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[ "SECOND SECTION CASE OF LÉVAI AND NAGY v. HUNGARY (Application no. 43657/98) JUDGMENT STRASBOURG 8 April 2003 FINAL 24/09/2003 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Lévai and Nagy v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrL.", "Loucaides,MrC. Bîrsan,MrK. Jungwiert, MrM. Ugrekhelidze,MrsA. Mularoni, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 12 March 2002 and 18 March 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 43657/98) against the Republic of Hungary 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 two Hungarian nationals, Mr György Lévai and Mr György Nagy (“the applicants”), on 10 May 1998. 2. The Hungarian Government (“the Government”) were represented by their Agent, Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice. 3.", "The applicants alleged, in particular, that the proceedings concerning their labour-law action lasted an unreasonably long time, in breach of Article 6 § 1 of the Convention. 4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).", "5. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6. 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). 7. By a decision of 12 March 2002 the Court declared the application partly admissible. THE FACTS 8. The applicants were born in 1959 and 1952 respectively and live in Szigethalom, Hungary.", "9. On 8 February 1993 the applicants were dismissed by their employer, a car manufacturer. 10. On 4 March 1993 the applicants brought an action before the Pest County Labour Court for unlawful dismissal. 11.", "On 24 November 1993 the Labour Court held a hearing and transferred the case to the Economic Collegium of the Pest County Regional Court. The Labour Court observed that liquidation proceedings were pending against the applicants' former employer. 12. On appeal, on 28 February 1994 the Regional Court quashed the Labour Court's decision and remitted the case to it. 13.", "On 31 August 1994 the Labour Court decided that the applicants' dismissal had been unlawful. It transferred their pecuniary claims to the Regional Court's Economic Collegium. 14. On appeal, on 27 February 1995 the Regional Court quashed the Labour Court's decision and remitted the case to it a second time. 15.", "On 28 September 1995 the Labour Court annulled the applicants' dismissal on grounds of unlawfulness. On 25 March 1996 the Regional Court upheld this decision. 16. Subsequently the applicants lodged various pecuniary claims with the Labour Court for outstanding wages and severance pay. On 3 July 1996 the Labour Court held a hearing, ruled that it lacked competence to hear the claims and transferred the file to the Bankruptcy and Liquidation Section of the Regional Court, which was in charge of the liquidation of the defendant company.", "17. On 22 October 1996 the Supreme Court, acting as a review instance, quashed the decisions of 28 September 1995 and 25 March 1996. Simultaneously, it discontinued those proceedings and transferred that part of the applicants' claims to the Regional Court. The Supreme Court pointed out that, according to section 38 § 3 of the Insolvency Act, pecuniary claims against a business entity under liquidation could only be pursued in the framework of liquidation proceedings. 18.", "In the context of the liquidation proceedings, the Regional Court held a hearing on 18 December 1996 and ordered the liquidation trustee in charge of the defendant company to complete the case-file. 19. By a decision of 29 January 1997, the Regional Court annulled the applicants' dismissal. On 24 April 1997 the Supreme Court, acting as a second instance, upheld this decision and ruled that the applicants had been unlawfully dismissed. 20.", "As regards the quantification of the applicants' claims, the Regional Court held a hearing on 30 June 1997 and, on 3 July 1997, it awarded 1,827,792 Hungarian forints (HUF) to the first applicant and HUF 899,264 to the second applicant, for outstanding wages and severance pay. The decision was immediately enforceable. 21. On 8 September and 24 November 1997 the Regional Court held further hearings. On 28 November 1997, it awarded a further HUF 681,620 to the first applicant and HUF 305,685 to the second applicant, for loss of earnings.", "The Regional Court dismissed the applicants' claims for compensation for non-pecuniary damage. 22. On the applicants' appeal, on 26 November 1998 the Supreme Court, acting as a second instance, upheld the dismissal of the applicants' claims for compensation for non-pecuniary damages. However, it quashed the remainder of the first instance decision – to the extent that it was disputed on appeal – and remitted the claims in question to the first instance court. 23.", "The proceedings before the Regional Court were resumed on 24 March 1999. Another hearing took place on 30 June 1999. On 22 July 1999 the Regional Court appointed an expert accountant. 24. On 23 May 2000 the expert presented his report to the Regional Court.", "On 17 August 2000 the applicants objected to the expert's opinion. On 30 August 2000 the Regional Court held a hearing and ordered the expert to supplement his report within 15 days. On 10 January 2001 another hearing took place. 25. On 29 March 2001 the Regional Court awarded, under various heads, the amounts of HUF 58,200, 69,465 and 549,235, plus accrued interest, to the first applicant, and HUF 40,800, plus accrued interest, to the second applicant.", "26. On 18 April 2001 the applicants appealed to the Supreme Court. 27. On 15 November 2001 the Supreme Court, sitting as second instance, dismissed the applicants' appeal. 28.", "On 4 March 2002 the applicants filed a petition for a review with the Supreme Court's review bench. The review proceedings are still pending. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 29. The applicants complained that the length of the proceedings in their case exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention which, in so far as relevant, reads: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 30.", "The Government contested this view. A. Period to be taken into consideration 31. The Court first observes that the proceedings started on 4 March 1993, when the applicants lodged their claim with the Pest County Labour Court. 32.", "The proceedings are still pending. The total length of the applicants' case to date accordingly amounts to ten years. The proceedings involved three levels of court jurisdiction. B. Reasonableness of the length of the proceedings 33. The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what was at stake for the applicant in the litigation (see, for instance, Frydlender v. France [GC], no.", "30979/96, § 43, ECHR 2000-VII). 1. Complexity of the case 34. The Government contended that the case was complex as it concerned multiple claims and required the appointment of an expert. 35.", "The applicants disagreed with the Government and argued that the case was not complex. 36. The Court notes that the case concerned the applicants' allegedly unlawful dismissal and their related pecuniary claims. While it is true that an expert accountant assisted the court in quantifying the applicants' claims, his involvement was in essence limited to the period between 22 July 1999 and 30 August 2000. In these circumstances, the case cannot reasonably be regarded as complex solely on account of the expert's participation.", "Moreover, the Court is of the view that the other reasons invoked by the Government regarding complexity do not sufficiently explain the length of the present case (see, mutatis mutandis, Malinowska v. Poland, no. 35843/97, § 88, 14 December 2000, unpublished). 2. Conduct of the applicants 37. The Government argued that the applicants' conduct contributed to the protraction of the proceedings as their submissions to the courts were often inadequate or imprecise.", "The applicants contested this. 38. It does not appear that the applicants had to amend their claims substantially with the result that progress in the proceedings was delayed; nor is there anything to suggest that they abused their procedural rights. The Court thus finds that no periods of delay in the proceedings can be imputed to them. 3.", "Conduct of the judicial authorities and what was at stake for the applicants 39. The Government considered that the courts had acted with due diligence in handling the applicants' case and that there was no particular period of inactivity on the part of the authorities. The applicants contested this. 40. The Court notes that the applicants' initial claims introduced on 4 March 1993 reached the competent Bankruptcy and Liquidation Section of the Regional Court only by virtue of the decisions of 3 July and 22 October 1996.", "As shown by the Supreme Court's reasoning in its decision of 22 October 1996, the case fell to be examined from the outset within the framework of liquidation proceedings. Accordingly, the three-year period preceding the transfer of the case to the proper forum was in effect irrelevant and considerably delayed the examination of the applicants' claims. The proceedings were then further delayed as a result of the Supreme Court's decision to quash part of the Regional Court's decision of 28 November 1997 and to remit certain claims to the first instance court on 26 November 1998. This resulted in an unexplained delay of one year. A further delay was occasioned by the involvement of an expert accountant whose completed report in reply to the order of 22 July 1999 was not submitted before mid-September 2000.", "41. For the Court, these three significant periods of delay can only be explained by the inefficiency of the domestic procedures and the inactivity of the domestic courts in dealing with the case, including the belated submission of the expert report. As regards the apparent initial disorganisation in the procedure, the Court recalls that Article 6 § 1 imposes on Contracting States the duty to organise their judicial systems in such a way that their courts can meet the obligation to decide cases within a reasonable time (see, among other authorities, the Duclos v. France judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2180–81, § 55 in fine). The Court concludes that the delay in the proceedings must be mainly attributed to the national authorities.", "42. Having regard to what was at stake for the applicants in the proceedings (cf., e.g., Vallée v. France judgment of 26 April 1994, Series A no. 289-A, p. 17, § 34) – the employment dispute at issue should have been dealt with speedily (cf. Obermeier v. Austria judgment of 28 June 1990, Series A no. 179, p. 23, § 72) – and taking into account the periods of inactivity attributable to the authorities, the Court finds that the “reasonable time” requirement laid down in Article 6 § 1 of the Convention was not complied with in the present case.", "There has therefore been a violation of that provision. II. 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.", "Mr Lévai claimed 553,384.59 US dollars (“USD”) for pecuniary and USD 2,000,000 for non-pecuniary damage arising out of the length of the proceedings. 45. Mr Nagy claimed USD 304,942.81 for pecuniary and USD 2,000,000 for non-pecuniary damage on the same ground. 46. The Government submitted that the applicants' claims were excessive and argued that any compensation to be awarded should be assessed in the light of relevant judgments of the Court against Hungary.", "47. The Court observes that there is no evidence of any causal link between the violation of Article 6 § 1 of the Convention found and the applicants' claim for compensation for pecuniary damage. However, it accepts that the applicants must be considered to have suffered some moral damage on account of the frustration caused by the length of the proceedings, the outcome of which was of importance for their livelihood. Making its assessment on an equitable basis and having regard to the circumstances of the case, the Court awards each of the applicants EUR 8,000 as compensation for non-pecuniary damage. B.", "Costs and expenses 48. The applicants made no claim under this head. C. Default interest 49. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 2. Holds (a) that the respondent State is to pay each of the applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 3. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 8 April 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléJ.-P. CostaRegistrarPresident" ]
[ "FIFTH SECTION CASE OF KLIMENTYEV v. RUSSIA (Application no. 46503/99) JUDGMENT STRASBOURG 16 November 2006 FINAL 23/05/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Klimentyev v. Russia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: MrP. Lorenzen, President,MrsS.", "Botoucharova,MrK. Jungwiert,MrV. Butkevych,MrsM. Tsatsa-Nikolovska,MrA. Kovler,MrM.", "Villiger, judges,and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 23 October 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 46503/99) against the Russian Federation 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 Russian national, Mr Andrey Anatolyevich Klimentyev (“the applicant”), on 11 August 1998. 2. The applicant was represented by Mrs K. Moskalenko, a lawyer practising in Moscow, and Mr G. R. Baum, a lawyer practising in Cologne.", "The respondent Government were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicant complained about the unfairness of criminal proceedings against him, alleging, inter alia, that he had been unable to question some witnesses whose statements had been read out in court and to take part in the ordering of expert examinations, that the case-file had lacked translations of certain documents, that he had been denied proper access to some documents in the case-file, that the first instance court had failed to furnish him with an amended copy of the judgment of 27 May 1998, and that on 19 May 1998 he had been unable to replace a lawyer who fell sick. 4. The application was transmitted to the Court on 1 November 1998, when Protocol No.", "11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5. By decision of 21 June 2005 the Court declared the application partly admissible. 6.", "The applicant and the Government each filed further written observations (Rule 59 § 1). The Court having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other's observations. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1954 and lives in the city of Nizhniy Novgorod.", "1. First round of proceedings in the applicant's criminal case 8. On 7 March 1995 criminal proceedings were brought against the applicant on suspicion of his involvement in a number of economic crimes. 9. From 30 July to 28 October, on 15 November 1996 and on 15 and 16 January 1997 the applicant and his defence team studied the case-file.", "10. On 21 April 1997 the Nizhniy Novgorod Regional Court (“the Regional Court”, Судебная коллегия по уголовным делам Нижегородского областного суда) convicted the applicant of some charges and acquitted him of the rest, sentencing him to one and a half year of imprisonment and the forfeiture of part of his property. 11. The judgment of 21 April 1997 was quashed on appeal by the Supreme Court of the Russian Federation (“the Supreme Court”, Верховный Суд Российской Федерации) on 17 July 1997. The case was remitted for fresh examination at first instance.", "2. Fresh proceedings at first instance 12. Between 30 September and 20 November 1997 the applicant and his counsel were again given an opportunity to study the case-file. 13. On 24 November 1997 the hearings recommenced at first instance.", "(a) Hearings of 6, 8 and 19 May 1998 and the applicant's request to admit Mrs Moskalenko 14. The applicant's civil defender Mr Chumak and his counsel Mr Kozlov failed to attend the hearing of 6 May 1998. 15. Mr Chumak excused himself by reference to his previous engagements in a different set of proceedings. It appears that Mr Kozlov was undergoing medical treatment in a hospital.", "16. In view of their absence, the court adjourned the hearing until 8 May 1998. On 8 May 1998 Mr Chumak and Mr Kozlov were again absent and, despite the applicant's proposal to continue the examination of the case in their absence, the court again adjourned the hearing, this time until 19 May 1998. 17. On 19 May 1998 both the civil defender and counsel Kozlov attended the hearing.", "18. According to the transcript, at the hearing the applicant requested the court to admit Mrs Moskalenko as a “specialist in international law”. The court considered the request unfounded and irrelevant as there was no need for advice on international law at that stage of proceedings. 19. According to the applicant, he requested to admit Mrs Moskalenko as a replacement counsel for Mr Kozlov who was present and unfit effectively to participate in the hearing due to his medical condition.", "20. From the hearing transcript it does not transpire that either the applicant or his defence counsel objected to the decision rejecting the applicant's request with reference to Mr Kozlov's alleged inability to participate in the further examination of the case on medical grounds. (b) Assessment of the witnesses' statements by the first instance court 21. During the trial the Regional Court heard more than thirty five witnesses in total, both for the prosecution and the defence. 22.", "The court refused the applicant's requests to call certain witnesses, including the former Regional Governor, the Regional Prosecutor and other officials, and admitted and considered five witness statements taken at the pre-trial stage of proceedings and during the first round of proceedings at first instance without hearing the respective witnesses in person. i. Statements by witnesses R. and B. 23. Two of these witnesses were the Norwegian nationals R. and B. who had both been questioned by the Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime (“the Norwegian authority”, ØKOKRIM) and the Russian investigators in Norway on 20 February 1996.", "24. The trial court attempted to secure the presence of these witnesses in person by making an official request to that effect to the Norwegian authorities. 25. By letters of 26 and 27 January 1998 R. and B. refused to appear and give evidence to the court, and on an unspecified date the Norwegian authorities refused to secure their presence at the trial by force. 26.", "Consequently, the witnesses R. and B. did not attend the trial and the applicant could not cross-examine them. ii. Statements by witnesses P., M. and A. 27. The third witness was a German national P. who gave evidence at the pre-trial stage of proceedings and during the first round of proceedings in 1997.", "The applicant and his counsel were able to cross-examine him during the first round of proceedings. 28. The trial court unsuccessfully tried to secure his presence but P. was in Germany and could not be found. 29. The fourth and fifth witnesses, the Russian nationals M. and A., were also questioned during the pre-trial investigation and during the trial in 1997.", "The applicant and the defence team were able to cross-examine them during the proceedings in 1997. 30. From the case-file and the documents presented by the Government it transpires that during the hearings the court summoned these two witnesses and the authorities repeatedly undertook various measures, including questioning the close relatives and the witnesses' connections, with a view to securing their presence at the trial. Apparently these measures proved futile as the witnesses' whereabouts could not be established. (c) Assessment of evidence in foreign languages by the first instance court 31.", "It appears that the prosecution case contained several documents in English and Norwegian. 32. All documents admitted by the court as evidence were translated either by certified translators or by the staff of the Norwegian embassy. Most of the translations were attached to the case-file prior to the beginning of the first instance hearings, whilst some of them on 24 April 1998 (numbering 28 pages) and 19 May 1998 (16 pages), were submitted already after the beginning of the trial. 33.", "According to the Government, on one occasion the defence requested translation of a document which had not been used by the prosecution or the court. The request was granted and the necessary translation was made. (d) Assessment of expert examinations by the first instance court 34. The court also admitted a number of expert reports (technical, medical, graphologist and others) which had been ordered by the prosecution during the pre-trial stage of proceedings. 35.", "It follows from the case-file that the applicant was officially notified of most of the prosecution decisions to carry out expert examinations (counting more than twelve) within a month from the date on which such decisions had been taken. 36. The decisions of 22 December 1995, 18 and 22 January 1996 to carry out expert examinations were served on the applicant on 12 April 1996. The decision to carry out expert examination dated 28 March 1996 was served on him on 16 May 1996. 37.", "At the time when these decisions were served, both the applicant and his counsel were officially informed about the procedural rights of the accused, including the right to challenge an expert, seek an appointment of a particular person as an expert, adduce further questions, be present during the expert examination in person and make any comments and be informed of expert conclusions. The accused also had an opportunity to make related requests and motions in writing. 38. In respect of the decisions of 28 March and 30 April 1996 to carry out technical examinations, the applicant requested to provide him with copies of some documents. The copies were provided to him on 21 June 1996.", "As regards the decision of 22 January 1996 to carry out technical examinations, the applicant stated that it “might have been more objective” to carry out that examinations in Moscow or St Petersburg. 39. The copies of the notification reports state that the applicant and his counsel did not make any additional requests and motions. (e) Judgment of 27 May 1998 40. On 27 May 1998 the Regional Court found the applicant guilty on charges of misappropriation, embezzlement, bribery and the attempt not to return money from abroad.", "41. According to the judgment, the applicant and a co-accused Mr K., the director of a shipyard “Oka”, had tampered with documents with a view to embezzling the shipyard's property. The director, acting on behalf of the shipyard, was found to have arranged large-scale money transfers under fraudulent contracts with the companies owned by the applicant, whereas the applicant was found to have bribed the director by opening bank accounts in the name of Mr K. in Norway and transferring the stolen money there. Among other things, the applicant was also convicted of having extorted money from a marketplace owned and run by the companies “Zhanto” and “NL TOP”, and from a casino owned and run by a company “Slot”. 42.", "In total, the court sentenced the applicant to six years' imprisonment and the confiscation of part of his property. The court also upheld civil claims for damages by the shipyard “Oka” and three other companies, “Zhanto”, “NL TOP” and “Slot”. 43. The applicant's conviction was based on various pieces of evidence, i.e. numerous documentary items, including accounting, financial and contractual papers reflecting the operation of sham companies owned and run by the applicant and Mr K. as well as oral and written evidence given by more than thirty-five witnesses and various expert examinations.", "44. A copy of the judgment of 27 May 1998 was served on the applicant on 3 June 1998. 45. Later it was discovered that the copy contained errors and misprints. 46.", "On 8 June 1998 the Regional Court corrected a number of clerical and technical mistakes in the judgment and ordered that the applicant be furnished with the amended version. 47. The applicant claims that he did not receive the amended version. 48. The records in the case-file indicate that the amended copy of the judgment was served on the applicant against his signature on 11 June 1998.", "(f) Trial records 49. The Government submit that the whole trial was taken down in shorthand and taped and that the respective records were all available to the interested parties, including the applicant and his counsel. 50. On 28 May 1998 the applicant requested to study records, audiotape recordings and shorthand records. 51.", "The applicant was provided with this opportunity on 10, 11, 15 and 16 June 1998. 52. On the last date a specialist of the Regional Court certified that the applicant had been given access to the trial record, though he had refused to study audio records and shorthand records. 53. On 17 June 1998 a judge of the Regional Court decided that the defence counsel should be given access to the records between 17 June and 23 June 1998.", "54. The deadline for filing objections was set on 25 June 1998 accordingly. 55. It does not appear from the case-file that the applicant ever challenged the accuracy of the trial records. (g) Separate rulings of 27 May 1998 56.", "On 27 May 1998 the Regional Court made a number of separate rulings (частные определения) in the case. 57. In one of these rulings the court noted that there had been breaches of the relevant rules of criminal procedure during the investigation and that these breaches had been remedied during the trial. 58. In particular, the court established that the defendants had been informed about the commissioning of expert reports in the case only after the respective examinations were over.", "59. The court considered that this failure did not invalidate the conclusions of the experts' reports and that the applicant had failed to contest the results of the reports during the investigation or during the trial or request additional or repeated examinations to be carried out. 60. The court also noted that a number of documents in the case-file were in foreign languages, but considered that this did not violate the applicant's defence rights because the documents were similar to or copies of other documents in Russian and that in any event all relevant documents had been translated into Russian during the trial. 61.", "The court further noted that certain statements of witnesses had been admitted as evidence, even though they gave no indication as to the time or place of questioning. To verify the relevant points, these witnesses as well as other witnesses had been questioned in the courtroom on the circumstances of the questioning. 3. Appeal proceedings (a) Points raised by the defence on appeal 62. The defence appealed against the judgment of 27 May 1998 to the Supreme Court.", "63. In their appeal, inter alia, the applicant's counsel contested the admissibility of certain evidence admitted by the court such as expert reports, documents in foreign languages, certain procedural documents, statements of witnesses made during the pre-trial investigation and at the first round of proceedings at first instance, statements of witnesses taken by the Norwegian police, and other evidence obtained in Norway, claiming that were allegedly in breach of the domestic procedural rules. 64. Furthermore, it was stated that the applicant's defence had not had due access to the trial records and the quality of the defence had been impaired by the Regional Court's refusal to admit Mrs Moskalenko as a replacement for a lawyer who was sick. (b) Mrs Moskalenko's motions to adjourn an appeal hearing 65.", "On 16 June 1998 Mrs Moskalenko joined the defence team. In July and on 10 August 1998 she referred to various difficulties in organising the defence and made several requests to the Supreme Court to adjourn the hearing. 66. She also complained that the applicant had been served neither with the final copy of the judgment, nor with the rulings of 27 May 1998 and that the defence had had no access to the verbatim record and certain volumes of the case-file. 67.", "On 29 June 1998 the Supreme Court granted one of her requests to adjourn the hearing. The hearing initially scheduled for 29 June 1998 was postponed. 68. Thereafter Mrs Moskalenko failed to appear at the hearing on 30 July 1998. 69.", "On 10 August 1998 Mrs Moskalenko requested to postpone a further hearing claiming that the defence had not been properly notified of the judgment and separate rulings. 70. In response to her request for adjournment, the Supreme Court ruled that both the defence in general and Mrs Moskalenko in particular had had sufficient time to examine the trial records, study the first instance judgment and prepare for the case at least between 16 June and 30 July 1998 and turned down the request as unfounded. 71. The appeal hearing took place on 10 August 1998.", "(c) Decision of 10 August 1998 72. On 10 August 1998, in the presence of the applicant's defenders, Mrs Moskalenko and Mr Chumak, and the prosecution, the Supreme Court examined the appeals and, with minor alterations, confirmed the judgment of 27 May 1998. 73. The court concluded that there had been no significant breaches of national procedural law or international standards during the trial. 74.", "As to the complaints about the handling and assessment of the evidence, the court found that the lower court had properly admitted and considered the evidence in the case and that the conclusions of the lower court had been reasonable and substantiated. It also noted that the defence had been furnished with Russian translations of foreign documents during the hearing. 75. The court further considered that the applicant had been adequately represented throughout the pre-trial investigation and the trial, and that at no time during the proceedings had he been deprived of professional legal advice. 76.", "In respect of the events of 19 May 1998, the court noted that the applicant's lawyer had never applied for an adjournment of the hearing for health reasons and the Regional Court's refusal to admit Mrs Moskalenko as a further lawyer did not constitute a violation of the applicant's right to defence. II. RELEVANT DOMESTIC LAW 1. Expert examinations 77. According to Sections 78 and 80 of the Code of Criminal Procedure of the RSFSR (the Russian Soviet Federal Social Republic) of 1960, as in force at the relevant time, in cases requiring special knowledge of science, technology, art or particular skill, an investigative authority or a court may appoint an expert to carry out an expert examination.", "The conclusions of an expert are not binding on an investigating authority or a court but any disagreement with them must be motivated. By Sections 81 and 290 of the Code incomplete, unclear, unjustified or dubious expert conclusions may trigger a decision by a court or an investigator ordering additional or repeated expert examinations. In such cases the court takes the decision having heard the opinions of the participants of the proceedings (Section 276 of the Code). 78. Section 185 of the Code states that an accused and his counsel have the right to challenge an expert, seek an appointment of a particular person as an expert, adduce further questions, be present during the expert examination in person and make any comments and be informed of expert conclusions.", "In case the respective request was granted, an investigation alters its decision to carry out the examination accordingly. 79. By Section 193 of the Code, expert conclusions should be presented to the applicant who has the right to respond or object to these conclusions as well as the right to request the authority to put additional questions to the expert or carry out an additional or a repeated expert examination. 2. Access to the case-file by the defence 80.", "Having decided that the collected evidence is sufficient to prepare the bill of indictment, an investigator informs the accused that the investigation is terminated and that the accused has the right to study the entirety of the case personally and with the assistance of his defence counsel and to request the investigator to carry out an additional investigation (Sections 201, 202 and 203 of the Code). The investigator should draw up a report reflecting the progress of the defence in studying the case. The investigator cannot limit the time for study, except in cases where the accused and his counsel manifestly protract the process. 3. Translation of documents in the case-file 81.", "According to Section 17 of the Code, criminal proceedings are conducted in Russian. The contents of documents relating to court proceedings and investigation are made available to the accused in a language that he understands. 82. A translator appointed by a court or an investigator is under an obligation to make correct translations and may be held criminally liable for incorrect translations under Section 57 of the Code and Section 307 of the Criminal Code of Russia. 83.", "By Section 276 of the Code of Criminal Procedure, participants in the proceedings, including the accused and his defendants, have the right to make requests to summon new witnesses, experts and specialists or retrieve items of evidence and documents etc. A court, having heard other participants in the proceedings, should examine each such request and either grant it or give a motivated decision refusing it. 84. Section 292 of the Code provides that documents adduced to the case or presented by a party during a hearing and containing description of relevant facts should be read out. 4.", "Notification of the defence of a first instance judgment 85. By Section 320 of the Code, a copy of the first instance judgment should be served on an accused or an acquitted within three days from its delivery. 5. The status of defender in criminal proceedings 86. By Section 249 of the Code, a defender takes part in examination of the body of evidence, gives his opinion on various issues arising during the court proceedings, including the substance of accusations, any mitigating circumstances as well as the penalty and civil liability for the commission of a crime.", "87. By Section 47 of the Code, advocates (counsel) and representatives of professional or other social unions may act as defenders. According to Section 250 of the Code, representatives of social organisations and staff may act as “civil defenders” (общественные защитники). As such they have the right to present evidence, take part in examination of evidence, make motions and challenges, participate in arguments as well as give their opinion on any mitigating or acquitting circumstances and the penalty. 6.", "Questioning of witnesses at a trial 88. Section 73 of the Code imposes an obligation on a witness to attend and to give truthful evidence to the best of his knowledge as well as to respond to questions. In case of failure to respect this obligation the witness may be brought before the authority by force and punished by a fine of up to a third of a monthly minimum wage and/or be held liable of a criminal offence. 89. According to Sections 240 and 245 of the Code, a trial court must carry out a first-hand examination of all evidence in the case, including, among other things, hearing of witnesses, the participants in criminal proceedings (a prosecutor, an accused, a defender, a victim, a civil claimant and a civil respondent and their representatives) having equal procedural rights concerning submission and examination of evidence as well as making of various requests.", "90. Sections 277 and 286 of the Code state that in case of a witness's objective inability to attend a court, having heard the participants of the proceedings, may decide to read out the statements given by the witness at earlier stages of the proceedings. THE LAW ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION A. Article 6 § 1 of the Convention (equality of arms) 91. The applicant complained that he had been unable to take part in the decision-making process leading to the ordering of the expert examinations.", "92. This complaint falls to be examined under Article 6 § 1 of the Convention which, insofar as relevant, reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” 1. The applicant's submissions 93. The applicant submitted that he had been prevented from taking part in the ordering of the expert examinations because the notifications of the decisions had been delayed. 2.", "The Government's submissions 94. The Government responded that the applicant and his defence counsel had been properly notified of all decisions ordering expert examinations and that the defence had had an ample opportunity to make related requests and objections. All requests made by the defence were granted and it does not appear that on any of the occasions the defence objected to decisions to carry out expert examinations as such, that they challenged the experts or that any of their requests for additional expert examinations were refused. Furthermore, the issue of admissibility of expert examinations was examined in detail by the trial court which gave a reasoned decision in this connection. In view of the above, the Government concluded that there had been no violation of Article 6 in this respect.", "3. The Court's assessment 95. The Court recalls that according to the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see e.g. Jespers v. Belgium, no. 8403/78, Commission decision of 15 October 1980, Decisions and Reports (DR) 27, p. 61; Foucher v. France, judgment of 18 March 1997, Reports of Judgments and Decisions 1997‑II, § 34; Bulut v. Austria, judgment of 22 February 1996, Reports of Judgments and Decisions 1996‑II, p. 380-381, § 47).", "96. On the facts, the Court observes that the case for the prosecution rested, inter alia, on a number of expert reports (technical, medical, graphological and other) ordered by the prosecution during the pre-trial stage of proceedings in 1995 and 1996. Four out of more than sixteen decisions ordering such reports were served on the applicant with delays ranging from two to three and a half months, whilst the remaining twelve decisions were served within a month from the respective dates of their delivery (see paragraphs 34-37 in the summary of facts). The applicant principally argued that the late notification of these decisions had effectively deprived him of the possibility to participate in the ordering of the expert examinations and that the subsequent admission of the respective expert examinations had been in breach of Article 6. 97.", "Having regard to the circumstances of the case, the relevant domestic law and the parties' submissions, the Court cannot subscribe to the applicant's argument. To begin with, the Court observes that at the time of service of these sixteen decisions both the applicant and his counsel were officially informed about the procedural rights of the accused, including the right to challenge an expert, seek the appointment of a particular person as an expert, adduce further questions, be present during the expert examination in person and make any comments and be informed of expert conclusions (see paragraph 37 above). The applicant and his counsel had an unrestricted opportunity to make related requests and motions in writing and, indeed, there is no indication in the case-file that any of the requests of the defence were turned down as belated or otherwise inadmissible. On the contrary, the authorities granted and implemented all of the applicant's requests in this respect. Moreover, there is nothing in the case-file to suggest, and indeed the applicant has not alleged that he was unable, personally or with the assistance of his defence counsel, to study the impugned expert examinations beforehand, contest them throughout the trial and appeal proceedings or avail himself of his rights under Sections 89 and 290 of the Criminal Procedure Code by requesting the trial court to order additional or repetitive expert examinations.", "98. In view of the foregoing, the Court concludes that the late notification of the decisions in question did not place the applicant at a substantial disadvantage vis-à-vis the prosecution or otherwise interfere with his rights under Article 6. There has, therefore, been no violation of that provision in this respect. B. Article 6 §§ 1 and 3 (b) of the Convention 99.", "The applicant complained about the denial of access to the entirety of the case-file, including the documents admitted by the first instance court during the trial, both at the first instance and on appeal. He further alleged that the trial court had admitted certain documents without translation and that the court had failed to furnish him with an amended copy of the judgment of 27 May 1998. 100. These complaints fall to be examined under Article 6 §§ 1 and 3 (b) of the Convention which, insofar as relevant, read as follows: “1.In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal... 3. Everyone charged with a criminal offence has the following minimum rights: (b) to have adequate time and facilities for the preparation of his defence...” 1.", "The applicant's submissions 101. In respect of the lack of access to the case-file, the applicant argued that he had not been given the documents relating to his seized property, that, more generally, the time for study of the case-file had been insufficient, and that he had been refused proper access to the trial records. 102. The applicant furthermore alleged that following the termination of the preliminary investigation, the case-file had contained numerous untranslated documents in foreign languages, that some of these documents had been translated only during the trial, whilst others had been left without translation. The applicant also contested the translations of the documents as they had allegedly been made by incompetent translators and that they were unlawful and inadmissible.", "103. Finally, the applicant insisted that the first instance judgment of 27 May 1998 had not been properly served on the defence and that in view of the fact that the judgment had contained numerous errors and had been generally unlawful, the appeal court ought to have quashed it as unlawful. 2. The Government's submissions 104. As to the applicant's allegedly impaired access to the entirety of the case-file, the Government submitted copies of relevant parts of the case-file and noted that both the applicant and his defence had had a proper and timely access to the case-file after the pre-trial stage of proceedings, during the first and second trial as well as after the first instance judgment of 27 May 1998.", "In respect of the latter period, the Government underlined that the applicant's lawyer Mrs Moskalenko had had time at least between 16 June and 20 July 1998 to study the amended version of the first instance judgment of 27 May 1998, the first instance transcripts and the case-file. 105. As regards the applicant's complaint about the admission of untranslated documents, the Government observed that during the preliminary investigation of the case the authorities had seized a large number of documents in foreign languages most of which had been translated into Russian. Furthermore, the defence was given an opportunity to request the trial court to order translations of any of these documents and at least on one occasion the applicant availed himself of this right, and the required translation was ordered. As regards the documents in Norwegian, their translation was added to the case-file on 24 April 1998, i.e.", "already after the beginning of the trial, and was fully available to the parties for study after that date. In addition, the Regional Court discussed in detail the decision to join to the case-file a number of untranslated documents taken at the pre-trial stage of the proceedings and concluded that all relevant documents had been translated into Russian during the trial which had remedied violations of the criminal procedure. In accordance with Sections 240 and 292 of the Code of Criminal Procedure, all translations were examined by the trial court in the presence of the applicant and his defence team who had ample opportunities to contest them. The Government concluded that there been no breach of Article 6 of the Convention in this respect. 106.", "As to the alleged failure to serve an amended copy of the judgment of 27 May 1998 on the applicant, the Government submitted copies of the documents from the case-file certifying that this document had been served on the applicant on 11 June 1998. 3. The Court's assessment 107. Insofar as the applicant is dissatisfied with the allegedly insufficient time to study the case-file, the Court notes that from the copies of the relevant parts of the case-file it transpires that the defence, including the applicant and his counsel, studied the case-file extensively on at least three occasion, i.e. immediately after the investigation, during the first round of proceedings at first instance and after the applicant's initial conviction of 21 April 1997 had been quashed on appeal by the Supreme Court (see paragraphs 9-12 above).", "In respect of the period between the first instance judgment of 27 May 1998 and the appeal proceedings on 10 August 1998, the Court observes that the applicant and his defence team had sufficient time at least between 10 June and 20 July 1998 to study the amended version of the first instance judgment of 27 May 1998, the first instance transcripts and the case-file. The applicant was provided with this opportunity on 10, 11, 15 and 16 June 1998, whilst the defence counsel had access to the records between 17 June and 23 June 1998 (see paragraphs 51-53). In the Court's view, this time was sufficient for the defence to prepare its appeal arguments. This being so and given the lack of evidence of any unjustified limitations on the applicant's ability to study the case-file, the Court concludes that the time afforded by the authorities to study the case-file was not as such insufficient and that the applicant's rights under Article 6 have not been breached in this respect. 108.", "As regards his complaint about the fact that certain translations of the documents in foreign languages were joined to the case after the beginning of the trial and that the translations had been prepared by incompetent translators, the Court reiterates that the principle of equality of arms, which is one of the elements of the broader concept of a fair hearing, requires each party to be given a reasonable opportunity to present its case under conditions that do not place it at a substantial disadvantage vis-à-vis its opponent (see the references in paragraph 96 as well as Ankerl v. Switzerland, judgment of 23 October 1996, Reports of Judgments and Decisions 1996‑V, p. 1567-68, § 38 and Helle v. Finland, judgment of 19 December 1997, Reports of Judgments and Decisions 1997‑VIII, p. 2928, § 53). In addition, the Court reiterates that it is not its function to deal with errors of fact or of law allegedly committed by national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility and assessment of evidence, which are primarily a matter for regulation under national law (see, among other authorities, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000‑V). On the facts, the Court notes that trial court indeed joined 28 pages of translations on 24 April 1998 and 16 pages of translations on 19 May 1998 which was already after the beginning of the first instance hearings in the case (see paragraph 32 in the summary of facts).", "The Court observes however that there is nothing in the case-file or the parties' submissions to suggest that these translations were not read out at the hearings, as required by Section 292 of the Code of Criminal Procedure, and there is nothing in the case-file or in the parties' submissions to suggest that they were not fully available to the defence for study afterwards. Furthermore, as of these dates and until 27 May 1998 which is the date of the delivery of the first instance judgment, the applicant, personally and through his defenders, had ample time and opportunity to challenge the contents of these documents as well as call into question the competence of those who translated them or arrange for additional or alternative translations of relevant documents. In view of the above, the Court finds that both the prosecution and the defence had equal opportunities to make use of the evidence in question. The Court is therefore unable to conclude that the admission of these translations after the beginning of the trial placed the defence at a substantial disadvantage vis-à-vis its opponents or adversely affected the fairness of the proceedings. 109.", "Insofar as the applicant complains about the presence of documents in the prosecution case-file which remained untranslated during the proceedings, the Court observes that in contrast to cases where an applicant could not understand or speak the language used in court (see, e.g. Luedicke, Belkacem and Koç v. Germany, judgment of 28 November 1978, Series A no. 29, § 40), there is no indication in the present case that either the bill of indictment or the applicant's first instance conviction relied on any of these documents or that their presence in the prosecution case-file could have otherwise undermined the fairness of the proceedings. On the contrary, the presence of these materials was fully compatible with the prosecution's duty of disclosure which requires the investigative authorities to disclose to the defence all material evidence both for and against the accused (see e.g. Edwards v. the United Kingdom, judgment of 16 December 1992, Series A no.", "247‑B, p. 417, § 36). Throughout the proceedings the defence in the present case was given an opportunity to request the investigator and the trial court to order translations of any of these documents and, according to the Government, at least on one occasion the applicant availed himself of this right and necessary translation was ordered. In view of the foregoing, the Court concludes that the presence of non-translated documents in the prosecution case-file was not incompatible with Article 6 of the Convention. 110. In respect of the complaint about the trial court's failure to serve on the applicant an amended copy of the judgment of 27 May 1998, the Court, having regard to the documents presented by the parties, finds that a copy of the judgment of 27 May 1998 was initially furnished to the applicant on 3 June 1998.", "Thereafter the authorities discovered that the copy had contained certain errors and misprints and by decision of 8 June 1998 the Regional Court amended these mistakes. The amended version of the judgment of 27 May 1998 was again served on the applicant against his signature on 11 June 1998 (see paragraphs 44-48 above). In view thereof, the Court finds that also in respect of this part of the procedure there was no unfairness contrary to Article 6 of the Convention. 111. Accordingly, the Court concludes that there has been no violation of Article 6 on account of the alleged denial of access to the entirety of the case-file, the trial court decision to admit certain documents without translation, and the authorities' alleged failure to furnish him with an amended copy of the judgment of 27 May 1998.", "C. Article 6 §§ 1 and 3 (c) of the Convention 112. The applicant also complained that one of his lawyers fell sick and the applicant had not been permitted to appoint another one during the hearing of 19 May 1998. 113. This complaint falls to be examined under Article 6 §§ 1 and 3 (c) of the Convention which read in its relevant parts as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal... 3.", "Everyone charged with a criminal offence has the following minimum rights: (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require...” 1. The applicant's submissions 114. The applicant contended that on 19 May 1998 Mr Kozlov had been unable effectively to participate in the proceedings due to his medical condition and that he had requested the appointment of Mrs Moskalenko as a replacement but had been refused. 