing an offence ... and other items and documents important to the case are kept on certain premises. ...

A search of a person’s home and other possessions may be conducted only on the basis of a reasoned court decision, except for in urgent cases ... A court decision authorising a search is not open to appeal.”

“... Complaints in respect of the acts of an investigating officer may be lodged with a court.

Complaints in respect of the actions of an investigating officer shall be considered by a first-instance court in the course of a preliminary hearing in the case, or in the course of its consideration on the merits, unless otherwise provided for by this Code ...”

“... A complaint regarding a prosecutor’s actions may be lodged with a court.

Complaints regarding a prosecutor’s actions shall be considered by a first-instance court in the course of the preliminary consideration of the case, or in the course of its consideration on the merits, unless otherwise provided for by this Code.”

C.  2005 Code of Administrative Justice of Ukraine (“the CAJ”)

16.  The relevant provisions of the Code of Administrative Justice read:

“1. The role of the administrative justice system shall be the protection of the rights, freedoms and interests of individuals, and the rights and interests of legal entities, in the field of public-law relations from violations by public authorities ...

2. Any decisions, acts or omissions to act on the part of public authorities may be appealed against before the administrative courts, except in cases where the Constitution and laws of Ukraine set out a different procedure of judicial appeal against such decisions, acts or omissions to act ...”

“...

2.  Jurisdiction of the administrative courts shall cover all disputes in the public-law sphere, except disputes where the law establishes a different procedure for judicial resolution.”

“1. The jurisdiction of the administrative courts shall cover legal relationships arising in the course of the exercise of public administrative powers by ... public authorities ...

...

3.  Jurisdiction of an administrative court shall not cover legal relationships in the public-law sphere:

...

THE LAW

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

17.  The applicant complained that he had had no access to a court for the purposes of determining his claim concerning the purported unlawfulness of a search of his flat. He referred to Article 6 § 1 of the Convention, the relevant part of which reads:

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

A.  Admissibility

18.  The Government alleged that this complaint was manifestly illfounded. In particular, proceedings concerning unlawful searches had to be brought under the procedure set out in Article 234 and other relevant provisions of the CCP. The applicant’s appeal to administrative courts had been a priori ineffective, and the competent domestic courts had advised him accordingly without delay. Not having attempted to lodge his complaint under the special procedure established by the CCP, the applicant could not allege that it was ineffective, or that he had had no opportunity to ventilate his complaint before the domestic courts.

19.  The applicant disagreed. He reiterated the arguments raised in his appeals before the domestic courts in the administrative proceedings. In particular, he argued that a criminal court could only examine his complaint if and when the respective criminal case reached trial stage, and even assuming that the court ruled that the search had been unlawful, nothing in the domestic law suggested that the procedure entitled him to claim any financial or other compensation. Moreover, it was highly improbable that his complaint would be accepted for examination, as procedurally he had no standing in the criminal proceedings at issue.

20.  The Court notes firstly that the civil nature of the right which the applicant was trying to assert in the domestic proceedings, and, accordingly, the applicability of Article 6 § 1 under its civil limb to the present complaint, is not in dispute between the parties. Regard being had to its case-law on the matter, the Court finds that Article 6 § 1 is applicable (see Veeber v. Estonia (no. 1), no. 37571/97, § 69, 7 November 2002; Shapovalov v. Ukraine, no. 45835/05, §§ 42-45, 31 July 2012; and Ravon and Others v. France, no. 18497/03, § 24, 21 February 2008).

21.  The Court next observes that the Government allege, in substance, that the applicant has not used a proper avenue of redress and has therefore not exhausted an available domestic remedy for determination of his civil claim. It considers that this allegation is closely linked to the merits of the complaint at issue. The Court therefore decides to join it to the merits.

22.  It further finds that the present complaint is not manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention and not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

23.  The applicant alleged that, by virtue of the refusal of the domestic courts to examine his complaint lodged under Articles 2 and 4 of the CAJ, he had been arbitrarily denied his right to a court to determine the merits of his complaint concerning the alleged unlawfulness of the search of his flat.

24.  The Government disagreed.

25.  The Court reiterates that the right of access to a court – that is, the right to institute proceedings before the courts in civil matters – constitutes an element which is inherent in the right set out in Article 6 § 1 of the Convention (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18, and, as a recent authority, Baka v. Hungary [GC], no. 20261/12, § 120, 23 June 2016). However, the right of access to a court is not absolute and may be subject to limitations that do not restrict or reduce the access left to an individual in such a way or to such an extent that the very essence of the right is impaired (see Markovic and Others v. Italy [GC], no. 1398/03, § 99, ECHR 2006XIV, and Stanev v. Bulgaria [GC], no. 36760/06, § 230, ECHR 2012).

26.  Insofar as the applicant in the present case complains that the domestic courts incorrectly interpreted the domestic law in denying him an opportunity to have his complaint considered under Articles 2 and 4 of the CAJ, it is not for the Court to substitute its own view for that of the domestic courts. It is primarily for the national courts to resolve problems of interpretation of domestic legislation. The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see, among other authorities, Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999I).

27.  As follows from the aforementioned decisions of the domestic courts in the applicant’s case (see paragraphs 9, 11 and 13 above) and the Government’s observations, the applicant’s claims raised under Articles 2 and 4 of the CAJ were not accepted for examination on the ground that there existed a different domestic procedure for the determination of these claims: namely, the procedure provided for by Article 234 and other accompanying provisions of the CCP. The applicant never resorted to this procedure, alleging that it was not such as to meet the Article 6 requirements.

28.  It therefore falls on the Court to examine this procedure with a view to determining whether it could indeed provide the applicant with access to a court for the purposes of Article 6 of the Convention.

29.  The Court notes that it has already examined the impugned CCP procedure in various other contexts, and has found that it could not qualify as accessible and such as to lead to determination of the applicants’ complaints raised under Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1.