2. The Government's submissions 115.", "The Government submitted that the applicant's defence team, Mr Kozlov and Mr Chumak, had failed to appear at the hearing of 6 May 1998 and that the trial court had decided to adjourn the examination of the case until 8 May 1998. Since Mr Kozlov was unable to attend on the latter date due to his medical condition, the court yet again adjourned the case until 19 May 1998. Both Mr Kozlov and Mr Chumak were present on that latter date. Furthermore, Mr Kozlov did not allege that he was unfit to participate in the proceedings and did not make any motions in this connection. As regards Mrs Moskalenko, the defence requested her participation as a “specialist in international law” and not as a replacement for the allegedly sick Mr Kozlov.", "Since the court decided that there was no need for advice on international law, the request was turned down. Accordingly, the Government concluded that the applicant's right to defend himself in person or through legal assistance of his own choosing had not been breached. 3. The Court's assessment 116. Whilst it is true that Article 6 §§ 1 and 3 (c) guarantee to everyone charged with a criminal offence the right to represent himself through legal assistance of his own choosing, this right, as the Court has ruled on several occasions, is not absolute and may be subject to reasonable restrictions (see e.g.", "Croissant v. Germany, judgment of 25 September 1992, Series A no. 237‑B, § 29; X v. the United Kingdom, Commission decision of 9 October 1978, Decisions and Reports (DR) 15, p. 242) 117. Turning to the circumstances of the present case, the Court, having studied the minutes of the first instance hearing of 19 May 1998, agrees with the Government in that Mr Kozlov did not allege that he was unfit to participate in the proceedings and did not file any motions in this connection. Furthermore, the Court also finds that irrespective of the procedural status which the defence claimed for Mrs Moskalenko, the applicant did not request her participation as a replacement for the allegedly sick Mr Kozlov (see paragraphs 14-20 in the summary of facts). 118.", "In the absence of any indication that the applicant raised the argument relating to Mr Kozlov's alleged illness before the trial court or indeed any evidence that the applicant's defence team consisting of counsel Kozlov and civil defender Chumak could not adequately represent him and effectively participate in the hearing of 19 May 1998, the Court is unable to conclude that the applicant was inadequately represented at that hearing and that the trial court's refusal to admit Mrs Moskalenko with reference to the fact that there was no need for advice on international law constituted an unreasonable and disproportionate limitation on the applicant's right to represent himself through legal assistance of his own choosing. 119. In these circumstances, the Court finds no breach of Article 6 on that account. D. Article 6 §§ 1 and 3 (d) of the Convention 120. The applicant complained he had been unable to question witnesses whose statements had been read out in court.", "121. These complaints fall to be examined under Article 6 §§ 1 and 3 (d) of the Convention which, insofar as relevant, read as follows: “1.In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal... 3. Everyone charged with a criminal offence has the following minimum rights: (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him...” 1. The applicant's submissions 122. The applicant submitted that his inability to question some of the witnesses was contrary to Article 6 of the Convention.", "According to the applicant, the evidence given by witnesses R. and B. was clearly inadmissible as it was unclear which authority, when and on what grounds had ordered to interrogate these witnesses. Furthermore, their oral evidence was neither properly legalised nor translated by competent translators. As regards P., A. and M., according to the applicant, at the pre-trial stage of proceedings these witnesses gave evidence against him, whilst at the trial they retracted their previous statements and witnessed in his favour. The applicant submitted that, in breach of Article 6, the court had preferred the former evidence and had failed to take account of the latter. Finally, the applicant submitted that the court ought to have rejected that evidence as inadmissible.", "2. The Government's submissions 123. As to the complaint that the applicant was unable to question witnesses whose statements were read out in court, the Government recalled that the trial court had repeatedly summoned the witnesses of Norwegian nationality R., B., a witness of German nationality P. and the witnesses of Russian nationality M. and A. The authorities did their best to secure their presence at the trial but their attempts proved futile as the Norwegian nationals resided in Norway, refused to appear voluntarily and could not be compelled to come to Russia. The court furthermore gave a motivated and justified decision to admit the oral evidence given by these witnesses.", "As regards German national P., he was away in Germany and could not be summoned, whilst witnesses M. and A. were repeatedly searched for by the authorities, but their whereabouts could not be established. Furthermore, these three witnesses were present during the first round of proceedings and the applicant and his defence team were fully able to cross-examine them in person. Overall, in the Government's view, Article 6 was respected. 3. The Court's assessment 124.", "At the outset the Court recalls that the admissibility of evidence is primarily a matter for regulation by national law and that, as a rule, it is for the national courts to assess the evidence before them, the task of the Court being to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair (see the references in paragraph 108). The Court further recalls that, according to its case-law, all evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. This does not mean, however, that the statement of a witness must always be made in court and in public if it is to be admitted in evidence; in particular, this may prove impossible in certain cases. Thus, the use of statements obtained at earlier stages of proceedings is not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6 of the Convention, provided that the rights of the defence have been respected. As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he was making his statements or at a later stage of the proceedings (see Asch, cited above, § 27).", "125. In the present case the Court notes as regards the statements of witnesses P., M. and A. that the applicant and his defence team were given a reasonable opportunity to cross-examine these witnesses during the first round of criminal proceedings and to comment on the evidence that they had given at the pre-trial stage of the proceedings (see, by contrast, Kostovski v. the Netherlands, judgment of 20 November 1989, Series A no. 166, §§ 39-45; Windisch v. Austria, judgment of 27 September 1990, Series A no. 186, §§ 25-31). Furthermore, from the case-file and documents presented by the Government (see paragraph 30 in the summary of facts) it transpires that reasonable measures were taken by the court aimed at summoning these witnesses and it cannot be said that their failure to attend was imputable to the lack of diligence by the authorities in this respect (see, by contrast, Delta v. France, judgment of 19 December 1990, Series A no.", "191‑A, §§ 34-37). This being so and having regard to the fact that the applicant's conviction was firmly corroborated by various other pieces of evidence such as the statements of a number of other witnesses, documentary evidence and expert examinations (see e.g. Trivedi v. UK, no. 31700/96, Commission decision of 27 May 1997), the Court concludes that the admission of statements made by witnesses P., M., and A. did not fail to respect the rights of the defence. 126.", "As to the admission of statements of witnesses R. and B., the Court observes that the witnesses were foreign residents who could not have been compelled to come to the courtroom and who, in response to the summons, refused to appear. Furthermore, the trial court carried out a detailed analysis of the evidence in the case-file and found the statements of these witnesses to be corroborated by a series of other items of evidence (see in a somewhat similar context Ferrantelli and Santangelo v. Italy, judgment of 7 August 1996, Reports of Judgments and Decisions 1996‑III, §§ 52-53). Thus, the Court takes the view that there has been no violation of Article 6 on account of admission of statements of witnesses R. and B. 127. Having regard to the foregoing, the Court reaches the overall conclusion that there has been no violation of Article 6 in respect of the questioning of the witnesses R., B., P., M. and A. before the trial court.", "FOR THESE REASONS, THE COURT UNANIMOUSLY Holds that there has been no violation of Article 6 of the Convention. Done in English, and notified in writing on 16 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]
[ "FIFTH SECTION CASE OF STOLLENWERK v. GERMANY (Application no. 8844/12) JUDGMENT STRASBOURG 7 September 2017 FINAL 07/12/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Stollenwerk v. Germany, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Erik Møse, President,Angelika Nußberger,Nona Tsotsoria,Yonko Grozev,Carlo Ranzoni,Mārtiņš Mits,Lәtif Hüseynov, judges,and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 4 July 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "8844/12) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Christof Stollenwerk (“the applicant”), on 9 February 2012. 2. The applicant, who had been granted legal aid, was represented by Mr D. Hagmann, a lawyer practising in Mönchengladbach. The German Government (“the Government”) were represented by one of their Agents, Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice and Consumer Protection.", "3. The applicant alleged, relying on Article 5 § 4 of the Convention, that the principle of equality of arms had been violated because the Düsseldorf Court of Appeal had taken decisions on 3 and 25 February 2011 relating to the continuation of his detention and his request for a subsequent hearing without giving him the opportunity to reply to the written observations of the Düsseldorf Chief Public Prosecutor’s Office. 4. On 16 March 2016 the complaint concerning Article 5 § 4 of the Convention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1967 and lives in Düren. 6. On 27 August 2010 the Krefeld District Court issued a warrant for his arrest as there was a strong suspicion that he had been trafficking drugs. Earlier that day he had been stopped with 15.8 grams of heroin, which he had allegedly intended to sell.", "On two previous occasions he had been stopped at the German border with 11 and 12.5 grams of heroin on him. The arrest warrant was based on the risk of him absconding as he could expect a considerable sentence for the offences in question, had no social ties, being unemployed and a drug addict, and had an unstable character. That same day he was detained on remand. 7. Between 30 August 2010 and 11 November 2010 the lawfulness of the applicant’s detention on remand was examined eight times by the District Court or Regional Court.", "8. In a judgment of 6 December 2010 the District Court convicted the applicant of three counts of large-scale drug trafficking – two counts of smuggling drugs into Germany and trafficking (dealt with as a single offence instead of two separate offences) and a third count of trafficking only and sentenced him to two years and six months’ imprisonment. On the same day, in a separate decision, the District Court ordered the continuation of the applicant’s detention. 9. On 8 December 2010 the applicant lodged an appeal against that decision.", "In substance he mainly referred to his previous submissions. On 13 December 2010 he lodged an appeal against the judgment. 10. The District Court did not allow the appeal of 8 December 2010 relating to the applicant’s detention and referred it to the Regional Court, which dismissed it on 15 December 2010, finding that there continued to be a risk of the applicant absconding. 11.", "On 5 January 2011 the applicant lodged a further appeal against that decision. In substance, again, he referred to his previous submissions. He explicitly asked that the observations of the Chief Public Prosecutor’s Office be sent to him so as to be able to comment on them. 12. On 28 January 2011 the Düsseldorf Chief Public Prosecutor’s Office (Generalstaatsanwaltschaft – “the prosecution authorities”) submitted written observations to the Court of Appeal, requesting the dismissal of the applicant’s appeal of 5 January 2011.", "13. The applicant’s counsel received the observations from the prosecution authorities on 3 February 2011 and submitted a reply to the Court of Appeal on 10 February 2011. 14. Following a telephone enquiry to the Court of Appeal, the applicant’s counsel learned on 10 February 2011 that on 3 February 2011 it had already decided the applicant’s appeal of 5 January 2011 and dismissed it. The applicant had therefore not been able to reply to the observations of the prosecution authorities of 28 January 2011 prior to the court taking its decision.", "15. That same day the applicant’s counsel requested a subsequent hearing (Nachholung des rechtlichen Gehörs) under Article 33a of the Code of Criminal Procedure. 16. On 14 February 2011 the Court of Appeal’s decision of 3 February 2011 was served on the applicant. 17.", "On an unspecified date the prosecution authorities submitted written observations in relation to the applicant’s request for a subsequent hearing. 18. On 25 February 2011 the Court of Appeal dismissed the request for a subsequent hearing as inadmissible, finding that the applicant’s right to be heard had not been violated, that the prosecution authorities’ observations of 28 January 2011 had not contained any facts unknown to him and there had therefore been no need to serve them on him. In so far as his submission of 10 February 2011 was to be classified as an objection (Gegenvorstellung), the court rejected it because its decision of 3 February 2011 had not been based on incorrect factual or procedural considerations. Prior to the decision of 25 February 2011, the observations of the prosecution authorities relating to the request for a subsequent hearing had not been served on the applicant, who had thus had no opportunity to reply to them.", "The Court of Appeal nevertheless quoted and endorsed those observations in its decision. 19. On 7 April 2011 the applicant lodged a complaint with the Federal Constitutional Court. He alleged, in particular, that his right to be heard, as guaranteed by Article 103 § 1 of the Basic Law (Grundgesetz), had been violated, because the Court of Appeal had taken its decisions of 3 and 25 February 2011 without giving him the opportunity to reply to the observations of the prosecution authorities. 20.", "On 28 July 2011 the Federal Constitutional Court declined to accept the applicant’s constitutional complaint without providing reasons (2 BvR 805/11). Its decision was served on him on 10 August 2011. II. RELEVANT DOMESTIC LAW AND PRACTICE 21. Under domestic law, a person is detained on remand, rather than after conviction, until his or her conviction becomes final, including during appeal procedures.", "Remand prisoners may, under Article 117 § 1 of the Code of Criminal Procedure, at any time seek a review (Haftprüfung) of their detention or ask for a stay of execution. They may lodge an appeal under Article 304 of the Code of Criminal Procedure (Haftbeschwerde) against a decision ordering their (continued) detention with the court that took it. If the court does not allow the appeal, it refers it to a higher court. A further appeal may be lodged against the decision of that court (weitere Beschwerde) under Article 310 § 1 of the Code of Criminal Procedure. 22.", "According to the case-law of the domestic courts, only the most recent detention order can be subject to a review (see, among many other authorities, Federal Constitutional Court, 2 BvR 332/05, decision of 12 May 2005, paragraph 14, and Düsseldorf Court of Appeal, MDR 1969, 779). 23. Article 33a of the Code of Criminal Procedure, which governs subsequent hearings, provides: “If, in a ruling, the court violates the right of a participant to be heard in a manner which might affect the outcome of the case and if the participant has no right to lodge a complaint or any other legal remedy against the ruling, then as far as the detriment still exists the court shall make an order either proprio motu or on application reverting the proceedings to the situation before the decision in question was given. Article 47 shall apply mutatis mutandis.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 24.", "The applicant complained, under Article 5 § 4 of the Convention, that the principle of equality of arms had been violated because the Court of Appeal had taken its decisions of 3 and 25 February 2011 relating to the continuation of his detention and his request for a subsequent hearing without giving him the opportunity to reply to the written observations of the prosecution authorities. Article 5 § 4 of the Convention reads as follows: “4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 25. The Government contested that argument. A. Admissibility 26.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions (a) The applicant 27. The applicant submitted that, according to the case-law of the Court, proceedings under Article 5 § 4 of the Convention must be adversarial and always ensure equality of arms between the parties. Relying on Lanz v. Austria (no. 24430/94, §§ 40-42, 31 January 2002), he argued that the prosecutor and the detainee must always be given the opportunity to note observations filed by the other party and comment on them, including on appeal. Where observations were not served on the other party, the proceedings were not truly adversarial.", "In that regard it was irrelevant that, in the opinion of the courts concerned, the observations had not contained any new facts or arguments and whether the observations had actually had an effect on the decision of the court. It was for the parties to the dispute to decide whether or not to comment on the submission of the other party. Therefore, in the proceedings before the Court of Appeal resulting in the decision of 3 February 2011 the principle of equality of arms required by Article 5 § 4 of the Convention had been violated. 28. The applicant emphasised that the case-law of the domestic courts provided that only the most recent detention order could be subject to a review.", "It was therefore irrelevant that the lawfulness of his detention had been reviewed a number of times before the Court of Appeal had taken the decision in question. The passage of time constituted a relevant element for the assessment of the lawfulness of his detention. Moreover, he pointed out that it was the first time that the Court of Appeal, rather than the District Court or Regional Court, had decided the lawfulness of his detention and the first time that the Chief Public Prosecutor’s Office had been part of the proceedings. The applicant could thus not have known their position regarding his detention. Furthermore, he had explicitly relied on Article 5 § 4 of the Convention for the first time in his further appeal of 5 January 2011 and had asked that the observations of the Chief Public Prosecutor’s Office be sent to him so as to be able to comment on them.", "29. He submitted that all of the different guarantees of Article 5 § 4 of the Convention  notably that the lawfulness of the detention be decided “speedily” and that the respective proceedings be adversarial  had to be respected. Considering the overall length of the proceedings concerning the review of the lawfulness of his detention, allowing him a few days to comment on the observations of the prosecution authorities would not have been problematic with regard to the speediness requirement. The Court of Appeal could, at the very least, have informed him that the prosecution authorities had submitted observations, which would have enabled his counsel to obtain a copy and comment on them within a short period of time. 30.", "The applicant argued that Article 5 § 4 of the Convention had also been violated in the proceedings concerning his request for a subsequent hearing, as they had been decided by the Court of Appeal on 25 February 2011 without him having the opportunity to reply to the written observations of the prosecution authorities. He asserted that the observations had been relevant, as evidenced by the fact that in its own decision the Court of Appeal had reproduced their content, which had run to more than a page and had concerned the right to be heard, which had not been the subject of the proceedings up until that point. (b) The Government 31. The Government submitted that the Court had, in the case of Lanz (cited above, § 41), stated that proceedings conducted under Article 5 § 4 of the Convention should “in principle” also meet, “to the largest extent possible” under the circumstances of an ongoing investigation, the basic requirements of a fair trial, such as the right to an adversarial procedure. It was not always necessary that the proceedings under Article 5 § 4 of the Convention be attended by the same guarantees as those required under Article 6 § 1 of the Convention for criminal or civil litigation.", "Emphasising that the lawfulness of the applicant’s detention had been reviewed by the domestic courts eleven times prior to the Court of Appeal’s decision of 3 February 2011, including by the District Court and the Regional Court in the set of proceedings at issue, they submitted that all relevant arguments had been exchanged by the time the Court of Appeal had been asked to review the lawfulness of the applicant’s detention. The applicant, who had initiated the review proceedings, had had ample opportunity to make submissions about why his detention was unlawful. Since November 2010 he had made scarce use of these opportunities, mainly relying on his previous submissions. He had been well aware of the position of the public prosecutor as regards the continuation of his detention. The statement of the Chief Public Prosecutor of 28 January 2011 had not contained any new facts or arguments of which he had been unaware.", "The principle of equality of arms had not been violated. It was telling that the applicant’s submission of 10 February 2011 had not contained any factual or legal arguments that he could not have already submitted in his appeal to the Court of Appeal on 5 January 2011. 32. The present case thus differed significantly from those of Lanz (cited above), Migón v. Poland (no. 24244/94, 25 June 2002) and Fodale v. Italy (no.", "70148/01, ECHR 2006-VII), in which violations of Article 5 § 4 of the Convention had been found due to a failure to meet the requirements of adversarial proceedings and equality of arms in proceedings concerning the review of the lawfulness of detention because the detainee or his or her counsel had not, or had not in time, been made aware of observations by the prosecution and were unable to respond to them. The case of Lanz (cited above) had concerned the first review of the lawfulness of applicant’s detention by the Court of Appeal and both the applicant and the public prosecutor, who had sought recognition of further grounds for detention, had lodged appeals against the Review Chamber’s decision. In Migón (cited above), neither the applicant nor his counsel had been allowed to attend court hearings concerning the continuation of his detention on remand and the review of the lawfulness of his detention, whereas the prosecutor had been able to do so and to make submissions in support of the extension of the detention order, while neither the applicant nor his lawyers had had any opportunity to be acquainted with them or formulate any objections, or comment thereon. In Fodale (cited above), the applicant, who had not been in custody at the time, had not been summoned to appear at the hearing before the Court of Cassation, which had been set following an appeal on points of law by the public prosecutor and which had concerned the question of whether his release from detention would become final or whether the decision ordering his release would be quashed. The applicant had thus been unable to file pleadings or present oral arguments at the hearing in response to the submissions of the public prosecutor.", "33. The Government further pointed out that the aim of Article 5 § 4 of the Convention were to offer protection against arbitrary deprivations of liberty by means of speedily reviewing the lawfulness of the detention. The Court of Appeal had taken this aim, which conflicted with the procedural approach in proceedings falling under Article 6 § 1 of the Convention to send every submission to the other party for comment, thereby prolonging the duration of the proceedings, into due consideration when it had decided on the lawfulness of the applicant’s detention on 3 February 2011. The decision had been taken four working days after the prosecution authorities had sent their written observations directly to the applicant’s counsel. Considering that they had not contained any new arguments and that the applicant had confined himself on several occasions to simply referring to his previous submissions, the Court of Appeal could legitimately assume that the applicant had already been aware of the observations and had chosen not to respond by the time it had taken its decision.", "34. With regard to the applicant’s request for a subsequent hearing, the Government noted that his submission of 10 February 2011 had not contained any factual or legal arguments that he could not have already submitted in his appeal on 5 January 2011 and that the Court of Appeal, in its decision of 3 February 2011, had not relied on facts unknown to him. Its decision of 25 February 2011 to dismiss the applicant’s request for a subsequent hearing had not therefore infringed his rights under Article 5 § 4 of the Convention. 2. The Court’s assessment 35.", "The Court notes that the set of proceedings concerning the lawfulness of the applicant’s detention which led to the Court of Appeal’s decision of 3 February 2011 commenced on 8 December 2010 (see paragraphs 9 to 11 above), that is, after the District Court’s judgment of 6 December 2010 convicting him (see paragraph 8 above). Article 5 § 1 (c) and 5 § 3 of the Convention were thus no longer applicable to the applicant’s detention (Wemhoff v. Germany, 27 June 1968, § 9, Series A no. 7). The domestic courts’ assessment whether there was a risk of the applicant absconding to justify his continued detention (see paragraph 10 above) was thus owed to the fact that the applicable domestic law provided that a person was detained on remand, rather than after conviction, until his or her conviction became final, including during appeal procedures (see paragraph 21 above). Under the Court’s case-law, no such assessment of a risk of absconding would have been required, as the applicant’s detention was governed by Article 5 § 1 (a) of the Convention, despite the pending appeal proceedings (Belevitskiy v. Russia, no.", "72967/01, § 99, 1 March 2007). Nothing indicates that the applicant’s detention under Article 5 § 1 (a) of the Convention was per se arbitrary. 36. The Court reiterates that by virtue of Article 5 § 4, an arrested or detained person is entitled to bring proceedings for review by a court of the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of Article 5 § 1, of his or her deprivation of liberty (see Idalov v. Russia [GC], no. 5826/03, § 161, 22 May 2012).", "Article 5 § 4 of the Convention does not normally come into play as regards detention governed by Article 5 § 1 (a) of the Convention, save where the grounds justifying the person’s deprivation of liberty are susceptible to change with the passage of time (see Kafkaris v. Cyprus (dec.), no. 9644/09, § 58, 21 June 2011) or where fresh issues affecting the lawfulness of such detention arise (see Gavril Yosifov v. Bulgaria, no. 74012/01, § 57, 6 November 2008). In the present case, Article 5 § 4 of the Convention is applicable because domestic law provided that a person is detained on remand until his or her conviction becomes final, including during appeal proceedings, and accorded the same procedural rights to all remand prisoners (see paragraph 21 above). Where the Contracting States provide for procedures which go beyond the requirements of Article 5 § 4 of the Convention, the provision’s guarantees, nevertheless, have to be respected in these procedures.", "The Court observes that, prior to the Court of Appeal’s decision of 3 February 2011, the lawfulness of the applicant’s detention had previously been assessed eleven times by the domestic authorities since 27 August 2010. This frequency of reviews was more than satisfactory in terms of the Convention’s standards. 37. Although it is not always necessary for the procedure under Article 5 § 4 to be attended by the same guarantees as those required under Article 6 § 1 of the Convention for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question (ibid.). The proceedings must be adversarial and must always ensure “equality of arms” between the parties, that is, the prosecutor and the detainee (see Lanz, cited above, § 44, and Graužinis v. Lithuania, no.", "37975/97, § 31, 10 October 2000). A party must be informed whenever observations are filed by another party and must be given a real opportunity to comment thereon (see Lanz, cited above, § 41). Lastly, the Court reiterates that, although Article 5 § 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention, a State which institutes such a system must in principle accord to the detainees the same guarantees on appeal as at first instance (ibid., § 42). 38. It is not disputed that the Court of Appeal took its decisions of 3 and 25 February 2011 relating to the continuation of the applicant’s detention and his request for a subsequent hearing without informing him of the written observations of the prosecution authorities and giving him the opportunity to comment on them.", "39. The Court further notes that, according to the case-law of the domestic courts, only the most recent detention order could be subject to a review (see paragraph 22 above) and that the proceedings at issue were the first proceedings concerning the lawfulness of the applicant’s detention before the Court of Appeal. It was also the first time that the Chief Public Prosecutor’s Office was part of the proceedings. This constituted a new situation compared to the previous reviews of the applicant’s detention by the District Court or Regional Court. The applicant could not have known the positions of either the Chief Public Prosecutor’s Office or the Court of Appeal regarding his detention.", "In this regard, it cannot be ignored that the applicant, in his submission of 5 January 2011, had explicitly asked that the observations of the Chief Public Prosecutor’s Office be sent to him so as to be able to comment on them. 40. Reiterating that a detainee must in principle be accorded the same guarantees on appeal as at first instance (see Lanz, cited above, § 42), the Court considers that the requirement that the proceedings under Article 5 § 4 of the Convention must be truly adversarial and always ensure equality of arms cannot be modified depending on who initiated the review proceedings. It is true that a detainee who has brought review proceedings or lodged an appeal has an opportunity to make a substantive submission at that stage, whereas he or she does not have an opportunity to do so where the proceedings have been initiated or the appeal has been lodged by the prosecutor or where the review is periodic. However, for the review proceedings to be “truly adversarial” and for equality of arms to be ensured, a party must be informed whenever observations are filed by another party and be given a real opportunity to comment (ibid., § 41).", "41. Regarding the Government’s submission that the statement of the Chief Public Prosecutor of 28 January 2011 had not contained any new facts or arguments of which the applicant had been unaware, the Court considers that it is neither for the domestic court competent for the proceedings, nor for this Court, to assess the substance of submissions made by either one of the parties to the proceedings and to make the exchange of observations conditional on the outcome of such an assessment. Rather, it is a matter for the detainee, or his or her counsel, to assess whether or not a submission by the prosecutor deserves a reaction (ibid., § 44). Only this approach can ensure, with legal certainty, that the proceedings are truly adversarial and guarantee equality of arms. 42.", "While it is true, as the Government submitted, that the Court of Appeal was obliged to decide the lawfulness of the applicant’s detention speedily, the Court emphasises that all of the guarantees of Article 5 § 4 of the Convention must be respected and considers that the obligation to decide the lawfulness speedily cannot justify a decision being taken without the applicant even being aware that the prosecution authorities had submitted observations, let alone having a real opportunity to comment on them. The applicant’s counsel received the observations of the prosecution authorities of 28 January 2011 only on 3 February 2011 (see paragraphs 12‑13 above), that is, the day on which the Court of Appeal took its decision on the applicant’s appeal of 5 January 2011. To ensure respect for both the speediness requirement and the principle of equality of arms, the Court of Appeal could, at the very least, have informed the applicant, or his counsel, as soon as it had received the prosecution authorities’ observations, about this submission and given him sufficient time to comment on these observations. 43. The Court notes the diligence displayed by the District Court and the Regional Court when considering the proceedings as a whole, notably by examining the lawfulness of the applicant’s detention eleven times within a relatively short time span.", "It also notes that the applicant’s detention was governed by Article 5 § 1 (a) of the Convention and that there were no indications that his detention was per se arbitrary. Nevertheless, the Court cannot speculate as to the outcome of the proceedings before the Court of Appeal and considers that, even in such circumstances as in the present case, the principle of equality of arms, as guaranteed by Article 5 § 4 of the Convention, requires that a party must be informed whenever observations are filed by another party and must be given a real opportunity to comment thereon. 44. The foregoing considerations are sufficient to enable the Court to conclude that the proceedings before the Court of Appeal, which had to decide for the first time on the lawfulness of the applicant’s detention, were not truly adversarial and that the principle of equality of arms was violated. The applicant did not have the opportunity to comment on the written observations of the newly involved Chief Public Prosecutor’s Office before the Court of Appeal prior to that court’s decision of 3 February 2011 concerning the lawfulness of his detention and prior to its decision of 25 February 2011 concerning his request for a subsequent hearing.", "In relation to this latter decision, the Court reiterates that the Court of Appeal reproduced and endorsed the content of the prosecution authorities’ observations in its decision, which indicates that they were not irrelevant. 45. There has accordingly been a violation of Article 5 § 4 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 46.", "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 47. The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage. He argued that as a consequence of the breaches of the Convention he had suffered pain and distress, not least because he, a drug addict, had been forced to go “cold turkey” in detention. 48.", "The Government argued that it was speculative whether the applicant would have been released from detention if the procedural guarantees of Article 5 § 4 of the Convention had been respected in his case. Consequently, the non-pecuniary damage claimed was adequately compensated by the finding of a violation of this provision. In any event, the applicant’s claim for the alleged non-pecuniary damage was excessive and his suffering related to going “cold turkey” in detention had not been directly caused by the violation in question. 49. The Court considers that, in the circumstances of the present case, the finding of a violation constitutes in itself sufficient just satisfaction.", "B. Costs and expenses 50. The applicant also claimed EUR 8,925 (including VAT) for costs and expenses incurred before the Federal Constitutional Court and EUR 8,925 (including VAT) for those incurred before the Court. He submitted copies of the fee agreements between him and his lawyer concerning these proceedings. 51.", "The Government disputed that the costs and expenses had actually been incurred. They submitted that the copies of the fee agreements had been signed by the applicant but not his lawyer, and did not specify the date and place of signature. In any event, the applicant’s claim was excessive as the overall sum was several times higher than the amount of statutory reimbursement. 52. 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, and to the fact that the applicant had been granted legal for the Convention proceedings, the Court considers it reasonable to award the sum of EUR 4,000 covering costs under all heads, plus any tax that may be chargeable to the applicant. C. Default interest 53. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, 1. Declares, unanimously, the application admissible; 2.", "Holds, by four votes to three, that there has been a violation of Article 5 § 4 of the Convention; 3. Holds, by four votes to three, that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant; 4. Holds, by four votes to three, (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (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. Done in English, and notified in writing on 7 September 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoErik MøseDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Nußberger, Møse and Hüseynov is annexed to this judgment.", "E.M.M.B. JOINT PARTLY DISSENTING OPINION OF JUDGES NUSSBERGER, MØSE AND HÜSEYNOV We have voted against finding a violation of Article 5 § 4 of the Convention. In our view the majority have based their reasoning on a formalistic interpretation of the Court’s case-law and have not sufficiently taken into account the specific circumstances of the present case. I. Formalistic versus substantive interpretation of Article 5 § 4 of the Convention Article 5 § 4 of the Convention grants a very important right, the right to judicial control of the lawfulness of detention. In the present case two different courts, the District Court and the Regional Court, ruled ten times within four months on the lawfulness of the applicant’s detention order before and after the first-instance court’s judgment[1], and extensively discussed all the relevant arguments.", "As acknowledged by the majority, “this frequency ... was more than satisfactory in terms of the Convention’s standards” (see paragraph 36 of the judgment). Nevertheless, the majority found a violation of Article 5 § 4 due to a failure to meet the requirements of adversarial procedure and equality of arms in the eleventh and final round of supervision before the Court of Appeal, even though the applicant did not advance any new arguments at this stage but simply referred to his previous submissions (see paragraph 11 of the judgment). The critique is focused exclusively on the fact that the Court of Appeal’s decision was taken before the defence had seen the observations of the prosecution, and that the request for a subsequent hearing was dismissed, again without the observations of the prosecution being sent to the defence lawyer. In our view this formalistic interpretation of Article 5 § 4 of the Convention loses sight of the substance of this Convention guarantee. The purpose of Article 5 § 4 of the Convention is to prevent arbitrariness.", "The idea is not to monitor compliance with the formalities of the review procedure, but to ensure the separation of powers between the executive and the judiciary in ordering detention and to guarantee thorough judicial control of the lawfulness of detention orders. In the present case, there cannot be any doubt that the judicial control was thorough. We accept that there was a formal mistake in the present case (see point III (1) below) but argue that this formal mistake did not impact on either the fairness (point III (2)) or the effectiveness (point III (3)) of the review procedure, which has to be seen as a whole (point III (4)). Before discussing these issues we have some comments to make on the Court’s case-law under Article 5 § 4 (see point II below). II.", "The Court’s case-law It is common ground that although it is not always necessary for the procedure under Article 5 § 4 to be attended by the same guarantees as those required under Article 6 § 1 of the Convention for criminal or civil litigation, it must have “a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question” (see paragraphs 36 and 37 of the judgment, with reference to Idalov v. Russia [GC], no. 5826/03, § 161, 22 May 2012, which related to the applicant’s absence from appeal hearings). As regards specifically the requirements that the proceedings “must be adversarial and must always ensure equality of arms between the parties”, the majority refer to Lanz v. Austria (no. 24430/94, 31 January 2002), and Grauzinis v. Lithuania (no. 37975/97, 10 October 2000).", "In Lanz the Chamber explained (§ 41) that these requirements are derived from the right to an adversarial trial as laid down in Article 6 of the Convention. Referring to previous case-law, it stated that Article 6 had “some application to pre-trial proceedings”. In view of the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned, proceedings conducted under Article 5 § 4 of the Convention should “in principle” also meet, to the largest extent possible under the circumstances of an ongoing investigation, the basic requirements of a fair trial, such as the right to an adversarial procedure. Besides noting the flexible formulation “in principle”, we would point out that, whereas Lanz related to pre-trial detention under Article 5 § 1 (c) of the Convention, the decisions to extend the applicant’s detention in the present case were made after the applicant’s conviction and hence under Article 5 § 1 (a). The Chamber in Lanz further observed (§ 42) that Article 5 § 4 guarantees no right, as such, to appeal against decisions ordering or extending detention.", "The intervention of one organ satisfies Article 5 § 4, on condition that the procedure followed has a judicial character and gives to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question. Nevertheless, a State which sets up a second level of jurisdiction for the examination of applications for release from detention – as in the present case – must “in principle” accord to the detainee the same guarantees on appeal as at first instance. Again, it is worth noting the flexible formulation “in principle”, not only as regards the extent to which the guarantees developed under Article 6 apply under Article 5 § 4 (see above), but also as to whether they apply fully at the appellate level in detention proceedings, as in the present case. Grauzinis too differs from the present case. It related to pre-trial detention and the applicant had, repeatedly, not been brought before a judge.", "Unsurprisingly, the Court found a violation of Article 5 § 4 because the applicant had not been present during pre-trial remand hearings where his presence was required so that he could give satisfactory information and instructions to his counsel (§§ 28, 33 and 34). Furthermore, we also consider it important that the Court assessed the overall fairness of the proceedings. Before concluding it stated as follows (§ 34): “Furthermore, viewed as a whole, these and the subsequent proceedings failed to afford the applicant an effective control of the lawfulness of his detention, as required by Article 5 § 4 of the Convention.” III. Fairness and effectiveness of the review procedure in the present case We would accept that there was a formal mistake in the present case (1), but argue that this formal mistake did not impact on either the fairness (2) or the effectiveness (3) of the review procedure, which has to be seen as a whole (4). (1) Extent of the deficiencies in the procedure It is not disputed that the Court of Appeal took its decision of 3 February 2011 relating to the continuation of the applicant’s detention without informing the defence of the written observations of the prosecution authorities.", "The defence had no opportunity to comment on them. This specific part of the proceedings was thus not adversarial; equality of arms was not guaranteed. Nevertheless, the defence had a remedy against this deficiency in the procedure and could request a subsequent hearing. This request was declared inadmissible as the court held that the observations of the prosecution had not contained any new information and the court’s decision had not been based on any incorrect factual or procedural considerations (see paragraph 18 of the judgment). That means that the national courts analysed the substance of the complaint, that is to say, whether the formal mistake had any negative consequences for the applicant.", "This second procedure was however also problematic as, again, the observations of the prosecution were not sent to the defence. The applicant did have another remedy, as he was able to bring his complaint before the Constitutional Court (where he was, however, unsuccessful). Thus, the deficiency in the procedure was reviewed in substance, but part of the review procedure was open to criticism as well. Not every formal mistake is, however, a human rights violation. (2) Fairness of the procedure According to the long-standing case-law of the Court, the control mechanism in respect of the lawfulness of detention as such does not fall under Article 6 § 1 of the Convention as it does not concern “the determination of a criminal charge”.", "Nevertheless, and rightly so, the Court has transposed the guarantees of a fair trial, especially the right to an adversarial procedure and equality of arms, to proceedings under Article 5 § 4 of the Convention. In this context it seems not to be entirely clear whether the adversarial character of the procedure and equality of arms should be understood as formal or substantive guarantees. In the view of the majority these guarantees are purely formal. The majority rely on a narrow reading of Lanz and stress legal certainty, stating that “the Court considers that it is neither for the domestic court competent for the proceedings, nor for this Court, to assess the substance of submissions made by either one of the parties to the proceedings and to make the exchange of observations conditional on the outcome of such an assessment” (see paragraph 41 of the judgment). While we agree with this statement, we think that, if a formal mistake has been made and a review procedure is granted to correct it, it is acceptable for this procedure to focus on the substantive question of real disadvantage.", "This is in line with the Court’s case-law, which interprets the principle of equality of arms in the light of what is essential in challenging a detention order (see, among other authorities and mutatis mutandis, Mooren v. Germany [GC], no. 11364/03, § 124, 9 July 2009). If we consider the substantive aspect of equality of arms, it cannot be said that the applicant was not in a position to effectively challenge the lawfulness of his detention. It is not disputed by the parties that the relevant observations of the prosecution did not contain any new information or argument on this aspect. The observations of 28 January 2011 requested the dismissal of the appeal, nothing more (see paragraph 12 of the judgment).", "The observations on the request for a subsequent hearing, submitted on an unspecified date (see paragraph 17), did not in any way concern the lawfulness of the applicant’s detention, but rather the question whether a subsequent hearing should be granted. Thus, while there was a formal violation of equality of arms, it cannot be argued that there was a substantive violation of this guarantee. (3) Effectiveness of the control While the fairness of the procedure is the core of the Convention guarantee under Article 6 of the Convention, the idea behind Article 5 § 4 is to avoid arbitrariness and guarantee the effectiveness of the procedure to review the lawfulness of detention. In the present case, there can be no doubt that all the applicant’s arguments were analysed in substance. The review procedure was effective and devoid of arbitrariness.", "(4) Analysis of the procedure as a whole The majority seem to concentrate their analysis only on the eleventh set of review proceedings before the Court of Appeal (see paragraph 39 of the judgment) and do not consider the fairness and effectiveness of the procedure as a whole. We would argue that, as the principle of a fair trial enshrined in Article 6 of the Convention is transposed to Article 5 § 4 proceedings, this cannot be done without also transposing the holistic view which the Court has developed in its case-law on Article 6 of the Convention, according to which “[c]ompliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident ...” (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 250, ECHR 2016). As mentioned above (point II), this was done in Grauzinis in the context of Article 5 § 4 of the Convention; in that case the Court did transpose the holistic view. Analysed as a whole, the procedure, involving four different courts, four levels of supervision and a comprehensive discussion of all the arguments –all within a period of four months for the ordinary courts or eight months including the Constitutional Court proceedings – cannot be seen as unfair or ineffective.", "In this context it might be worth mentioning that the guarantees offered by the German Code of Criminal Procedure went beyond the Convention requirements in two important aspects. Firstly, the applicant was already convicted and was therefore lawfully detained on the basis of Article 5 § 1 (a) of the Convention. As the supervision required by Article 5 § 4, according to the Court’s case-law, is already incorporated in the sentencing court’s decision (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12, and Wynne v. the United Kingdom, 18 July 1994, § 36, Series A no. 294-A), an assessment of the lawfulness of the applicant’s detention was no longer required by the Convention.", "Had the German courts refused to review the detention order after the judgment of 6 December 2010 in which the applicant was sentenced to two years and six months’ imprisonment, there would not have been a violation of the Convention. The majority do not give any reason why they deem it necessary to go beyond the existing case‑law in this respect (see paragraph 36 of the judgment). Secondly, Article 5 § 4 of the Convention does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention. In this respect as well the control standard according to German law was higher than the Convention standard. While, according to the Court’s case-law, a State which sets up a second level of jurisdiction for the examination of applications for release from detention must in principle accord to the detainee the same guarantees on appeal as at first instance (see Lanz, cited above, § 42), it is important to note that the case-law in this respect is not rigid, but emphasises that the guarantees have to be applied “in principle” (see point II above).", "To us it seems difficult to argue that the guarantees were not applied “in principle” in the present case. IV. Concluding remarks This is not a very serious case, as shown by the fact that the majority did not even choose to award compensation. Nevertheless, it raises more far-reaching problems of interpretation of the Convention. Firstly, it seems doubtful what the message should be if the Court finds violations in situations where the human rights guarantees – seen as a whole – clearly exceed the requirements of the Convention.", "Secondly, while legal certainty is very important, it should not be misunderstood as the reduction of substantive guarantees to formal guarantees. Form and procedure matter, but in human rights protection they are not an end in themselves. The Court should always look behind appearances and focus on the substance. Thirdly, we think that it is very important to interpret the Convention in a consistent manner. The requirements of a fair trial under Article 5 § 4 of the Convention should not exceed what is required under Article 6 of the Convention.", "Based on all these reasons, we have come to the conclusion that there has been no violation of Article 5 § 4 of the Convention in the present case, as the applicant had ample opportunities to have the lawfulness of his detention reviewed. [1] Between 30 August 2010 and 11 November 2010 the applicant’s detention was examined eight times (see paragraph 7 of the judgment). The ninth decision was taken on 6 December 2010, the same day on which the judgment had been adopted (see paragraph 8). The tenth decision was taken on 8 December by the District Court, which did not allow the appeal (see paragraph 10)." ]
[ "FIRST SECTION CASE OF MALOFEYEVA v. RUSSIA (Application no. 36673/04) JUDGMENT STRASBOURG 30 May 2013 FINAL 30/08/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Malofeyeva v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Elisabeth Steiner,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Julia Laffranque,Ksenija Turković,Dmitry Dedov, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 7 May 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "36673/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Antonina Vasilyevna Malofeyeva (“the applicant”), on 12 August 2004. 2. The Russian Government (“the Government”) were represented by Mr A. Savenkov and then by Mr G. Matyushkin, acting and current Representatives of the Russian Federation at the European Court of Human Rights respectively. 3. The applicant alleged that she had not been promptly informed of the reasons for her arrest on 27 November 2003 and that her appeal against the detention order of the same date had not been examined speedily; that her detention from 7 to 14 June 2005 had been arbitrary; that the related administrative offence proceedings had not been public and fair; and that the dispersal of the demonstration and her conviction in the above proceedings had also impinged upon her freedom of expression and freedom of assembly.", "She referred to Articles 5, 6, 10 and 11 of the Convention. 4. On 18 March 2008 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1953 and lives in Irkutsk. A. Criminal proceedings against the applicant 6. In 2003 the applicant was charged with fraud relating to the alleged misappropriation of money in the private company she had worked for.", "Her case was brought before the Kuybyshevskiy District Court of Irkutsk. In the course of the trial, the applicant dismissed several legal-aid lawyers and, eventually, the trial court appointed lawyer V. as defence counsel. During the court proceedings before the District Court an issue arose as to the applicant’s mental state and ability to stand trial. Thus, on 14 October 2003 after hearing the parties (including the applicant and lawyer V.), the District Court decided that the applicant should undergo an out-patient psychiatric examination in the regional psychiatric hospital. However, the applicant refused to comply with this court order.", "7. A trial hearing was accordingly scheduled for 27 November 2003, inter alia, to settle the issue of the examination. The applicant did not appear for which reason, the same day, the District Court ordered the applicant’s detention. The court held as follows: “Having heard the prosecutor, the defendant and lawyer V., in the criminal case on fraud charges against the defendant ... The prosecutor has requested the court to order [the applicant’s] detention because she has been obstructing the court proceedings by refusing to undergo a psychiatric examination and has failed to attend the hearing without a valid excuse.", "Article 247 of the Code of Criminal Procedure authorises a court to order that a defaulting defendant be brought before the court or to order or vary a preventive measure. Article 97 of the Code authorises a court to order a preventive measure if there is a risk that the defendant would obstruct the proceedings ... The court observes that despite a court order of 14 October 2003 the defendant refused to undergo a psychiatric examination ... In addition, having been informed of the date and time of this hearing, she failed to attend it and did not provide any valid excuse. Having come to the court’s registry on the same day, she submitted a request there and left the court building.", "These facts disclose that the applicant is obstructing the proceedings, which justifies her placement in custody. The court also takes into account that she is charged with a serious criminal offence ... The court orders her arrest and detention in Irkutsk remand centre.” 8. By a separate decision issued on the same date, the District Court ordered that the applicant should be placed in the regional psychiatric hospital for the purpose of the in-patient psychiatric examination. 9.", "On the evening of the same day, the applicant was arrested at her home and was taken to a police station. The arrest record, which was compiled at the police station, reads as follows: “Grounds and reasons for arrest: a court order ... [pre-printed text] I have been informed of my rights under Article 46 § 4 of the Code of Criminal Procedure: (1) to be informed of the nature of the accusation against me, to receive a copy of a decision to institute criminal proceedings against me, or a copy of the arrest record, or a copy of a detention order against me; ... My comment regarding the arrest: [the applicant’s signature] My arrest is unlawful; I have not had access to the document in which the grounds for my arrest are stated ...” 10. Later the same evening she was placed in Irkutsk remand centre. 11. On 28 November 2003 the applicant appealed against the detention order of 27 November 2003 to the Irkutsk Regional Court.", "According to the applicant, without a copy of the detention order she could only make a preliminary statement of appeal. She dispatched her appeals both to the District Court (received on 2 December 2003) and to the Regional Court (received on 3 December 2003). 12. On 2 December 2003 the applicant was served with a copy of the detention order of 27 November 2003. 13.", "On 4 December 2003 the applicant’s next of kin retained lawyer Sh. who lodged, on the same day, an additional appeal against the detention order. The applicant was provided with a copy of the lawyer’s appeal and, on 10 December 2003, lodged a request to be brought to the appeal hearing. 14. On 10 December 2003 the Regional Court returned the appeal to the District Court to enable the latter to inform the other parties to the criminal proceedings of the appeal.", "This was done on 19 December 2003. 15. The psychiatric examination of the applicant took place from 10 to 15 December 2003 in the regional psychiatric hospital in Irkutsk. On 16 December 2003 the medical panel issued a psychiatric report indicating that it was not possible to draw a clear conclusion as to the applicant’s mental state and ability to stand trial. The panel recommended further examination in Moscow psychiatric hospital.", "16. On 16 or 19 December 2003 the applicant submitted (to the District or Regional Court) a document dated 10 December 2003 by which Mr G., head officer of the medical unit of the remand centre, indicated that it would be opportune to examine whether the applicant could be released from detention. 17. On 22 December 2003 the District Court again submitted the applicant’s and her lawyers’ appeals to the Regional Court. They were received by the Regional Court on 23 December 2003.", "18. On 25 December 2003 the District Court held a trial hearing, during which it dismissed counsel’s application for release and ordered a new psychiatric examination of the applicant in Moscow psychiatric hospital. 19. On an unspecified date, lawyer Sh. submitted to the Regional Court a letter dated 25 December 2003 by which the Regional Department of Justice indicated that the relevant official registers contained no information about the applicant’s court-appointed lawyer, advocate V. 20.", "The applicant withdrew on 5 January 2004 her request to be brought to the appeal hearing concerning the detention order of 27 November 2003. 21. On 7 January 2004 the applicant was transferred to Moscow for a psychiatric examination. 22. In respect of the applicant’s appeal against the detention order of 27 November 2003 and according to the Government, “due to the winter holiday period the appeal hearing was listed in the Regional Court for 8 January 2004”.", "On that date, the Regional Court, however, returned the file to the District Court for an “internal inquiry”. Apparently, the reason for this adjournment was the need to verify whether the applicant had legal assistance during the hearing on her pre-trial detention on 27 November 2003 and whether Ms V. was a professional advocate. 23. On 19 January 2004 Ms V. submitted a written statement confirming that she was a professional advocate and that she had attended court hearings in the applicant’s criminal case “on 14 October and 17 November 2003”. 24.", "On an unspecified date, the President of the District Court obtained a certificate from Mr G., indicating that the applicant was fit for detention and was receiving the necessary medical care in the remand centre. 25. After the inquiry requested by the Regional Court, on 4 February 2004 the detention file was returned to that court. The appeal hearing was scheduled for 26 February 2004. 26.", "On 26 February 2004 the Regional Court heard the prosecutor and counsel, and upheld the detention order of 27 November 2003. The appeal court held that the certificate submitted by the defence was not sufficient to warrant the applicant’s immediate release from detention because another certificate issued by the same detention centre confirmed that the applicant was fit for detention, although she needed a gynaecological consultation, which could be carried out at a later date. 27. In April 2004 the Regional Court examined and dismissed the applicant’s request for a supervisory review in respect of the appeal decision of 26 February 2004. The court noted that V. had been present at the first-instance hearing on the applicant’s detention and that reference to the applicant’s own presence had been a clerical error.", "28. The applicant was released in May 2004. 29. By judgment of 21 September 2007 the Kuybyshevskiy District Court of Irkutsk acquitted the applicant of the fraud charges. On 28 July 2008 the Irkutsk Regional Court upheld the judgment.", "B. Administrative offence proceedings against the applicant 1. The demonstration in Moscow and the applicant’s arrest 30. In May 2005 after the applicant had been released from detention but while the criminal case against her was still pending (see paragraphs 6-29 above), the applicant and two others, Ms I. and Ms B., decided to stage a static demonstration (пикетирование) in front of various public authorities in Moscow, including the Supreme Court of the Russian Federation to protest against the allegedly “unlawful actions of public authorities and corruption”. As the applicant puts it, this demonstration related to “the persistent difficulties in relation to pending cases involving law enforcement agencies and courts, in particular in the Irkutsk Region, and the failure of the local authorities to deal with their grievances”.", "31. On 30 May 2005 they sent a telegram to the Moscow Mayor’s Office informing the authorities’ of their intention to stage static demonstrations between 3 and 16 June 2005. On 31 May 2005 the Mayor’s Office acknowledged receipt of this telegram. 32. On 7 June 2005 at 9.30 a.m. the applicant and her friends placed themselves on a pavement separated from the building of the Federal Judges Qualifications Board by a road.", "Ms I. and Ms B. unfolded banners/posters containing their message. At 9.45 a.m. they were approached by several police officers, one of whom asked them to show documents justifying their demonstration. The applicant explained to the officer that they needed no “authorisation” and produced the telegram message sent to the mayor’s office and the “certified” copy of the telegram (apparently bearing the mayor’s office stamp). 33. Nevertheless, the police officer told the applicant and her friends to cease their demonstration and follow them to the police station.", "As the applicant and her friends refused to comply with this, the officer compelled them to follow him to the police station. At an unspecified hour an arrest record was drawn up. It read as follows: “[The applicant] was brought to the police station at 9.45 a.m. in relation to an administrative offence under Article 19.3 of the Code of Administrative Offences for the purpose of compiling a record (Article 27.3 of the Code). The person concerned has been informed of her rights and obligations under Article 25.1 of the Code: [in the applicant’s handwriting] I have not been informed of my rights and I do not understand them ...” 34. While in the police station, the applicant made a written statement, which read as follows: “I came to Moscow to protect my rights against various law enforcement agencies.", "As follows from my notification to the authorities on 30 May 2005, I was holding a static demonstration at 9.45 a.m. in conformity with the Public Gatherings Act. I have been arrested by a person wearing a police uniform who refused to introduce himself and to show his licence ...Without explaining the actual reasons for my arrest, [the officers] told me that their superior had ordered that we be taken to the police station ... Under section 18 of the Public Gatherings Act the police should not impede the exercise of the right to freedom of assembly ... There were no reasons to stop and disperse the demonstration under section 15 of the Act ... The officer refused my request to call my next of kin and to inform them of my arrest ...” 35.", "The police then compiled an administrative offence report, which read as follows: “Time, place and circumstances of the administrative offence: on 7 June 2005 [the applicant] held a non-authorised demonstration ... S/he has therefore committed the following administrative office: Article 19.3 of the Code of Administrative Offences ... The person concerned has been informed of the rights and obligations listed in Article 25.1 of the Code: [in the applicant’s handwriting] I have not been informed of my rights and do not understand them ... A copy of this document has been given to the person concerned. [in the applicant’s handwriting] I have not been given [a copy], despite my request.” 2. Court proceedings 36. Thereafter, the police decided that the applicant and her friends should be brought before the Justice of the Peace in the 375th Circuit of the Arbatskiy District of Moscow.", "The judge was informed of the incoming cases and scheduled their examination for 5 p.m. 37. A photocopy of a document dated 11 June 2004 and signed by the President of the Presnenskiy District Court indicates that under the regulations of that court the public had access to the premises until 6 p.m. during weekdays. It appears that the office of the justice of the peace who dealt with the applicant’s case was situated in the same building. 38. According to the applicant, she and her friends were brought to the premises of the Presnenskiy District Court some time after 7 p.m.", "The judge first examined Ms I.’s case, in which the applicant acted as a lay defender. The examination of the applicant’s case started at or around 10 p.m. and lasted some minutes. The judge granted the applicant’s request to have access to the case file but the applicant unsuccessfully sought an adjournment to have time to study the case file and to prepare her defence. 39. The judge found the applicant guilty of non-compliance with a lawful order by a police officer, an offence under Article 19.3 of the Code of Administrative Offences.", "The applicant was sentenced to seven days of detention, to be counted from the moment of her arrest on the same morning. The court held as follows: “... [pre-printed text] I understand my rights under Article 25.1 of the CAO. I have no challenges or requests. [in the applicant’s handwriting] I have lodged a request and challenged the judge but these motions have not been examined. The court has established the following: On 7 June 2005 [the applicant] failed to comply with a lawful order by police officers ... and failed to end a non-authorised demonstration in front of the Supreme Court of Russia ...", "The defendant has pleaded not guilty ... The court has granted [the applicant’s] request to have her co-participants in the demonstration as lay defenders in these proceedings. The court has dismissed her request to obtain external video recordings of the building of the Supreme Court since there is no reason to doubt the veracity of the administrative offence record, in particular as regards the commission of the offence, its place and circumstances. Mr S., police officer, has been heard as a witness and has made the following statement. He and his colleagues asked the demonstration participants to show documents relating to the authorisation of the public event.", "[The applicant] handed over a telegram. Since there were doubts as to the authenticity of the document, [the applicant] and the other two were asked to show their identity documents. Since they refused, despite several warnings, the police took them to the police station to determine their identities and to determine the circumstances relating to the lawfulness of the demonstration. Since [the applicant] and the others refused to follow the police, they were compelled to do so ... The court has seen the documents mentioned above, and notes that they have been amended.", "The court accepts that in the circumstances the police officers had sufficient reasons to doubt the authenticity of the documents. Therefore, their order to the persons concerned to accompany them to the police station was lawful and justified. It is also so in view of the defendants’ refusals to show identity documents. The court rejects [the applicant’s] allegation that she was not asked to show her identity documents ... Her refusal to show an identity document and to go with the police officers to the police station discloses non–compliance with lawful orders by police officers ...” Ms I. and Ms B. were sentenced to five and six days of detention respectively.", "40. The applicant was released on 14 June 2005, having served the sentence imposed by the justice of the peace. 41. The applicant and her friends appealed against the judgments of 7 June 2005 to the Presnenskiy District Court of Moscow. On 24 June 2005 the applicant was notified of the date and time of the appeal hearing.", "On 27 June 2005 the applicant asked that her lay defenders be informed of the date, time and place of the appeal hearing. 42. On 27 June 2005 the District Court examined the applicant’s appeal and upheld the judgment of 7 June 2005 against her. The court held as follows: “On 7 June 2005 [the applicant] held a non-authorised demonstration and held a banner containing a very negative assessment of the professional activity of the Prosecutor General, the President of the Supreme Court and the Minister of Justice. She refused to comply with lawful orders to end the violation of the public order, threatened police officers with prosecution, thereby resisting a lawful order by police officers ...", "Under sections 5 and 12 of the Public Gatherings Act one has a right to assemble at a venue and at an hour previously indicated in a notification to the competent authority ... Section 8 of the Act prohibits public events in the immediate vicinity of court buildings. Section 17 of the Act provides that failure to comply with a lawful order of the police or resistance to the police entails the liability of the persons concerned ...” 43. On 1 July 2005 the District Court examined Ms I.’s appeal and discontinued the administrative offence case against her, holding as follows: “... The record of the administrative offence indicates that the defendant refused to comply with the repeated orders of the police officers ...", "However, the record contains no indication of the content of such orders. The reports made by the police officers state that the defendant had been arrested in relation to a non-authorised demonstration. Mr P., police officer, has explained to the appeal court that the administrative case concerned unlawful demonstrating. In view of the above, the appeal court considers that the administrative proceedings were initiated against the defendant in relation to a fact falling with the scope of Article 20.2 of the CAO [Code of Administrative Offences] ... The court considers that sufficient evidence was not adduced at first instance to find the defendant guilty of the offence under Article 19.3 of the CAO ... ” 44.", "On 6 July 2005 the District Court quashed the first-instance judgment in respect of Ms B. and discontinued the administrative offence case against her, holding as follows: “... It follows from reports made by police officers that the defendant was arrested after [the group] had attempted to carry out a non-authorised demonstration; she failed to comply with repeated orders of police officers and shouted ... The record of the administrative offence refers to unlawful demonstrating falling within the scope of Article 20.2 of the CAO ... The record was not signed by the head officer. The court considers that sufficient evidence was not adduced at first instance to find the defendant guilty of the offence under Article 19.3 of the CAO ...” 45.", "The applicant lodged numerous complaints against the justice of the peace who convicted her. By a letter of 5 September 2005 the District Court dismissed her complaint, indicating that, as explained by the justice of the peace, he had examined the cases against the applicant and her friends between 5 p.m. and 10 p.m. on 7 June 2005. 3. Conditions of detention 46. According to the applicant, from 7 to 9 June 2005 she was kept in the police station without food or drink.", "The cell had no windows or system of ventilation. She had no access to a toilet and had to urinate in the presence of other detainees, including male detainees. From 9 to 14 June 2005 she was kept in a detention facility, in which, despite her illnesses, she was forced to clean the premises. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "Detention pending criminal proceedings 47. Article 97 of the Code of Criminal Procedure (CCrP) provided at the relevant time that an investigator or a court could order a preventive measure, for instance detention, if there were sufficient grounds to consider that the defendant would flee investigation or trial, would continue his criminal activity or would threaten a witness or otherwise obstruct the proceedings. Article 247 of the CCrP provided that a court was empowered to order that the defaulting defendant be brought to the trial, or to order or vary a preventive measure. B. Public Gatherings Act (Federal Law no.", "54-FZ of 19 June 2004) 48. Section 7 of the Act provided, at the time, as follows: “1. A person organising a public gathering (except for a meeting or a static demonstration (пикетирование)) should notify in writing the competent public authority not earlier than fifteen and not later than ten days before the date of the event ... For a static demonstration by several people notification may be made no later than three days before the demonstration ... 3. A notification should contain a reference to 1) the aim of the event; 2) the type of the event; 3) the venue(s) and itineraries; 4) the date and time of the event; 5) the expected number of participants; ... 7) the full name, contact address and telephone number of the event organiser ...” 49. Section 12 of the Act provided for the following procedure on the part of the competent public authority following receipt of the notification: “1.", "The authority should process as follows: 1) acknowledge in writing receipt of the notification and indicate the date and time of receipt; 2) inform the event organiser ... (on the same day – in the case of a notification received less than five days before a static demonstration by several people) of any alternative proposal concerning the event venue and/or time ...” 50. An organiser of a public gathering had the following obligations under the Act: “4. ...1) submit a notification of the public event in conformity with the requirements of section 7 ...; 2) inform ... the public authority in writing whether the alternative proposal concerning the event time and/or venue was accepted; ... 6) suspend the event or end it if the event participants committed unlawful actions; 5. The organiser of the event is not allowed to proceed with it if the above notification was not submitted in conformity with the time-limit or if the authority’s alternative proposal for another venue and/or time for the event was not settled with the public authority ...” 51. A public event could be held in any suitable venue.", "No public event could be held in the immediate vicinity of court buildings (section 8). C. Code of Administrative Offences (CAO) 1. Material law 52. Non-compliance with a lawful order by a police officer, given within the scope of his or her professional duties, is punishable by a fine or administrative detention of up to fifteen days (Article 19.3 of the CAO). 53.", "Violation of the rules or procedure for organising or participating in a public gathering (a meeting, demonstration or static demonstration) is punishable by a fine (Article 20.2 of the CAO). 2. Procedural law 54. A person who is prosecuted in administrative offence proceedings has the following rights: to have access to the case file, to make submissions, to adduce evidence, to lodge requests and to legal assistance (Article 25.1 of the CAO). The administrative case should be examined in the presence of this person (ibid.).", "55. A defendant in an administrative case may be assisted by an advocate or another person chosen by the defendant (Article 25.5 of the CAO). 56. In exceptional circumstances relating to the needs for a proper and expedient examination of the administrative case, the person concerned may be placed under administrative arrest (административное задержание) (Article 27.3 of the CAO). The arrestee should be informed of his rights and obligations; this notification should be mentioned in the arrest record.", "57. Depending on the type of offence, the competent public authority (for instance, the police) should compile the administrative offence file (including arrest record, administrative offence record, personal search record) and transmit it to the competent court for examination. The file should be sent within one day, or immediately if administrative detention or deportation may be incurred (Article 28.8 of the CAO). 58. A court should examine the administrative case within fifteen days, to which one month may be added if additional evidence is needed.", "However, if the administrative charge concerns an offence punishable by administrative detention, the case should be examined on the day when the administrative record was submitted to the court or within forty-eight hours of the defendant’s arrest (Article 29.6 of the CAO). 59. Administrative cases should be examined at a public hearing, except in cases relating to State or other protected secrets or where it is necessary to protect the honour or reputation of the person(s) participating in the proceedings (Article 24.3 of the CAO). 60. Chapter 25 of the CAO entitled “Participants in administrative offence proceedings, their rights and obligations” lists the following participants: the defendant, the victim, legal representatives of a person or a legal entity, a witness, a defender or a representative, an attesting witness, an expert, a translator and a prosecutor.", "Article 25.11 provides that a public prosecutor may institute administrative offence proceedings; to take part in the examination of the case, to make requests, to deliver opinions; to appeal against the court decision, as well as “to carry out other actions prescribed by law”. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION 61. The applicant complained under Article 5 of the Convention that she had not been promptly informed of the reasons for her arrest on 27 November 2003. 62.", "Article 5 § 2 of the Convention reads as follows: “... 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.” A. Admissibility 63. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. The parties’ submissions 64. The applicant submitted that she had not been present at the detention hearing on 27 November 2003, that she had been arrested on the same evening and had not been given a copy of the detention order. She became aware of the reasons for her arrest only on 2 December 2003 when she was given a copy of the detention order of 27 November 2003.", "The court order of the same date for her in-patient examination in a psychiatric hospital was only given to her in 2004. 65. The Government argued that, as the arrest record compiled on 27 November 2003 showed, the applicant had been informed of the reasons and grounds for her arrest. 2. The Court’s assessment 66.", "The Court reiterates that Article 5 § 2 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2 any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4. Whilst this information must be conveyed “promptly”, it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see, among others, Ladent v. Poland, no. 11036/03, § 63, 18 March 2008, and Van der Leer v. the Netherlands, 21 February 1990, §§ 30 and 31, Series A no.", "170‑A). 67. The Court has had regard to the circumstances of the case, as well as the type of the deprivation of liberty in question. The Court reiterates in this connection that the applicability of one ground listed in Article 5 § 1 does not necessarily preclude the applicability of another and detention may be justified under more than one sub-paragraph of that provision (see, for instance, Harkmann v. Estonia, no. 2192/03, § 35, 11 July 2006).", "Although the parties have not taken a stance on this issue, the Court considers that, in view of the circumstances of the case and the wording of the detention order, the applicant’s arrest and detention were effected on the grounds mentioned in Article 5 § 1 (b) and (c) the Convention. 68. Undoubtedly, by November 2003 the applicant, who was charged with a criminal offence and was standing trial, had been informed of the nature and cause of the “accusation” against her, within the meaning of Article 6 § 2 of the Convention, as well as of the “charge” against her within the meaning of Article 5 § 2. However, the Court considers that the above was not sufficient to also comply with the promptness guarantee as to “the reasons for [the] arrest”, which are also mentioned in Article 5 § 2 of the Convention. 69.", "The Court observes that the applicant was arrested on 27 November 2003 under a court order issued on the same date because it was considered that she had failed to comply with an earlier court order requiring her out-patient psychiatric examination (see paragraph 6 above) and because she had obstructed the court proceedings in the criminal case against her by failing to attend the hearing on 27 November 2003 without a valid excuse. 70. Having examined the available material, including the arrest record, the Court finds it established that the applicant was not present at the hearing on 27 November 2003. A lawyer was, however, present for the defence (see paragraphs 7, 23 and 27 above). It appears that this lawyer had been appointed as legal-aid counsel in the applicant’s criminal case.", "There is no indication, and the Government have not suggested, that counsel promptly informed the applicant of the reasons for her arrest. In any event, the obligation to inform under Article 5 § 2 is on the national authorities. In addition, in the absence of any argument or evidence to the contrary, the Court is prepared to accept the applicant’s submission that she first became aware of the contents of the detention order on 2 December 2003, that is, several days after the actual arrest. Also, it has not been contested that the applicant was not promptly provided with a copy of the court order requiring her placement in a psychiatric hospital for an in-patient psychiatric examination there (see paragraph 12 above). 71.", "It is observed that the arrest record compiled on 27 November 2003 contained reference to “a court decision” as the ground for arrest, without any further detail (see paragraph 9 above). Arguably, this reference related to one of the above court orders. It does not transpire that before 2 December 2003 the applicant received information about the essential legal and factual grounds for her deprivation of liberty, so as to be able, if she saw fit, to challenge its lawfulness in accordance with paragraph 4. In the Court’s view, prompt knowledge of the reasons for the deprivation of liberty was relevant for the purposes of the applicant’s appeal against the detention order and/or the court order requiring her placement in the psychiatric hospital. 72.", "Thus, the Court concludes that, while the applicant was aware of the charges against her, it has not been shown that she was “promptly” informed of the reasons for her arrest. 73. There has accordingly been a violation of Article 5 § 2 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 74.", "The applicant also complained under Article 5 of the Convention that her appeal against the detention order of 27 November 2003 had not been examined speedily. The Court will examine this complaint under Article 5 § 4 of the Convention, which reads as follows: “... 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Admissibility 75. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties’ submissions 76. The applicant argued that the appeal proceedings in respect of the detention order of 27 November 2003 took over eighty days, which was incompatible with the “speediness” requirement under Article 5 § 4 of the Convention.", "77. The respondent Government argued that one period of delay (from 28 November to 10 December 2003) was due to the applicant’s failure to submit an appeal against a detention order through the first-instance court, as required by law. It was then incumbent on that court to notify the other parties of the appeal. Another delay was caused by the winter holiday period, while another delay in January-February 2004 was due to the need to obtain further submissions and documents concerning defence counsel at first instance and the applicant’s state of health. 2.", "The Court’s assessment (a) General principles 78. The Court reiterates that Article 5 § 4 of the Convention proclaims the right to a speedy judicial decision concerning the lawfulness of detention and ordering its termination if it proves unlawful (see Baranowski v. Poland [GC], no. 28358/95, ECHR 2000). There is a special need for a swift decision determining the lawfulness of detention in cases where a trial is pending, because the defendant should benefit fully from the principle of the presumption of innocence (see Iłowiecki v. Poland, no. 27504/95, § 76, 4 October 2001).", "79. Article 5 § 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention. However, where domestic law provides for a system of appeal, the appellate body must also comply with the requirements of Article 5 § 4, including the speediness of the review by the appellate body of a detention order imposed by the lower court (see Lebedev v. Russia, no. 4493/04, § 96, 25 October 2007). At the same time, the standard of “speediness” is less stringent when it comes to the proceedings before the court of appeal.", "The Court reiterates in this connection that the right of judicial review guaranteed by Article 5 § 4 is primarily intended to avoid arbitrary deprivation of liberty. Where detention is authorised by a court, subsequent proceedings are not so much concerned with arbitrariness, but provide additional guarantees aimed primarily at an evaluation of the appropriateness of continuing the detention. Therefore, the Court would be less concerned with the speediness of the proceedings before the court of appeal, if the detention order under review was imposed by a court and on condition that the procedure followed by that court had a judicial character and afforded to the detainee the appropriate procedural guarantees (ibid.). (b) Application of the principles to the present case 80. The relevant detention order was issued on 27 November 2003.", "The Court observes that the applicant’s preliminary appeal dated 28 November 2003 was received by the District Court on 2 December 2003; the full statement of appeal was lodged by a lawyer on 4 December 2003. The appeal was examined and dismissed on 26 February 2004. Therefore, the appeal proceedings took two months and twenty-five days. 81. First, the Court observes that the applicant and then her lawyer lodged appeals, as required under Russian law, with the first-instance court to enable it to inform the other party/parties to the proceedings (see paragraphs 11 and 13 above).", "It is true that, having lodged on 10 December 2003 a request to be brought to the appeal hearing, the applicant withdrew this request on 5 January 2004. However, that withdrawal was due to the authorities’ decision to transfer her to an institution in another town for a psychiatric examination (see paragraphs 20-21 above). Overall, the Court considers that the defence in the present case should not be held responsible for any significant delay. 82. On the other hand, the Court reiterates that it is incumbent on the respondent State to organise its legal system in such a way which allows for the speedy examination of detention-related issues.", "The fact that part of the period in question fell on public holidays cannot in itself serve as a valid reason for a delay such as in the present case (see Abidov v. Russia, no. 52805/10, § 61, 12 June 2012). 83. While the Court accepts that proper review of detention in the present case could have required collection of additional observations and documents relating to the applicant’s medical condition or legal assistance at first instance, the Court is not satisfied that the appeal proceedings in the present case were completed speedily, in particular taking into account the unjustified delays after 23 December 2003 (see paragraph 17 above). 84.", "Lastly, it is noted that pending appeal against the initial detention order, on 25 December 2003 the District Court examined and dismissed the lawyer’s application for the applicant’s release. However, the availability of such recourse did not absolve the national authorities from their obligation to decide “speedily” on the validity of the detention order of 27 November 2003 (see Starokadomskiy v. Russia, no. 42239/02, § 85, 31 July 2008). 85. In view of the above considerations, the Court concludes that there has been a violation of Article 5 § 4 of the Convention on account of the length of the appeal proceedings in relation to the detention order of 27 November 2003.", "III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION IN RELATION TO THE ADMINISTRATIVE OFFENCE PROCEEDINGS AGAINST THE APPLICANT 86. The applicant complained that her detention from 7 to 14 June 2005 had been unlawful, in breach of Article 5 § 1 of the Convention, which reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court;...” Admissibility 87.", "The applicant argued in substance that her detention following her conviction under the judgment of 7 June 2005 had been arbitrary since there had been no reason to prosecute her under Article 19.3 of the Code of Administrative Offences, which, unlike Article 20.2 of the same Code, allowed detention as a penalty. 88. The Government argued that the applicant’s administrative detention resulted from a lawful court order, by which she had been found guilty of an administrative offence. 89. The Court reiterates that Article 5 § 1 of the Convention requires that detention should be “lawful”, including compliance with “a procedure prescribed by law”.", "The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof (see Benham v. the United Kingdom, 10 June 1996, § 40, Reports of Judgments and Decisions 1996‑III). A period of detention will in principle be lawful if it is carried out pursuant to a court order (ibid., § 42). 90. However, the Convention also requires that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness (see, among others, Saadi v. the United Kingdom [GC], no. 13229/03, §§ 67-74, ECHR 2008).", "91. For instance, in Tsirlis and Kouloumpas v. Greece (judgment of 29 May 1997, §§ 59-63, Reports of Judgments and Decisions 1997‑III) the Court considered that the applicants’ detention (thirteen and twelve months respectively) following their conviction on charges of insubordination had had no basis under domestic law and had been arbitrary. In deciding on the issue of the applicants’ criminal liability, and thus on the lawfulness of their detention, the military authorities had “blatantly ignored” the relevant domestic case-law. 92. In another case (Menesheva v. Russia, no.", "59261/00, § 99, ECHR 2006‑III) the respondent Government accepted that the administrative offence proceedings against the applicant had been defective both under domestic law and the Convention. In this case, the higher court quashed the trial judgment stating that “the judge who convicted the applicant had not examined the circumstances of the case and had not established whether she was guilty of any administrative offence”. For its part, the Court considered, under Article 6 of the Convention, that the above corroborated the applicant’s allegations that there had been no adversarial proceedings as such and that even the appearances of a trial had been neglected to the extent that she did not get a chance to find out the purpose of her brief appearance before the trial judge. Having regard to the above findings, the Court also held, under Article 5 § 1 of the Convention, that while the ensuing period of detention had been carried out on the order of a judge who was in principle competent to take the decision in issue, the judge had exercised his authority in manifest opposition to the procedural guarantees provided for by the Convention. Therefore, the ensuing detention order was inconsistent with the general protection from arbitrariness guaranteed by Article 5 of the Convention (ibid., § 92).", "93. Turning to the present case, the Court observes that on 7 June 2005 the applicant was brought before the judge, who held a hearing and ruled that she had committed the offence of non-compliance with a lawful order by a public official, an administrative offence under Article 19.3 of the Code of Administrative Offences, and sentenced her to seven days’ detention. Thus, the applicant was deprived of liberty “after conviction by a ... court” under Article 5 § 1 (a) of the Convention. 94. The applicant argued that she had been wrongly convicted of the offence under Article 19.3 of the CAO, and alleged various procedural shortcomings in the administrative offence proceedings (see below under Article 6 of the Convention).", "95. The Court considers that the seven-day detention was imposed on 7 June 2005 pursuant to the order of a judge who was in principle competent to take the decision in issue (see, by way of comparison, Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 462, ECHR 2004‑VII; and Jorgic v. Germany, no. 74613/01, § 72, ECHR 2007‑III). Furthermore, it cannot be considered on the basis of the available material that the ensuing period of detention was tainted by any irregularities or arbitrariness, which were comparably serious as those identified by the Court in the cases of Menesheva or Tsirlis and Kouloumpas (see also, by way of comparison, Niyazov v. Russia, no.", "27843/11, §§ 175-186, 16 October 2012). Therefore, the applicant’s detention was consistent with the general protection from arbitrariness guaranteed by Article 5 of the Convention. The Court’s findings below under Article 6 of the Convention are without prejudice to the above conclusion. 96. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "IV. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION IN THE ADMINISTRATIVE OFFENCE PROCEEDINGS AGAINST THE APPLICANT 97. The applicant complained under Article 6 of the Convention that in the proceedings concerning the alleged administrative offence she had not had a fair and public hearing. The relevant parts of Article 6 of the Convention read as follows: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law... 3.", "Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;...” A. Admissibility 98. The Court observes that the applicant was found guilty of an offence under the Russian Code of Administrative Offences. The applicant was deprived of her liberty for seven days and was locked up in the detention centre for the term of her sentence. 99. While the parties made no specific comments on the applicability of Article 6 to the administrative proceedings in question, the Court finds it relevant to reiterate that in order to determine whether an offence qualifies as “criminal” for the purposes of Article 6 the Convention, it is necessary to ascertain whether or not the provision defining the offence belongs, in the legal system of the respondent State, to criminal law; next the “very nature of the offence” and the degree of severity of the penalty risked must be considered (see Menesheva, cited above, § 95).", "Loss of liberty imposed as punishment for an offence belongs in general to the criminal sphere, unless by its nature, duration or manner of execution it is not appreciably detrimental (see Engel and Others v. the Netherlands, 8 June 1976, §§ 82-83, Series A no. 22, and Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, §§ 69-130, ECHR 2003-X). 100. The applicant was convicted of the offence, which was punishable by detention, the purpose of the sanction being purely punitive.", "This offence should be classified as “criminal” for the purposes of the Convention. It follows that Article 6 applies (see also Menesheva, cited above, §§ 94-98). 101. The Court also considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established.", "Thus, it should be declared admissible. B. Merits 1. The parties’ submissions 102. The applicant alleged that she had not been informed about the nature and cause of the accusation against her; had not been given copies of the material in the administrative file; that the hearing on 7 June 2005 was not public; and that she had no legal assistance in the appeal proceedings and could not properly prepare her appeal against the order of 7 June 2005.", "103. The Government submitted that the applicant’s administrative case was lawfully examined by a justice of the peace; the judge had granted her request to have access to the administrative file; the court proceedings had been held in public and were fair and adversarial. The applicant had been informed of the date of the appeal hearing; had not specified the name and contact details of a lawyer to be informed. In any event, the Code of Administrative Offences did not require a judge to ensure the presence of a lawyer in an administrative case. 2.", "The Court’s assessment 104. The Court will examine whether the “public hearing” requirement was complied with in the present case, before turning to the applicant’s specific allegations relating to the fairness of the administrative offence proceedings against her. (a) Public hearing 105. The Court reiterates that the public character of court hearings constitutes a fundamental principle enshrined in Article 6 § 1 (see Galstyan v. Armenia, no. 26986/03, § 80, 15 November 2007).", "The accused’s right to a public hearing is not only an additional guarantee that an endeavour will be made to establish the truth but also helps to ensure that he is satisfied that his case is being determined by a tribunal whose independence and impartiality he may verify. The public character of proceedings before judicial bodies protects litigants against the administration of justice in secret without public scrutiny; it is also one of the means whereby confidence in the courts, superior and inferior, can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6 § 1, namely, a fair trial (ibid.). 106. The applicant alleged that her trial after court opening hours had been de facto closed to the public.", "Without contesting the factual assertions made by the applicant, the Government stated that the trial had been public. 107. The Court notes that the Code of Administrative Offences provided for a public hearing in administrative cases (see paragraph 59 above). It does not follow from the text of the first-instance judgment that the hearing was public. The Court has taken note of the document submitted by the applicant, which states that the court premises had to be vacated by 6 p.m. (see paragraph 37 above).", "In the absence of the Government’s argument or evidence to the contrary, the Court accepts that the applicant was taken to the court and that the trial started after court opening hours, probably between 9 p.m. and 10 p.m. In view of the above, the Court considers that the applicant’s trial was not held in public. 108. The Court considers that the right to a public hearing would be illusory if a Contracting State’s legal system allowed court hearings which were public in form but were not actually accessible to the public, including because of the time and venue of the hearing (see Galstyan, cited above, § 81). The Government have not put forward, and the Court does not find, any valid reasons for dispensing with a public hearing in the applicant’s administrative case.", "Nor did the respondent Government specify whether the appeal hearing in the present case was public and whether it could thus have remedied the alleged violation at first instance. 