30.  In particular, in the case of Merit v. Ukraine, the Court found that recourse to the aforementioned CCP procedure did not qualify as effective remedy within the meaning of Article 13 of the Convention in relation to the applicant’s complaint under Article 6 of the Convention concerning the length of the criminal proceedings in his case (see, for example, Merit v. Ukraine, no. 66561/01, §§ 65-66, 30 March 2004). In the case of Kotiy v. Ukraine, the Court has found that the procedure at issue did not enable the applicant to ventilate in a timely fashion his complaint under Article 8 of the Convention concerning lawfulness and proportionality of the seizure of his passport and his placement under an undertaking not to abscond (see Kotiy v. Ukraine, no. 28718/09, § 69, 5 March 2015). In the case of Zosymov v. Ukraine, the Court has recently found that the procedure at issue did not constitute an effective remedy within the meaning of Article 13 of the Convention with respect to the applicant’s complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 about allegedly unlawful search and seizure of the applicant’s property (see Zosymov v. Ukraine, no. 4322/06, §§ 94-96, 12 July 2016. In all the above cases, the Court based its findings on the arguments, similar to those put forward by the applicant in the present case (see paragraph 19 above). More specifically, it has found that the procedure at issue did not afford the applicants a possibility to obtain direct and expeditious determination of their claims.

31.  The Court finds that these considerations are pertinent in the present case in context of the applicant’s complaint under Article 6 § 1 about lack of access to a court. The Government have not presented any evidence that the applicant, who was not a party to the criminal case within the framework of which the search of his flat had been conducted, was eligible to institute court proceedings under Article 234 of the CCP or that his complaint lodged in accordance with this procedure could be examined by a court expeditiously, irrespective of when and whether the investigative authority identifies the perpetrator and commits him or her for trial. It has likewise not been shown that the criminal court would have had appropriate competence to redress the applicant’s complaint, including, if necessary, by awarding damages or applying another appropriate civil remedy.

32.  The Court therefore finds that the applicant was not bound to exhaust the remedy provided for by Article 234 of the CCP before lodging the present complaint and dismisses the Government’s objection to this effect (see paragraph 18 above).

33.  Regard being had to the fact that the domestic courts refused to examine the applicant’s complaint lodged under Articles 2 and 4 of the CAJ, referring him to a procedure which was neither accessible nor capable of leading to the direct and expeditious determination of the applicant’s civil claim, the Court considers that the applicant was denied the very essence of the right of access to a court.

34.  Accordingly, there has been a violation of Article 6 § 1 of the Convention.

II.  ALLEGED VIOLATION OF ARTICLE 8 AND OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION

35.  Relying on Articles 8 and 13 of the Convention, the applicant also complained that the search of his flat had been arbitrary and that he had no effective remedies in respect of the above complaint.

36.  The Government did not provide any details concerning the criminal proceedings within the framework of which the disputed search had been ordered having informed the Court that the relevant file had no longer been available.

37.  Having regard to the particular circumstances of the case and the submissions of the parties, the Court considers that the main legal question in the present application concerned the impossibility for the applicant to obtain judicial review of the substance of his complaint raised under Article 8. Having examined this question under Article 6 § 1 of the Convention, the Court considers that there is no need to give a separate ruling in respect of this part of the application (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, with further references).

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

38.  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

39.  The applicant claimed 35,000 Ukrainian hryvnias (UAH) in respect of non-pecuniary damage.

40.  The Government alleged that this claim was exorbitant and unsubstantiated.

41.  The Court considers that the applicant must have suffered anguish and distress on account of the facts giving rise to the finding of a violation of Article 6 of the Convention in the present case. Ruling on an equitable basis, the Court awards him 1,500 euros (EUR) in respect of non-pecuniary damage.

B.  Costs and expenses

42.  The applicant did not lodge any complaint under this head. Accordingly, the Court finds there is no call to give an award.

C.  Default interest

43.  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.  Decides, unanimously, to join to the merits of the complaint raised under Article 6 § 1 of the Convention the Government’s objection concerning non-exhaustion of domestic remedies and rejects it;

2.  Declares, unanimously, the complaint raised under Article 6 § 1 of the Convention admissible;

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

4.  Holds, by five votes to two, that it is not necessary to examine the admissibility and merits of the complaints under Article 8 both taken alone and in conjunction with Article 13 of the Convention;

5.  Holds, unanimously,

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

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

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

Done in English, and notified in writing on 9 March 2017, 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 Nußberger and Ranzoni is annexed to this judgment.

We have voted with the majority in favour of finding a violation of Article 6 § 1 of the Convention. Our disagreement relates to the finding “that it is not necessary to examine the admissibility and merits of the complaints under Article 8 both taken alone and in conjunction with Article 13 of the Convention” (point 4 of the operative provisions). We are of the opinion that the application should have been analysed separately under Article 8.

The majority state in paragraph 37 of the judgment “that the main legal question in the present application concerned the impossibility for the applicant to obtain judicial review of the substance of his complaint raised under Article 8”. However, we would point to the difference in the nature of the interests protected by Article 6, namely procedural safeguards, and by Article 8, namely ensuring proper respect for, inter alia, private life and protecting the individual against arbitrary interference by the public authorities. With regard to the particular circumstances of the case, we consider that the complaint under Article 8 goes beyond the fair-trial aspect of Article 6.

The searching of residential premises entailing, as here, the seizure of electronic equipment constitutes interference with the “private life” and “home” of those concerned. The Court has consistently held that the Contracting States may consider it necessary to resort to such measures in order to obtain physical evidence of certain offences. However, it will assess whether the reasons put forward to justify such measures were relevant and sufficient, and, in particular, whether the proportionality principle has been adhered to. The Court must ensure that the relevant legislation and practice afford individuals adequate and effective safeguards against abuse (see K.S. and M.S. v. Germany, no. 33696/11, § 44, 6 October 2016, with further references). The fact that a search is based on a warrant issued by a judge does not necessarily amount to a sufficient safeguard. It also matters, inter alia, whether prior judicial scrutiny was properly carried out and whether the legal framework and the limits on the powers exercised afforded adequate protection against arbitrary interference by the authorities (see Posevini v. Bulgaria, no. 63638/14, § 70, 19 January 2017 [not yet final]; Vinci Construction and GTM Génie Civil et Services v. France, nos. 63629/10 and 60567/10, § 79, 2 April 2015; and K.S. and M.S. v. Germany, § 45, cited above).