109. The Court concludes that in the circumstances of the present case there has been a violation of Article 6 § 1 of the Convention as far as the applicant’s right to a public hearing is concerned. (b) Fair hearing 110. The Court reiterates that the main thrust of the applicant’s complaint under Article 6 of the Convention relates to the requirements concerning notification of the accused of the charges against her and adequate time and facilities to prepare a defence.", "(i) General principles 111. The Court reiterates that Article 6 of the Convention guarantees the right to a fair hearing, and the Court’s task is to ascertain whether the proceedings as a whole, including the way in which evidence was obtained and heard, were fair (see Bykov v. Russia [GC], no. 4378/02, § 88, 10 March 2009). Regard must be had to whether the rights of the defence were respected. It must be examined in particular whether the applicant was given the opportunity of challenging the evidence and of opposing its use (see Bykov, cited above, § 90).", "It is a fundamental aspect of the right to a fair trial that criminal proceedings should be adversarial and that there should be equality of arms between the prosecution and defence (see Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 60, ECHR 2000‑II). 112. The Court also reiterates that the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1 (see Sakhnovskiy v. Russia [GC], no. 21272/03, § 94, 2 November 2010).", "Under paragraph 3 (a) of Article 6 of the Convention, any person charged with a criminal offence has the right to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him (see Hermi v. Italy [GC], no. 18114/02, § 68, ECHR 2006‑XII). Article 6 § 3 (b) guarantees the accused “adequate time and facilities for the preparation of his defence” and therefore implies that the substantive defence activity on his behalf may comprise everything which is “necessary” to prepare the main trial. The accused must have the opportunity to organise his defence in an appropriate way and without restriction as to the possibility to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings. Furthermore, the facilities which everyone charged with a criminal offence should enjoy include the opportunity to acquaint himself for the purposes of preparing his defence with the results of investigations carried out throughout the proceedings (see Moiseyev v. Russia, no.", "62936/00, § 220, 9 October 2008, and Galstyan, cited above, § 84). The issue of adequacy of time and facilities afforded to an accused must be assessed in the light of the circumstances of each particular case. (ii) Application of the principles in the present case 113. The applicant argued that she had not been properly informed of the charges against her and that she had not been able to receive copies of the documents in the administrative offence file. The Government claimed that the applicant’s case was not a complex one, and that the period of the trial had been sufficient, taking into account that she had not sought legal assistance.", "114. The Court observes that the pre-trial procedure in the applicant’s case lasted from 10 a.m. to 7 p.m. The administrative offence record, which was compiled and signed by the applicant during this period of time, indicates that she had committed the offence under Article 19.3 of the CAO because she had held an unlawful demonstration. In the ensuing court proceedings, on the same evening, the first-instance court dismissed the applicant’s request for an adjournment and found her liable for the offence under Article 19.3 of the CAO. 115.", "The applicant’s case was examined in an expedited procedure under the CAO: in cases concerning an administrative charge for an offence punishable by administrative detention, the police were to transmit the administrative offence file to a court immediately after having compiled it, and the court was to examine the case on the same day or within forty-eight hours of the defendant’s arrest (see paragraphs 57 and 58 above). The Court reiterates, however, that recourse to that procedure when a “criminal charge” must be determined is not in itself contrary to Article 6 of the Convention as long as the procedure provides the necessary safeguards and guarantees (see Borisova v. Bulgaria, no. 56891/00, § 40, 21 December 2006). 116. Turning to the question of procedural guarantees, the Court notes that there was an oral hearing at which the applicant and her lay defenders (co-participants in the demonstration) participated.", "The justice of the peace heard representations from the applicant. A police officer was interviewed, apparently, as a witness. At the same time, it is noted that the CAO did not require in the circumstances the mandatory participation of a public prosecutor, who would present the case against the defendant before a judge (see paragraph 60 above). The police were in charge of compiling the administrative offence file before transmitting it to a court (see paragraph 57 above). It appears that the accusation against the applicant was both presented and examined by the justice of the peace.", "117. In view of the above considerations, the Court concludes that there was no prosecuting authority, strictly speaking, to articulate the charges against the defendant at the trial in the proceedings before the first-instance judge. In describing the circumstances of the offence the court stated in its judgment that the applicant had failed to end an unlawful demonstration and to comply with a lawful order by police officers (to show an identity document and to follow the police to the police station). In such circumstances, even accepting that the applicant was promptly informed of the legal classification of the “accusation” against her under Article 19.3 of the CAO, the Court is not satisfied that she was afforded an adequate opportunity to prepare her defence on account of the uncertainty as to the exact factual circumstances of the actions or omissions held against her. Thus, the Court considers that the applicant was not properly informed of “the nature and cause of the accusation” against her and was not afforded “adequate time and facilities” for the preparation of her defence.", "118. The above situation was aggravated by the fact that the appeal court reviewed the description of the circumstances, stating that the applicant had held an unlawful demonstration and held a banner containing a negative assessment of the professional activity of the Prosecutor General, the President of the Supreme Court and the Minister of Justice. It was also noted in the appeal decision that the applicant had refused to comply with lawful orders to end the violation of the public order and threatened the police officers with prosecution, thereby committing the offence of resisting a lawful order by the police. It has not been argued, and the Court does not consider, that the appeal proceedings in the present case rectified the alleged shortcomings identified in the first-instance trial. 119.", "Accordingly, while it should have been clear to the applicant from the outset that she was prosecuted under Article 19.3 of the CAO, the circumstances of the case disclose that she was not afforded an adequate opportunity to put forward a viable defence. 120. The foregoing considerations are sufficient for the Court in present case to conclude that there has been a violation of Article 6 §§ 1 and 3 of the Convention. V. ALLEGED VIOLATIONS OF ARTICLES 10 AND 11 OF THE CONVENTION 121. The applicant complained that the dispersal of the demonstration by the police and her arrest and prosecution for an administrative offence had been in breach of Articles 10 and 11 of the Convention.", "122. Articles 10 and 11 of the Convention read as follows: Article 10 (freedom of expression) “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Article 11 (freedom of assembly and association) “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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.", "This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.” A. Submissions by the parties 1. The Government 123. The respondent Government argued that the circumstances of the case disclosed no interference with the applicant’s rights under Articles 10 and 11 of the Convention because she had been prosecuted for non-compliance with a lawful order by a public official (to show an identity document) rather than for breaching regulations concerning public gatherings. 124. At the same time, by way of addition to the findings made in the domestic decisions, the Government submitted that the applicant had breached sections 7 and 8 of the Public Gatherings Act which lay down the rules for notifying the authorities of a public event.", "Namely, by making such notification by telegram and omitting to provide contact details, the applicant had deprived the competent authority of the opportunity to suggest another venue and/or time for the planned events, including the one which was held on 7 June 2005. The applicant was informed in writing that she should notify the district authority in Moscow in a proper fashion. No such notification was made in relation to the demonstration held on 7 June 2005. 125. The Government also argued that, even assuming there had been interference with the applicant’s rights, such interference was prescribed by sections 7 and 8 of the Public Gatherings Act; it aimed at ensuring public safety, preventing disorder and protecting the rights of others.", "The interference had been necessary since the applicant had made unsubstantiated statements accusing judges of criminal offences, attacking their reputation and honour, and thus undermining the authority of the judiciary. The dispersal of the demonstration had also been justified, since the applicant and others had acted in violation of the Public Gatherings Act. In any event, the Public Gatherings Act expressly prohibited public events in the immediate vicinity of court buildings, including the buildings of the Supreme Court of Russia. 2. The applicant 126.", "The applicant argued that the dispersal of the demonstration and the ensuing administrative offence proceedings (arrest and detention) constituted an interference with her rights under Articles 10 and 11 of the Convention. Restating her arguments under Articles 5 and 6, she concluded that there had also been a violation of Articles 10 and 11 of the Convention in the present case. B. The Court’s assessment 1. Admissibility 127.", "The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 128.", "The Court considers that it is appropriate to examine this case under Article 11 of the Convention, in the light of Article 10. (a) Interference 129. The Court notes the Government’s argument that the reason for the applicant’s arrest (and, by implication, the dispersal of the demonstration) was the alleged refusal to comply with orders given by the police (Article 19.3 of the CAO). At the same time, it is noted that the administrative offence record indicates that the applicant committed the offence under Article 19.3 of the CAO because she held a non-authorised demonstration. By a court decision the applicant was found liable for “non-compliance with a lawful order by a police officer”.", "In describing the circumstances of the offence the court stated that the applicant had failed to end an unlawful demonstration and to comply with a lawful order by police officers (to show an identity document and to follow the police to the police station). 130. Having regard to the context of the present case, the dispersal of the demonstration, the findings made by the domestic authorities and the penalty imposed on the applicant, the Court considers that the relevant facts disclose an interference which was sufficiently linked to the applicant’s exercise of her right to freedom of peaceful assembly under Article 11 of the Convention, considered in conjunction with her freedom of expression under Article 10 of the Convention. (b) Justification of the interference 131. The Court should assess whether the above “interference” was justified in the present case.", "The parties disagreed as to whether the interference was prescribed by law and served a legitimate aim. However, the Court decides to dispense with ruling on the issue of lawfulness because, in any event, the interference fell short of being necessary in a democratic society, for the reasons set out below (see, for a similar approach, Christian Democratic People’s Party v. Moldova, no. 28793/02, § 53, ECHR 2006‑II). 132. The Court reiterates that the expression “necessary in a democratic society” in Article 10 § 2 or 11 § 2 of the Convention implies that the interference corresponds to a “pressing social need” and, in particular, that it is proportionate to the legitimate aim pursued.", "The Court also notes at this juncture that, whilst the adjective “necessary”, within the meaning of Article 10 § 2 or 11 § 2 is not synonymous with “indispensable”, it remains for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of “necessity” in this context (see Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24). When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 10 or 11 the decisions that they delivered. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine, after having established that it pursued a “legitimate aim”, whether it was proportionate to that aim and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 47, Reports of Judgments and Decisions 1998‑I).", "133. In fact, both the findings of the national courts and the Government’s observations before the Court contain contradictory submissions as to the nature of the actions held against the applicant in the administrative offence proceedings (see paragraphs 35, 39, 42 and 123-125 above). The arrest record referred to the alleged refusal to comply with orders given by the police (Article 19.3 of the CAO) whereas the administrative offence record indicated that the applicant had committed the offence under Article 19.3 of the CAO because she held a non-authorised demonstration. As already mentioned, the court described the circumstances of the offence stating that the applicant had failed to end an unlawful demonstration and to comply with a lawful order by police officers (to show an identity document and to follow the police to the police station). As stated above in the context of Article 6 of the Convention, for its part, the appeal court found it pertinent to amend the description of the circumstances, stating that the applicant had held an unlawful demonstration and held a banner containing a very negative assessment of the professional activity of high-ranking public officials.", "It was also noted in the appeal decision that the applicant had refused to comply with lawful orders to end the violation of the public order and threatened police officers with prosecution, thereby committing the offence of resisting a lawful order by the police. 134. It follows that the applicant was arrested and the demonstration was dispersed because the applicant had refused (i) to stop this “non-authorised” demonstration, and (ii) to show her identity document and to follow the police to the police station. 135. As to the first ground, it is noted that the domestic decisions do not contain any clear findings that, as suggested by the respondent Government before the Court, the applicant had breached the requirements of the Public Gatherings Act, for instance on account of the notification by telegram, her alleged omission to provide sufficient contact details, or whether the demonstration had indeed taken place in the area expressly prohibited by section 8 of the Act, that is, in the “immediate vicinity” of “court buildings”.", "The appeal court merely mentioned this provision, without drawing any conclusions relating to the circumstance of the applicant’s case under Article 19.3 of the CAO (see paragraph 42 above). Nor do the domestic decisions contain any findings that the above alleged breaches justified the dispersal of the demonstration. While these issues were relevant, the courts did not take any clear stance on them in the administrative offence proceedings. 136. Therefore, the Government’s arguments concerning the alleged non-compliance with the notification requirements of the Public Gatherings Act cannot weigh in the Court’s proportionality analysis in the present case (see Bukta and Others v. Hungary, no.", "25691/04, § 34, ECHR 2007‑III, and Fáber v. Hungary, no. 40721/08, § 49, 24 July 2012). In any event, the Court reiterates that there may be circumstances in which the formal unlawfulness of a peaceful public assembly is not sufficient to justify its dispersal (see Bukta and Others, cited above, §§ 35-36, and Oya Ataman v. Turkey, no. 74552/01, §§ 38-42, ECHR 2006‑XIII). The Court also reiterates that the Contracting States can impose limitations on holding a demonstration in a given place for public security reasons (see Disk and Kesk v. Turkey, no.", "38676/08, § 29, 27 November 2012). Nevertheless, although a demonstration in a public place may cause some disruption to ordinary life, including disruption of traffic, it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of its substance (ibid.). 137. In the present case, the demonstration involved only three persons. For the Court, it is difficult to conceive that such an event could have generated the gathering of a significant crowd warranting specific (for instance, security) measures on the side of the authorities.", "Also, it is not without interest that the proceedings against the other two participants in the demonstration were discontinued, inter alia, because no related violations were established. 138. Furthermore, the Court cannot deal with the Government’s argument suggesting that the demonstration had to be dispersed in order to put an end to unsubstantiated accusations in respect of judges and in order to protect their reputation and honour. This justification was never mentioned in the domestic proceedings and did not justify the interference with the applicant’s rights. 139.", "As to the second ground mentioned in paragraph 134 above, even accepting that the applicant had indeed failed to comply with a lawful order concerning her identity document, the national authorities themselves linked, in practice, the administrative case against the applicant to her exercise of her freedom of assembly. In that context, it had to be convincingly shown that the immediate dispersal of the peaceful demonstration (which is presumed to be lawful for the reasons stated above) and the applicant’s arrest and prosecution were necessary. 140. It is noted in that connection that under the CAO administrative arrest required “exceptional circumstances” relating to the need for a proper and expedient examination of the administrative case (see paragraph 56 above). The domestic courts did not assess this issue in any noticeable way.", "Nor has it been convincingly shown before this Court that the applicant’s arrest and ensuing detention for several hours were properly justified and constituted a proportionate reaction on the part of the authorities. 141. The Court finds it regrettable that the national courts in the administrative offence procedure in the present case did not assess the applicant’s situation, including the penalty to be imposed, taking into account the relevant principles under Articles 10 and 11 of the Convention (see, for comparison, Alim v. Russia, no. 39417/07, § 95, 27 September 2011). It cannot be said that the national authorities adduced reasons which could be accepted as “relevant and sufficient”.", "142. In view of the above considerations and bearing in mind the Court’s above findings under Article 6 of the Convention, the Court concludes that the interference with the applicant’s right to freedom of assembly, taken together with her right to freedom of expression, in the present case was disproportionate. 143. There has therefore been a violation of Article 11 of the Convention, assessed in the light of its Article 10. VI.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 144. The applicant also complained under Article 3 of the Convention about the allegedly appalling conditions of her detention from 7 to 14 June 2005 (see paragraph 46 above). The Court notes that the complaint was first raised in substance before it on 22 December 2005. Assuming, in the applicant’s favour, that she had no specific remedies to exhaust, the Court concludes that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention (see Norkin v. Russia (dec.), no. 21056/11, §§ 15-25, 5 February 2013).", "145. Lastly, the Court notes that the applicant made a number of others complaints and referred to Articles 3, 5, 6 and 13 of the Convention, as well as Article 1 of Protocol No. 1. The Court has examined the above grievances as submitted by the applicant. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.", "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. VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 146. 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.” 147. The applicant did not submit, within the time-limit set by the Court, a claim for just satisfaction.", "Accordingly, the Court considers that there is no call to award her any sum on that account. FOR THESE REASONS, THE COURT 1. Declares unanimously admissible the complaints concerning notification of the reasons for arrest on 27 November 2003, speediness of review in respect of the detention order of 27 November 2003, fairness of the administrative offence proceedings, and the rights to freedom of assembly and freedom of expression; 2. Declares by a majority the remainder of the application inadmissible; 3. Holds unanimously that there has been a violation of Article 5 § 2 of the Convention; 4.", "Holds unanimously that there has been a violation of Article 5 § 4 of the Convention; 5. Holds unanimously that there has been a violation of Article 6 §§ 1 and 3 of the Convention on account of the lack of a public hearing and in relation to the applicant’s right to be informed of the nature and cause of the accusation against her, and the right to have adequate time and facilities for the preparation of her defence; 6. Holds unanimously that there has been a violation of Article 11 of the Convention, assessed in the light of its Article 10. Done in English, and notified in writing on 30 May 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachIsabelle Berro-LefèvreDeputy RegistrarPresident" ]
[ "FIFTH SECTION CASE OF FOLTIS v. GERMANY (Application no. 56778/10) JUDGMENT STRASBOURG 30 June 2016 DÉFINITIF 30/09/2016 Cet arrêt est devenu définitif en vertu de l’article 44 § 2 de la Convention. Il peut subir des retouches de forme. In the case of Foltis v. Germany, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Ganna Yudkivska, President,Angelika Nußberger,Khanlar Hajiyev,André Potocki,Faris Vehabović,Carlo Ranzoni,Mārtiņš Mits, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 7 June 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "56778/10) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Richard Foltis (“the applicant”), on 23 September 2010. 2. The German Government (“the Government”) were represented by their Agent, Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice and Consumer Protection. 3.", "The applicant, in his position of insolvency administrator of a German company, alleged that the Frankfurt/Main Court of Appeal’s refusal to grant him legal aid, because it considered his claims to be time-barred, violated his right of access to a court, as provided in Article 6 § 1 of the Convention. Relying on Article 14 read in conjunction with Article 6 of the Convention, he further alleged that as an impecunious litigant he had been discriminated against compared to a litigant with sufficient financial means. 4. On 1 September 2014 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 Kassel. He is a lawyer and was appointed insolvency administrator of the German limited partnership M.K. KG (hereafter “the company”) in 1999. A.", "The proceedings before the Kassel Regional Court 6. On 12 July 2002 the applicant, in his position of insolvency administrator of the company, took legal action against Ms B., a former limited partner (Kommanditist) of the KG, to seek the reimbursement of close to 56,000 euros (EUR), which had been paid to her as advance payment on profits (Vorauszahlungen auf Gewinne) by the KG. 7. In his statement of claim, the applicant indicated that he might introduce an additional action concerning approximately EUR 1.7 million, to seek the reimbursement of payments received by Ms B. as compensation for her participation as a limited partner (Abfindung für Kommanditbeteiligung) and as advance payments for profit. The applicant declared that he had refrained from introducing an action concerning these claims at that point in time because of the costs involved.", "8. Ms B. was notified of the legal action on 17 July 2002. 9. On 30 December 2004 the applicant requested legal aid for his initial action and with a view to introducing an action concerning the supplementary claims, amounting to approximately EUR 1.7 million. The statutory time‑limit for those latter claims was 31 December 2004.", "This request for legal aid was placed in the case file. It was neither examined by a judge nor was notice given to Ms B. 10. On 24 March 2005 the applicant sent a letter to the Regional Court to enquire whether he had been granted legal aid. He did not receive a response.", "On 29 August 2005, he sent another letter, to which he received no response. The applicant claimed that, in addition, he had also made telephone calls to the Regional Court on 10 June 2005 and on 14 November 2005 to find out whether he had been granted legal aid and that, both times, he had been informed by the Registry that the file was at the judge’s office and that, therefore, no information could be given. 11. On 11 May 2007 the Regional Court granted the applicant’s request for legal aid, following another written inquiry of that same day. The decision to grant legal aid was served on Ms B. on 16 May 2007.", "On 5 July 2007 the Regional Court issued a decision, clarifying that the grant of legal aid covered the supplementary claims brought on 30 December 2004. 12. On 20 July 2007 the applicant introduced the additional action concerning the said claims. Ms B. was notified on 25 July 2007. On 1 October 2008 a hearing was held.", "13. In its judgment on 19 November 2008 the Regional Court ordered Ms B. to pay EUR 15,338.76 to the applicant and dismissed the remainder of the applicant’s initial action. That court likewise dismissed the applicant’s additional action for reimbursement of approximately EUR 1.7 million in its entirety, finding that the claims were time-barred. It stated that the statutory time-limit for these claims was 31 December 2004 and that submitting the request for legal aid on 30 December 2004 had not been sufficient to suspend the running of time for purposes of limitation, because domestic law also required that the court arrange for notice to be given to the defendant (see relevant domestic law and practice paragraphs 25 to 27 below). 14.", "The Regional Court noted that Ms B. was notified of the request for legal aid only in mid-2007, hence more than two and a half years after the expiry of the limitation period. It considered that the exception foreseen by domestic law allowing for the retroactive effect of arranging for notice to be given was not applicable in the instant case. According to that exception, the running of time for the purposes of limitation was suspended with effect from the day a request for legal aid was lodged, if the notification of that request was arranged “shortly after” (demnächst). The Regional Court noted that, according to the constant case-law of the domestic courts, the term “shortly after” was interpreted in a way that required the litigant to act with the necessary diligence to effect the immediate notice or service. It found that the applicant – who, as a lawyer, must have known that arranging for notice to be given to the defendant of his request for legal aid “shortly after” its submission was required to prevent his claim from becoming time‑barred – had in a reproachable manner contributed to the delay and thus not acted with the necessary diligence required.", "The Regional Court observed that the applicant had not asked the Regional Court to notify immediately the defendant of his request for legal aid, irrespective of its prospects of success, which he could have done without additional costs and without suffering any procedural disadvantages. Also, rather than enquiring whether the notification of the request had been arranged, the applicant limited himself to enquiring whether his request for legal aid had been successful. In relation to the alleged telephone calls in June 2005 and November 2005, it found that, given that the Regional Court had not responded to his written request of 24 March 2005, the applicant should not have relied on the registry’s alleged statement. The court found it incomprehensible that the applicant had waited until 29 August 2005, and 11 May 2007, to enquire again in writing about the success of his request for legal aid. 15.", "The Regional Court added that, in any event, the claim concerning the reimbursement of approximately EUR 1.7 million was ill-founded and thoroughly reasoned this finding. B. The proceedings before the Frankfurt/Main Court of Appeal 16. On an unspecified date the applicant requested legal aid in order to lodge an appeal. 17.", "On 22 June 2009 the Frankfurt/Main Court of Appeal dismissed his request, finding that the appeal lacked prospects of success as the Regional Court had rightly considered the applicant’s claims to be time-barred. It observed that the Regional Court had arranged for notice to be given to Ms B. of the applicant’s request for legal aid at the earliest in 2007 and argued that notice two and a half years after the request’s introduction could not be considered as having taken place “shortly after” that introduction. The interests of the defendant, who had no knowledge of the submission of the request for legal aid, in the protection of her legal positions and the clarification of the legal situation, had to be taken into account. 18. The Court of Appeal pointed out that it was constant case-law of the domestic courts that the term “shortly after” was to be interpreted in such a way that the risk of a delayed notification was distributed fairly between both parties to the dispute and, therefore, the litigant concerned must have acted with the necessary diligence to effect the immediate notification.", "Furthermore, there must not be legitimate interests of the defendant that conflicted with such retroactive effect (see relevant domestic law and practice paragraph 26 below). It confirmed the Regional Court’s finding that the applicant had not acted with the necessary diligence. It underlined that the applicant would have had to alert the Regional Court about the imminent expiry of the limitation period and to ask to arrange for the immediate notification of the defendant in order to suspend the running of time for the purposes of limitation. In fact the applicant had to take into account that the Regional Court also had the possibility to refuse his request for legal aid without hearing, and hence without notifying, the defendant if it considered the claim to be ill‑founded or the applicant to have the necessary means (decision a limine). The Court of Appeal likewise considered that the subsequent steps taken by the applicant were not sufficient, because he had not asked for the notification to be effected immediately.", "The Court of Appeal based its decision to refuse legal aid exclusively on the finding that the claims were time-barred. C. The proceedings before the Federal Constitutional Court 19. On an unspecified date the applicant lodged a constitutional complaint with the Federal Constitutional Court, alleging that the refusal to grant him legal aid violated his right of access to a court and that he had been discriminated against as an impecunious person compared to a litigant with sufficient financial means. 20. On 19 July 2010 the Federal Constitutional Court, sitting as a formation of three judges, declined to accept the applicant’s constitutional complaint for adjudication (1 BvR 1873/09).", "It found that the period of processing the request for legal aid and the delay in arranging for notice to be given to the defendant constituted gross negligence (grob fehlerhaft) by the Regional Court. Nonetheless, it considered that the decision of the Court of Appeal was in conformity with the case-law of the Federal Court of Justice, according to which a notification could only be “shortly after” the submission of a request for legal aid if the applicant concerned acted with the necessary diligence to effect the immediate notification, and if there were no legitimate interests of the defendant that conflicted with such retroactive effect (see relevant domestic law and practice paragraph 26 below). The Federal Constitutional Court found that the Court of Appeal’s finding that the applicant had not acted with the necessary diligence did not raise concerns. The applicant failed to ask the Regional Court to notify immediately the defendant about the request for legal aid. Neither in his initial lawsuit nor in his subsequent enquiries did the applicant indicate the particular urgency of the matter, namely, the imminent limitation of the claims.", "21. In relation to the alleged discrimination, the Federal Constitutional Court found that impecunious litigants and litigants with sufficient financial means were in a comparable situation as regards the possibilities and obligations in order to suspend the running of time for purposes of limitation. Referring to the case-law of the Federal Court of Justice (see relevant domestic law and practice paragraph 28 below), it considered that a litigant with sufficient financial means must not limit himself to submitting a lawsuit, but rather had to remind the court to ask him to pay the necessary court fees or even to pay the fees on his own initiative, if the court had failed to ask him, in order to effect the service of the legal action. The Federal Constitutional Court found that such obligations on the part of a litigant with sufficient financial means were comparable to those of the applicant, namely his obligation to ask the court concerned to notify immediately the defendant of the request for legal aid, and to remind the court to arrange for notice to be given. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Provisions governing legal representation and legal aid 22. The conditions for legal aid are laid down in Articles 114 et seq. of the Code of Civil Procedure (Zivilprozessordnung). According to these provisions, a party that is a legal person and that cannot afford the costs for conducting the proceedings is granted legal aid upon application if the intended legal action offers sufficient prospects of success and does not appear wanton (mutwillig).", "It is the court having jurisdiction to deal with the intended action itself which is called to decide on requests for legal aid (Article 127 § 1 of the Code of Civil Procedure). An appeal lies against a decision refusing legal aid (Article 127 § 2 of the Code of Civil Procedure). B. The law to modernise the law of obligations 23. On 1 January 2002 the law to modernise the law of obligations (Gesetz zur Modernisierung des Schuldrechts) of 26 November 2001 entered into force, setting the limitation period, in principle, at three years.", "Consequently, for numerous claims the statutory time-limit was on 31 December 2004. The rules governing the interruption (Neubeginn der Verjährung) and the suspension (Hemmung der Verjährung) of the running of time for the purposes of limitation were likewise substantially amended as part of this reform. 1. Suspending the running of time for purposes of limitation by introducing legal action 24. Article 204 § 1 no.", "1 of the Civil Code (Bürgerliches Gesetzbuch) provides that the running of time for the purposes of limitation is suspended by the service (Zustellung) of a legal action on the defendant. Domestic law foresees that an action can – in principle – only be served when the litigant has paid the necessary court fees. Exceptionally, the running of time for the purposes of limitation is suspended with retroactive effect from the day a legal action was lodged, if the service of the legal action is made “shortly after” (demnächst) it was lodged. Article 167 of the Code of Civil Procedure provides: “Article 167: Retroactive effect of the service If service is made in order to comply with a deadline, or to have the period of limitations begin anew, or to have it extended pursuant to section 204 of the Civil Code, the receipt of the corresponding application or declaration by the court shall already have this effect provided service is made shortly after (demnächst).” 2. Suspending the running of time for purposes of limitation by lodging a request for legal aid 25.", "Prior to the entry into force of the law to modernise the law of obligations, it was constant case-law of the Federal Court of Justice that the introduction of a request for legal aid in itself suspended the running of time for the purposes of limitation. The legislative amendments were based on the principle that interrupting or suspending the running of time for the purposes of limitation presupposed that the defendant could take notice of the intention to take an action against him or her. For evidentiary purposes, it was decided that the running of time be suspended by the court’s order to notify the defendant rather than by his or her actual notification. In order to compensate for potential disadvantages resulting from delays occurring within the competent court, the running of time for the purposes of limitation is, exceptionally, suspended with effect from the day a request for legal aid was lodged, if the notification of a request for legal aid is arranged “shortly after” (demnächst) it was lodged. Article 204 § 1 no.", "14 of the Civil Code, which in this regard resembles Article 167 of the Code of Civil Procedure, reads as follows: “Article 204: Suspension of limitation as a result of prosecution of rights (1) The limitation period is suspended by (...) 14. arranging for notice to be given of the first application for the grant of legal aid or procedural costs assistance; if notice is arranged shortly after (demnächst) the filing of the application, the suspension of the limitation period takes effect immediately when the application is filed. (...)” C. The case-law of the Federal Court of Justice 1. The interpretation of the term “shortly after” (demnächst) in relation to service or notification 26. It is constant case-law of the domestic courts that the term “shortly after”, which is contained in various provisions of German Civil Law and Civil Procedural Law and which provides for the retroactive effect of a certain act, is to be interpreted in such a way that the risk of a delayed notification is distributed fairly between both parties to the dispute and, therefore, the litigant concerned must act with the necessary diligence to effect the immediate notification and there must not be legitimate interests of the defendant that conflict with such retroactive effect (see, among many others, Federal Court of Justice, VII ZR 24/98, judgment of 27 May 1999, § 10: “... provided the litigant has taken every reasonable step for an immediate service and no legitimate interests of the defendant conflict [with the retroactive effect of the service].” – “... sofern die Partei alles ihr Zumutbare für eine alsbaldige Zustellung getan hat und schutzwürdige Belange der Gegenseite [der Rückbeziehung der Zustellungswirkung] nicht entgegenstehen.”). 2.", "Suspending the running of time for purposes of limitation by lodging a request for legal aid 27. In its judgment of 24 January 2008 (IX ZR 195/06), the Federal Court of Justice stated that it was clear from the wording of Article 204 § 1 no. 14 of the Civil Code that lodging a request for legal aid did not in itself suspend the running of time for the purposes of limitation. It found that the situation of those who, due to a lack of financial means, could not pay for the court fees and were obliged to request legal aid, was not worse than the situation of those with sufficient financial means, as regards the possibility to suspend the running of time for purposes of limitation. To achieve that, it was sufficient that an impecunious litigant ask the judge seized with the case to arrange for notice to be given to the defendant of the request for legal aid.", "The Federal Court of Justice stated that such a request did not entail any disadvantages for the litigant, as it did not cause additional costs, even if the request for legal aid was subsequently rejected. It underlined that the judge concerned could not refuse such a request. 3. Suspending or interrupting the running of time for purposes of limitation by introducing legal action 28. In relation to the diligence required by litigants who bring an action in order to interrupt the running of time, the Federal Court of Justice in its judgment of 19 October 1977 (IV ZR 149/76) stated that, if the court concerned had not asked the litigant to pay for the necessary court fees prior to serving the action on the defendant – which was the act that interrupted the running of time –, the litigant had to remind the court to demand that he pay the fees, or even to pay the fees on his own initiative, in order to effect the service of the action.", "The litigant “must take every reasonable step to create the conditions for the immediate service of the action and not only has to avoid delays, but also has to act towards expediting the service as much as possible” (Der Kläger “[muss] alles Zumutbare tun, um die Voraussetzungen für eine alsbaldige Zustellung der Klage zu schaffen, [hat] mithin nicht nur Verzögerungen zu vermeiden, sondern auch im Sinne einer möglichsten Beschleunigung zu wirken.“; ibid., § 10). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 29. The applicant, in his position of insolvency administrator of the company, complained that the Court of Appeal’s refusal to grant him legal aid, because it considered his claims to be time-barred, violated his right of access to a court, as provided in Article 6 § 1 of the Convention, which reads as follows: “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.” 30.", "The Government contested that argument. A. Admissibility 31. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. The parties’ submissions (a) The applicant 32. The applicant submitted that he had lodged a request for legal aid which complied with all requirements – and which turned out to be successful when it was decided upon in May 2007 – on 30 December 2004, that is, prior to the statutory time-limit. He had thus done all he was required to do in order to suspend the running of time for purposes of limitation.", "The act required for suspending the running of time for purposes of limitation – namely arranging for notice to be given to the defendant – was outside his sphere of influence. 33. The applicant submitted that he could not know that the Regional Court had failed to arrange for notice of his request for legal aid to be given to the defendant and that he could rightfully assume that that court would act in line with its obligations under domestic law and proceed with the processing of his request for legal aid. Obliging him to ask the Regional Court to notify immediately the defendant about the request for legal aid was overly formalistic, did not pursue a legitimate aim in the interest of the proper administration of justice and was disproportionate. Requiring the applicant to ensure that domestic courts acted lawfully unduly shifted the accountability for the courts’ failure onto the applicant.", "The domestic courts did not take the principles of Article 6 § 1 of the Convention into account when interpreting the pertinent provisions of domestic law. Their decisions impaired the essence of his “right to a court”. (b) The Government 34. The Government submitted that the German legal aid system was compatible with the Convention, as was the Court of Appeal’s refusal to grant legal aid for lack of prospects of success. It pointed out that the criterion applied by the Court in this respect was whether the domestic courts’ decisions appear arbitrary.", "In view of the detailed decision of the Court of Appeal, which dealt in depth with the applicant’s arguments and with the case-law of the Federal Court of Justice, the Government argued that there was no appearance of arbitrariness. 35. It referred to the clear wording of Article 204 § 1 no. 14 of the Civil Code, as amended with effect from 1 January 2002, and the principle underlying those legislative amendments, that interrupting or suspending the running of time for the purposes of limitation presupposed that the defendant could take notice of the fact that an action was to be taken against her and secure pieces of evidence accordingly. The amendments deliberately stipulated that the act suspending the running of time was the competent court’s arranging for notice to be given to the defendant.", "36. The Government pointed out that, in order to compensate for potential disadvantages resulting from delays occurring within the competent court, domestic law provided that the running of time for the purposes of limitation was retroactively suspended with effect from the day a request for legal aid was lodged, if the notification of a request for legal aid was arranged “shortly after” it was lodged. The Government submitted that it was constant case-law of the domestic courts that the term “shortly after” was to be interpreted in such a way that the risk of a delayed notification was distributed fairly between both parties to the dispute and, therefore, the litigant concerned must have acted with the necessary diligence to effect the immediate notification and there must not be legitimate interests of the defendant that conflicted with such retroactive effect. The Government submitted that the applicant had not acted with the necessary diligence as he had at no point indicated the particular urgency of the matter, namely, the imminent limitation of the claims, nor had he asked the Regional Court to arrange for immediate notice of the request for legal aid to be given to the defendant, which he could have done without any costs or procedural disadvantages. The defendant, who learned about the applicant’s intention to bring legal action against her only two and a half years after the expiry of the limitation period, had a legitimate interest that the notice did not have retroactive effect.", "2. The Court’s assessment 37. The Court recalls that, whilst Article 6 § 1 of the Convention guarantees to litigants an effective right of access to the courts for the determination of their “civil rights and obligations”, it leaves to the State a free choice of means to be used towards this end (see Airey v. Ireland, 9 October 1979, § 26, Series A no. 32). There is no obligation under the Convention to make legal aid available for all disputes in civil proceedings, as there is a clear distinction between the wording of Article 6 § 3 (c), which guarantees the right to free legal assistance on certain conditions in criminal proceedings, and of Article 6 § 1, which makes no reference to legal assistance (see Del Sol v. France, no.", "46800/99, § 20, ECHR 2002‑II). Thus, the right of access to court is not absolute and may be subject to restrictions, provided that these pursue a legitimate aim and are proportionate. It may notably be acceptable to impose conditions on the grant of legal aid based, inter alia, on the financial situation of the litigant or his, her or its prospects of success in the proceedings (see Steel and Morris v. the United Kingdom, no. 68416/01, § 62, ECHR 2005‑II), provided that the legal aid system offers individuals substantial guarantees to protect them from arbitrariness (see Gnahoré v. France, no. 40031/98, § 41, ECHR 2000‑IX).", "38. The Court notes that the German legal aid system offers litigants substantial guarantees to protect them from arbitrariness (see relevant domestic law and practice paragraph 22 above as well as Eckardt v. Germany (dec.), no. 23947/03, 10 April 2007; Herma v. Germany (dec.), no. 54193/07, 8 December 2009). 39.", "The Court has found that limitation periods serve the legitimate aims of ensuring legal certainty and finality, protecting potential defendants from stale claims which might be difficult to counter and preventing the injustice which might arise if courts were required to decide upon events which took place in the distant past, on the basis of evidence which might have become unreliable and incomplete because of the passage of time (Stubbings and Others v. the United Kingdom, 22 October 1996, § 51, Reports of Judgments and Decisions 1996-IV; Stagno v. Belgium, no. 1062/07, § 26, 7 July 2009; Howald Moor and Others v. Switzerland, nos. 52067/10 and 41072/11, § 72, 11 March 2014). 40. The Court observes that the applicant, in his position of insolvency administrator of the company, on 30 December 2004 requested legal aid concerning supplementary claims against Ms B., a former limited partner of the company, to seek reimbursement for payments made to her by the company.", "The Regional Court found these claims to be time-barred because the court did not arrange for notice to be given to the defendant of the applicant’s request. The Court of Appeal dismissed the applicant’s request for legal aid in order to lodge an appeal, finding that the appeal lacked prospects of success as the Regional Court had rightly considered the claims to be time‑barred. 41. The Court observes that the applicant, in his position of insolvency administrator of the company, waited until the second to last day of the three‑year limitation period to lodge a request for legal aid for legal action concerning claims amounting to approximately EUR 1.7 million. This request did not in itself suspend the running of time.", "Rather, following legislative changes which had entered into effect in the beginning of 2002, the running of time for purposes of limitation was only suspended when the competent court arranged for notice to be given to the defendant, as provided by Article 204 § 1 no. 14 of the Civil Code. 42. In this connection, the Court notes that the German legislator, by considering that interrupting or suspending the running of time for the purposes of limitation presupposed that the defendant could take notice of the intention to take an action against him or her, chose an act related to the notice of the request for legal aid to the defendant (see relevant domestic law and practice paragraph 25 above). This served the purpose of protecting the legitimate interest of the defendant in the protection of his or her legal positions and the clarification of the legal situation due to limitation.", "For evidentiary purposes, the legislator decided that the running of time was suspended by the competent court’s act of arranging for notice to be given to the defendant rather than by his or her actual notification (ibid.). The foregoing considerations are sufficient to enable the Court to conclude that the provision in question, Article 204 § 1 no. 14 of the Civil Code, was not per se incompatible with the Convention. 43. In the present case the Regional Court did not arrange for notice to be given prior to the expiry of the limitation period on 31 December 2004.", "Therefore, the running of time for purposes of limitation could only be suspended retroactively. This exception was included in domestic law in order to compensate litigants for potential disadvantages resulting from delays occurring within the competent court (see relevant domestic law and practice paragraph 25 above). Such suspension with retroactive effect required that the competent court arrange for notice to be given “shortly after” the request for legal aid was lodged. The Court observes that the Regional Court, out of gross negligence, as stated by the Federal Constitutional Court, did not arrange for notice to be given to Ms B. She only learned about the applicant’s request for legal aid when the Regional Court’s decision to grant legal aid to the applicant was served on her on 16 May 2007, hence some two and a half years after the expiry of the limitation period.", "Both the Regional Court, in its judgment of 19 November 2008, and the Court of Appeal, in its decision of 22 June 2009, found that the applicant had not acted with the necessary diligence and thereby contributed to the delay. In such circumstances the prerequisites for a retroactive effect of the notice, as established in the case‑law of the Federal Court of Justice, were not met (see paragraphs 14 and 18 above). 44. The Court reiterates that it is in the first place for the national authorities, and notably the courts, to interpret domestic law. The Court’s role is limited to verifying compatibility with the Convention of the effects of such an interpretation.", "It observes that the decision of the Court of Appeal, of which the applicant complained, followed from the wording of Article 204 § 1 no. 14 of the Civil Code and the case-law of the Federal Court of Justice as to the interpretation of the term “shortly after” in relation to the suspension of the running of time with retroactive effect. 45. It is true that it was the task of the Regional Court to arrange for notice to be given to Ms. B. about the applicant’s request for legal aid and that that court failed to do so out of gross negligence, as found by the Federal Constitutional Court. However, the applicant had limited himself to lodging a request for legal aid.", "The Court of Appeal, as confirmed by the Federal Constitutional Court, had rightly taken into account that the applicant had not alerted the Regional Court about the imminent expiry of the limitation period, nor had he asked to arrange for the immediate notification of the defendant, which he could have done without any costs or procedural disadvantages, nor had he specifically enquired about the notification of the defendant when he subsequently contacted the Regional Court in relation to his request for legal aid. Also, the applicant’s two written enquiries, of 24 March 2005 and of 29 August 2005, exclusively contained the question whether his request for legal aid had been granted, and not whether the Court had arranged for the notification of the defendant. 46. The Court further considers that the applicant is a lawyer himself and must have been aware of the pertinent rules concerning the suspension of the running of time for purposes of limitation following the legislative changes that entered into effect on 1 January 2002. What is more, he was required to act with particular diligence due to his position of insolvency administrator of the company.", "In this context the Court also observes that the applicant had indicated in his statement of claim lodged in July 2002 that he might introduce an additional action concerning the claims at issue and that he could have instituted proceedings within the limitation period (compare, a contrario, Howald Moor and Others v. Switzerland, cited above §§ 74-79; Stagno v. Belgium, cited above, §§ 29-34). 47. The Court reiterates that the retroactive suspension of the running of time for purposes of limitation constituted an exception to the rule and required that such retroactive effect did not conflict with legitimate interests of the defendant. In the present case, the defendant learned about the request for legal aid years after the expiry of the limitation period and had a legitimate interest in the protection of her legal positions. 48.", "Having regard to all circumstances, the Court finds that the domestic courts’ interpretation of the applicable legal provisions concerning legal aid and limitation cannot therefore be considered as arbitrary. It cannot be said that the refusal of legal aid restricted the right of the applicant, in his position of insolvency administrator of the company, to a court in a disproportionate manner contrary to Article 6 § 1 of the Convention. 49. There has accordingly been no violation of Article 6 § 1 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 6 50. The applicant, relying on Article 14 taken in conjunction with Article 6 of the Convention, alleged that, in his position of insolvency administrator of the company, he was an impecunious litigant and was discriminated against compared to a litigant with sufficient financial means. He submitted that an impecunious litigant depended on a judge, who must arrange for notice to be given to the defendant of the request for legal aid, to suspend the running of time for purposes of limitation. If he were a litigant with sufficient financial means, who could have lodged an action without requesting legal aid, the claims at stake would not have become time-barred. 51.", "The Government contested that argument. 52. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 53. The facts of the instant case fall within the scope of Article 6 § 1 of the Convention.", "Accordingly, Article 14 of the Convention is applicable. 54. The Court has established in its case-law that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Partei Die Friesen v. Germany, no. 65480/10, § 37, 28 January 2016, with further references). 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 Okpisz v. Germany, no.", "59140/00, § 33, 25 October 2005). 55. Turning to the instant case, the Court observes that the difference in treatment relates to the possibility of litigants to suspend the running of time for purposes of limitation through their own actions. 56. The Court notes that, according to domestic law, in either scenario an act by the competent court was required to suspend the running of time: in the case of a litigant with sufficient financial means, formal service of the legal action on the defendant, which the litigant could not effect himself, was required (see relevant domestic law and practice paragraphs 24 and 28 above).", "In the case of an impecunious litigant, like the applicant in his position of insolvency administrator of the company, the competent court had to arrange for notice to be given to the defendant of the request for legal aid (see relevant domestic law and practice paragraphs 25 and 27 above). 57. The Court further observes that domestic law imposed certain obligations on litigants in either scenario in order to suspend the running of time for purposes of limitation. A litigant with sufficient financial means should not limit himself to submitting a lawsuit, but rather had to remind the court to ask him to pay the necessary court fees or even pay the fees on his own initiative, if the court had failed to ask him, in order to effect the service of the legal action (see relevant domestic law and practice paragraph 28 above). An impecunious litigant had to ask for the immediate notification of the defendant of the request for legal aid, and to remind the court to arrange for notice to be given (see relevant domestic law and practice paragraph 27 above).", "The Court considers that the respective obligations of both groups of litigants were nearly identical and any difference in treatment would not exceed the margin of appreciation afforded to Contracting States in regulating the right of access to a court. 58. There has accordingly been no violation of Article 14 read in conjunction with Article 6 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; 3. Holds that there has been no violation of Article 14 of the Convention taken in conjunction with Article 6 of the Convention. Done in English, and notified in writing on 30 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekGanna YudkivskaRegistrarPresident" ]