In this respect, we first note that the search warrant (see paragraph 6 of the judgment) lacked any details concerning the criminal proceedings within the framework of which the search was ordered, and that the wording of the warrant casts doubt on whether prior judicial scrutiny was properly carried out. The absence of such scrutiny may be counterbalanced by the possibility of an ex post factum judicial review of the search and seizure (see Heino v. Finland, no. 56720/09, § 45, 15 February 2011, with further references). However, in the present case the Government have not shown that such an effective remedy was available (see paragraph 31 of the judgment).

Furthermore, the police, when conducting the house search, clearly overstepped the limits of the warrant in so far as they seized three mobile phones (two Samsungs and one Nokia), whereas the search warrant referred only to one specific “Nokia 7270 mobile telephone” (see paragraphs 6 and 7 of the judgment). This abuse of power occurred without the legal framework and practice affording the applicant any adequate and effective safeguards against such arbitrary interference with his right to respect for his private life.

The aforementioned shortcomings are not sufficiently covered by the finding of a violation of Article 6 of the Convention. Against this background, we are of the opinion that the complaint under Article 8 of the Convention should have been assessed separately and that the Court should have found a violation also in this regard.

The aforementioned shortcomings are not sufficiently covered by the finding of a violation of Article 6 of the Convention. Against this background, we are of the opinion that the complaint under Article 8 of the Convention should have been assessed separately and that the Court should have found a violation also in this regard.


PROCEDURE

1.  The case originated in an application (no. 9907/02) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Ms Emine Araç (“the applicant”), on 22 October 2001.

2.  The applicant was represented by Mr M. Muller and Mr T. Otty, lawyers practising in London, and by Mr H. Tuna in . The Turkish Government (“the Government”) were represented by their Agent.

3.  The applicant alleged that the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 § 1 of the Convention.

4.  On 19 September 2006 the Court declared the application partly inadmissible and decided to give notice to the Government of the complaint under Article 6 § 1 of the Convention. In accordance with Article 29 § 3 of the Convention, it also decided to examine the admissibility and merits of the case at the same time.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

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

6.  On 24 September 1998 the applicant, a student in the Faculty of Theology of İnönü University in , sought to enrol in the Faculty of Theology of Marmara University. For that purpose she provided, among other materials, an identity photograph which showed her wearing a headscarf.

7.  On 1 October 1998 the Faculty of Theology of Marmara University replied to the applicant, informing her that the identity photograph she had supplied did not comply with the regulations in force and that where this was the case, the person concerned could not be enrolled.

8.  On an unspecified date the applicant lodged an application for judicial review with the . She requested, in particular, that the refusal of the administrative authorities be set aside as being in breach of her rights.

9.  In a judgment of 23 September 1999, the  rejected the application, finding that the authorities’ refusal had been in accordance with the regulations in force. The court considered, in particular, that the applicant had submitted an identity photograph which did not conform to the regulations, which stipulated that “photographs must show the subject facing forward and be less than six months old, so that the person concerned is readily identifiable; the head and neck must also be uncovered” (Article 4 § 1 (f) of the Guide for University Applicants adopted by the Higher Education Board on 17 April 1998).

10.  Following an appeal by the applicant on points of law, the  upheld the judgment of 23 September 1999, finding it to have been in accordance with the law and the procedural rules. The relevant parts of the  judgment read as follows:

“Summary of the request: ...

Opinion of Mrs Serpil K. Erdoğan, investigating judge of the : the judge is of the opinion that the appeal should be dismissed and the first-instance judgment upheld.

Opinion of Mr H. Hüseyin Tok, State Counsel (savcı) at the : the grounds of appeal set out in the statement of grounds do not correspond to those enumerated in Article 49 § 1 of the Code of Administrative Procedure. In view of the juridical and legal arguments on which the first-instance judgment was based, these grounds cannot be said to require the quashing of the impugned judgment ...”

II.  RELEVANT DOMESTIC LAW AND PRACTICE

11.  Article 42 of the Constitution reads as follows:

“No one may be deprived of the right to instruction and education.

The scope of the right to education shall be defined and regulated by law.

Instruction and teaching shall be provided under the supervision and control of the State in accordance with the principles and reforms of Atatürk and contemporary scientific and educational methods. No educational or teaching institution may be set up that does not follow these rules.

...”

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

12.  The applicant submitted that the proceedings before the  had been unfair. She relied on Article 6 § 1 of the Convention, the relevant part of which provides:

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

13.  The Government contested that argument.

A.  Admissibility

14.  The Government argued, as their main submission, that Article 6 § 1 was inapplicable in the instant case, as the case brought before the administrative courts had not related to civil rights and obligations. The applicant had brought an action seeking the setting-aside of public-law regulations adopted by the university authorities. The Government further pointed out that in its decision in André Simpson v. the United Kingdom (no. 14688/89, Commission decision of 4 December 1989, Decisions and Reports (DR) 64, p. 196), the Commission had held that Article 6 was inapplicable to proceedings concerning the laws on education. In particular, it had found that “the right not to be denied elementary education” fell within the domain of public law, since it had no private-law analogy and no repercussions on private rights or obligations.

15.  The applicant submitted that Article 6 was applicable in the instant case.

16.  According to the Court’s settled case-law, the phrase “determination of ... civil rights and obligations” covers all proceedings the result of which is decisive for [such] rights and obligations (see Ringeisen v. , 16 July 1971, § 94, Series A no. 13). A tenuous connection or remote consequences do not suffice for Article 6 § 1: civil rights and obligations must be the object – or one of the objects – of the dispute (contestation) and the result of the proceedings must be directly decisive for such a right (see Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 47, Series A no. 43).

17.  In the instant case it seems clear that a “dispute” arose following the decision taken by the Faculty of Theology of Marmara University on 1 October 1998 not to enrol the applicant, who had supplied an identity photograph which did not comply with the regulations in force (see paragraph 7 above). This dispute, which was genuine and serious, related to the actual existence of the right asserted by the applicant to continue the university studies she had begun at the Faculty of Theology of İnönü University. The outcome of the proceedings in question was capable of leading to the setting-aside of the impugned decision, namely the refusal to enrol the applicant; it was thus directly decisive for the right at issue.

Consequently, the Court must simply ascertain whether Ms Araç’s right to continue her theology studies was a civil right within the meaning of Article 6 § 1.

18.  The Court reiterates that, although it has found the concept of “civil rights and obligations” to be autonomous, it has also held that, in this context, the legislation of the State concerned is not without importance (see König v. , 28 June 1978, § 89, Series A no. 27). Whether or not a right is to be regarded as civil within the meaning of that term in the Convention must be determined by reference not only to its legal classification but also to its substantive content and effects under the domestic law of the State concerned. Moreover, the Court, in the exercise of its supervisory function, must also take account of the object and purpose of the Convention (see Perez v. France [GC], no. 47287/99, § 57, ECHR 2004I).

19.  The Court observes at the outset that, in view of the wording of Article 42 of the Turkish Constitution (see paragraph 11 above), the applicant, who was a student in the Faculty of Theology of İnönü University, could make an arguable claim that Turkish law conferred on her the right to enrol in the Faculty of Theology of Marmara University provided she satisfied the statutory conditions. She was refused enrolment not because she failed to satisfy one of these conditions, but because of her failure to comply with a formal requirement laid down by the regulations in question.

20.  According to the Government, the regulation of enrolment in highereducation establishments was a matter falling within the sphere of public law. In the Court’s view, however, this public-law aspect does not suffice to exclude the right in question from the category of civil rights within the meaning of Article 6 § 1. It further points out that in several cases (see, in particular, König and Le Compte, Van Leuven and De Meyere, both cited above; Benthem v. the Netherlands, 23 October 1985, Series A no. 97; and Feldbrugge v. the Netherlands, 29 May 1986, Series A no. 99), State intervention by means of a statute or delegated legislation has not prevented the Court from finding the right in issue to have a private, and hence civil, character. Proceedings which fall within the sphere of “public law” in the domestic legal order may come within the scope of Article 6 § 1 where their outcome is decisive for civil rights and obligations.

21.  In addition, in the Kök v. Turkey judgment (no. 1855/02, § 36, 19 October 2006), the Court found Article 6 to be applicable to a dispute concerning the setting-aside of the authorities’ refusal to authorise the applicant to practise a medical specialisation. It also found that, where a State confers rights which can be enforced by means of a judicial remedy, these can, in principle, be regarded as civil rights within the meaning of Article 6 § 1 (see, along the same lines, Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom, 10 July 1998, § 61, Reports of Judgments and Decisions 1998IV).

22.  It is important also to emphasise that Ms Araç was not affected in her relations with the public authorities as such, acting in the exercise of discretionary powers, but simply in her personal capacity as the user of a public service. Hence, she was challenging the regulations in force, which she considered prejudicial to her right to continue her studies in a highereducation establishment.

23.  Furthermore, in its recent case-law the Court, leaving the door open for the application of Article 6 to the right to education, has consistently examined whether proceedings concerning the regulations on higher education conform to the requirements of Article 6 § 1 (see, by way of example, Mürsel Eren v. Turkey (dec.), no. 60856/00, 6 June 2002; D.H. and Others v. the Czech Republic (dec.), no. 57325/00, 1 March 2005; and Tig v. Turkey (dec.), no. 8165/03, 24 May 2005).

24.  Accordingly, given the importance of the applicant’s right to continue her higher education (as regards the key role and importance of the right of access to higher education, see Leyla Şahin v.  [GC], no. 44774/98, § 136, ECHR 2005XI), the Court does not doubt that the limitation in question, imposed by the regulations in issue, fell within the scope of the applicant’s personal rights and was therefore civil in character.

25.  In the light of the foregoing, and given that the lawfulness of proceedings concerning a civil right was capable of being challenged by means of a judicial remedy, of which the applicant made use, the Court considers that a dispute (contestation) concerning a “civil right” arose in the instant case and was determined by the Administrative Court.

Article 6 § 1 is therefore applicable in the present case.

26.  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. The remainder of the application must therefore be declared admissible.

B.  Merits

27.  The Court points out that it has previously considered a complaint similar to that made by the applicant and found a violation of Article 6 § 1 of the Convention because the applicant’s right to adversarial proceedings before the Supreme Administrative Court had been infringed, in view of the nature of the observations of Principal State Counsel at the Supreme Administrative Court and the inability of the applicant to respond to them in writing (see, mutatis mutandis, Göç v. Turkey [GC], no. 36590/97, § 58, ECHR 2002-V, and Meral v. Turkey, no. 33446/02, §§ 32-39, 27 November 2007). Having examined the present case it considers that the Government have not adduced any convincing fact or argument capable of justifying a different conclusion on this occasion.

28.  Accordingly, there has been a violation of Article 6 § 1.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

29.  Article 41 of the Convention provides:

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

A.  Damage

30.  The applicant claimed 32,500 euros (EUR) for the pecuniary damage she had allegedly sustained. She claimed to have sustained non-pecuniary damage, but left the amount of compensation to the Court’s discretion.

31.  The Government contested the applicant’s claims.

32.  The Court fails to discern any causal link between the violation found and the non-pecuniary damage alleged; it therefore rejects this claim. However, it considers that the applicant must have sustained some nonpecuniary damage, which has been sufficiently compensated by the finding of a violation (see Meral v. Turkey, no. 33446/02, § 58, 27 November 2007).

B.  Costs and expenses

33.  The applicant claimed a total of 4,426.60 pounds sterling (GBP) and 6,710.40 Turkish liras (TRY) for fees and costs incurred in the course of her application. Her claim comprised:

–  the fees of the lawyers of the Kurdish Human Rights Project: K. Yıldız – GBP 712.50 (4 hours and 15 minutes’ work); L. Claridge – GBP 2,437.50 (16 hours and 45 minutes’ work) and H. Tuna – TRY 5,940 (13 hours and 30 minutes’ work);

–  translation costs: TRY 625.40 and GBP 1,228.60;

–  miscellaneous expenditure: GBP 48 and TRY 145.

34.  The applicant furnished proof of payment in respect of the translation costs and certain costs incurred in the proceedings before the domestic courts. Her lawyers requested that the sums awarded under that head be paid into their bank account in the .