[ "FIRST SECTION CASE OF ONOUFRIOU v. CYPRUS (Application no. 24407/04) JUDGMENT STRASBOURG 7 January 2010 FINAL 07/04/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Onoufriou v. Cyprus, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Anatoly Kovler,Elisabeth Steiner,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni, judges,Michael Fotiou, ad hoc judge,and Søren Nielsen, Section Registrar, Having deliberated in private on 10 December 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "24407/04) against the Republic of Cyprus lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Cypriot national, Mr Andreas Onoufriou (“the applicant”), on 14 April 2004. 2. The applicant was represented before the Court by Georgios E. Konnaris & Co., a firm of lawyers based in Limassol. The Cypriot Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus. 3.", "The applicant complained, in particular, of the conditions of his solitary confinement, including restrictions on his contact with his family, and the monitoring of his correspondence. 4. On 22 May 2006 the President of the First 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). 5.", "Mr George Nicolaou, the judge elected in respect of Cyprus, withdrew from sitting in the Chamber (Rule 28). The Government accordingly appointed Mr Michael Fotiou to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1951 and is currently detained in Nicosia Central Prison.", "He is serving concurrent eighteen-year sentences pursuant to his conviction for two counts of attempted murder. 7. On 5 September 2003 the applicant was permitted to leave detention on twenty-four hour leave granted by the prison director. He did not return to the prison when his leave expired. Following a search to trace his whereabouts, he was arrested on 21 September 2003.", "At the time of his arrest he was in possession of a gun and cartridges and was wearing a bullet-proof vest and a woman’s wig. He was transferred to the maximum security wing of the prison and placed in solitary confinement. He was thus confined until 7 November 2003, that is, for a total of 47 days. A.The conditions of the applicant’s detention in solitary confinement 8. The parties’ submissions concerning the conditions of the applicant’s detention during the period of his solitary confinement differed.", "1. The Government’s description of the conditions of confinement 9. The Government agreed that the applicant had been detained in the prison’s maximum security wing but maintained that he was detained in a normal cell. The dimensions of the cell were 2.8 metres by 2.1 metres, that is, 5.88 square metres. It was furnished with a bed, a cupboard and a table.", "The cell had two windows: an exterior one (0.8m by 0.6m) and a smaller one above the cell door (0.4m by 0.4m). The cell was opened about three times a day for a total of about an hour. This time was used for personal hygiene purposes and taking meals. It was the applicant’s responsibility to clean his cell and he was provided with all the necessary equipment. He had regular direct contact with prison personnel.", "Moreover, newspapers had been provided in the wing and he had access to books from the prison library. There was a television set in the wing corridor to which the applicant could listen and he would have been provided with a radio if he had requested one. 10. During the applicant’s confinement he had spent considerable time outside prison when attending court hearings on 2, 10, 13, 16, 22 and 29 October and 4 and 6 November 2003. He was seen on four occasions by the prison doctor (7, 18, 20 and 31 October 2003).", "He was also visited by a welfare officer on 14 October 2003 and was seen by the prison psychologist on 3 and 30 October 2003. 11. Although the applicant was allowed to send letters to his family and friends twice a week, he did not attempt to send any such letters. He did not ask to make or receive telephone calls. Visits from family members while the applicant was in solitary confinement were not permitted but during the applicant’s visits to the court, he could meet with his family and friends, and was in fact supplied with food, soft drinks and clothes by his family which he was allowed to take back to prison.", "On one occasion, a mobile telephone given to the applicant by a family member was confiscated upon his return to prison after a hearing. 2. The applicant’s description of the conditions of confinement 12. The applicant disputed the Government’s description of the conditions of his confinement. He alleged that following his return to prison on 21 September 2003 he was confined in a cold, damp cell of a maximum of five square meters without food, water or suitable clothing.", "The cell had no external window and the window of the cell door was considerably smaller than the Government had indicated. The applicant was excessively restricted in his ability to use the toilet or have a shower: for the first four days of his solitary confinement he was forced to use an empty water bottle to urinate and nylon bags for other needs. These were provided to him by a prison officer through the small window in the cell door. Due to the cold, his arm and shoulder had frozen and he suffered from pain but the doctor was not allowed by the prison authorities to provide him with painkillers. He was nevertheless given an anti-inflammatory gel by the doctor using her own funds.", "Relying on the prison logbook submitted to the Court by the Government, the applicant stated that he had not been allowed to go to the toilet prior to 24 September 2003 or to have food or the opportunity to shower before 25 September 2003, although he was given bottled water and an apple from time to time through his small cell window by a prison officer. He had no access to newspapers, books or television. Further, he was not regularly seen by a doctor and he was not allowed regularly to exit his cell for half an hour in the morning and half an hour in the afternoon, as required by the relevant regulations. 13. While in solitary confinement, the applicant was not permitted to have visits from his family or to make telephone calls.", "As for the Government’s allegations that he had not asked to make telephone calls, the applicant replied it was not the practice of the prison authorities to give formal decisions refusing requests to make telephone calls in writing, there were no telephone booths in the maximum security block and, in general, prisoners were not allowed to receive calls from outside the prison. He had no contact with his family in the prison during the period of his solitary confinement and no contact was possible during his court visits. In particular, when he attended hearings at the district court in Limassol, he was kept at the Limassol central police station’s cells. It was only after the period of his solitary confinement that he could see his family and friends at the court’s hearings. 14.", "The applicant also alleged that the maximum security wing was used to threaten or punish prisoners given the conditions of detention there and, in particular, the fact that another prisoner would beat up prisoners without any attempt by the authorities to protect them. The applicant alleged that he had been ill-treated in this manner on two occasions but did not provide further details. 3. The prison logbook 15. According to the entries in the prison logbook which was submitted to the Court by the Government, the applicant was returned to prison on 21 September 2003.", "On 24 September 2003, the logbook records that the applicant left his cell to use the toilet after special notification had been given to the security direction (“φρουραρχείο”). The following day, the entry in the logbook records that he met with the prison director and was given food. 16. Although the logbook records that on some days the applicant used the toilet on several occasions, on others it indicates that he only used the toilet once. On 4 October 2003, there is no record of the applicant leaving his cell to use the toilet.", "Access to shower facilities appears to have been sporadic: at times he showered every couple of days but on other occasions, according to the logbook, he did not leave his cell to shower for two weeks. Similarly, the prison logbook records that on some days the applicant was given two or three meals whereas on others, it would appear that he received only one. On 4 October 2003, there is no entry recording any meal given to the applicant. 17. The logbook indicates that the applicant saw a prison psychologist four times: on 23 and 26 September and on 3 and 31 October 2003.", "He saw the prison doctor on 7 and 20 October 2003. He met with the welfare officer on 14 October 2003. On 31 October 2003, he refused to attend a scheduled visit to see a surgeon at the General Hospital 18. The logbook records that the applicant attended court on seven occasions: on 10 October 2003 for about six hours; on 13 October 2003 for about five hours; On 16 October 2003 for about six hours; on 22 October 2003 for about eight hours; on 27 October 2003, for about one and a half hours; on 29 October 2003 for about seven and a half hours; and on 4 November 2003, for about two hours. 19.", "According to the logbook, on 1 November 2003, the applicant met a member of the Prisons Board. On 5 November 2003, he was taken to meet with the Prisons Board and was away from his cell for 20 minutes. 20. There are two entries in the logbook recording other relevant events. On 17 October 2003, he was taken to a conference room, where he remained for one hour and twenty minutes.", "On 4 November 2003, he was accompanied by a prison officer to visit a Mr A.T. and was away for about half an hour. 21. Although the applicant was in solitary confinement until 7 November 2003, only entries from the logbook up to 5 November 2003 have been submitted by the Government. B. Criminal and Disciplinary Proceedings 22.", "On the date of the applicant’s arrest following his failure to return to prison, a police investigation began into alleged offences committed while the applicant was at liberty. According to the Government, this was concluded on 11 November 2003 with the filing of charges against the applicant for the commission of various offences. The applicant maintained that he was charged on 10 October 2003. 23. In parallel, on 5 November 2003, the applicant was charged with several disciplinary offences concerning the breach of the terms of his leave.", "However, the disciplinary proceedings were not pursued. 24. On 19 July 2005 the Limassol Assize Court convicted the applicant of escaping from custody and of other offences associated with his escape. The prison director stated in his evidence before the court that the applicant was placed in solitary confinement in order to protect him from other prisoners who were hostile towards him because of restrictions imposed in the prison affecting everyone as a result of the applicant’s escape. The court noted in its judgment that the applicant had entered a plea of not guilty in respect of the disciplinary offences but that the proceedings were not pursued, no witnesses were heard and no sentence was imposed.", "Given that there had been no trial, no verdict and no imposition of a sentence in the disciplinary proceedings, the court concluded that the applicant’s confinement could not be treated as a disciplinary sentence. 25. The applicant lodged an appeal against his conviction before the Supreme Court. 26. On 11 December 2007 the Supreme Court allowed the applicant’s appeal against his conviction of the offence of escaping from custody given that, at the relevant time, he had been on temporary release and had merely failed to return to prison at the expiry of his release period.", "C. Ombudsman’s report of 21 November 2003 (no. 1355/2003) 27. The applicant, in a letter to the office of the Commissioner of Administration (“the Ombudsman”) dated 6 October 2003, complained about his detention for an excessive period of time in the maximum security wing, alleging in particular that during this period he was not able to have visits or contact with his family by telephone or correspondence and that he was only allowed to leave his cell in order to go to the toilet, have a bath or pick up his food tray. He subsequently complained that his letter addressed to the Ombudsman dated 6 October 2003 was delivered late, after having been sent by the prison director to the Director General of the Ministry of Justice. 28.", "According to the Ombudsman’s report of 21 November 2003 the applicant had been confined to a cell in the security wing for 47 days. Having been contacted by the Ombudsman, the prison authorities stated that the applicant had been put in solitary confinement for his own protection given the possibility of retaliation by other prisoners due to the restrictive measures imposed on them as a result of the applicant’s failure to return from home leave. The prison authorities confirmed that the applicant was not permitted any visits, telephone conversations or letters and that moreover, he was not allowed to exit his cell except in order to wash himself, to go to the toilet and to get his food. It was further noted that although the Senior Prison Inspector had given instructions on 31 October 2003 that the applicant be returned to normal detention, the applicant was kept confined to his cell until 7 November 2003 as the instructions had not been registered in the records of the wing but had merely been noted on a piece of paper which had been misplaced. 29.", "As regards the applicant’s letter to the Ombudsman dated 6 October 2003, the report noted that a copy of that letter, as well as copies of three other letters addressed to recipients other than the prison authorities, had been sent by the prison director to the Director General of the Ministry of Justice in order to seek instructions as to whether the particular letters should be sent to the intended recipients. The Ombudsman received the letter addressed to her on 5 November 2003. 30. The Ombudsman in her report observed that it did not appear from the file that the confinement of the applicant had been of a disciplinary nature. She also noted that had the applicant’s confinement been a preventive measure or a measure for the protection of the applicant, as claimed by the prison authorities, then under regulation 151(5) of the Prison (General) Regulations 1997 (“Prison Regulations” – see further “Relevant domestic law and practice”, below) the written approval of the prison director would have been required.", "No such approval had been given. The Ombudsman therefore considered that the applicant’s confinement was a punitive measure. 31. Moreover, the Ombudsman was not convinced that the denial of the applicant’s right to receive visits, correspondence and telephone contact, for example with his eight year old son, had aimed to protect the applicant from his fellow inmates. She further observed the following: “It is noted that although in theory the total seclusion of a person in combination with his total social isolation is not acceptable, in practice the European Court of Human Rights and the European Commission have tolerated this type of total confinement in exceptional circumstances.", "However, this was done in cases concerning particularly dangerous terrorists who had been detained pending their trial and who had been allowed to go into the prison yard at some specific time in the day.” 32. The Ombudsman concluded that the applicant’s confinement for a total period of 47 days with no right to exit his cell for one hour a day as provided for in the Prison Regulations, in combination with the denial of the applicant’s right to have contact with family and friends, was in breach of the Prison Regulations and constituted a violation of the applicant’s rights under Articles 3 and 8 of the Convention. 33. As regards the applicant’s complaint concerning the monitoring of the letter he sent to her, the Ombudsman emphasised the importance of allowing prisoners direct and uninhibited access to her office. In this connection she referred, inter alia, to the European Prison Rules and a report by the Council of Europe’s Committee for the prevention of torture (see further “International materials”, below), as well as the case of Silver and others v. the United Kingdom, (no.", "5947/72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75; 7136/75, Commission’s report of 11 October 1980, Decisions and Reports (DR) 9, p. 56). D. Ombudsman’s report of 15 March 2004 (no. 143/2004) 34. On 1 January 2004 the applicant submitted an additional complaint to the Ombudsman against the prison authorities. He complained that the prison authorities had, on 20 December 2003, refused to allow him to give his father, who had visited him in prison, a letter addressed to the Ombudsman requesting her to send him copies of past correspondence between them.", "The applicant claimed that he did not want the contents of his letters to the Ombudsman to be monitored by the prison personnel and that for this reason he had decided to send the letter through his father. He had complained on 30 December 2003 to the prison director. 35. The Ombudsman, in a report dated 15 March 2004, repeated that prisoners should be allowed unrestricted access to her office. She found that there had been unjustified difficulties and unnecessary obstacles in the direct and unhampered communication of the applicant with her office that had negatively affected the exercise of his rights.", "She noted that on 3 February 2004, at a meeting held in the Ministry of Justice, it was decided that a designated letter box would be placed in the central prisons to allow prisoners, freely and without procedural or substantive restrictions, to submit complaints to the Ombudsman concerning their conditions of detention. E. Refusal of pardon 36. By letter of 22 May 2004 the applicant informed the Court that in May 2004, on the basis of a recommendation by the Attorney-General of Cyprus, fifty-four prisoners were granted an official pardon by the President and were consequently released. The applicant was not among the fifty-four. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 37. The Cypriot Constitution provides, in so far as relevant, as follows: Article 8 “No person shall be subjected to torture or to inhuman or degrading punishment or treatment.” Article 15 “1. Every person has the right to respect for his private and family life. 2. There shall be no interference with the exercise of this right except such as is in accordance with the law and is necessary only in the interests of the security of the Republic or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by this Constitution to any person.” Article 17 “1.", "Every person has the right to respect for, and to the secrecy of, his correspondence and other communication if such other communication is made through means not prohibited by law. 2. There shall be no interference with the exercise of this right except in accordance with the law and only in cases of convicted and unconvicted prisoners and business correspondence and communication of bankrupts during the bankruptcy administration.” Article 146 “1. The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person. 2.", "Such a recourse may be made by a person whose any existing legitimate interest, which he has either as a person or by virtue of being a member of a Community, is adversely and directly affected by such decision or act or omission. 3. Such a recourse shall be made within seventy-five days of the date when the decision or act was published or, if not published and in the case of an omission, when it came to the knowledge of the person making the recourse. 4. Upon such a recourse the Court may, by its decision- (a) confirm, either in whole or in part, such decision or act or omission; or (b) declare, either in whole or in part, such decision or act to be null and void and of no effect whatsoever, or (c) declare that such omission, either in whole or in part, ought not to have been made and that whatever has been omitted should have been performed.", "... 6. Any person aggrieved by any decision or act declared to be void under paragraph 4 of this Article or by any omission declared there under that it ought not to have been made shall be entitled, if his claim is not met to his satisfaction by the organ, authority or person concerned, to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant.” 38. Regulations 114 and 116 of the Prison Regulations deal with the contact rights of prisoners (correspondence, telephone calls and visits). In so far as relevant, they provide as follows: Regulation 114 “1. A prisoner who has been sentenced to imprisonment can send letters to his family members, associates and friends twice a week, provided he submits these letters beforehand for examination by the competent officer in accordance with the provisions of the present regulations.", "It is provided that the director can allow a prisoner to send more letters, if in his judgment this will help him to maintain beneficial contacts with the outside world. 2. There is no restriction on the number of letters a prisoner can receive in prison. 3. The prisoner can, if a direct need is shown, request permission from the director to contact by telephone, or to ask the competent prison officer to contact on his behalf, his lawyer or members of his family as well as professional or other associates for the settlement of personal, family and other matters in abeyance or differences ...” Regulation 116 “1.", "Every prisoner is allowed to have visits by members of his family, relatives or friends up to six times a month ...” 39. Regulation 115 of the Prison Regulations deals with the monitoring of the correspondence of prisoners. The relevant provisions provide as follows: Regulation 115 (2) “The content of telephone calls or letters is monitored in cases where in the director’s view such control is necessary for security reasons or for preventing the commission of a new offence or for any other justifiable reason.” Regulation 115 (5) “The privilege of correspondence or telephone contact can be suspended following an order by the director in the case of a disciplinary offence by the prisoner.” Regulation 115 (6) “Letters addressed by prisoners to any official authority of the Republic or to politicians or to the mass media are always sent through the director.” Regulation 115 (7) “In the event that the director ascertains that their content does not come within the competence of the authority or person it is addressed to, or that in the letters improper or abusive language is used, or malicious allegations or unsubstantiated accusations are included against anyone or an attempt is made to distort facts or information concerning the security and in general the functioning of the prisons is revealed, the director can, in the interests of public security or public order or public morals or the protection of the reputation or rights of others or to prevent the revelation of confidential information or to preserve the authority and impartiality of the judiciary, prohibit the sending of these letters. The director informs the prisoner of his decision. It is provided that prisoners can contact the Prisons Board by means of letters without any monitoring of their content by the prison authorities.” 40.", "The Prison Regulations concerning solitary confinement provide, in so far as relevant, as follows: Regulation 151(1) “The prison director can, when he deems it appropriate, order the confinement or isolation of a prisoner for such period as he considers necessary for the purposes of (a) preservation of discipline and order; (b) protection of the interests of the prisoner himself or of other prisoners; (c) confinement or isolation of violent prisoners, who by their behaviour cause problems and intimidate other prisoners; (d) discipline ...”. Regulation 151(5) “The extension of the confinement of the prisoner in a special cell or isolated space (apart from the wing in which he resides for preventive and not disciplinary reasons) for over twenty-four hours requires the written approval of the director ... Prisoners under confinement or isolation have a right to exit the place of confinement or isolation for half an hour in the morning and half an hour in the afternoon.” Regulation 155 “A prisoner who is to be accused of a disciplinary offence may be confined to his individual cell or a special cell, according to the situation and the seriousness of the offence, until the examination of the facts of the case is completed. The period of confinement of the prisoner must not exceed four days, unless the director approves the extension of the period of confinement of the prisoner for another two days.” Regulation 156 “In the event that a prisoner is to be accused of a disciplinary offence, the accusation should be set out as soon as possible and the trial of the case should begin at the latest two months from the date of the commission of the offence and should be concluded as quickly as possible.” Regulation 158(1) “A prisoner shall not be punished before having acquired knowledge of the offence of which he is accused and without having been given the possibility to defend himself.” III. INTERNATIONAL MATERIALS A.Extracts from the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”), Strasbourg, 5 April 2008 41.", "The CPT produced a report to the Government of Cyprus following its visit to Cyprus from 8 to 17 December 2004. As regards allegations of ill-treatment at the hands of other prisoners, the report noted as follows: “59. The CPT is also concerned by several allegations received by the delegation that prison staff threatened inmates with transfer to Block 4 (the maximum security unit) and used one or more prisoners accommodated in Block 4 as a means of maintaining control over other inmates. In this connection, one prisoner interviewed by the delegation claimed that, on 17 October 2004, he had been severely beaten by fellow inmates and subsequently placed in Block 4. A criminal investigation had apparently only been initiated after the prisoner concerned succeeded in bringing the matter to the attention of the Minister of Justice and Public Order, who transmitted the case to the competent authority.", "A similar case was brought to the delegation’s attention by an official report of the Office of the Commissioner for Administration. It would appear that, on 18 July 2003, one of the alleged perpetrators (I.C.) of the above-mentioned assault had severely beaten another inmate; the latter had required hospital treatment as a result. The Commissioner for Administration found that the case had not been investigated thoroughly by the establishment’s management and added that ‘the inexcusable delay in investigating such a serious incident gives good reason to suspect preferential treatment vis-à-vis I.C.’. 60.", "It would be entirely unacceptable for prison staff to threaten prisoners in the above-mentioned manner as a means of control, let alone place prisoners at risk of assault from fellow inmates. The CPT wishes to emphasise that the duty of care which is owed by the prison authorities to prisoners in their charge includes the responsibility to protect them from other prisoners who might wish to cause them harm. In particular, prison staff must be alert to signs of trouble and be both resolved and properly trained to intervene when necessary. The CPT recommends that the Cypriot authorities take the necessary steps with a view to preventing inter-prisoner violence, in the light of the above remarks. 61.", "The diligent examination by prison management of all information which may come to its attention regarding possible ill-treatment of prisoners by staff or inter-prisoner violence (whether or not that information takes the form of a formal complaint) and, if necessary, the instigation of proceedings, is also essential. Indeed, the lack of an appropriate response by prison management can foster a climate in which those minded to ill-treat prisoners can quickly come to believe – and with very good reason – that they can do so with impunity. The delegation gained the impression that the management of Nicosia Central Prisons was reluctant to adopt a proactive approach in this respect ...” 42. The report also commented on measures of confinement in use in Cypriot prisons. It observed the following: “62.", "The CPT must also express concern about the potential duration of measures involving the segregation of prisoners for disciplinary reasons (confinement to a special isolation cell for a period of up to sixty days and confinement to their own cell for up to ninety days), and the fact that inmates undergoing segregation for disciplinary reasons were deprived of outdoor exercise throughout their sanction (cf. paragraph 91). ... 86. ... The disciplinary penalties include confinement to a special isolation cell for up to 60 days, with simultaneous loss of contact with the outside world (correspondence, visits and telephone calls), or confinement to a personal cell for up to 90 days.", "The CPT has serious reservations as to the maximum possible periods of disciplinary confinement; it considers that they should be substantially reduced ... The CPT also wishes to stress that a disciplinary punishment should never involve a total prohibition on contact with the outside world. Further, under no circumstances should visits between a prisoner and his/her family be withdrawn for a prolonged period ... ... 88. The CPT also pays particular attention to any prisoner held, for whatever reason, under conditions akin to solitary confinement. Under the terms of Section 151 of the Prisons Regulations, the director can order the confinement or isolation of a prisoner for such a period as he deems necessary for the purpose of: maintenance of order; protection of the interests of the prisoner himself or of other prisoners; violent behaviour; discipline.", "In this respect, the observations made by the delegation identified important lacunae as regards the guarantees which should surround such a measure. Indeed, no provision is made for those guarantees within the Prisons Regulations themselves. 89. The CPT wishes to stress that the principle of proportionality requires that a balance be struck between the requirements of the case and the application of a solitary confinement-type regime, which is a step that can have very harmful consequences for the person concerned. In particular, all forms of solitary confinement should be as short as possible.", "Further, they should be surrounded by certain guarantees. A prisoner in isolation or confinement or in respect of whom such a measure is extended, should be informed in writing of the reasons therefor (it being understood that there might be reasonable justification for withholding specific details related to security from the prisoner) and should be given an opportunity to express his views on the matter and have the right to appeal to an authority outside the prison establishment concerned against the imposition or extension of the measure. Further, the application of the measure should be fully re-examined at regular intervals (at least every three months). In addition, all such measures should be properly entered in a specific register. ...", "The CPT recommends that the Cypriot authorities review the provisions of the Prisons Regulations relating to isolation and confinement, in the light of the above principles. It also recommends that a special register be kept of all isolation/confinement measures, recording the identity of the prisoner, the reasons for the measure, the date and time of the commencement and end of the measure, the deciding authority and the precise place(s) where the prisoner concerned has been accommodated. 90. Further, although the application of isolation/confinement for a prolonged period can be necessary in exceptional cases for reasons related to good order and safety, the CPT considers that the application of such a measure for disciplinary purposes is unacceptable; the use of isolation/confinement for such purposes should be governed exclusively by Sections 153 to 162 of the Prisons Regulations. The CPT recommends that the Cypriot authorities amend the Prisons Regulations accordingly.” 43.", "As regards the conditions of the cells and the possibility of outdoor exercise for prisoners confined to their cells, the report found as follows: “91. Material conditions in the cells used for administrative separation or disciplinary purposes (16 cells in Block 8) were adequate. However, from the information received by the delegation during the visit, it emerged that prisoners in isolation or confined to their cells do not benefit from outdoor exercise, sometimes for extended periods. In particular, from an official investigation by the Office of the Commissioner for Administration, it emerged that one prisoner had been placed in confinement in Block 4 for 47 days without benefiting from outdoor exercise. Such a situation is unacceptable.", "The CPT recommends that the Cypriot authorities immediately take the necessary steps to ensure that all prisoners placed in an isolation cell or confined to their cells, for whatever reason, benefit from at least one hour of outdoor exercise each day.” 44. In respect of contact with family and friends, the report noted: “92. The CPT wishes once again to underline the importance for prisoners of being able to maintain good contact with the outside world. Above all, they must be given the opportunity to safeguard their relationships with their family and friends, and especially with their spouse or partner and their children. The continuation of such relations can be of critical importance for all concerned, particularly in the context of prisoners’ social rehabilitation.", "The guiding principle should be to promote contact with the outside world; any restrictions on such contacts should be based exclusively on security concerns of an appreciable nature or considerations linked to available resources. 93. Under the terms of the Prisons Regulations, in principle all prisoners (both remand and sentenced) have the right to receive up to six one-hour visits every month. In addition, a certain degree of flexibility is possible, for example, when the visitors concerned are family members living abroad. The CPT welcomes these arrangements.", "... 95. Telephones have been installed within the prisons, one in each block for use by prisoners from 08.00 a.m. to 2.30 p.m. This is in principle a very positive development. However, apart from in Block 4, which was only accommodating approximately ten prisoners, access to the telephone was rarely straightforward given the number of prisoners involved.” 45. Finally, as regards communication of complaints to the Ombudsman, the report stated: “98.", "During the visit carried out in December 2004, the delegation observed that, in response to the recommendation made by the CPT in its report on the 2000 visit, locked boxes had been installed, in which prisoners could put complaints for the attention of the Commissioner for Administration.” B.Extracts from Recommendation (Rec(2006)2) of the Committee of Ministers to Member States on the European Prison Rules, adopted on 11 January 2006 (“European Prison Rules”) “53.1 Special high security or safety measures shall only be applied in exceptional circumstances. 53.2 There shall be clear procedures to be followed when such measures are to be applied to any prisoner. 53.3 The nature of any such measures, their duration and the grounds on which they may be applied shall be determined by national law. 53.4 The application of the measures in each case shall be approved by the competent authority for a specified period of time. 53.5 Any decision to extend the approved period of time shall be subject to a new approval by the competent authority.", "53.6 Such measures shall be applied to individuals and not to groups of prisoners. 53.7 Any prisoner subjected to such measures shall have a right of complaint in the terms set out in Rule 70. ... 70.1 Prisoners, individually or as a group, shall have ample opportunity to make requests or complaints to the director of the prison or to any other competent authority. ... 70.3 If a request is denied or a complaint is rejected, reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 46.", "The applicant complained under Article 3 of the Convention about the conditions of his solitary confinement for a period of 47 days. Article 3 provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. The parties’ submissions 47. The Government contended that the application should be declared inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies. Citing the judgment of the Court in Azinas v. Cyprus [GC], no.", "56679/00, § 39, ECHR 2004‑III, they argued that the applicant could have filed a recourse to the Supreme Court under Article 146 of the Cypriot Constitution challenging the legality of the order for his solitary confinement and the conditions thereof, including the prohibition on family visits and the monitoring of his correspondence. They submitted that in the context of such proceedings, the applicant could have argued that the confinement and conditions violated his rights under Articles 3 and 8 of the Convention, and the corresponding articles of the Cypriot Constitution. Moreover, he could have applied for the suspension of his confinement and the restrictions on family visits pending the final outcome of the recourse. 48. The Government further submitted that the applicant had failed to complain to the Prisons Board.", "They noted that the Prisons Board was expressly included by law among the authorities to which a prisoner could address, in writing and immediately, any complaint concerning an illegal act against him or a violation of his rights in any way. The Government highlighted that the Prisons Board was an independent body appointed by the Council of Ministers. It was, at the relevant time, composed of twelve members drawn from both the public and private sectors, including representatives of non-governmental organisations and the Cyprus Bar Association. Its chairman was the Director-General of the Ministry of Justice. The Prisons Board had the power to hear and investigate complaints submitted to it by prisoners, including complaints as to their treatment, and to investigate prisoners’ living conditions.", "For this purpose, its members were afforded the right of free entry at all times to all areas of the prison, of free communication with prisoners outside the presence of prison officers, of inspection of prison records and of the conduct of any investigation in the prison which they considered necessary. Under the Prison Regulations, letters could be addressed to the Prisons Board without any monitoring of their content by the prison authorities. If the Prisons Board found any shortcomings concerning the treatment of prisoners, it could communicate the matter to the relevant Minister and the prison director. 49. The applicant disputed that the remedies to which the Government referred were “effective” and that he was therefore required to exhaust them under Article 35 of the Convention.", "As regards Article 146 of the Constitution, the applicant highlighted that this would only provide a remedy to an existing problem or a decision confirming that there had been a violation by the relevant authority. There would be no investigation and no further proceedings against the party guilty of the violation. The applicant further averred that in order to file a recourse with the Supreme Court, supporting evidence would have been required to prove that he had been isolated in conditions in breach of Articles 3 and 8 and that his correspondence had been monitored. He contended that his isolation precluded him from obtaining such proof and that, in the circumstances, an Ombudsman’s investigation was necessary to collate the necessary proof. However, because of the monitoring of his correspondence, the Ombudsman only received his complaint on 5 November 2003 and her report dated 21 November 2003 was only brought to his attention some days later.", "He concluded that his failure to take proceedings before the Supreme Court was due to: the prison director, who deliberately made it difficult for him to collect the necessary papers for his application; the 75-day time limit for filing a recourse; his isolation which prevented him from submitting his application; and the refusal of lawyers to represent him. 50. In respect of the possibility of a complaint to the Prisons Board, the applicant pointed out that this was not a judicial remedy. In any case, he alleged that he had made a complaint to the Prisons Board. He contended that he was permitted just five minutes before the Prisons Board in which to explain his complaint and heard nothing further from them.", "Accordingly, to the extent that the remedy could be considered effective, he had sought to exhaust it. 2. The Court’s assessment 51. The Court must consider whether a recourse lodged with the Supreme Court and a complaint to the Prisons Board constituted effective remedies in respect of the applicant’s complaints and whether he was therefore required to exhaust such remedies before lodging an application with the Court. 52.", "The Court reiterates that, under Article 35 of the Convention, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see Apostol v. Georgia, no. 40765/02, § 35, ECHR 2006‑...; and Barszcz v. Poland, no. 71152/01, § 41, 30 May 2006). 53. In assessing whether a proposed remedy affords sufficient redress, the Convention provides for a distribution of the burden of proof and it is initially incumbent on the Government claiming non-exhaustion to convince the Court that the remedy relied upon was an effective one available in theory and in practice at the relevant time.", "This requires that the proposed remedy be accessible, be capable of providing redress in respect of the applicant’s complaints and offer reasonable prospects of success (see, among other authorities, Apostol, cited above, § 35; Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-...; and Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999‑V). Only after this burden of proof has been discharged does it fall to the applicant to prove that there existed special circumstances absolving him from the requirement (see Merit v. Ukraine, no. 66561/01, § 57, 30 March 2004).", "54. As to the possibility of a recourse under Article 146 of the Constitution, the Court notes that in order for a recourse to be lodged with the Supreme Court, an individual must demonstrate that there was an administrative or executive decision, act or omission open to challenge. In the present case, it is not clear that the decision of the prison director to place the applicant in solitary confinement and restrict his visitation rights or the decision to monitor the applicant’s correspondence would constitute acts enabling the Supreme Court to exercise its revisional jurisdiction. In this regard, the Court observes that in the context of a separate application lodged with the Court (no. 42432/07 Andreas Onoufriou v. Cyprus), the applicant provided details of an attempt to challenge a decision of the prison director to restrict his visitation rights.", "In that case, the Supreme Court concluded that the relevant decision did not constitute an “administrative act” enabling the exercise of its revisional jurisdiction. Finally, the Court highlights that the Government have not referred to any decisions or judgments of the Supreme Court in which any decision of the nature in issue in the present case has been successfully challenged by way of an Article 146 recourse (see Apostol, cited above, § 38). In the circumstances, the Court is not persuaded that Article 146 of the Constitution offered an effective remedy for the applicant in respect of his present complaints. 