35.  The Government disputed the claim made by the applicant’s representatives, which it considered excessive. They pointed out that only expenses actually incurred could be reimbursed; the applicant or her representatives must produce documents supporting any claim for costs and expenses. Furthermore, lists or overall figures could not be accepted as relevant or constitute proof of the alleged expenditure, which had to be reasonable in amount and have been necessary. All claims for expenses had to be supported by invoices and each item of expenditure had to be substantiated by supporting documents.

36.  The Court reiterates that in order for costs to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred and reasonable as to quantum (see Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999II).

37.  In the instant case, in view of the details supplied by the applicant, the Court is not convinced that all the costs claimed by the lawyers of the Kurdish Human Rights Project were necessarily incurred, especially since no proof of payment of their fees was submitted. Accordingly, taking into account the awards made previously in comparable cases (see Meral, cited above, § 61) and the work carried out in the proceedings before it, the Court awards the applicant EUR 1,500.

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 UNANIMOUSLY

1.  Declares the remainder of the application admissible;

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

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

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses, to be converted into Turkish liras at the rate applicable at the date of settlement, 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 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 French, and notified in writing on 23 September 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case was referred to the Court by the applicants on 12 August 1999 and by the European Commission of Human Rights (“the Commission”) on 15 September 1999, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). It originated in an application (no. 28369/95) against the Kingdom of the Netherlands lodged with the Commission under former Article 25 of the Convention by two Netherlands nationals, Ms Eveline E.C.H. Camp and Mr Sofian A. Bourimi (“the applicants”), on 18 August 1995. The applicants were represented by their counsel. The Netherlands Government (“the Government”) were represented by their Agents, Mr R. Böcker and Ms J. Schukking, of the Netherlands Ministry of Foreign Affairs.

The Commission's request referred to former Articles 44 and 48 of the Convention and to the declaration whereby the Netherlands recognised the compulsory jurisdiction of the Court (former Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 8 of the Convention or Article 14 taken in conjunction with Article 8.

2.  On 20 September 1999 a panel of the Grand Chamber decided, pursuant to Article 5 § 4 of Protocol No. 11 to the Convention and Rules 100 § 1 and 24 § 6 of the Rules of Court, that the application would be examined by one of the Sections. It was, thereupon, assigned to the First Section.

3.  The Chamber constituted within that Section included ex officio Mrs W. Thomassen, the judge elected in respect of the Netherlands (Article 27 § 2 of the Convention and Rule 26 § 1 (a)), and Mrs E. Palm, President of the Section (Rules 12 and 26 § 1 (a)). The other members designated by the latter to complete the Chamber were Mr L. Ferrari Bravo, Mr R. Türmen, Mr J. Casadevall, Mr B. Zupančič and Mr T. Panţîru.

4.  From October 1999 to January 2000 friendly-settlement negotiations took place between the parties which proved unsuccessful.

5.  On 14 March 2000 the Chamber decided to hold a hearing (Rule 59 § 2).

6.  In accordance with Rule 59 § 3, the President of the Chamber invited the parties to submit memorials on the issues arising in the application. The Registrar received the applicants' and the Government's memorials on 29 March and 21 April 2000 respectively.

7.  The hearing took place in public in the Human Rights Building, Strasbourg, on 6 June 2000 .

There appeared before the Court:

The Court heard addresses by Ms Dosker, Ms van der Grinten and Mr Böcker.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

8.  On 24 September 1992 Ms Camp's partner, Mr Abbie Bourimi, died without having recognised (erkenning) the child she was carrying at that time and without leaving a will. Ms Camp and Mr A. Bourimi had been living together in a house owned by the latter. They had been intending to marry, but a wedding scheduled for April 1992 had been postponed due to the death of Ms Camp's mother.

9.  The parents of Mr A. Bourimi believed neither that the child Ms Camp was carrying had been fathered by their son nor that their son had intended to marry Ms Camp. Consequently, they considered themselves and their other children to be their son's heirs. On 22 October 1992, contrary to the wishes of Ms Camp, Mr A. Bourimi's parents, together with five other relatives, moved into the house which had belonged to their son. Thereupon, Ms Camp moved out of the house.

10.  On 2 November 1992 Ms Camp requested the President of the Roermond Regional Court (Arrondissementsrechtbank) in summary proceedings (kort geding) to grant an injunction ordering the parents to vacate the house pending the winding up of Mr A. Bourimi's estate. Furthermore, on 3 November 1992, she requested the Queen to grant letters of legitimation (brieven van wettiging – see paragraphs 16-18 below) in respect of the child she was carrying.

11.  The President of the Regional Court refused to grant the injunction on 19 November 1992 but this decision was quashed by the 'sHertogenbosch Court of Appeal (Gerechtshof) on 2 June 1993. The Court of Appeal considered that Ms Camp had adduced sufficient evidence to corroborate her claim that she had been living with Mr A. Bourimi in his house for a considerable time, that they had intended to get married and that Mr A. Bourimi was Sofian's father. In view of the fact that it therefore seemed likely that letters of legitimation would be granted and Sofian would thus emerge as Mr A. Bourimi's sole heir, the Court of Appeal found that it was Ms Camp's right and in her interest in her capacity of mother and guardian to be given possession of the house. The Court of Appeal accordingly ordered the parents of Mr A. Bourimi to vacate the house. The parents subsequently filed an appeal on points of law (beroep in cassatie) to the Supreme Court (Hoge Raad).

12.  Meanwhile, on 20 November 1992, Sofian Bourimi was born. Since he was illegitimate and had not been recognised by his father, he was initially given the family name of his mother. On 21 October 1994 the Supreme Court issued advice in favour of the granting of letters of legitimation. Such letters were granted on 4 November 1994 and Sofian took on the family name of his father.

13.  On 24 February 1995 the Supreme Court quashed the decision of the Court of Appeal of 2 June 1993. It considered that the letters of legitimation did not have retroactive force from the time of Mr A. Bourimi's death and that therefore Sofian could not inherit from him. As regards Ms Camp's argument that this outcome was contrary to Article 8 of the Convention and Article 14 taken in conjunction with Article 8, the Supreme Court held that the establishment of the consequences of an incompatibility of Netherlands law with these provisions of the Convention went beyond the task of the judiciary.