55. The Government also proposed the possibility of a complaint to the Prisons Board.", "However, the applicant alleges that he did seek to complain to the Prisons Board and was granted a brief audience before them but heard nothing further. The Court observes that the prison diary submitted by the respondent Government records meetings between the applicant and the Prisons Board on 1 and 5 November 2003. It further observes that the Government have not disputed that the applicant sought to make a complaint to the Prisons Board. Accordingly, the Court concludes that the applicant did attempt to lodge his complaints with the Prisons Board but for reasons which are unexplained, the Prisons Board did not take any further action to investigate the complaints and report its findings to the applicant. In any event, in circumstances such as those arising in the present application, there is an obligation to conduct an ex officio investigation as soon as Article 3 is raised in substance (see Selmouni, cited above, §§ 79 to 80).", "To the extent that a complaint to the Prisons Board could be considered an effective remedy, the Court considers that the applicant has done what was required of him in order to exhaust that remedy. 56. The Government’s objections as to non-exhaustion must therefore be dismissed. Furthermore, having regard to the parties’ submissions, the Court considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.", "It must therefore be declared admissible. B. Merits 1. The parties’ submissions a. The Government 57.", "The Government observed that, in assessing whether solitary confinement complied with Article 3, the Court must have regard to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned. They contended that in the present case, the measure was not sufficiently severe to fall within the scope of Article 3. They argued that there was no sensory isolation brought about by a substantial reduction in stimulation of the sensory organs. Nor was there any medical evidence to suggest that the applicant had suffered mental or physical deterioration as a result of his confinement or that the physical conditions entailed distress and hardship beyond that which was necessarily incidental to such confinement. 58.", "As regards the physical conditions of detention, the Government argued that the cell was sufficiently large and that the applicant had regular access to toilet facilities and food. They emphasised that the applicant’s complaint to the Ombudsman was not directed at the physical conditions of his cell. Accordingly, the Ombudsman did not investigate or make any findings concerning this matter. 59. The Government further argued that the applicant had daily contact with prison personnel and unrestricted access to newspapers and books.", "He was seen on several occasions by the prison doctor in the prison medical facility, he was visited by a welfare officer and was seen by the prison psychologist. There was no evidence that he was prevented from sending letters to friends and family, or that letters from friends and family members were withheld from him during his confinement. Although the applicant did not make or receive any telephone calls, there was no evidence that he had ever applied to make any telephone calls or that anyone had called him and was not permitted to speak to him. Furthermore, during the applicant’s visits to court, he was able to communicate with his family. 60.", "As for the legal basis of the applicant’s confinement, the Government argued that the applicant’s confinement was not ordered by way of punishment for a disciplinary offence following his escape from prison, nor was it ordered pending investigation of such a disciplinary offence or solely as a precautionary measure for the applicant’s own protection. Instead, they contended that he was confined under regulation 151(1)(a), (b) and (d), which permitted confinement for such time as the director considered necessary in the circumstances to preserve discipline and order, to protect the prisoner himself or other prisoners and to discipline the prisoner. 61. Relying on case-law of the Convention organs, the Government argued that the segregation of a prisoner from the prison community does not of itself constitute a form of inhuman treatment. In particular, confinement to prevent the risk of disturbance in the prison, to prevent the commission of criminal acts or to protect the prisoner from other inmates had been found not to be a form of inhuman treatment (referring to, inter alia, (see G. Ensslin and Others v. Germany, no.", "7572/76, Commission decision of 8 July 1978, Decisions and Reports (DR) 14, p. 91); (see X. v. the United Kingdom, no. 8158/78, Commission decision of 10 July 1980, DR 21, p. 95); Rohde v. Denmark, no. 69332/01, §§ 92 to 97, 21 July 2005; and Ramirez Sanchez v. France [GC], no. 59450/00, §§ 120, 123, 129, 132, 136, 145 and 150, ECHR 2006‑IX). In the present case, the decision to confine the applicant was not arbitrary and was based on relevant regulations in force which had been published in the Official Gazette.", "There were pressing and valid reasons for the confinement until such time as the investigations into possible offences committed by the applicant while he was at liberty had been identified and appropriate charges had been filed against him. 62. The Government invited the Court to hold that there was no violation of Article 3. b. The applicant 63. The applicant contended that the physical conditions of his confinement were such as to attain the minimum level of severity required for Article 3 to apply.", "He pointed to the lack of food, adequate clothing and access to toilet and shower facilities during his period of confinement. He also emphasised the absence of contact with the outside world, and in particular his inability to communicate with his family. He concluded that there had been a breach of Article 3 in his case. 64. The applicant disputed the Government’s explanation concerning the legal basis of his confinement and explained that it was the prison authorities themselves who had declared that his confinement was only a precautionary measure necessary for his own protection, as had been subsequently confirmed by the Ombudsman.", "The applicant was never provided with written authorisation for his confinement. He maintained that he had been informed that the reason for his confinement was that he had violated his home leave, and he referred to the indictment served on him in November 2003, the first count of which consisted of an allegation of a violation of the conditions of his home leave. Moreover he claimed that given the presence of at least nine other prisoners in the block where he was detained the Government could not realistically maintain that he was kept in that particular block to protect him. 65. The applicant further claimed that no other prisoner had been subjected to solitary confinement for breaching his home leave conditions.", "He claimed that he had been discriminated against by the Government and the prison authorities because of the nature of his conviction. 2. The Court’s assessment a. General principles 66. Article 3 of the Convention enshrines one of the most fundamental values of democratic society.", "It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). 67. According to the Court’s case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.", "Furthermore, in considering whether treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the individual in question and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see Peers v. Greece, no. 28524/95, § 74, ECHR 2001-III; and Valašinas v. Lithuania, no. 44558/98, § 101, ECHR 2001‑VIII). 68.", "The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see Enea v. Italy [GC], no. 74912/01, § 56, 17 September 2009). Measures depriving a person of his liberty may often involve an element of suffering or humiliation. However, the State must ensure that a person is detained under conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92 to 94, ECHR 2000‑XI; and Cenbauer v. Croatia, no.", "73786/01, § 44, ECHR 2006‑III). Further, when assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant (Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). It is also relevant to recall that the authorities are under an obligation to protect the health of persons deprived of liberty (see Hurtado v. Switzerland, judgment of 28 January 1994, Series A no. 280-A, opinion of the Commission, pp.", "15-16, § 79; and Enea, cited above, § 58). The lack of appropriate and timely medical care may amount to treatment contrary to Article 3 (see İlhan v. Turkey [GC], no. 22277/93, § 87, ECHR 2000-VII). 69. The Court has previously indicated that complete sensory isolation, coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason (see Öcalan v. Turkey [GC], no.", "46221/99, § 191, ECHR 2005‑IV; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 243, ECHR 2004‑VII). While prolonged removal from association with others is undesirable, whether such a measure falls within the ambit of Article 3 of the Convention depends on the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned (see inter alia, X v. the United Kingdom, cited above; and Rohde, cited above, § 93). 70. Finally, in order to avoid any risk of arbitrariness resulting from a decision to place a prisoner in solitary confinement, the decision must be accompanied by procedural safeguards guaranteeing the prisoner’s welfare and the proportionality of the measure.", "First, solitary confinement measures should be ordered only exceptionally and after every precaution has been taken, as specified in paragraph 53.1 of the European Prison Rules. Second, the decision imposing solitary confinement must be based on genuine grounds both ab initio as well as when its duration is extended. Third, the authorities’ decisions should make it possible to establish that they have carried out an assessment of the situation that takes into account the prisoner’s circumstances, situation and behaviour and must provide substantive reasons in their support. The statement of reasons should be increasingly detailed and compelling as time goes by. Finally, a system of regular monitoring of the prisoner’s physical and mental condition should also be put in place in order to ensure that the solitary confinement measures remain appropriate in the circumstances (see Ramirez Sanchez, cited above, § 139).", "b. Application of the general principles to the facts of the case 71. The Court notes at the outset that the applicant was not informed at any stage officially and in writing of the reasons for his solitary confinement or of its expected duration. No formal record of the decision authorising the solitary confinement or any extension has been provided; indeed, the Government have not made any submissions regarding the manner in which the decision was made. The justification for the confinement provided for by the prison authorities following the Ombudsman’s investigation was that the applicant was placed in solitary confinement in order to ensure his own protection.", "However, the Court does not consider that this reason can justify the applicant’s detention in solitary confinement (see, mutatis mutandis, Lelièvre v. Belgium, no. 11287/03, § 104, 8 November 2007). Moreover, the Court is not convinced by the Government’s subsequent explanation of the reasons for the applicant being placed in solitary confinement – namely, for the preservation of discipline and order, the protection of the interests of the applicant himself and of other prisoners and discipline – given that this explanation was first advanced in their observations to the Court. Accordingly, the Court concludes that the applicant was detained in solitary confinement for reasons which are unclear and which were never explained to him. The Court observes in this regard that a solitary confinement measure is one of the most serious measures which can be imposed within a prison.", "Despite the gravity of the measure, there is no evidence that the authorities assessed all the relevant factors in the applicant’s case before placing him in solitary confinement (see Ramishvili and Kokhreidze, cited above, § 83). It is also of significance that although instructions were given on 31 October 2003 to release the applicant from solitary confinement, the instructions were misplaced and as a consequence the applicant spent a further seven days in solitary confinement after his release had been ordered. 72. The Court recalls the recommendations contained in the report of the CPT following its visit to Cyprus in 2004. The CPT considered that any person placed in solitary confinement should be informed in writing of the reasons for his confinement.", "He should be given an opportunity to express his views and there should be a possibility to appeal to authorities outside the prison should he wish to challenge the decision to place him in solitary confinement or to extend the duration of such confinement. Further, the confinement should be re-examined at regular intervals and should cease when no longer merited. The European Prison Rules also refer to the need for clear procedures when applying solitary confinement measures. 73. It is clear that the applicant’s detention in solitary confinement was not attended by any of the procedural safeguards required in order to protect against the arbitrary application of excessively restrictive conditions of detention, regardless of the duration of the confinement.", "The Court refers to the CPT’s conclusion following the visit to Cyprus that there was a lacuna in the Prison Regulations as regards the guarantees to be afforded to those placed in solitary confinement. In the present case, the Court emphasises the lack of an adequate justification for the applicant’s detention in solitary confinement, the uncertainty concerning its duration, the failure to put in place a reliable system to record solitary confinement measures and to ensure that the applicant was not confined beyond the authorised period, the absence of any evidence that the authorities carried out an assessment of the relevant factors before ordering his confinement and the lack of any possibility to challenge the nature of his detention or its conditions. 74. As regards the physical conditions of the applicant’s detention, the Court takes note of the parties’ different accounts and considers the prison logbook submitted by the respondent Government to be of particular assistance in clarifying both the physical conditions of the applicant’s confinement and the other restrictions applied during the 47-day period. 75.", "In the Court’s view, the prison logbook confirms the applicant’s account that he was subjected to a very restrictive regime of detention for 47 days. It is clear from the entries in the logbook that the applicant’s cell had neither sanitary facilities nor running water. Accordingly, the applicant was required to ask the prison guards to allow him to go to the toilet. The Court’s examination of the prison logbook shows that on a number of occasions the applicant only used the toilet once in the course of the day, which would appear to confirm his assertion that during certain periods of his detention he had to use water bottles and nylon bags for his needs. The Court considers that such a practice was humiliating (see Cenbauer, cited above, § 48).", "76. As to the physical conditions of the cell, the Government submitted that it measured 5.88m2; the applicant contended that it was less than 5m2. He also alleged that it was cold and damp. The Court observes that where there is a dispute between the parties as to the relevant facts, it will have regard to the parties’ submissions and to any relevant findings of the CPT in order to assess the extent to which the applicant’s complaints are credible (Cenbauer, cited above, § 45). In its report on Cyprus, the CPT did not comment on the physical conditions of cells in Nicosia Central Prison, except to say that material conditions in cells used for administrative separation or disciplinary purposes in block 8 were adequate.", "The Ombudsman, in her report on the applicant’s complaints, did not consider the physical conditions of the applicant’s detention. However, the Court notes that the applicant sustained an injury to his shoulder, which he alleges was a result of the cold and damp of the cell. The Government do not dispute the allegation. In the circumstances, the Court considers that the applicant’s injury would appear to support his contention that the cell was cold and damp. 77.", "As to whether the applicant was given appropriate medical care while in confinement, the Court observes that the prison logbook records two visits from the doctor. It further notes that the applicant refused to attend a scheduled appointment with the surgeon on 31 October 2003. The Court accordingly does not consider that the standard of care and attention showed to the applicant’s health by the prison authorities was deficient during the time spent in solitary confinement. 78. However, the Court recalls that the CPT commented with concern on the significant duration of solitary confinement measures in Cyprus.", "It also criticised the lack of opportunity for detainees to leave their cells and to benefit from outdoor exercise, highlighting the applicant’s case which it concluded was unacceptable. It is clear from the prison logbook that the time spent by the applicant outside his cell was limited. Although, according to the prison logbook, he visited court on seven occasions, for the remainder of his solitary confinement he rarely left his cell. Most days, the cell was opened only for a brief period to allow him to use the shower or toilet or to collect his food. In this regard, the Court notes that in Cenbauer v. Croatia (cited above, § 49) it considered that the period of the applicant’s confinement to his cell, between 7p.m.", "and 7a.m. and for several hours during the day, was “substantial”. Furthermore, it is also clear from the prison logbook that human contact was mostly limited to the applicant’s dealings with prison staff and his visits to court. The CPT, in its report on Cyprus, condemned the absolute prohibition on contact with the outside world attendant on solitary confinement in Cyprus, insisting that restrictions on visits should be based only on security concerns of an appreciable nature or on the availability of resources. 79.", "Finally, the Court has previously indicated that the obligation on prison authorities to ensure the health and well-being of detainees implied an obligation to provide appropriate nourishment (Kadiķis (no. 2), cited above, § 55). It notes that, according to the prison logbook, the applicant was served food at irregular intervals, sometimes receiving only one full meal per day. 80. Accordingly, the Court concludes that the stringent custodial regime to which the applicant was subjected during his period in solitary confinement, including the prohibition on visits and the material conditions in which he was detained, caused him suffering clearly exceeding the unavoidable level inherent in detention.", "His exposure to these conditions for a period of 47 days amounted to degrading treatment contrary to Article 3 of the Convention. 81. There has accordingly been a violation of that provision. II. ALLEGED VIOLATION OF ARTICLE 8 82.", "The applicant complained under Article 8 of the Convention about the restrictions on contact with his family during the period of his confinement and about the prison authorities’ monitoring of his correspondence. Article 8 provides as follows: “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.” A. Admissibility 83.", "The Government maintained that the applicant had not exhausted domestic remedies in respect of his Article 8 complaints (see §§ 47 to 48 above). Having regard to its findings above (see §§ 54 to 56), the Court rejects this objection. Furthermore, having regard to the parties’ other submissions, the Court considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established. It must therefore be declared admissible.", "B. Merits 1. Restrictions on contact with family a. The parties’ submissions i. The Government 84.", "The Government submitted that although the prohibition on family visits constituted an interference with the applicant’s exercise of his right to respect for his family life, such interference did not violate Article 8 of the Convention. 85. They argued that the domestic law, which formed the basis of the interference, was the Prison Regulations, which had the force of law and were published in the Republic’s Gazette. Under regulation 151(1), it was reasonably foreseeable that confinement could entail restrictions on visits. The interference was therefore in accordance with the law.", "86. The Government also alleged that the applicant’s father had, on the applicant’s instructions, assisted him in removing incriminating evidence in relation to the crime for which he was serving a sentence at the time of his failure to return from home leave. Accordingly, they argued that the interference pursued the legitimate aim of ensuring public safety and the prevention of crime and disorder. 87. Finally, the Government insisted that the measure was necessary and proportionate.", "They pointed out that the restrictions had been imposed at a time when a police investigation was being carried out into the applicant’s involvement in criminal acts committed during the time he was at large. Until the completion of the investigation, the exact nature and extent of criminal activities and persons involved could not be known. Although during his confinement the applicant had received no visits, his communication with his friends and family had not been materially disrupted. The applicant had on eight occasions during the 47 days of confinement spent considerable time outside prison when he attended court hearings. The Government maintained that the applicant had contact with his family and friends on all of these occasions, when he was allowed to move around within the court building and was supplied by his family with refreshments, clothes and other materials.", "Accordingly, the measure had not hindered the applicant’s effective contact with family members. The Government relied on Messina v. Italy (no. 2), no. 25498/94, §§ 59 to 74, ECHR 2000‑X. 88.", "Further, the Government maintained that during the period of his confinement the applicant was entitled to send letters of a private nature twice a week. However, he had not attempted to send or receive any letters to his family during this period. Prisoners were also allowed to make telephone calls to members of their family, subject to obtaining the prison director’s permission and following a written application to this effect, under regulation 115 (1) and (2) of the Prison Regulations. Such telephone calls could be made from telephone booths installed in designated areas of the prisons. However, the applicant did not make or receive any telephone calls during the relevant period and there was no evidence of any request being made to this effect.", "Hence, his complaints in this respect were of a general nature, not referring to any specific instances of such restrictive measures being applied to him. ii. The applicant 89. The applicant insisted that during his solitary confinement, he was prohibited from making and receiving telephone calls. As to the Government’s objection that no evidence had been provided that he submitted any request to make a telephone call, the applicant replied that prisoners did not receive receipts for applications to make calls.", "He further alleged that prisoners were not allowed to receive calls from outside the prison. He disputed that there was any possibility that the authorities would have allowed him to send any letters or make or receive any telephone calls from his family during his confinement given that he was merely allowed to exit his cell for the purposes of using the toilet and the shower facilities. 90. As for visits, the applicant denied that his father had been involved in any criminal activities and that this constituted sufficient grounds for refusing visitation rights. He contested the Government’s allegations that he had contact with his family during his court visits and stated that contact only resumed after he was transferred to normal conditions of detention.", "b. The Court’s assessment 91. The Court reiterates that any detention which is lawful for the purposes of Article 5 of the Convention entails by its nature a limitation on private and family life. However, it is an essential part of a prisoner’s right to respect for family life that the prison authorities assist him as far as possible to create and sustain ties with people outside prison and to maintain contact with his close family (see Messina (no. 2), cited above, § 61; McCotter v. the United Kingdom, no.", "18632/91, Commission decision of 9 December 1992, DR 25, p. 265). 92. The Court observes, and the Government do not dispute, that for 47 days, the applicant was subject to a particularly stringent prison regime which involved an absolute prohibition on visits from friends and family. In light of the restrictions imposed by his detention in solitary confinement and following examination of the relevant Prison Regulations, the Court further considers it unlikely that any request by the applicant for telephone communication with his family would have been granted. The Court concludes that there was an interference with the exercise of the applicant’s right to respect for his family life guaranteed by Article 8 § 1 of the Convention.", "Such interference can only be justified if it was in accordance with the law, pursued one or more of the legitimate aims contemplated in paragraph 2 of Article 8 and could be regarded as a measure which was “necessary in a democratic society”. 93. A measure will be in accordance with the law if it satisfies three conditions. First, it must have some basis in domestic law. Second, the law must be adequately accessible: the citizen must be able to have an indication that is adequate, in the circumstances, of the legal rules applicable to a given case.", "Finally, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Sunday Times v. the United Kingdom (no. 1), 26 April 1979, §§ 47 and 49, Series A no. 30). 94. Further, a law which confers a discretion must indicate the scope of that discretion.", "However, the Court has already recognised the impossibility of attaining absolute certainty in the framing of laws and the risk that the search for certainty may entail excessive rigidity. Many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see Sunday Times (no. 1), cited above, § 49; and Silver and Others, cited above, § 88). 95. The Government have alleged that the prohibition on family visits was in accordance with the law as it was reasonably foreseeable from the terms of regulation 151(1) of the Prison Regulations that visits would not be permitted.", "The Court notes that this provision gives the prison director the power to “order the confinement or isolation of a prisoner for such period as he considers necessary”, for one of more of the purposes outlined in that regulation. The regulation provides no detail of what is meant by the phrase “confinement or isolation” or the degree of confinement or isolation envisaged. It makes no express reference to the curtailment of the general right granted by regulation 116 to visits from family and friends up to six times per month. It provides no guidance as to how a prison director might decide whether complete suspension of visitation rights is merited in a particular case, and what factors might be relevant to that decision. It is of significance in this respect that the applicant was given no formal notification that his visitation rights had been suspended, nor was he advised at the time of the reasons for the suspension.", "In the circumstances, it is not clear why and under what authority the applicant’s visitation rights were suspended. 96. Unlike the Government, the Court does not consider that the Prison Regulations stipulate an absolute prohibition on visits for those in solitary confinement. In short, the Prison Regulations do not indicate with reasonable clarity the scope and manner of the exercise of any discretion conferred on the relevant authorities to restrict visitation rights (see Domenichini v. Italy, 15 November 1996, §§ 32 to 33, Reports of Judgments and Decisions 1996‑V; Messina (no. 2), cited above, § 81; and Kornakovs v. Latvia, no.", "61005/00, §§ 159 to 160, 15 June 2006) 97. The Court concludes that the suspension of visitation rights in the applicant’s case was not in accordance with the law. There has accordingly been a violation of Article 8 § 1 of the Convention. 2. Monitoring of correspondence a.", "The parties’ submissions i. The Government 98. The Government identified four letters written by the applicant which had been sent to the Director General of the Ministry of Justice for inspection before being forwarded to their intended recipients. Three of the letters were addressed to the Ombudsman and one to the Attorney General. However, they contended that there was no violation of Article 8 § 1.", "99. First, they submitted that the monitoring was in accordance with the law. Regulations 115(6) and (7) provided for certain correspondence to be sent through the director of the prison, who had the power to prevent letters being sent in specified circumstances. 100. They emphasised that the purpose of monitoring letters to public authorities was to ensure that officials did not receive large volumes of letters outside their areas of competence and that the language used was not improper or insulting.", "Accordingly, they argued that the measure had a legitimate aim. 101. The Government also contended that the measure was necessary and proportionate (relying on Boyle and Rice v. the United Kingdom, 27 April 1988, §§ 68 to 76, Series A no. 131; and Silver and Others, cited above, §§ 86 to 90 and 97 to 98). In the applicant’s case, the letters were transmitted by the prison director to the Director General of the Ministry of Justice to ensure that the letters were suitable to be dispatched to their recipients.", "The Government referred to Silver and Others (cited above, § 104), in which the Court stated that where prison authorities were in doubt as to the exercise of their right to stop correspondence, they must be able to seek instructions from a higher authority. In the applicant’s case, the letters were not stopped: they were subsequently forwarded to the Ombudsman and Attorney-General, the parties to whom they were addressed. The delay of approximately three to four weeks in the delivery of the applicant’s correspondence was compatible with the requirements of Article 8. In this regard, the Government referred to the Court’s finding in Silver and Others (cited above, § 104) where the Court found a delay of three weeks to allow instructions to be sought on a prisoner’s correspondence to be compatible with the requirements of Article 8. 102.", "Finally, the Government relied on the fact that from February 2004 onwards a box was placed in the prison in which prisoners could put their letters addressed to the Ombudsman which would be picked up by the Ombudsman directly. ii. The applicant 103. The applicant disputed the Government’s observations and stated that there was a practice of censorship of prisoners’ correspondence, the purpose of which was to prevent complaints about the prison administration and conditions of detention reaching the office of the Ombudsman and other high-ranking officials. He complained that his letters had been stopped and that he was never informed of this fact.", "He did not provide any details of the letters allegedly involved. He submitted that because of the monitoring of his correspondence by the prison authorities, his letter addressed to the Ombudsman dated 6 October 2003 arrived at her office only on 5 November 2003. On 20 December 2003 he tried to give a letter addressed to the Ombudsman to his father during the latter’s visit to the prison. However, the authorities prohibited him from handing this letter over to his father. When the applicant reminded the authorities of the Ombudsman’s report of 21 November 2003 concerning the monitoring of his correspondence, the officer in charge replied that he did not care about the Ombudsman’s reports.", "The applicant argued that the recent introduction of post boxes for correspondence to the Ombudsman demonstrated that his complaint had merit and that there was a problem with the previous practice. 104. The applicant also alleged that the prison administration had opened his letters to and from the Court and that a letter to the Court was sent to the Director General of the Ministry of Justice for inspection. iii. The Court’s assessment 105.", "The Court observes that it has not been alleged that the applicant’s letters were censored. The issue in the present case concerns the fact that some of the applicant’s letters were screened and their delivery delayed by a referral to the Director General of the Ministry of Justice for further inspection. The applicant also alleges that unidentified letters were stopped. 106. The Government acknowledged that three letters written by the applicant to the Ombudsman and one to the Attorney General were sent to the Ministry of Justice and thus delayed.", "They did not contest the allegation that one letter to the Court was also sent to the Ministry of Justice for inspection. Accordingly, the Court will proceed on the basis that some of the applicant’s letters to the Ombudsman and at least one of his letters to the Attorney General and the Court were monitored by the prison authorities, such monitoring consisting of the screening, opening and reading of the letters by the prison authorities followed on a number of occasions by their referral to the Ministry of Justice for further inspection of their contents. Although monitoring could, under the terms of regulation 115(7), result in the prohibition of the sending of particular letters, in the absence of further details from the applicant, there is no evidence that any letters written by him were stopped by the prison authorities. All letters inspected ultimately reached their intended recipients, with a maximum delay of about a month. 107.", "The Court finds that the above monitoring of the applicant’s correspondence did constitute an interference with his right to respect for his correspondence under Article 8 of the Convention (see Silver and Others, cited above, § 84 and Kornakovs, cited above, § 158). This interference can only be justified if it was in accordance with the law, pursued a legitimate aim and was necessary in a democratic society in order to achieve that aim. 108. The condition that a measure be in accordance with the law requires in particular that it have some basis in domestic law. The applicant does not dispute the Government’s assertion that the Prison Regulations had the force of law.", "Accordingly, the Court sees no reason to disagree with the Government and finds that the Prison Regulations can be considered “law” for the purposes of Article 8 § 2. However, although the Prison Regulations permit the monitoring of correspondence addressed to official authorities of the Republic, correspondence with the Court does not fall within the categories listed in regulation 115(7) of the Prison Regulations. Accordingly, the monitoring of the applicant’s letter to the Court had no basis in domestic law. 109. As outlined above (§§ 93 to 94) the expression “in accordance with law” does not merely require that the measure have some basis in domestic law but also relates to the quality of the domestic law.", "The Court observes that Article 17 of the Cyprus Constitution guarantees respect for the secrecy of correspondence except in cases of, inter alia, convicted prisoners and in accordance with the law. No reference is made in Article 17 to the need for any interference to be necessary in a democratic society. The Court has previously considered the quality of the law to be deficient and thus found a violation of Article 8 § 1 where the domestic system provided for automatic screening of prisoners’ correspondence, on the basis that such an approach did not draw any distinction between the different categories of persons with whom the prisoners could correspond and that the relevant provisions did not lay down any principles governing the exercise of the screening. In particular, they failed to specify the manner and the time-frame within which it should be effected. As screening was automatic, the authorities were not obliged to give a reasoned decision specifying grounds on which it had been effected (see, inter alia, Niedbała v. Poland, no.", "27915/95, § 81, 4 July 2000; and Sałapa v. Poland, no. 35489/97, § 97, 19 December 2002. See also Petrov v. Bulgaria, no. 15197/02, § 44, 22 May 2008, where the Court considered these issues in its examination of the necessity of the measure). 110.", "In the present case, the Court notes that the law provided for the intercepting, opening and reading of prisoners’ correspondence to identified categories of addressees only. However, the Court would make two observations in this regard. First, in respect of the defined categories, the monitoring was automatic and there was no procedure for the applicant to challenge the application of the monitoring procedure to those categories of recipients. Second, although the categories of “politicians” and “mass media” are relatively well-defined and restricted, the same cannot be said of the category of “official authority of the Republic”, which would appear to cover a variety of bodies and institutions, including at the relevant time the Ombudsman. 111.", "As regards the manner and time-frame of the monitoring exercise, the regulation sets out the basic right of the prison authorities to conduct the monitoring and the reasons for which a letter can be prohibited. However, it provides no time-limits to ensure that monitoring does not result in excessive delays, nor does it envisage the direct participation or involvement of prisoners at any stage in the monitoring process. Regulation 115(7) simply provides that a prisoner will be informed of a decision to prohibit the sending of a letter. 112. Finally, regulation 115(7) does not require prison authorities to provide reasons for any decision to subject a prisoner’s letter to closer scrutiny, and in particular to send it for further inspection to the Ministry of Justice.", "In the present case, the prison authorities did not explain to the applicant at the time of the interference with his correspondence why these letters were sent for further inspection before being forwarded to their intended recipients. The applicant did not receive a reasoned decision specifying the grounds on which the referral had been made. Before this Court, the Government argued that the measure was intended to protect the rights of the applicant, the Ombudsman and other State authorities. They contended that the inspection and consequent delay was necessary in order to ensure that officials did not receive excessive number of letters from prisoners on subjects over which they had no competence, which were insulting or which were improper. However, the Court notes that the Government do not explain why it was considered that the applicant’s letters potentially fell within the categories outlined in regulation 115(7), such that their further inspection by the Ministry of Justice was thought necessary.", "The Court considers it relevant, in assessing the appropriateness of the prison authorities’ approach, that all of the letters concerned were eventually sent to the addressees. 113. In the circumstances the Court is not satisfied that the law indicated with reasonable clarity the scope and manner of exercise of the discretion conferred on the prison authorities in respect of screening prisoners’ correspondence (see, inter alia, Labita, cited above, §§ 176 and 180 to 184; and Enea, cited above, § 141 and 143). In reaching this conclusion, the Court emphasises that where measures interfering with prisoners’ correspondence are taken, it is essential that reasons be given for the interference, such that the applicant and/or his advisers can satisfy themselves that the law has been correctly applied to him and that decisions taken in his case are not unreasonable or arbitrary. The Court further emphasises the Ombudsman’s role as a guardian of human rights and fundamental freedoms, and the importance of respect for the confidentiality of correspondence of prisoners with the Ombudsman since it could – and in this case did – concern allegations against the prison authorities (see, mutatis mutandis, Campbell v. the United Kingdom, 25 March 1992, § 62, Series A no.", "233). It follows that the general reasons advanced by the Government for the interference with letters to the Ombudsman in the present case are especially inadequate. 114. In conclusion, the monitoring of the applicant’s correspondence was not in accordance with the law and there has therefore been a breach of Article 8 in this respect. III.", "ALLEGED VIOLATION OF ARTICLE 13 115. The Court has also examined ex officio the availability of an effective remedy in the national system in relation to the applicant’s complaints under Articles 3 and 8 of the Convention and concerning issues arising from the application of legislation concerning complaints about the conditions of detention of prisoners and control of their correspondence. The Court has had regard to Article 13 of the Convention, which, insofar as relevant, reads: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 116. Having regard to the parties’ submissions, the Court considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties’ submissions 117. The applicant denied that he had access to any effective remedies in Cyprus and relied on his submissions regarding the Government’s preliminary objection (§§ 49 to 50, above).", "He contested that the recourse to the Supreme Court under Article 146 of the Constitution was effective. He further alleged that he did complain to the Prisons Board, but did not hear anything further from them. Accordingly, he disputed that a complaint to the Prisons Board could be considered effective for the purposes of Article 13. 118. The Government referred to their submissions on exhaustion of domestic remedies (§§ 47 to 48 above).", "They maintained that it was open to the applicant to challenge the legality of the order to place him in solitary confinement under Article 146 of the Constitution. Had he done so, he would have been able to raise all of his Convention complaints before the Supreme Court. Accordingly, Article 146 offered the applicant an effective remedy in respect of his Convention complaints. The applicant could also have complained to the Prisons Board, which could have heard and investigated his complaints and communicated its findings to the Minister of Justice and the director of the prison. 2.", "The Court’s assessment 119. As the Court has held on many occasions, Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, for example, Kudła v. Poland, cited above, § 157; and Ramirez Sanchez v. France, cited above, § 157). 120. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint.", "However, the remedy must be “effective” in practice as well as in law (see İlhan v. Turkey [GC], no. 22277/93, § 97, ECHR 2000-VII). 121. The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective.", "Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see, among other authorities, Silver and Others v. the United Kingdom, cited above, § 113; and Chahal v. the United Kingdom, 15 November 1996, § 145, Reports of Judgments and Decisions 1996‑V). 122. The Court must determine whether it was possible under Cypriot law for the applicant to raise his complaints under the Convention about the decisions to place him in solitary confinement, the conditions of his confinement and the monitoring of his correspondence, including any procedural irregularities, and whether the remedies were “effective” in the sense that they could have prevented the alleged violation occurring or continuing or could have afforded the applicant appropriate redress for any violation that had already occurred 123. The Court refers to its previous finding (§ 54 above) to the effect that the possibility of lodging a recourse under Article 146 of the Constitution did not constitute an effective remedy which the applicant was required to exhaust in the present case. It also refers to its finding (§ 55 above) regarding the attempts of the applicant to lodge a complaint with the Prison Board.", "Although a remedy, in order to be considered “effective”, is not required to lead to a favourable outcome for the applicant, it is necessary that the authorities take the positive measures required in the circumstances to ensure that the applicant’s complaints are properly dealt with and that the remedy is effective in practice (see Selmouni v. France, cited above, §§ 79 to 80). The Court also takes note of the recommendations of the CPT, which strongly advocated an appeal to an outside authority when solitary confinement is ordered. It observes that no such appeal was possible in the applicant’s case. 124. It follows from the above and from the Court’s findings in respect of the Government’s objection as to the exhaustion of domestic remedies that there has been a violation of Article 13 of the Convention in the present case.", "IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 125. The applicant also complained under Article 14 of the Convention about the exercise of the Attorney-General’s power to recommend to the President the granting of a pardon to certain prisoners. He argued that because of the Attorney-General’s selection process, not all prisoners were given equal consideration. 126.", "In the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court finds no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols arising from this complaint. The complaint must therefore be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 127. 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.” 128. The applicant did not submit a claim for just satisfaction.", "Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints under Articles 3, 8 and 13 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention; 3. Holds that there has been a violation of Article 8 of the Convention in respect of the suspension of family visits and the monitoring of the applicant’s correspondence; 4.", "Holds that there has been a violation of Article 13 of the Convention. 5. Holds that there is no call to award just satisfaction. Done in English, and notified in writing on 7 January 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]