14.  The Supreme Court referred the case back to the Court of Appeal, which was to examine whether other circumstances existed justifying a judicial order to the effect that Mr A. Bourimi's parents vacate the house – such as the fact that Ms Camp had been living in the house for a considerable time. On 4 June 1996 the Court of Appeal struck the case out in view of the fact that the parties to the proceedings had reached an agreement to the effect that Ms Camp and Sofian would vacate the house.

15.  The estate of Mr A. Bourimi was distributed amongst the heirs (that is, his parents and siblings) on 9 February 2000 by a notary (notaris).

II.  RELEVANT DOMESTIC LAW

16.  Legally recognised family ties (familierechtelijke betrekkingen) between a father, his relatives and a child exist where a child is born to married parents or if it is born within 307 days following the dissolution of the marriage (Article 1:197 of the Civil Code (Burgerlijk Wetboek – “CC”)). An illegitimate child will have a legally recognised family relationship with its father (who does not have to be the biological father) and the latter's relatives if it has been recognised (erkenning) by the father, either before or after its birth (Article 1:222 CC). At the relevant time, moreover, a legally recognised family relationship would also be created by the granting of letters of legitimation (Article 1:215 CC).

17.  	Paragraph 2 of Article 1:215 provided as follows:

“The request for letters of legitimation may also be made if the man, who, aware of her pregnancy, and intending to marry the mother, died before the birth of the child without having recognised it.”

18.  It appears from the explanatory memorandum (Memorie van Toelichting) to this provision that the intention to marry the mother, which, if carried out, would have resulted in the birth of a legitimate child, replaced the recognition required by Article 1:222 CC for the establishment of a legally recognised family relationship.

A request for letters of legitimation could be made by the child's mother or, after her death, by the child itself. No time-limit was attached to a request for such letters. According to Article 1:219 § 1 CC, legitimation pursuant to Article 1:215 took effect from the day on which letters of legitimation were granted.

19.  On 1 April 1998 the Civil Code was amended. The option of letters of legitimation was replaced by a judicial declaration of paternity (gerechtelijke vaststelling van vaderschap, Article 1:207 CC). A declaration of paternity has retroactive force from the time of the child's birth but it does not affect adversely any rights acquired in good faith by third parties.

20.  According to Article 4:879 § 1 CC only those persons who have a legally recognised family relationship with a person who has died intestate may inherit from this person. Furthermore, the heir must have existed at the time of death. (Article 4:883 CC). However, according to Article 1:2 CC, a child who has been conceived but has not yet been born is considered as having already been born when his or her interests so require.

21.  According to the rules of intestacy, if a deceased does not leave any children with whom he has a legally recognised family relationship or a spouse, his parents and siblings will inherit from him (Article 4:901 CC). If there are such children or a spouse, the parents and siblings are excluded from the inheritance (Articles 4:899 and 4:899a CC).

proceedings before the commission

22.  The applicants applied to the Commission on 18 August 1995. They complained that, contrary to Article 8 of the Convention and Article 14 taken in conjunction with Article 8, the letters of legitimation did not have retroactive force from the time of Mr A. Bourimi's death.

23.  On 8 September 1997 the Commission declared the application admissible.

24.  In its report of 23 April 1999 (former Article 31 of the Convention) [Note by the Registry. The report is obtainable from the Registry.], the Commission expressed the unanimous opinion that there had been no violation of Article 8 either in respect of the family life between the two applicants or in respect of Ms Camp's family life with the relatives of Mr A. Bourimi, that it was not necessary to examine under Article 8 of the Convention the complaint relating to Sofian's family life with the relatives of his father, and that there had been a violation of Article 14 of the Convention taken in conjunction with Article 8 in respect of Sofian.

THE LAW

I.  alleged violation of article 8 of the Convention

25.  The applicants complained that they were hindered in the development of a family life with each other and with the relatives of Mr A. Bourimi. They relied on Article 8 of the Convention, which provides:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

26.  The applicants maintained that the legal framework in place meant that no legally recognised family ties existed between Sofian and his father and the latter's relatives until the granting of letters of legitimation. As a result, Sofian's integration into his family – including that of his father – from birth was not rendered possible. This affected the development of normal family ties between Ms Camp and Sofian but also between each of the applicants and the relatives of Mr A. Bourimi. The impossibility for Sofian to take on his father's family name until the granting of letters of legitimation and the impossibility of inheriting from his father created a situation where Sofian was treated less favourably than a legitimate child.

27.  The Government agreed with the Commission in that they failed to see how the relationship between Ms Camp and Sofian could have been affected to an appreciable extent, either prior to or after the granting of letters of legitimation, by the fact that the family ties between Sofian and his deceased father were not legally recognised when Sofian was born. Similarly, the Government were of the opinion that it had not been substantiated in what way the relationship between Ms Camp and the relatives of Mr A. Bourimi – even assuming this could be characterised as constituting “family life” within the meaning of Article 8 – had been adversely affected.

28.  The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities (see, for example, the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 25, § 55). It considers that the absence of legally recognised family ties between Sofian and his father did not constitute an interference by the public authorities with the family life of Sofian and his mother who, as far as the Court is aware, have always lived together. Furthermore, and without embarking on an examination of the question whether the ties between Ms Camp and the relatives of Mr A. Bourimi are to be equated with “family life”, the Court does not find that obstacles to the development of those ties were imputable to an action or lack of action on the part of the authorities.

Accordingly, the Court finds that there has been no violation of Article 8 of the Convention in respect of family life either between Ms Camp and Sofian or between Ms Camp and the relatives of Mr A. Bourimi.

29.  The Court further observes that the complaint in respect of the family life between Sofian and his father's relatives is closely related to the applicants' contention that the law in force allowed these relatives to treat Sofian differently from a child who, unlike Sofian, had a legally recognised family relationship with its father from birth. The Court considers that this issue falls more appropriately to be examined under Article 14 of the Convention taken in conjunction with Article 8.

ii.  alleged violation of article 14 of the Convention taken in conjunction with article 8

30.  The applicants complained that Sofian was treated differently from children who had the status of legitimate children from birth, in breach of Article 14 of the Convention taken in conjunction with Article 8. Article 14 provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

31.  In the opinion of the applicants, no weighty reasons existed which could justify the situation whereby only children who had a legally recognised family relationship with their father at the time of the latter's death could inherit from that father. They agreed with the Commission that in the instant case such justification could not be found in the need to protect other heirs from having to give up a lawfully obtained inheritance.

32.  The Government argued that the reason for the difference in treatment lay in the provision of a general protection of the legitimate interests of third parties, in particular other heirs, in cases where family ties were established through letters of legitimation. They argued in this respect that heirs should enjoy the certainty that they would not have to give up a lawful inheritance to a descendant of the deceased who might turn up unexpectedly years later. The protection of their interests was achieved by denying retroactive force to letters of legitimation. Although the Government recognised that in certain circumstances the result of this system could be less than ideal – for which reason the relevant legislation had now been changed – this was not necessarily tantamount to a violation of the Convention. Moreover, Netherlands law offered several possibilities, such as the recognition by Sofian's father of the unborn child or his making of a will, which would have prevented the situation with which the applicants were confronted.

33.  The Court has previously examined alleged differences in treatment in matters of succession both under Article 14 taken in conjunction with Article 8 (see the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 24, § 54, and the Vermeire v. Belgium judgment of 29 November 1991, Series A no. 214-C, p. 83, § 28) and under Article 14 taken in conjunction with Article 1 of Protocol No. 1 (see the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 18, § 40, and Mazurek v. France, no. 34406/97, § 43, ECHR 2000-II). In the present case, Article 14 has been relied on in conjunction with Article 8, and the Court will therefore examine this issue in the light of these two provisions.

34.  As the Court has consistently held, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, the Van Raalte v. the Netherlands judgment of 21 February 1997, Reports of Judgments and Decisions 1997-I, p. 184, § 33).

35.  Despite the fact that Article 8 does not as such guarantee a right to inherit, the Court has previously accepted that matters of intestate succession between near relatives nevertheless fall within the scope of that provision as they represent a feature of family life (see the Marckx judgment cited above, pp. 23-24, §§ 52-53). The fact that Mr A. Bourimi's death occurred before Sofian was born is no reason for the Court to adopt a different approach in the present case.

It follows that Article 14 taken in conjunction with Article 8 applies.

36.  The Court observes that Sofian, whose family ties with his father were not legally recognised until letters of legitimation had been granted, was unable to inherit from his father, unlike children who did have such ties either because they were born in wedlock or had been recognised by their father. This undoubtedly constitutes a difference in treatment between persons in similar situations, based on birth.

37.  For the purposes of Article 14 a difference in treatment is discriminatory if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. Moreover, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see the Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A no. 291-B, pp. 32-33, § 24).

38.  According to the Court's case-law, very weighty reasons need to be put forward before a difference in treatment on the ground of birth out of wedlock can be regarded as compatible with the Convention (see the Inze v. Austria judgment cited above, p. 18, § 41, and Mazurek, cited above, § 49).

As noted above (paragraph 36), in the instant case Sofian was treated differently not only from children born in wedlock but also from children who, although born out of wedlock, had been recognised by their father. Although the letters of legitimation took the place of such recognition (see paragraph 18 above), Sofian was nevertheless still unable to inherit from his father. In the Court's view, similarly weighty reasons are required for this latter difference to be compatible with the Convention in the circumstances of the present case. The Court observes in this respect that there was no conscious decision on the part of Mr A. Bourimi not to recognise the child Ms Camp was carrying. On the contrary, he had intended to marry Ms Camp and letters of legitimation had been granted precisely because his untimely death had precluded that marriage (see paragraphs 8, 12 and 17-18 above). In these circumstances, the Court cannot accept the Government's arguments as to how Mr A. Bourimi might have prevented his son's present predicament (see paragraph 32 above).

39.  Although the protection of the rights of other heirs may constitute a legitimate aim, when it comes to the question of the proportionality of the means chosen to achieve this aim the Court observes that Sofian was not a descendant of whose existence the other heirs were unaware. Here, there is no indication that the exigencies of the situation required the level of protection that was afforded to Mr A. Bourimi's parents and siblings to the detriment of his son. The Court considers that in these circumstances Sofian's exclusion from his father's inheritance was disproportionate. Accordingly, there has been a breach of Article 14 of the Convention taken in conjunction with Article 8 in respect of Sofian.

iii.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

40.  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.”

41.  The applicants submitted that their claims for just satisfaction related solely to the breach of Article 14 of the Convention taken in conjunction with Article 8.

42.  The Government argued that, given the subsidiary nature of the provision, there was no room for application of Article 41 since it could not be excluded that the applicants would be successful if they lodged judicial proceedings for tort against the State.

Alternatively, the Government were of the opinion that the reasons why Ms Camp and Mr A. Bourimi had not availed themselves of other legal possibilities to establish a legally recognised family relationship between father and child, such as recognition or the making of a will, fell within the private sphere. Therefore, any financial or emotional prejudice suffered as a result should not be fully attributed to the Government.

43.  The Court considers relevant, in the first place, that to oblige the applicants to commence an action for tort in the Netherlands would prolong the total length of the proceedings relating to the applicants' rights under the Convention even more (see the De Wilde, Ooms and Versyp v. Belgium judgment of 10 March 1972 (Article 50), Series A no. 14, pp. 8-9, § 16, and the Barberà, Messegué and Jabardo v. Spain judgment of 13 June 1994 (Article 50), Series A no. 285C, p. 57, § 17).

In this context it is further observed that it has not been established by the Government that proceedings for tort would be successful.

44.  Moreover, the Court recalls its case-law under former Article 50 of the Convention to the effect that just satisfaction may be granted by the Court unless a national law remedy is able to bring about a result as close to restitutio in integrum as possible in the nature of things (see, for example, the De Wilde, Ooms and Versyp judgment cited above, pp. 9-10, § 20; the Ringeisen v. Austria judgment of 22 June 1972 (Article 50), Series A no. 15, p. 8, § 21; and the Sunday Times v. the United Kingdom judgment of 6 November 1980 (Article 50), Series A no. 38, pp. 8-9, § 13). The question arises whether proceedings for tort, or any other kind of proceedings for that matter, would indeed be capable of bringing about such a result in the present case given that the impossibility for Sofian to obtain the status of heir of his father would not be remedied.