[ "THIRD SECTION CASE OF TRIPON v. ROMANIA (No. 2) (Application no. 4828/04) JUDGMENT STRASBOURG 23 September 2008 FINAL 23/12/2008 This judgment may be subject to editorial revision. In the case of Tripon v. Romania (no. 2), The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President, Elisabet Fura-Sandström, Corneliu Bîrsan, Alvina Gyulumyan, Egbert Myjer, Ineta Ziemele, Ann Power, judges, and Santiago Quesada, Section Registrar, Having deliberated in private on 2 September 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 4828/04) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Vasile Tripon (“the applicant”), on 5 December 2003. 2. The applicant was represented by Mr Nicolae Ionescu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, from the Ministry of Foreign Affairs.", "3. The German Government, to whom a copy of the application was transmitted under Rule 44 § 1 (a) of the Rules of Court, did not exercise their right to intervene in the proceedings. 4. The applicant alleged that the quashing of a final and enforceable decision favourable to him by means of an extraordinary appeal had violated his right to a fair hearing and his property right. 5.", "On 9 October 2006 the Court decided to give notice of the application to the Government. It 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 6. The applicant was born in 1945 and lives in Haiger, Germany.", "7. On 12 November 1996, the applicant bought 7,000 shares having the value of 3,500,000,000 Old Romanian Lei (ROL), in a Romanian company, L. (“the company”). On 24 January 1997 and 21 September 1998 these shares, representing 87.5% of the total value of the company’s nominal capital, were recorded in the trade register (Registrul Comerţului). 8. On 26 September 1999 the other shareholders decided, in the applicant’s absence, to increase the company’s capital by assets contributed by one of the shareholders, thus devaluating the applicant’s share in the company from 87.5 % to 10.29% of its capital.", "On 4 October 1999 mention of this modification was made in the trade register. 9. On 4 November 1999 the applicant lodged an action with the Bucharest County Court, seeking the annulment of the 26 September 1999 decision. 10. The action was allowed on 22 October 2001.", "The County Court considered that the decision under review had not observed the requirements of Law no. 31/1990 on companies (“Law no. 31”). It therefore cancelled it. The solution was upheld by the Bucharest Court of Appeal on 25 February 2000 and also by the Supreme Court of Justice, in a final decision of 27 June 2001, upon appeals by the company.", "11. On 6 November 2000 the applicant lodged a request with the Trade Register Office for the 4 October 1999 entry to be removed from the trade register. On 18 January 2001 the request was allowed, on the ground that the shareholders’ decision of 26 September 1999 had been annulled by the courts. Upon an appeal by the company, that solution was upheld by the Bucharest County Court in a final decision of 8 March 2001. On an unspecified date, the Procurator General lodged an extraordinary appeal with the Supreme Court of Justice, with a view to having the final decision of 27 June 2001 quashed (recurs în anulare), on the grounds that the ordinary courts had been wrong in considering that the shareholders’ decision had not complied with the legal requirements and that, in any case, the applicant had lacked standing to bring his initial action.", "12. The Supreme Court considered that the evidence in the case confirmed that the 26 September 1999 decision had observed Law no. 31. Therefore, in a final decision of 9 June 2003, it allowed the extraordinary appeal and, on the merits of the case, rejected the applicant’s initial action. II.", "RELEVANT DOMESTIC LAW 13. The relevant articles of the Code of Civil Procedure read as follows: Article 330 “The Procurator General may, of his own motion or on an application by the Minister of Justice, apply to the Supreme Court of Justice for a final decision to be quashed on any of the following grounds: ... 2. when the decision in question has seriously infringed the law by giving a wrong solution on the merits of the case, or when the decision is manifestly ill‑founded; ...” Article 3301 “The time-limit for lodging an appeal on the grounds provided for by Article 330 § 2 is one year from the date on which the decision became final.” 14. These provisions have been repealed by Article I § 17 of the Government’s Emergency Ordinance no. 58 of 25 June 2003. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 15. 1. The applicant complained that his right to a fair hearing had been breached in so far as the final decision of 27 June 2001 of the Supreme Court of Justice had been quashed and reversed by means of an extraordinary appeal (recurs în anulare). He relied on Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” A. Admissibility 16. 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 parties’ submissions 17.", "The Government contended that several aspects distinguished this case from Brumărescu v. Romania ([GC], no. 28342/95, ECHR 1999‑VII) and SC Maşinexportimport Industrial Group SA v. Romania (no. 22687/03, 1 December 2005) where the Court found that the same extraordinary appeal had violated the applicant’s right to a fair hearing. 18. Accordingly, in the case at hand the Procurator General had not acted on his own initiative but at the request of one of the parties to the proceedings.", "Furthermore, this case concerned a private dispute, both parties to the procedure having equal rights to ask the Procurator General to institute the review. They also considered that the final decision had been quashed because it had seriously infringed the law and in order to correct judicial mistakes and miscarriages of justice. 19. Lastly, they informed the Court that this extraordinary procedure had been repealed from the Civil Code. 20.", "The applicant contested the Government’s position and pointed out that a State authority had intervened in a private-law dispute. 2. The Court’s assessment 21. The Court reiterates that, under its settled case-law, the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 must be interpreted in the light of the Preamble to the Convention, which declares, among other things, the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, inter alia, that where the courts have finally determined an issue, their ruling should not be called into question (Brumărescu, cited above, § 61).", "22. 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, as it has considered that the extraordinary appeal under review has infringed the principle of legal certainty in so far as it was not open to the parties to the procedure but to the Procurator General alone and as by allowing the application the Supreme Court of Justice set at naught an entire judicial process which had ended in a judicial decision that was res judicata and which had, moreover, been executed (see, among many others, Brumărescu, § 62; SC Maşinexportimport Industrial Group SA, § 36, judgments cited above and Cornif v. Romania, no. 42872/02, §§ 29-30, 11 January 2007). 23. Lastly, the Court reiterates that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case.", "Higher courts’ power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination. The review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character (see Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003‑IX). 24.", "In the present case the Court notes that, after being determined by the courts that dealt with the merits of the case in the ordinary proceedings, the relevant law and the applicant’s right to lodge the initial action were reassessed by the Supreme Court of Justice, which expressed a different view than that of the previous courts and allowed the extraordinary appeal on this point. Despite the Government’s claim to the contrary, the Court considers that this situation is nothing but a mere reinterpretation of the facts and applicable law, which, bearing in mind the circumstances of the case, does not justify the quashing of a final and binding decision. 25. Furthermore, the Court considers the Procurator General’s intervention in a private dispute to be an aggravating factor. Moreover, it does not share the Government’s view that no issue arose in the matter as both parties could request the Procurator General’s intervention.", "Although this State official acted upon the company’s request, the fact remains that the exercise of the extraordinary appeal was solely at his discretion (see also Brumărescu, § 20, and Ryabykh, § 56, judgments cited above). 26. The foregoing considerations are sufficient to enable the Court to conclude that the quashing of the final decision of 27 June 2001 infringed the applicant’s right to a fair hearing. There has accordingly been a violation of Article 6 § 1 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 27. The applicant also considered that the quashing by means of an extraordinary appeal of the final decision whereby he had been implicitly recognised as the owner of 87.5 % of the company’s nominal capital, violated his right to peaceful enjoyment of his possessions, as guaranteed by Article 1 of Protocol No. 1 which reads as follows: “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 28. 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 parties’ submissions 29. The Government contended that no interference with the applicant’s possession occurred, in so far as even after the change in the company’s capital composition the applicant had remained the owner of 7,000 shares worth ROL 3,500,000,000. Should the Court consider that there was an interference with the applicant’s right, the Government argued that it had been provided by law and had pursued a legitimate aim, to which it had been proportionate. 30.", "The applicant contested the Government’s argument and contended that he had lost his possession because of the quashing of the final decision favourable to him. 2. The Court’s assessment 31. The Court notes that the final decision of 27 June 2001 recognised implicitly that the applicant’s shares were worth 87.5% of the company’s value. Therefore, as a consequence of the extraordinary appeal, the applicant’s share in the company was reduced to 10.29% of the company’s capital, which affected his shareholder power, in particular his ability to influence the company and control its assets (see, mutatis mutandis, Sovtransavto Holding v. Ukraine, no.", "48553/99, § 92, ECHR 2002‑VII). 32. In the light of the above, the Court considers that quashing this decision after it has become final and irrevocable will constitute an interference with the applicant’s right to the peaceful enjoyment of his possession (see Brumărescu, cited above, § 74). Even assuming that such an interference may be regarded as serving a public interest, the Court finds that it was not justified since a fair balance was not preserved and the applicant was required to bear an individual and excessive burden (ibid., §§ 75-80). 33.", "It follows that there has been a violation of Article 1 of Protocol No. 1 to the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 34. 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 35. The applicant claimed the following amounts in respect of pecuniary damage: – 487,500 euros (EUR) for the value of his shares, and – EUR 500,000 for loss of profit. He asked the Court to establish the amount to be awarded to him in respect of non-pecuniary damage. 36. The Government reiterated that even after the quashing of the final decision the applicant remained the owner of his 7,000 shares, no causal link having been established between any pecuniary damage he might have incurred and the violation alleged.", "They also asked the Court to make no award in respect of non-pecuniary damage, as the applicant had failed to make a valid request under that head. 37. The Court notes that, although having been informed, on 26 February 2007, about the Court’s requirements concerning the just satisfaction claims, the applicant did not send the required supporting documents. The Court thus considers that the claims in respect of pecuniary damage are unsubstantiated and rejects them. On the other hand, it awards the applicant EUR 2,000 in respect of non-pecuniary damage (see, mutatis mutandis, Arsenovici v. Romania, no.", "77210/01, § 55, 7 February 2008). B. Costs and expenses 38. The applicant also claimed EUR 10,000 for costs and expenses without specifying or itemising the claim. 39.", "The Government asked the Court not to grant any sum under this head. 40. 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 information in its possession and the above criteria, the Court rejects as unsubstantiated the claim for costs and expenses. C. Default interest 41.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No.", "1 to 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 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the respondent State’s national currency at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 23 September 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident" ]
[ "THIRD SECTION CASE OF BRUNCKO v. SLOVAKIA (Application no. 33937/06) JUDGMENT This version was rectified on 1 December 2011 under Rule 81 of the Rules of Court STRASBOURG 3 November 2011 FINAL 03/02/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bruncko v. Slovakia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Corneliu Bîrsan,Alvina Gyulumyan,Egbert Myjer,Ján Šikuta,Luis López Guerra,Mihai Poalelungi, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 11 October 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "33937/06) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovak national, Mr Ján Bruncko (“the applicant”), on 5 August 2006. 2. The applicant was represented by Ms M. Bobíková, a lawyer practising in Dolný Kubín. The Government of the Slovak Republic (“the Government) were represented by their Agent, Mrs. M. Pirošíková. 3.", "The applicant alleged that he had been detained in custody in breach of Article 5 § 1 of the Convention. 4. On 12 January 2010 the Court decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1981 and lives in Dolný Kubín. 6. On 5 February 2004 the police arrested the applicant. He was accused of planning a robbery[1] and remanded in custody from that date.", "7. Several decisions extending the applicant’s detention were made. In particular, on 18 November 2004 the Žilina District Court extended his detention in the context of the preliminary proceedings until 24 January 2005. 8. On 21 January 2005 the public prosecutor indicted the applicant and several other persons before the Žilina Regional Court.", "9. The applicant requested to be released, arguing that the Regional Court had not extended his detention after the expiry of the period indicated in the District Court’s decision of 18 November 2004. 10. On 20 April 2005 the Regional Court ordered the applicant’s release. Upon a complaint lodged by the public prosecutor the Supreme Court decided on 24 May 2005 that the applicant should remain remanded in custody.", "11. On 27 July 2005 the applicant complained to the Constitutional Court that his detention in the period after 24 January 2005 was unlawful. 12. On 5 February 2006 the applicant was released. 13.", "On 15 February 2006 the Constitutional Court found that by the above decision of 24 May 2005 the Supreme Court had breached the applicant’s right under Article 5 § 1 of the Convention (judgment I.ÚS 204/05). There had been no judicial decision extending the applicant’s detention after 24 January 2005 and there existed no justification for that situation. 14. The Constitutional Court ordered the Supreme Court to reimburse the applicant’s costs in the constitutional proceedings. It dismissed the applicant’s claim for just satisfaction, holding that (i) the finding of a violation of Article 5 § 1 provided appropriate redress for the applicant and (ii) the Supreme Court’s decision of 24 May 2005 was based on that court’s practice which, however, was not in accordance with practice under the Convention.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Code of Criminal Procedure of 1961 15. The following provisions of the Code of Criminal Procedure of 1961 (Law no. 141/1961 Coll., in force until 31 December 2005) are relevant in the present case.", "16. Pursuant to Article 71 § 1, a person’s detention in the context of both pre-trial proceedings and during proceedings before a trial court can only last as long as necessary. Where detention in the context of pre-trial proceedings is to exceed six months, it can be extended at a public prosecutor’s request up to one year by a judge or to a maximum of two years by a court’s chamber. 17. Article 71 § 2 provides that a person’s detention in the context of both pre-trial proceedings and during a trial must not exceed two years.", "In justified cases the Supreme Court may extend its duration to a maximum of three years and, in cases of particularly serious offences, up to five years. Under paragraph 3 of Article 71, a proposal for extension of a person’s detention is to be submitted by a public prosecutor in the pre-trial proceedings and by the president of the court’s chamber during the trial. 18. Article 72 § 1 obliges investigators, prosecutors and judges to examine, at each stage of criminal proceedings, whether reasons for the accused person’s detention persist. In pre-trial proceedings a judge is obliged to do so only when deciding on a public prosecutor’s proposal to extend detention or to modify the reasons for it or when deciding on the accused person’s application for release.", "Where a reason for an accused person’s detention no longer exists, the accused must be released immediately. 19. Article 72 § 2 entitles an accused to apply for release at any time. When the public prosecutor dismisses such an application in the course of pre-trial proceedings, he or she must submit it immediately to the court. The decision on an application for release must be taken without delay.", "If an application is dismissed, the accused may only renew it fourteen days after the decision has become final unless he or she gives other reasons justifying his or her release. 20. Pursuant to Article 192, where the court carries out a preliminary examination of the indictment of a person who is detained, it shall also decide whether that person is to remain in custody. B. Practice of the Supreme Court 21.", "In accordance with the Supreme Court’s practice, the time-limits mentioned in Article 71 § 1 of the Code of Criminal Procedure of 1961 concerned exclusively situations where a decision on a public prosecutor’s proposal was to be made in the context of pre-trial proceedings. However, where an indictment had been filed within a shorter time than the two-year period mentioned in Article 71 § 1, the law did not require a request for continued detention of the accused persons to be made or a separate decision on their continued detention, with the exception of cases where the indictment had been filed less than ten days before the expiry of the two-year maximum period of detention. 22. Pursuant to a 1975 Supreme Court ruling (Rt 5/75), Article 192 of the Code of Criminal Procedure requires a court to decide on further detention of an accused where it has carried out a preliminary examination of the indictment. Accordingly, where the presiding judge concludes, on the basis of the file, that a preliminary examination of the indictment is not required, and considers the detention of the accused to be lawful, there is no need for a separate decision of the court chamber on continued detention of the accused.", "However, where the accused applies for release, the application must be decided upon without delay in accordance with Article 72 § 2 of the Code of Criminal Procedure.` C. Practice of the Constitutional Court 1. Judgment I. ÚS 6/02 of 4 December 2002 23. In judgment I. ÚS 6/02 the Constitutional Court noted that the Code of Criminal Procedure did not explicitly require that a decision on extension of an accused person’s detention be given in cases where an indictment had been filed and where the detention, both at the pre-trial stage and during the trial, had not exceeded two years. 24. It held, however, that the filing of an indictment alone did not as such justify a person’s continued detention.", "The court dealing with the case was required to decide explicitly on further detention of the accused prior to the expiry of the period for which the detention had been extended in the context of pre-trial proceedings. 25. In its judgment the Constitutional Court referred in particular to the guarantees laid down in Article 5 § 1 of the Convention and the Court’s judgment in Stašaitis v. Lithuania (no. 47679/99, 21 March 2002, §§ 59‑61). 26.", "In that case the Constitutional Court found no breach of Article 5 § 1 as the ordinary court involved, both in the context of a preliminary examination of the indictment and in reaction to the accused person’s request for release, decided that the reasons for the latter’s detention persisted. That decision had the same effect as a decision to extend the accused person’s detention. 2. Judgments III. ÚS 322/05 of 10 May 2006 and III.", "ÚS 167/06 of 30 November 2006 27. In the above two judgments given in the case of one of the applicant’s co-accused, the Constitutional Court found a breach of Article 5 § 1, in that there had been no judicial decision extending the accused person’s detention after the filing of the indictment. In the latter judgment it held, in particular: “In the Constitutional Court’s view, the jurisdiction of the court involved at the pre-trial stage ended with the filing of the indictment on 21 January 2005. The indictment as such is not a ground for continued detention of a person as it does not explicitly follow from the law, and it is inadmissible to extend the possibilities of restricting a person’s liberty by extensive interpretation of several provisions of the Code of Criminal Procedure. However, a court’s decision on detention of a person given at the pre-trial stage can constitute a ground for that person’s detention during a short period following the indictment.", "Otherwise it would be practically impossible to ensure continued detention of a person after an indictment has been filed. In the circumstances, a ground for the plaintiff’s detention existed until 25 January 2005. The detention should have been extended by a decision not later than 25 January 2005 if it was to last after that date. In the absence of any such decision, the restriction of the plaintiff’s liberty after 25 January 2005 was unlawful. The unlawfulness of the plaintiff’s deprivation of liberty after 25 January 2005 cannot be justified retrospectively, not even by a judicial decision.", "Subsequent judicial decisions could not have extended the plaintiff’s detention, as it had ended on 25 January 2005. The only existing possibility was to remand the plaintiff in custody again. As this was not done, his subsequent deprivation of liberty had no legal ground.” 3. Judgment I. ÚS 115/07 of 23 October 2007 28. In judgment I. ÚS 115/07 the Constitutional Court confirmed that the filing of an indictment alone does not suffice for continued detention of the accused to be lawful.", "It is required that the court dealing with the criminal case following the indictment should take a decision on the accused person’s detention prior to the expiry of the period for which the latter had been remanded in the context of pre-trial proceedings. The Constitutional Court found a breach of the accused person’s right under Article 5 § 1 of the Convention and ordered his immediate release. D. The Code of Criminal Procedure of 2005 29. The new Code of Criminal Procedure (Law no. 301/2005 Coll.)", "entered into force on 1 January 2006. 30. Article 76 § 5 provides, inter alia, that a court is obliged to decide on further detention of an accused within fifteen days of his or her indictment (or submission for its approval of an agreement between the prosecution and the accused on guilt and punishment) unless it has already decided on detention of the accused under provisions which govern the examination of indictments. 31. The explanatory report to the draft Code of Criminal Procedure of 2005 indicates that the above provision accentuates judicial supervision of a person’s detention following his or her indictment and that the amendment is also in reaction to the Constitutional Court’s judgment I. ÚS 6/02 of 4 December 2002.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 32. The applicant complained that his detention after 24 January 2005 had been unlawful and that he was unable to obtain appropriate redress in that respect. He alleged a violation of Article 5 § 1 of the Convention, the relevant part of which reads as follows: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (...) (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (...)” 33.", "The Government contested that argument. A. Admissibility 34. The Government argued that the application was manifestly ill-founded as the guarantees of Article 5 § 1 had been complied with. In any event, given the redress which the applicant had obtained in the proceedings before the Constitutional Court, he could no longer be considered a “victim” within the meaning of Article 34 of the Convention. 35.", "The applicant disagreed with the arguments of the Government. 36. The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive the applicant of his or her status as a “victim”, within the meaning of Article 34 of the Convention, unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Rosselet-Christ v. Slovakia, no. 25329/05, § 49, 26 October 2010, with further references). 37.", "In the present case, the Constitutional Court, on 15 February 2006, found that the applicant’s right under Article 5 § 1 had been violated in that there had been no judicial decision extending his detention after 24 January 2005. It ordered the Supreme Court to reimburse the applicant’s costs in the constitutional proceedings and dismissed his claim for just satisfaction, holding that (i) its finding as such provided appropriate redress for the applicant and (ii) the Supreme Court decision of 24 May 2005 was based on that court’s practice, which, however, was not in accordance with practice under the Convention (see paragraphs 13-14 above). At the time of the judgment the applicant had been released. 38. Thus the Constitutional Court explicitly acknowledged a breach of the applicant’s right under the Convention on which he relies in the present application.", "However, the Court considers that, in the absence of any just satisfaction award, its judgment did not provide the applicant with appropriate redress, in view of the importance of the right to liberty and security as enshrined in Article 5 § 1 and the duration of the applicant’s detention, which the Constitutional Court had found to be unlawful. 39. In these circumstances, the applicant can still claim to be a “victim” of a breach of his rights within the meaning of Article 34 of the Convention, and the Government’s objection in this respect must therefore be dismissed. 40. 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. Arguments of the parties 41.", "The applicant maintained that his detention after 24 January 2005 had been contrary to Article 5 § 1 as indicated in the Constitutional Court’s judgment. 42. The Government argued that the applicant’s detention after 24 January 2005 had been in accordance with the law. They relied on Article 72 § 1 of the Code of Criminal Procedure of 1961 which obliged judges to examine, at each stage of criminal proceedings, whether reasons for the accused person’s detention persisted, as well as the existing practice of ordinary courts, as described above. The maximum permissible duration of the applicant’s detention was laid down in the Code of Criminal Procedure of 1961 and had not been exceeded.", "His detention after 24 January 2005 therefore had an appropriate legal basis and was neither arbitrary nor otherwise contrary to Article 5 § 1. 43. The Government further argued that in Pavlík v. Slovakia (no. 74827/01, judgment of 30 January 2007) the Court had found no breach of Article 5 § 1 despite the fact that the applicant’s detention had not been covered by a judicial decision for nearly one month. 44.", "At the relevant time there was no established practice of the Constitutional Court as, prior to the facts of the present case, it had addressed the point in issue in a single judgment, namely I. ÚS 6/02 of 4 December 2002. The actual change in its approach had occurred in the context of proceedings brought by the applicant in the present case and his co-accused. 45. The new approach consisted of an interpretation of the guarantees under Article 5 § 1 of the Convention which was broader than that which the Court gave to that provision under its case-law. In particular, the Government argued that while Article 5 § 1 required a legal basis in the domestic legal order for detention to be lawful, it did not follow from the Court’s case-law that lawful detention of a person should exclusively be based on an explicit judicial order.", "2. The Court’s assessment (a) Recapitulation of the relevant principles 46. The relevant principles are set out, for example, in Mooren v. Germany [GC] (no. 11364/03, §§ 72-81, ECHR 2009‑...; with further references). They can be summed up as follows.", "47. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down an obligation to conform to the substantive and procedural rules thereof. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. The Court must further ascertain in this connection whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein, notably the principle of legal certainty. Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention.", "48. A period of detention is, in principle, “lawful” if it is based on a court order. However, the Court has considered the absence of any grounds given by the judicial authorities in their decisions authorising detention for a prolonged period of time to be incompatible with the principle of the protection from arbitrariness enshrined in Article 5 § 1. 49. It has further acknowledged that the speed with which the domestic courts replaced a detention order which had either expired or had been found to be defective is a relevant element in assessing whether a person’s detention must be considered arbitrary.", "Thus, in the context of sub-paragraph (c) of Article 5 § 1, a period of more than a year following a remittal from a court of appeal to a lower-level court, in which the applicant remained in a state of uncertainty as to the grounds for his detention, combined with the lack of a time-limit for the lower court to re-examine his detention, was found to render the applicant’s detention arbitrary (see Khudoyorov v. Russia, no. 6847/02, §§ 136-137, ECHR 2005‑X (extracts)). 50. In the Jėčius v. Lithuania judgment (no. 34578/97, 31 July 2000, §§ 56-64, ECHR 2000-IX) the Court found that the sole fact that the case had been transmitted to the court did not constitute a “lawful” basis for detention within the meaning of Article 5 § 1 of the Convention, and that it could not extend or replace the valid detention order required by domestic law.", "51. In Stašaitis, (cited above, §§ 68-69) the Court held that uncertainty had been created by the judicial authorities’ merging of detention decisions with other procedural acts, resulting in a lack of clarity regarding the lawfulness of the applicant’s detention. In that case the Court of Appeal retroactively reinstated a detention order issued more than a year before, but gave no reasons for its decision in that respect. In doing so it took no account of the applicant’s current situation. The Court concluded that the decision did not constitute a “lawful” basis for the applicant’s continued remand in custody.", "52. In the Žirovnický v. the Czech Republic judgment (no. 23661/03, §§ 58-62, 30 September 2010), the Court found a breach of Article 5 § 1 as no detention warrant had been issued by a court or other judicial body authorising the applicant’s continued remand in custody for a period exceeding one month. (b) Application of the relevant principles to the present case 53. In the present case the Constitutional Court acknowledged a breach of the applicant’s rights under Article 5 § 1, but the Government expressed their disagreement with that decision.", "In view of such situation the Court is required to take a stand on the point of issue. 54. It would be justified for the Court to reach a contrary conclusion to that of the Constitutional Court only if it was satisfied that the latter had misinterpreted or misapplied the Convention provision or the Court’s jurisprudence under that provision or reached a conclusion which was manifestly unreasonable (see, mutatis mutandis, A. and Others v. the United Kingdom [GC], no. 3455/05, § 174 in fine, ECHR 2009-..., and Henryk Urban and Ryszard Urban v. Poland, no. 23614/08, §§ 51-53, 30 November 2010).", "55. The Constitutional Court found, with reference to its judgment I. ÚS 6/02, that the domestic law did not list indictment as a ground for continued detention of an accused. It considered inadmissible the practice of extending the statutory possibilities of restricting a person’s liberty by extensive interpretation of several provisions of the Code of Criminal Procedure. 56. The Court concurs with the reasons put forward by the Constitutional Court which it finds to be in line with its above case-law.", "It considers that the purpose of Article 5, namely to protect individuals from arbitrary deprivation of liberty, is served in an appropriate manner where there is a mandatory formal judicial review requiring a decision which gives reasons for a person’s detention after his or her case has been submitted to the trial court and, as the case may be, the detention order issued at the pre-trial stage has expired. 57. The Court has noted that a judicial review of this kind was allowed for in Article 76 § 5 of the Code of Criminal Procedure of 2005, also with reference to the above Constitutional Court’s judgment I. ÚS 6/02. However, that development did not concern the present case. 58.", "The foregoing considerations and the fact that the applicant has not obtained appropriate redress at domestic level enable the Court to conclude, in line with the Constitutional Court’s judgment, that the applicant’s detention after the expiry of the detention order given at pre-trial stage fell short of the requirement of lawfulness within the meaning of Article 5 § 1. 59. There has therefore been a violation of Article 5 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 60.", "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 61. The applicant claimed 33,193.92 euros (EUR) in respect of non-pecuniary damage. 62. The Government considered the sum claimed to be excessively high.", "63. The Court awards the applicant EUR 15,000 in respect of non-pecuniary damage. B. Costs and expenses 64. The applicant also claimed EUR 452.14 for costs and expenses incurred before the Court.", "65. The Government had no objection to an award corresponding to the sum which the applicant had demonstrably incurred with a view to redressing the alleged breach of his right under Article 5 § 1 of the Convention. 66. 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 452 for the proceedings before the Court.", "C. Default interest 67. 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 5 § 1 of the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following sums: (i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, and (ii) EUR 452 (four hundred and fifty-two euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (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 3 November 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident [1]. Rectified on 1 December 2011: the text read “He was accused of robbery …” in the former version of the judgment." ]
[ "SECOND SECTION CASE OF UŽUKAUSKAS v. LITHUANIA (Application no. 16965/04) JUDGMENT STRASBOURG 6 July 2010 FINAL 06/10/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Užukauskas v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Danutė Jočienė,András Sajó,Nona Tsotsoria,Kristina Pardalos,Guido Raimondi, judges,and Stanley Naismith, Deputy Section Registrar, Having deliberated in private on 15 June 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "16965/04) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Robertas Užukauskas (“the applicant”), on 28 April 2004. 2. The applicant was represented by Mr R. Girdziušas, a lawyer practising in Kaunas. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė. 3.", "The applicant alleged that the proceedings for removing his name from an “operational records file” had been unfair in that the principles of fairness and equality of arms had not been respected. He invoked Article 6 § 1 of the Convention. 4. On 11 December 2006 the Court 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 1972 and lives in Kaunas. 6. In 1999 the applicant was granted a licence to keep a firearm.", "7. On 17 July 2002 the validity of the licence was extended. 8. On 15 November 2002 the applicant submitted a request for a licence to keep another type of firearm. 9.", "On 19 December 2002 police officials decided not to grant a new licence, given that on 13 December 2002 the applicant had been listed in an “operational records file” (policijos operatyvinė įskaita), that is, a database containing information gathered by law-enforcement authorities (see paragraphs 17-19 of the 'Relevant domestic law' below). 10. On 16 April 2003 the police wrote to the applicant informing him that his licence to keep a pistol and a hunting rifle had been revoked. The applicant was informed that, pursuant to Article 38 of the Law on the Control of Guns and Ammunition, he was to hand in these firearms to the authorities and would receive money for them. 11.", "The applicant instituted court proceedings challenging the entry of his name in the operational records file. 12. On 25 September 2003 the Kaunas Regional Administrative Court dismissed his action. The decision was based on classified material submitted by the police and analysed by the judges without it being disclosed to the applicant. The court concluded that the applicant's listing in the operational records file had been lawful and reasoned, in view of the information about the applicant held by the police.", "13. The applicant appealed, complaining that he had had no access to the operational records file. He alleged that the court had not examined the classified evidence during the hearing, and that it had not assessed whether any parts of that information could have been disclosed to him. 14. On 29 October 2003 the Supreme Administrative Court upheld that decision.", "The court noted, inter alia, that the impugned evidence was classified as a State secret and, although reviewed by the court, could not be disclosed to the applicant. 15. The Government submitted that in July 2004, after the applicant had been granted a new firearms licence, his guns were returned to him. II. RELEVANT DOMESTIC LAW AND PRACTICE 16.", "Article 21 of the Constitution provides that the dignity of a human being is to be protected by law. Article 22 thereof states that the private life of a human being is inviolable and that information concerning a person's private life may be collected only following a reasoned court decision and only in accordance with the law. The law and the courts are to protect everyone from any arbitrary or unlawful interference with his or her private life or from encroachment upon his or her honour and dignity. Article 23 of the Constitution provides that property is inviolable and that ownership rights are protected by law. Property may be taken only for the needs of society in accordance with the procedure established by law, and must be fairly compensated.", "Under Article 30 of the Constitution, a person whose constitutional rights or freedoms have been violated has the right to apply to a court. Article 48 provides that each human being may freely choose a job or occupation. 17. Article 3 § 10 of the Law on Operational Activities (Operatyvinės veiklos įstatymas) describes the “operational records file” as a system of managing data on individuals, events and other targets obtained during operational activities. It is designed to provide information for law-enforcement authorities.", "Article 9 of the Law stipulates that an operational investigation is to be conducted when there is information that a serious crime is being planned or has been committed. 18. Article 17 § 1 (2) of the Law on the Control of Arms and Ammunition (Ginklų ir šaudmenų kontrolės įstatymas) provided at the material time that arms and ammunition could not be acquired or possessed by a person who did not have an impeccable reputation. According to Article 18 § 2 (5) of that Law, a person was not regarded as having an impeccable reputation if his or her name had been entered in an operational records file. Article 38 of the Law provided that, after a firearms licence had been revoked, the arms and ammunition were to be taken from the person concerned and sold through the Arms Fund (a State agency) or through other companies authorised to sell them.", "19. Article 6 § 2 (4) of the Law on the Protection of Persons and Property (Asmens ir turto saugos įstatymas) provides that a person whose name is listed in an operational records file is not eligible to work as a security officer. 20. The relevant part of the Law on Administrative Procedure (Administracinių bylų teisenos įstatymas) provides as follows: Article 57. Evidence “1.", "Evidence in an administrative case is all factual data found admissible by the court hearing the case and based upon which the court finds ... that there are circumstances which justify the claims and rebuttals of the parties to the proceedings and other circumstances which are relevant to the fair disposal of the case, or that there are no such circumstances ... 3. As a rule, factual data which constitutes a State or official secret may not be used as evidence in an administrative case, until the data has been declassified in a manner prescribed by law.” 21. In the judgment of 4 September 2002 in case no. A10-786-02, the Supreme Administrative Court stated, in so far as relevant to the present case, that: “as a rule, factual data which constitutes a State or official secret may not be used as evidence in an administrative case until it has been declassified (Article 57 § 3 of the Law on Administrative Proceedure). Therefore, in the absence of other evidence, the [lower] court's reliance on solely written information provided by the State Security Department which was marked as secret had no legal basis”.", "22. On 15 July 2007 the Constitutional Court adopted a ruling on the compatibility with the Constitution of Article 57 § 3 of the Law on Administrative Procedure, and Articles 10 § 4 and 11 of the Law on State Secrets. It ruled that no decision of a court could be based solely on information which constituted a State secret and which had not been disclosed to the parties to the case. In the ruling no. A822-326/2009 of 8 October 2009 the Supreme Administrative Court confirmed the above principles.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 23. The applicant complained that the proceedings before the administrative courts had been unfair in that the principle of equality of arms had not been respected. He invoked Article 6 § 1 of the Convention, which, in so far as is relevant, reads as follows: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” 1. The parties' submissions (a) The Government 24.", "The Government argued that Article 6 § 1 of the Convention was not applicable to the proceedings at issue. They explained that records in operational files served only as tools, mainly for the prevention of crime and in certain situations to help investigate them. Operational records files contained information concerning events, circumstances and persons. Data on a particular person could be recorded in an operational file only in connection with investigative activities carried out in respect of other persons. The fact that certain operational activities had been carried out in respect of a certain person did not mean that that person was suspected of having committed a crime.", "Moreover, a record in an operational file could not be equated with the legal status of a suspect or official notification of an allegation that a person had committed a criminal offence. Operational information was to be considered only as certain preliminary information. Consequently, it had to be declassified if the authorities wanted to use it as evidence in criminal proceedings. Relying on the above, the Government submitted that Article 6 § 1 of the Convention, under its criminal head, was not applicable to the applicant's case. 25.", "In the alternative, the Government argued that, contesting the lawfulness and reasonableness of listing the applicant's name in the operational records file under the administrative procedure, could not be considered a determination of his civil rights. The litigation at issue had concerned an administrative dispute, a conflict between the applicant and a public administrative body – the Police Commissariat. The applicant had challenged before the domestic courts the actions of State agents when carrying out one of the State's main functions – guaranteeing public security and safety – and in this particular connection the State institution had not been acting as a private party. The State had a broad margin of discretion over the exercise of the right to carry a gun. Moreover, an administrative decision to grant or withhold such a licence did not directly affect a person's property rights or legal interests.", "For the Government, the right to carry a gun was not to be considered as being equal to, for example, the right to carry out certain professional activities. Nor did it affect a person's possessions. 26. On this latter point, the Government submitted that it did not follow from Article 38 of the Law on the Control of Arms and Ammunition that the listing of a person's name in an operational records file and the subsequent possibility of his or her firearm being taken would be acts amounting to an interference with that person's property rights by the State. Once a licence to carry a gun had been revoked, the gun was to be temporarily kept by the police.", "The subsequent sale of the gun was to be for a reasonable price and the money received was to be given to the person concerned. As a result, the person would receive fair compensation and no determination of his or her civil rights would be at issue. 27. As to the particular situation of the applicant, the Government submitted that, after the applicant's licence to carry a weapon had been revoked, his guns had been kept by the police and had not been sold. In July 2004, after the applicant had been granted a new licence to carry a gun, his guns had been returned to him.", "28. Relying on the above, the Government asserted that the applicant's complaint under Article 6 of the Convention was inadmissible ratione materiae. In the alternative, the Government submitted that the complaint was manifestly ill-founded. (b) The applicant 29. The applicant argued that, even though the domestic proceedings had taken place in the administrative courts and it had been a dispute of an administrative nature, his civil rights had nevertheless been affected.", "After information about him had been placed in the operational records file on 13 December 2002, the police had decided to revoke his licence to keep and carry firearms. Pursuant to Article 38 of the Law on Arms and Ammunition Control, the State authorities had been obliged to take the applicant's guns away from him. It followed that his being listed in the operational records file was an act which had interfered with his property. 30. Alternatively, the applicant submitted that the notion of “criminal charge”, within the meaning of Article 6 § 1 of the Convention, was not to be interpreted narrowly.", "In particular, Article 9 of the Law on Operational Activities stipulated that an operational investigation was to be conducted when there was information that a serious crime was being planned or had been committed. Consequently, the Law gave the impression that the operational records file was connected with a suspicion that a person was, to some extent, implicated in a criminal activity. This impression was accentuated by the fact that firearms licences were to be revoked in respect of persons who had been the subject of operational investigations. The State thus showed distrust towards such people. Consequently, it was understandable that a person was entitled to know what factual data had given the impression that the individual had been implicated in criminal activities.", "31. From the above, the applicant concluded that his complaint under Article 6 § 1 of the Convention fell within the Court's jurisdiction under both the civil and criminal heads of that provision. 2. The Court (a) Applicability of Article 6 § 1 32. The Court will first consider whether Article 6 § 1 of the Convention applies under its civil head.", "In this connection the Court reiterates that, according to the principles laid down in its case-law (see, for instance, Kerojärvi v. Finland, 19 July 1995, § 32, Series A no. 322; Gülmez v. Turkey, no. 16330/02, § 28, 20 May 2008), it must first ascertain whether there was a dispute (“contestation”) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether they are also protected under the Convention. The dispute must be genuine and serious; it may relate not only to the existence of a right but also to its scope and the manner of its exercise; and the outcome of the proceedings must be directly decisive for the right in question. 33.", "As regards the first of the above-mentioned criteria, that the dispute must concern a right which arguably exists under national law, it should further be reiterated that Article 6 § 1 does not guarantee any particular content for those civil rights in the substantive law of the Contracting States: the Court may not create through the interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294‑B). 34. Turning to the question of whether an arguable claim existed in the present case, the Court shares the Government's view that the State authorities enjoyed a wide margin of discretion in assessing whether the applicant was eligible for a firearms licence. Nonetheless, for the reasons outlined below, the Court finds that the revocation of that licence and the subsequent judicial proceedings to determine the lawfulness and reasonableness of the listing of his name in the operational records file, even though they had been conducted in accordance with the administrative procedure, had an effect upon the applicant's civil rights.", "35. The Court recalls that the applicant's firearms licence was revoked because an operational records file, compiled by police officers and containing data on the applicant's alleged risk to society, had been opened. The applicant attempted, albeit unsuccessfully, to obtain that information from the police and to challenge its validity before the domestic courts. There can be little doubt that such information had an impact on the applicant's reputation, which merits protection under Lithuanian law (see paragraph 16 above) and falls within the scope of Article 8 of the Convention (see, for example, Fayed v. the United Kingdom, cited above, §§ 67-68; Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI).", "36. Likewise, the Court observes, with reference to its case-law, that when information about a person's life, including, inter alia, his criminal record, is systematically collected and stored in a file held by agents of the State, this information falls within the scope of “private life” for the purposes of Article 8 § 1 of the Convention (see Rotaru v. Romania [GC], no. 28341/95, §§ 43-44, ECHR 2000-V; Amann v. Switzerland [GC], no. 27798/95, §§ 65-67, ECHR 2000-II; Leander v. Sweden, 26 March 1987, § 48, Series A no. 116).", "The Court further notes that Article 22 of the Lithuanian Constitution guarantees the protection of a person's private life. 37. The Court cannot rule out the possibility, albeit theoretical, that the listing of the applicant's name in the operational records file could have resulted in restrictions on him entering certain private-sector professions or otherwise earning a living, thereby again affecting his private life (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, §§ 47-50, ECHR 2004-VIII). Indeed, as can be seen from Lithuanian legislation (see paragraph 19 above), certain professions, such as that of security officers, are not accessible to persons who have been listed in an operational records file.", "In this respect the Court notes Article 48 of the Lithuanian Constitution, which provides that everyone is free to choose a job or occupation. 38. Lastly, the Court notes the applicant's argument that the revocation of his firearms licence had meant that he was obliged to hand in the guns which he already owned to the State authorities for disposal, albeit in exchange for money (see paragraph 10 above). There can be little doubt that this involved an interference with another civil right, guaranteed both by Article 23 of the Lithuanian Constitution and Article 1 of Protocol No. 1 to the Convention, that is to say, the right to the protection of property.", "39. In the light of the above, the Court finds that Article 6 § 1 is applicable to the impugned proceedings under its civil head. Consequently, the Government's objection that the applicant's complaint is incompatible ratione materiae must be dismissed. 40. Having regard to its conclusion in the preceding paragraph, the Court does not find it necessary to determine whether the criminal limb of Article 6 § 1 of the Convention was applicable in the present case to the proceedings before the Lithuanian courts.", "(b) Other observations 41. The Court finds 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 parties' submissions 42. If the Court were to find Article 6 § 1 of the Convention applicable to the present case, the Government argued that the applicant's right to a fair hearing had been limited in a proportionate manner. Whilst conceding that, for a hearing to be fair, proceedings should be adversarial, the Government submitted that the guarantees of Article 6 § 1 were not of an absolute nature and that the entitlement to the disclosure of relevant evidence was not an absolute right. Consequently, it was permissible for the right to equality of arms to be restricted when certain guarantees were proportionately limited in order to achieve legitimate aims.", "43. The Government submitted that courts at two levels of jurisdiction had reviewed the circumstances of the case and, on the basis of all the collected evidence, including the classified information, had adopted reasoned decisions, finding that the data on the applicant had been lawfully recorded in the operational file. The applicant had been able to submit evidence, present his arguments, make submissions and participate in the decision-making process, as far as this had been possible without revealing to him classified material, whose secrecy the courts had sought to maintain in the public interest. The Government stressed that the applicant had not complained that the Lithuanian courts had not been impartial or objective. As to the information in the operational records file, it had constituted a State secret.", "The interest in protecting State secrets was paramount. Consequently, it had been legitimate not to disclose that information to the applicant in the course of the judicial proceedings. Nonetheless, the fair-balance principle had been maintained, given that non-disclosure had been chosen in order to protect the proper administration of justice and to guarantee existing public needs and the safety of Lithuanian society. The State had had the legitimate aim of maintaining the secrecy of police criminal investigation methods, whilst at the same time ensuring that the courts themselves had been able to assess all the relevant materials in the course of the judicial proceedings in order to adopt a lawful and reasoned decision. In sum, a fair balance had been maintained between the general interests of society and the applicant's fair trial guarantees, in that the principle of equality of arms had been compromised in proportion to the aims sought.", "44. The applicant submitted that the restriction on his having access to the operational records file had not been proportionate. Whilst accepting that in certain circumstances it might be necessary in the public interest to exclude the party to the judicial proceedings and his representative from the disclosure procedure, he contended that the ex parte hearing before the judge (see paragraph 12 above) had violated Article 6 § 1 of the Convention because it had afforded no safeguards against judicial bias or error and no opportunity to put forward arguments on his behalf. The domestic courts had based their decisions on information which was a State secret; however, that information was the only proof against him. For the applicant, the groundlessness of the accusations against him, as contained in the operational records file, had been demonstrated even more so by the fact that, some time after the litigation, the Lithuanian authorities had deleted his name from the operational records file and had restored his right to keep a firearm.", "2. The Court's assessment 45. The Court reiterates that, according to its case-law, the principle of equality of arms – one of the elements of the broader concept of a fair hearing – requires each party to be given a reasonable opportunity to present his or her case under conditions that do not place the litigant at a substantial disadvantage vis-à-vis the opponent (see, among many other authorities, Kress v. France [GC], no. 39594/98, § 72, ECHR 2001‑VI). It also implies, in principle, the opportunity for the parties to have knowledge of and discuss all evidence adduced or observations filed with a view to influencing the court's decision (see Fretté v. France, no.", "36515/97, § 47, ECHR 2002‑I). 46. The Court nonetheless notes that the entitlement to disclosure of relevant evidence is not an absolute right. In any court proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the defence. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest.", "However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6 § 1. Moreover, in order to ensure that a person receives a fair hearing, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (see, mutatis mutandis, Jasper v. the United Kingdom [GC], no. 27052/95, § 52, 16 February 2000). 47. In cases where evidence has been withheld from the defence on public interest grounds, it is not the role of this Court to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them.", "In any event, in many cases, including the present, where the evidence in question has never been revealed, it would not be possible for the Court to attempt to weigh the public interest in non-disclosure against that of the accused in having sight of the material. It must therefore scrutinise the decision-making procedure to ensure that, as far as possible, the procedure complied with the requirements to provide adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused (ibid., § 53). Taking into account the circumstances of the present case, in which the applicant had contested being implicated in criminal activities, as a ground for listing his name in the operational records file, the Court considers that the above principles could also be applied to the proceedings before the Lithuanian administrative courts. 48. Turning to the instant case, the Court observes that the Government do not dispute the fact that the content of the operational records file, on the basis of which the courts found against the applicant, was never disclosed to him.", "The Court is not insensitive to the goals which the Lithuanian law-enforcement authorities pursued through their operational activities. Likewise, the Court shares the Government's view that documents which constitute State secrets may only be disclosed to persons who possess the appropriate authorisation. And yet the Court notes that Lithuanian law and judicial practice provide that such information may not be used as evidence in court against a person unless it has been declassified, and that it may not be the only evidence on which a court bases its decision (see paragraphs 20-22 above). 49. It appears that the undisclosed evidence in the present case related to an issue of fact decided by the Lithuanian courts.", "The applicant complained that his name had been listed in an operational records file without proper reason and asked the courts to consider whether the operational file on him should be discontinued. In order to conclude whether or not the applicant had indeed been implicated in any kind of criminal activity, it was necessary for the judges to examine a number of factors, including the reason for the police operational activities and the nature and extent of the applicant's suspected participation in alleged crime. Had the defence been able to persuade the judges that the police had acted without good reason, the applicant's name would, in effect, have had to have been removed from the operational records file. The data in this file was, therefore, of decisive importance to the applicant's case (see, albeit with regard to criminal proceedings, Lucà v. Italy, no. 33354/96, § 40, ECHR 2001‑II).", "50. More importantly, as transpires from the decisions of the Lithuanian courts, the operational records file was the only evidence of the applicant's alleged danger to society. The Court notes that on numerous occasions the applicant asked for the information to be disclosed to him, even in part. However, the domestic authorities - the police and the courts - denied his requests. Whilst, before dismissing the applicant's case, the Lithuanian judges did examine, behind closed doors and in their chambers, the operational records file, they merely presented their conclusions to the applicant.", "It was not, therefore, possible for the applicant to have been apprised of the evidence against him or to have had the opportunity to respond to it, unlike the police who had effectively exercised such rights (see, mutatis mutandis, Gulijev v. Lithuania, no. 10425/03, § 44, 16 December 2008). 51. In conclusion, therefore, the Court finds that the decision-making procedure did not comply with the requirements of adversarial proceedings or equality of arms, and did not incorporate adequate safeguards to protect the interests of the applicant. It follows that there has been a violation of Article 6 § 1 in the present case.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 52. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 53. Alleging that the decisions of the administrative courts had damaged his reputation, the applicant claimed 35,000 Lithuanian litai (LTL), approximately 10,135 euros (EUR), in respect of non-pecuniary damage.", "54. The Government submitted that the applicant's claim was unsubstantiated and excessive. 55. The Court considers that, in view of the violation of Article 6 § 1, the applicant has suffered non-pecuniary damage which is not sufficiently compensated by the finding of a violation. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 3,500 under this head.", "B. Costs and expenses 56. The applicant claimed LTL 4,455 (approximately EUR 1,290) in respect of costs and expenses. He broke that sum down into LTL 300 for costs before the domestic courts, LTL 975 for translation costs and LTL 3,180 for lawyer's fees for their services before the Lithuanian courts and the Court. The applicant submitted invoices to the Court covering the entire amount.", "57. The Government disputed the claim. 58. 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 were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court awards the applicant the claimed sum in full.", "C. Default interest 59. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 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 sums, to be converted into the national currency of that State at the rate applicable on the date of settlement: (i) EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, (ii) EUR 1,290 (one thousand two hundred and ninety euros), plus any tax that may be chargeable to the applicant, for costs and expenses; (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; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 6 July 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithFrançoise TulkensDeputy RegistrarPresident" ]