Finally, the Court observes that the Government have declined to give the applicants the compensation which they claimed (see paragraph 4 above; see also the De Wilde, Ooms and Versyp judgment cited above, pp. 9-10, § 20, and the Ringeisen judgment cited above, p. 9, § 22).

45.  Consequently, the Court considers that it should examine the merits of the applicants' claims for just satisfaction.

46.  In addition, the Court cannot accept the Government's argument to the effect that they should not be held fully responsible for the entire financial consequences of private choices made by Ms Camp and Mr A. Bourimi. The Court has already rejected this argument when considering the merits and reiterates, under this head, its reasons for doing so (see paragraph 38 above). It would add that Sofian's parents, who had intended to get married, could hardly have been expected to anticipate that he would become the victim of discriminatory legislation.

A.  Damage

1.  Pecuniary damage

47.  The applicants claimed a total of 560,844.75 Netherlands guilders (NLG), this amount comprising the current value of the estate of Mr A. Bourimi, a sum of money which he had in his possession on the day he died and which had been handed over to his parents, as well as an amount of overpaid income tax which had been given to the deceased's parents by the tax authorities.

In respect of the current value of the estate, the applicants based themselves on a letter dated 14 March 2000 from the notary in charge of the winding up of the estate.

The applicants also sought compensation for removal expenses incurred by Ms Camp on two occasions. They estimated these costs at NLG 30,000.

Finally, the applicants submitted that pecuniary damage had been caused by the necessity to pay rent whereas they could have lived virtually for free in Mr A. Bourimi's house had this been inherited by Sofian.

48.  The Government argued that the value of the estate should be determined at the time of death of Mr A. Bourimi, and that developments which occurred or assets which were acquired after his death should have no bearing on this determination.

They further refuted that there was any connection between a violation of the Convention and the applicants' moving out of the house.

49.  The Court accepts that Sofian suffered pecuniary damage the amount of which is equivalent to the value of his father's estate, which he would have obtained had he had a legally recognised family relationship with his father at the time of the latter's death (see the Vermeire judgment cited above, p. 84, § 31).

As to the time at which the value of the estate falls to be determined, the Court observes that the estate was distributed amongst the heirs on 9 February 2000 (see paragraph 15 above). Consequently, it was the value which the estate had at that time which Sofian would have obtained.

The Court further considers that the sums of money transmitted to the parents of Mr A. Bourimi prior to the distribution of the estate also qualify for compensation under this head.

As to removal expenses and rent, the Court notes that these items have not been sufficiently quantified. Moreover, Ms Camp left the house after reaching a settlement to that effect with the heirs of Mr A. Bourimi and at a time when the legal proceedings concerning her claim to remain in the house had not yet been concluded (see paragraph 14 above).

Noting that the bulk of the estate was only distributed very recently rather than shortly after Mr A. Bourimi's death in 1992, the Court does not deem it appropriate to make an award for statutory interest.

50.  The Court consequently awards Sofian NLG 560,844.75 in respect of pecuniary damage, which amount is to be paid to, and held by, Ms Camp for Sofian.

2.  Non-pecuniary damage

51.  The applicants submitted that they had suffered frustration, distress and anxiety in which respect they deemed compensation in the amount of NLG 50,000 reasonable.

The Government were of the view that any finding of a violation would constitute sufficient just satisfaction under this head.

52.  Even though the finding of a violation of the Convention concerned Sofian only, the Court accepts that Ms Camp also suffered distress. Taking its decision on an equitable basis, the Court awards the applicants compensation in the amount of NLG 6,750.

B.  Costs and expenses

53.  The applicants claimed an amount of NLG 71,670 for lawyers' fees and costs incurred in bringing the application. They added that the complaint concerning the difference in treatment had occupied most of the time which their legal representatives had spent on the case.

They also sought reimbursement in the amount of NLG 904.75 for the fees of the notary who had provided the applicants with written statements of the contents and value of the estate.

54.  The Government regarded the lawyers' fees as exaggerated. Moreover, they submitted that the question whether both or only one of the applicants are or is a victim of a violation of the Convention should also be taken into account.

55.  In relation to the claim for costs of legal representation the Court, deciding on an equitable basis, awards the applicants the sum of NLG 30,000, together with any value-added tax that may be chargeable, less the amounts received by way of legal aid from the Council of Europe.

It further considers that the notary's fees also qualify for compensation in the present context. In respect of this claim, therefore, the Court awards the applicants the sum of NLG 904.75.

C.  Default interest

56.  According to the information available to the Court, the statutory rate of interest applicable in the Netherlands at the date of adoption of the present judgment is 6% per annum.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Holds that there has been no violation of Article 8 of the Convention in respect of family life either between Ms Camp and Sofian or between Ms Camp and the relatives of Mr A. Bourimi;

2.  Holds that it is not necessary to decide on the complaint of a violation of Article 8 of the Convention in respect of family life between Sofian and the relatives of Mr A. Bourimi;

3.  Holds that there has been a violation of Article 14 of the Convention taken in conjunction with Article 8 in respect of Sofian;

4.  Holds

(a)  that the respondent State is to pay the applicants, within three months, the following sums:

(i) NLG 560,844.75 (five hundred and sixty thousand eight hundred and forty-four Netherlands guilders seventy-five cents) for pecuniary damage, to be held by Ms Camp for Sofian;

(ii) NLG 6,750 (six thousand seven hundred and fifty Netherlands guilders) for non-pecuniary damage;

(iii) NLG 30,904.75 (thirty thousand nine hundred and four Netherlands guilders seventy-five cents) for costs and expenses, together with any value-added tax that may be chargeable, less the amounts received by way of legal aid from the Council of Europe;

(b)  that simple interest at an annual rate of 6% shall be payable from the expiry of the above-mentioned three months until settlement;

5.  Dismisses the remainder of the applicants' claims for just satisfaction.

Done in English, and notified in writing on 3 October 2000, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.