[ "FIFTH SECTION CASE OF LUKYANOV v. UKRAINE (Application no. 11921/04) JUDGMENT STRASBOURG 19 June 2008 FINAL 19/09/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Lukyanov v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Rait Maruste,Volodymyr Butkevych,Renate Jaeger,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 27 May 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "11921/04) 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 Leonid Nikitovich Lukyanov (“the applicant”), on 12 March 2004. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. 3. On 5 April 2006 the Court decided to give notice of the application to the Government.", "Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1935 and lives in Yalta. 5.", "In November 2000 the applicant instituted civil proceedings in the Yalta Court (Ялтинський міський суд) seeking to oblige the Yalta Council’s Executive Committee (Виконавчий комітет Ялтинської міської ради) to provide his family of five residing in a one-bedroom apartment with larger housing. In his statement of claim the applicant noted, in particular, that he had been placed on the special waiting list for disabled war veterans, which entitled him to obtain suitable housing within two years of the placement. 6. On 4 May 2001 the court ordered the Executive Committee to provide the applicant’s family with an apartment meeting the standards established by Articles 48 and 50 of the Housing Code of Ukraine (Житловий кодекс України). By way of reasoning, the court dismissed the defendant’s allegations that no municipal housing was available at the time.", "The court observed in this regard that the applicant’s statutory right to obtain housing within two years of the date of the placement on the waiting list was unconditional. 7. On 19 September 2002 the Supreme Court of Ukraine upheld this judgment following cassation review and it became final. 8. On 17 December 2002 the Yalta Bailiffs (Відділ Державної виконавчої служби Ялтинського управління юстиції) initiated enforcement proceedings, having given the Executive Committee the time-limit of 17 January 2003 to comply with the judgment.", "9. In summer 2003 the enforcement proceedings were terminated on account that vacant municipal housing was lacking. 10. On 23 March 2006 the Executive Committee decided to allocate a newly-constructed two-bedroom apartment and a one-bedroom apartment formerly belonging to a hostel to the applicant’s family. 11.", "According to the applicant, the two-bedroom apartment at issue lacked necessary facilities, such as sanitary equipment and electric outlets. The apartment, which formerly belonged to a hostel, was unsuitable for establishing a permanent residence. 12. According to the Government, the apartments at issue complied with applicable housing norms, which had been certified by competent commissions. On 27 October 2006 the applicant registered his residence in the new two-bedroom apartment.", "II. RELEVANT DOMESTIC LAW 13. A description of the domestic law concerning the enforcement of judgments can be found in Skubenko v. Ukraine, (dec.), no. 41152/98, 6 April 2004. 14.", "According to Section 13 paragraph 18 of the Law of Ukraine “On the Status of War Veterans, Guarantees of Their Social Protection” (Закон України «Про статус ветеранів війни, гарантії їх соціального захисту») of 22 October 1993 (as amended) disabled war veterans are eligible to obtain municipal housing within two years of having been placed on the waiting list. 15. Article 48 of the Housing Code of Ukraine (Житловий кодекс України) of 30 June 1983 (as amended) stipulates, in particular, that the minimal size of residential premises should comply with applicable standards developed by the Cabinet of Ministers and the Trade Union Federation. According to Article 50 of the Code, residential premises should comply with sanitary and technical norms. THE LAW I.", "ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION A. Admissibility 16. The applicant complained about the lengthy non-enforcement of the court judgment of 4 May 2001 given in his favour. He invoked Article 13 of the Convention. The Court finds that the above complaint falls to be examined also under Article 6 § 1 of the Convention. These provisions read 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.” 17. The Government submitted that the judgment given in the applicant’s favour had been executed in full. He could therefore no longer claim to be a victim of the non-enforcement. 18. The applicant disagreed.", "He maintained that the two apartments allocated to his family were uninhabitable and did not meet the standards prescribed by Articles 48 and 50 of the Housing Code, to which the Yalta Court referred in its judgment of 4 May 2001. He submitted, therefore, that the judgment at issue had remained unenforced. 19. The Court notes that the applicant did not present any materials to support his allegations concerning the non-compliance of the apartments at issue with applicable housing provisions. Furthermore, according to the case-file materials, he did not raise any relevant complaints before the domestic authorities.", "In these circumstances, the Court does not have reasons to doubt the Government’s submissions and considers that the judgment of 4 May 2001 has been enforced (see e.g. Gavrilenko v. Ukraine, no. 24596/02, § 18, 20 September 2005). 20. However, the fact that the judgment in the applicant’s favour has been enforced does not deprive him of a victim status in relation to the period during which this judgment remained unenforced (see e.g.", "Skubenko, cited above). Accordingly, the Court rejects the Government’s preliminary objection. 21. The Court notes that the above complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds.", "They must therefore be declared admissible. B. Merits 22. In its observations on the merits, the Government submitted that the judgment given in the applicant’s favour had been executed in full. There was, therefore, no breach of his Convention rights.", "23. The applicant disagreed. 24. The Court recalls that the aforesaid judgment, which became final on 19 September 2002, remained unenforced for more than three and a half years. It finds that the Government have not advanced any convincing justification for this delay.", "25. The Court, having regard to its extensive case-law on the matter of non-enforcement (see, e.g. Skubenko v. Ukraine, no. 41152/98, §§ 37-38, 29 November 2005) finds a violation of Article 6 § 1 of the Convention in respect of the unreasonable length of the enforcement of judgment in the applicant’s case. 26.", "The Court does not find it necessary in the circumstances to examine under Article 13 of the Convention the same complaint as under Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 17 OF THE CONVENTION 27. The applicant further complained about a violation of Article 17 of the Convention on account of the non-enforcement of the judgment in his favour. 28.", "The Court finds that this part of the application is wholly unsubstantiated and must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 29. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 30.", "The applicant claimed the global sum of 600,000 euros (EUR) in respect of just satisfaction. 31. The Government did not comment on this claim. 32. The Court finds that the applicant must have suffered non-pecuniary damage on account of the lengthy non-enforcement of the judgment given in his favour.", "Ruling on an equitable basis, it awards the applicant EUR 1,300 in respect of non-pecuniary damage. B. Costs and expenses 33. The applicant did not submit any claim under this head. The Court therefore makes no award.", "C. Default interest 34. 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 under Article 6 § 1 and 13 of the Convention 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 is no need to examine the complaint under 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 1,300 (one thousand three hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the national currency at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 19 June 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]
[ "SECOND SECTION CASE OF GUBACSI v. HUNGARY (Application no. 44686/07) JUDGMENT STRASBOURG 28 June 2011 FINAL 28/09/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gubacsi v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Danutė Jočienė,David Thór Björgvinsson,Giorgio Malinverni,András Sajó,Işıl Karakaş,Paulo Pinto de Albuquerque, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 17 May and 7 June 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "44686/07) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Gábor Gubacsi (“the applicant”), on 3 October 2007. 2. The applicant was represented by Mr A. Kádár, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice. 3.", "The applicant alleged that the ill-treatment he had suffered at the hands of the police and the ensuing absence of an adequate investigation amounted to a violation of Article 3 of the Convention. 4. On 8 February 2010 the President of the Second Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1974 and lives in Budapest. 6. In the evening of 19 August 2006 the applicant was involved in a minor car accident at a parking lot in the town of Siófok. He claimed that he had found his car damaged when he had returned to the parking lot from a nearby restaurant in order to fetch some cash, whereas the police asserted – based on the testimony of an eye witness, an off-duty policeman who had been passing by – that it had been the applicant who had crashed into a parked car with his own vehicle while driving out of the parking lot.", "In response to an alert from the off-duty police officer, at around 10.40 p.m. the Siófok Police Station sent two patrolling officers, I.K. and K.P.P., to the scene of the accident. 7. The two officers checked the applicant’s identity and breathalysed him. The test clearly showed that he was heavily under the influence of alcohol.", "He was accordingly taken to the Siófok Medical Centre for a blood and urine test. The test was performed by Dr I.E.V. at 11.40 p.m. She recorded on the blood alcohol test form that the applicant’s legs were injured. The applicant was then taken to another department of the Medical Centre, where Dr Gy.K. examined him at 12.15 a.m. on 20 August and recorded superficial abrasions on his left knee and ankle.", "8. After the examination, the applicant was driven back to the parking lot because the officers had received instructions to take photographs of the scene. When the applicant was informed that, after the pictures had been taken, he would be taken to the police station to fill in certain papers, he attempted to escape. While running past the officers, he knocked over Officer K.P.P, who suffered superficial abrasions. Officer I.K.", "chased the applicant and finally managed to bring him to the ground and to handcuff him with the help of K.P.P. According to the police, during the chase the applicant crossed a number of roads, and while doing so he bumped into and fell over some moving cars. 9. Subsequently, the officers requested help by radio. Two other police cars arrived, and at 12.30 a.m. the applicant was driven to the Siófok Police Station by Officers G.V.", "and Z.S. 10. Before the applicant – by then suspected of the offence of violence against an official – was taken into custody, he was sent from the police station back to the Medical Centre for another medical examination. He was driven to the Medical Centre by Officers Sz.R. and Z.S.", "11. At 12.43 a.m., Dr Gy.K. again examined the applicant and recorded that, in addition to the abrasions on his leg, already recorded, he had a small swelling on his cheek. 12. Following the medical examination, the applicant was taken back to the Siófok Police Station and placed in a cell in the station’s custodial unit.", "He was guarded by Officers Z.T. and P.L. 13. Due to his allegedly strange behaviour, around 3.00 a.m. the applicant was again driven in a police van to the Medical Centre for a drug test, escorted by Officers Gy.C., M.N., Sz.R. and Z.M.", "At 3.15 a.m. Dr I.E.V. carried out the drug test, after which the applicant was taken back to the police station. 14. The applicant submits that during one of the transfers described above, he was ill-treated in the police car or van by the police officers escorting him, who allegedly hit him in the face, sides and stomach. He also submits that, during his custody after the drug test, he was severely ill-treated by four police officers in the corridor of the custodial unit.", "He was allegedly made to stand with his face against the wall, and was kicked and/or hit by several police officers all over his body. He fell to the ground, where the ill-treatment continued. He received kicks and blows in his back, side, kidney area, pelvis, back of the neck, temple, jaw, upper back and thighs. Afterwards, he was again made to stand up against the wall and ordered to spread his legs, following which a police officer he could not see kicked him in the testicles. He then collapsed and the beating ended.", "15. Although the applicant states that owing to his drunkenness and the beating he is not fully able to reconstruct the events of the night, or to recognise all the police officers who ill-treated him, he was adamant throughout the entire ensuing procedure that he could recognise two of the four officers who were present during his beating in the custodial unit. In the course of the investigation, the applicant identified those two officers as G.V. and Z.T. 16.", "The applicant’s custody ended on 20 August at 7.00 a.m. From 7.54 to 8.09 a.m. he was questioned by Officer M.T. under suspicion of drug abuse, since the drug test had revealed traces of marijuana in his blood. 17. After his release, the applicant was driven by a friend to the nearby town of Balatonkenese, where he and his wife were spending their holiday. The applicant told them that he had been ill-treated and showed them his injuries.", "The applicant spent the whole day resting at his friend’s place. He was given pain killers by his wife. Both his wife and his friend confirmed that he had visible injuries. 18. In the evening of 20 August, the applicant travelled back to Budapest, and the next day he visited general practitioner Dr Cs.K., who recorded the following injuries: swelling on the left cheek, sensitive to pressing; walnut-sized localised swelling filled with blood on the left side of the top of the head; superficial crusted bruises around the left wrist and the lower arm; cherry-sized contusions on the left and right upper arm; a walnut-sized contusion on the upper front part of the left hip; egg-sized crusted bruises on both sides of the waist; as well as abrasions above both knees (two cherry-sized abrasions above the right, and one walnut-sized and one egg-sized abrasion above the left knee).", "19. After recording the injuries, the general practitioner sent the applicant to the Department of Urology of Szent János Hospital in Budapest, because his left testicle was severely swollen. In addition to the injuries detected by the general practitioner, at the Department of Urology it was recorded that the applicant’s left testicle was swollen to the size of a goose egg. A contusion of the testicle and a haematocele (swelling caused by blood collecting in a body cavity) were established. Since treatment did not help, the urologist suggested surgery, which the applicant refused.", "20. On 26 August 2006 the applicant’s legal representative filed a complaint with the Siófok Police Station and requested that the part of the complaint relating to the applicant’s ill-treatment be forwarded to the competent prosecutorial investigation office. 21. Based on the forwarded complaint, the Kaposvár Prosecutorial Investigation Office launched an investigation. The Office subsequently heard the applicant and numerous police officers, held an identification parade and a series of confrontations, and obtained an expert opinion.", "In spite of the fact that the applicant claimed to have recognised two of the four police officers who were present during his ill-treatment in the custodial unit, the Office terminated the investigation on 20 February 2007. It stated that although the injury to the applicant’s testicle was caused by ill-treatment that might have been inflicted during his detention at the Siófok Police Station, it was not possible to establish the identity of the perpetrator. According to the decision to terminate the proceedings, the police officers who might have inflicted the ill-treatment all denied responsibility and corroborated each other’s statements; the doctors whom the applicant had met on the night of the events claimed not to have detected injuries that might have been indicative of ill-treatment, and the applicant had made contradictory statements during the procedure, which might well have been because he was heavily under the influence of alcohol and drugs, but which weakened his credibility all the same. 22. On 14 March 2007 the applicant’s counsel submitted a complaint against the decision to terminate the investigation to the Somogy County Chief Prosecutor’s Office, submitting that the Prosecutorial Investigation Office had not taken all the possible measures to establish the responsibility of the perpetrators, and that in any event the evidence was sufficient to press charges against the two officers whom the applicant had recognised.", "23. On 30 March 2007 the Chief Prosecutor’s Office rejected the complaint. That decision, including a warning that no further remedy lay against the rejection, was served on the applicant’s lawyer on 17 April 2007. II. RELEVANT DOMESTIC LAW 24.", "Act no. XIX of 1998 on the Code of Criminal Procedure provides: Chapter IX Title III – Conduct of the investigation Discontinuation of the investigation “Section 190 (1) The public prosecutor shall, by decision, discontinue the investigation: a) if the action does not constitute a criminal offence, b) if, on the basis of the results of the investigation, the commission of a criminal offence cannot be established and no result can be expected from the continuation of the procedure, c) if the criminal offence was committed not by the suspect, or on the basis of the results of the investigation it cannot be established whether or not the criminal offence was committed by the suspect, d) if a ground excluding punishability occurs, unless it appears necessary to order involuntary treatment in a mental institution, e) due to the death of the suspect, lapse of time or pardon, f) due to other statutory grounds eliminating punishability, g) if there has been no private motion, request or complaint, and none can be submitted subsequently, h) if the action has already been adjudicated by a final decision, including the case regulated in section 6 of the Criminal Code, i) if the identity of the perpetrator could not be established in the investigations, j) [the prosecutor shall discontinue the investigation and issue a reprimand] if the action committed by the suspect no longer poses a threat – or poses such an insignificant level of threat – to society that even the imposition of the most lenient punishment allowed under the law or the application of any other measure is unnecessary.” “Section 191 (1) Unless an exception is made in this Act, discontinuation of the investigation shall not prevent the subsequent resumption of the proceedings in the same case. (2) Resumption of the proceedings shall be ordered by the public prosecutor or, if the investigation was terminated by a public prosecutor, by a senior prosecutor. If the suspect was reprimanded (section 71 of the Criminal Code), the public prosecutor or the senior prosecutor, respectively, shall quash the decision discontinuing the investigation. Against the decision ordering resumption of the investigation, no objection shall lie.", "(3) If no objection was filed against the discontinuation of the investigation or the senior prosecutor did not order the resumption of the investigation, subsequently only a court can order the resumption of the investigation against a person in respect of whom the investigation had previously been discontinued. (4) If the court rejected the motion for the resumption of the investigation, a repeated motion for resumption on the same ground shall not be allowed.” “Section 207 (1) Prior to the preferment of the bill of indictment, the responsibilities of the court shall be performed at first instance by the judge designated by the president of the county court (‘investigating judge’). (2) The investigating judge shall... c) decide on the resumption of an investigation after its discontinuation (section 191(3)).” Title IV – Remedy during the investigation “Section 195 (6) A motion for review may be filed with the public prosecutor’s office against [certain] decisions ..., and against a decision rejecting a complaint against a prosecutorial decision ... within eight days of delivery. The prosecutor’s office shall forward the motion for review and the case file to the court [i.e. the investigating judge] within three days.” “Section 198 (1) If the criminal report was filed by the aggrieved party, he may submit a complaint against the rejection of the report within eight days of its delivery in order to have the investigation ordered.", "(2) If the prosecutor terminated the investigation, the aggrieved party may file a complaint with a view to the continuation of the procedure within eight days of the delivery of the decision on discontinuation.” “Section 199 (1) On the basis of the complaint, the prosecutor or the senior prosecutor may: a) quash the decision rejecting the report or terminating the investigation, and deliver a decision on ordering or continuing the investigation or on pressing charges; b) reject the complaint if he finds it unfounded. (2) After the rejection of his complaint, the aggrieved party may act as a supplementary private prosecutor if: a) the report was rejected under section 174(1) a) or c), or b) the investigation was terminated under section 190(1) a) to d) or f).” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 25. The applicant complained under Article 3 of the Convention about ill-treatment by the police and the absence of an adequate investigation. Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 26.", "The Government contested that argument. A. Admissibility 1. Arguments of the parties a. The Government 27. The Government asserted that the applicant should have submitted an objection to the investigating judge against the discontinuation of the investigation, requesting its resumption under section 191(3) of the Code of Criminal Procedure (see paragraph 24 above).", "Moreover, since the applicant was aware of the identities of the impugned police officers, he should have filed individual criminal complaints against each of those officers. Had he done so, he could have taken the case before a court by making use of substitute private accusation. By not availing himself of these procedural avenues, he did not exhaust domestic remedies. b. The applicant 28.", "The applicant submitted that the Government’s interpretation of section 191(3) was a misconception of the law. The investigating judge’s power to decide on the continuation of an investigation was not by its nature a remedy for an aggrieved party against the termination of an investigation in pursuit of his complaint. Instead, it was a procedural safeguard in favour of suspects against arbitrary prosecutorial decisions, aimed at guaranteeing that only on the basis of a judicial decision could an investigation be reopened against suspects already cleared of charges. This was demonstrated by the ministerial reasoning in the bill underlying the Code of Criminal Procedure, supported by scholarly views expressed in various commentaries attached to this provision of the Code, and proven by the fact that section 191 was located in Chapter IX, Title III of the Code (entitled Conducting the investigation), rather than Title IV (entitled Remedy during the investigation). In any case, under section 191, the investigating judge might order the continuation of the investigation only in cases where it was conducted against a particular suspect, which had not been the applicant’s case.", "29. Moreover, the applicant submitted that if he had filed a criminal report against the particular police officers, the public prosecutor might have either rejected it – but under section 199(2) such a rejection would not have given rise to supplementary private prosecution – or ordered another investigation, which would inevitably have led to the same conclusion as had already been reached by the Kaposvár Prosecutorial Investigation Office. 2. The Court’s assessment 30. The Court recalls that the obligation to exhaust domestic remedies requires that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances.", "To be effective, a remedy must be capable of remedying directly the impugned state of affairs (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004). The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996‑IV). 31. In the present circumstances, the Court however considers that it is not necessary to embark on a closer scrutiny of the parties arguments’ about the effectiveness of a motion to be submitted to the investigating judge, since in any case, the Government have not produced any evidence to show that such a request has proved effective in similar cases and would consequently constitute a remedy to be exhausted in the circumstances.", "32. Moreover, the Court notes that the applicant filed a criminal report concerning the alleged ill-treatment and considers that therefore he cannot reasonably be expected to have filed a second, virtually identical but nominative one directed against the particular officers. 33. It follows that the application cannot be rejected for non-exhaustion of domestic remedies. Moreover, the Court considers that it 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. Arguments of the parties a.", "The Government 34. The Government submitted that, according to the findings of the investigation conducted by the domestic authorities, the applicant’s allegations of ill-treatment were not supported beyond any doubt by the witness testimonies, nor were they confirmed by the medical opinion, except for the injury to his testicles. His allegations had been adequately investigated by the authorities but the evidence so obtained had not been sufficient to establish the criminal responsibility of the impugned police officers. Indeed, the ill-treatment which the applicant had sustained had been proven in the investigation but the identity of the perpetrators could not be established, essentially due to contradictions and uncertainties in the applicant’s testimony. b.", "The applicant 35. The applicant submitted that before he had been taken into police custody, he had only had minor injuries, namely some superficial abrasions on his left knee and ankle and a small swelling on his cheek. By the time he had been released from police custody, he had had several severe injuries as recorded by doctors. The Government did not provide any plausible explanation for these injuries, which had been caused by ill-treatment by police officers. Moreover, he argued that the investigation into his allegations had not been adequate, in particular in regard to the alleged omission of the requisite confrontations between key witnesses and the conduct of recognition sessions.", "2. The Court’s assessment 36. Article 3 of the Convention, as the Court has observed on many occasions, enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of its Protocols, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation.", "37. The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Tekin v. Turkey, 9 June 1998, §§ 52 and 53, Reports 1998‑IV). 38.", "The Court notes that on his committal to police custody, the applicant was recorded to have abrasions on his leg as well as a small swelling on his cheek (see paragraph 11 above). On the day after his release, however, he was diagnosed with several injuries, including a swelling on the left cheek, another one filled with blood on the head, superficial crusted bruises around the left wrist and the lower arm, contusions on the left and right upper arm, a contusion on the upper front part of the left hip, crusted bruises on both sides of the waist, abrasions above both knees, as well as the contusion of a testicle and a haematocele (see paragraphs 18 and 19 above). 39. The Court considers that the injuries suffered by the applicant were sufficiently serious to amount to inhuman and degrading treatment within the scope of Article 3 (see, for example, A. v. the United Kingdom, 23 September 1998, § 21, Reports 1998‑VI; Ribitsch v. Austria, 4 December 1995, §§ 13 and 39, Series A no. 336).", "It remains to be considered whether the State should be held responsible under Article 3 for these injuries. 40. The Court reiterates that where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V). 41.", "On the basis of all the material before it, the Court finds that the Government have not established that the applicant’s injuries were caused otherwise than by the treatment meted out to him in police custody. Indeed, in the decision to terminate the proceedings it was recognised that ill-treatment might have been inflicted on the applicant while he had been in detention. Moreover, the Government have acknowledged in their observations that the ill-treatment was proven in the investigation (see paragraph 34 above). 42. Having regard to this consideration, the Court concludes that the applicant has been subjected to inhuman and degrading treatment.", "There has, accordingly, been a breach of Article 3 of the Convention. 43. As regards the applicant’s complaint about the adequacy of the investigation, the Court observes that, against the background of the injuries the applicant had sustained, as recorded by a general practitioner and an urologist, a formal investigation was launched, in the course of which the applicant and numerous police officers were heard, an identification parade and a series of confrontations took place, and an expert opinion was obtained. The procedure was terminated essentially on account of the irreconcilable testimonies given by the protagonists and the fact that the applicant, heavily under the influence of drugs and alcohol at the time of the incident, had given contradictory statements. Because of this, no individual criminal responsibility of any particular police officer could be established (see paragraph 21 above).", "In these circumstances, the Court is satisfied that there has been an adequate investigation into the applicant’s allegations. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 44. 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 45.", "The applicant claimed, as pecuniary damage, 500 euros (EUR). He submitted that due to the injuries sustained he had been out of work for two months, and this amount corresponded to lost income and moreover the costs of medicines he had had to purchase. As to non-pecuniary damage, he claimed EUR 10,000. 46. The Government contested these claims.", "47. The Court awards the applicant the entirety of these claims, i.e. EUR 10,500. B. Costs and expenses 48.", "The applicant also claimed EUR 3,750 for the legal costs incurred before the Court. This amount, supported by documents, corresponded to his lawyer’s fee – EUR 3,640, that is, 28 hours charged at EUR 130 per hour, payable on successful completion of the case – and to the clerical costs incurred, i.e. EUR 110. 49. The Government contested this claim.", "50. 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 were 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 full sum claimed, i.e. EUR 3,750. C. Default interest 51.", "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 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 in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Hungarian forints at the rate applicable at the date of settlement: (i) EUR 10,500 (ten thousand five hundred euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage; (ii) EUR 3,750 (three thousand seven hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (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.", "Done in English, and notified in writing on 28 June 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosFrançoise Tulkens Deputy RegistrarPresident" ]
[ "SECOND SECTION CASE OF RAJNAI v. HUNGARY (Application no. 73369/01) JUDGMENT STRASBOURG 26 October 2004 FINAL 26/01/2005 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Rajnai v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrL. Loucaides, President,MrA.B.", "Baka,MrG. Bonello,MrK. Jungwiert,MrsW. Thomassen,MrM. Ugrekhelidze, MrsA.", "Mularoni, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 5 October 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 73369/01) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr József Rajnai (“the applicant”), on 9 February 2001. 2. The Hungarian Government (“the Government”) were represented by their Agent, Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.", "3. On 11 March 2003 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the proceedings to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the remainder of the application at the same time. THE FACTS 4. The applicant was born in 1954 and lives in Dunaújváros, Hungary.", "5. The applicant kept bees in his yard. On 11 April 1995 the Dunaújváros Municipality, acting in accordance with a Decree of the City Council, ordered the applicant to remove the bees from his yard to an area where they did not disturb the neighbours. On 24 May 1995 the Fejér County Administrative Office, on the applicant's appeal of 18 April 1995, quashed the first-instance administrative decision and remitted the case to the Municipality, holding that it had failed to warn the applicant prior to taking its decision. 6.", "In the resumed administrative proceedings, on 18 March 1996 the Municipality, as confirmed by the Administrative Office on 20 June 1996, limited the allowed population of bees to 20 families to protect the neighbours' interests and requested the applicant to remove the entities above this amount. Subsequently, on 8 July 1996 the applicant challenged these decisions before the Székesfehérvár District Court. 7. On the applicant's complaint, on 28 February 1997 the Constitutional Court partly annulled the City Council's aforementioned Decree. 8.", "On 13 January 1998 the District Court, as confirmed by the Fejér County Regional Court on 12 May 1998, quashed the administrative decisions and remitted the case to the Municipality. On 22 January 2001 the Supreme Court dismissed the applicant's petition for review of these decisions. 9. Meanwhile in the resumed administrative proceedings, on 8 February 1999 the Municipality, as confirmed by the City Council on 9 March 1999, again limited the allowed population of bees to 20 families and requested the applicant to keep the entities above this amount at a place where they would not disturb the neighbours. On 12 April 1999 the applicant challenged these decisions before the Fejér County Regional Court.", "Simultaneously, he challenged all the judges of the Regional Court for bias. 10. On 29 September 1999 the Supreme Court appointed the Zala County Regional Court to hear the case. The court held hearings on 3 November 1999 and 1 March 2000. On the latter date, accepting the applicant's request, the court suspended the proceedings.", "11. In the resumed proceedings, on 12 June 2001 the Regional Court dismissed the applicant's claims. No appeal lay against this decision. 12. Subsequently, on 24 July 2001 the applicant filed a petition for review with the Supreme Court.", "On 21 January 2002 the Supreme Court appointed a legal-aid lawyer to assist the applicant. On 9 September 2003 the Supreme Court dismissed the applicant's petition for review, holding that the decisions had been taken in order to protect public health in accordance with the law, namely Decree no. 15/1969 of the Ministry of Agriculture and local regulations. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 13.", "The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided 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...” 14. The Government contested that argument. 15. The period to be taken into consideration began on 18 April 1995 and ended on 9 September 2003. It thus lasted eight years and five months.", "A. Admissibility 16. The Court notes that the 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 17. 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). 18. 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).", "19. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II.", "ALLEGED VIOLATIONS OF ARTICLE 14 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 20. The applicant complained about the outcome of the proceedings. He submitted that he had been forced to sell his bees which exceeded in number the limit imposed by the Municipality. He invoked Article 14 of the Convention and Article 1 of Protocol No.", "1. The latter reads as follows: “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.” 21. The Court considers that the limitation on the number of bees which could be kept by the applicant amounted to a control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No.", "1, which authorises States to enact “such laws as [they deem] necessary to control the use of property in accordance with the general interest” (see AGOSI v. the United Kingdom, judgment of 24 October 1986, Series A no. 108, pp. 17‑18, § 51, and Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, pp. 29-30, §§ 62-63).", "As such, there has been an interference with the applicant's right under Article 1 of Protocol No. 1. According to the Court's case-law, an interference must be prescribed by law and must pursue one or more legitimate aims; in addition, there must be a reasonable relationship of proportionality between the means employed and the aim or aims sought to be realised. In other words, it must be determined whether a fair balance was struck between the demands of the general interest and the interest of the individual or individuals concerned (see Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, p. 26, § 69, and p. 28, § 73, and James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no.", "98, p. 34, § 50). 22. The Court notes that the restriction placed on the number of bees which the applicant could keep on his property was ordered pursuant to Decree no. 15/1969 of the Ministry of Agriculture and local regulations. The interference was therefore prescribed by law.", "23. Moreover, the restriction pursued the legitimate aim of the protection of public health and thus the general interest. 24. As to the fair-balance requirement, it observes that the applicant was not prevented entirely from using his property for bee-keeping. Furthermore, the applicant was able to contest the proportionality of the interference in the context of a fair and adversarial procedure.", "Having regard to these considerations and to the State's wide margin of appreciation on public health and environmental matters, the Court finds that the applicant's allegations do not disclose any appearance of a breach of Article 1 of Protocol No. 1. 25. As to the applicant's complaint under Article 14, the Court observes that there is no substantiation in the case file that he was the victim of discrimination in the enjoyment of any of his Convention rights. 26.", "It follows that this part of the application is manifestly ill-founded and must be rejected, pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 27. 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 28.", "The applicant claimed 31,432 euros (EUR) in respect of pecuniary and non-pecuniary damage. 29. The Government contested the claim. 30. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.", "However, the Court considers that the applicant must have sustained some degree of non-pecuniary damage on account of the length of the domestic proceedings. Ruling on an equitable basis, it awards him EUR 3,000 under that head. B. Costs and expenses 31. The applicant also claimed EUR 666 for all his costs and expenses including EUR 60 for the Convention proceedings.", "32. The Government contested the claim. 33. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 60 covering the costs of the Convention proceedings.", "C. Default interest 34. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the excessive length of the proceedings 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 according to Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros) in respect of non-pecuniary damage and EUR 60 (sixty euros) in respect of 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 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 26 October 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléL. LoucaidesRegistrarPresident" ]
[ "FIRST SECTION CASE OF MALTABAR AND MALTABAR v. RUSSIA (Application no. 6954/02) JUDGMENT STRASBOURG 29 January 2009 FINAL 29/04/2009 This judgment may be subject to editorial revision. In the case of Maltabar and Maltabar v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 8 January 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 6954/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Mr Aleksey Aleksandrovich Maltabar and Mr Anton Aleksandrovich Maltabar (“the applicants”), on 30 December 2001.", "2. The applicants were represented before the Court by Mrs N.S. Maltabar, a lawyer practising in Tver. The Russian Government (“the Government”) were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights. 3.", "The applicants alleged that the conditions of their detention and transportation pending criminal proceedings had been appalling. 4. By a decision of 28 June 2007, the Court declared the application partly admissible. 5. The applicants and the Government each filed further written observations (Rule 59 § 1).", "The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicants were born in 1969 and live in the town of Tver. A.", "Criminal proceedings against the applicants 7. On an unspecified date the authorities brought proceedings against the applicants on suspicion of fraud. 8. On 17 April 2001 the Moskovskiy District Court of the town of Tver tried and convicted both applicants on a charge of attempted large-scale fraud. Both applicants were also tried on a charge of forgery.", "On the latter charge, the court acquitted the first applicant and found the second applicant guilty. They were sentenced to three years and six months and four years and six months’ imprisonment respectively. 9. The applicants appealed against the judgment. Their appeal was examined and dismissed by the Tver Regional Court on 3 July 2001.", "10. On 18 December 2002 the Deputy President of the Supreme Court of Russia applied for supervisory review of the judgment of 17 April 2001, requesting a milder sentence. 11. By decision of 20 January 2003 the Supreme Court examined and allowed the arguments set out in the special appeal. It reduced the applicants’ sentences to two years and two years and six months’ imprisonment respectively and ordered that the first applicant be released accordingly.", "12. By decision of 11 March 2003 the Torzhokskiy Town Court released the second applicant on parole before the expiry of his prison sentence. B. Conditions of the applicants’ pre-trial detention 13. On 15 December 2000 the applicants were arrested and placed in detention.", "1. The detention in a local police station 14. The applicants specified that between 11 a.m. on 15 December and 3 a.m. on 16 December 2000 they had first been held in a local police station before being transferred to IZ-69/1. According to both applicants, they were refused food and an opportunity to sleep. They did not make any allegations concerning the overcrowding of cells in that facility.", "15. Both parties agreed that the applicants had been transferred to pre-trial detention centre IZ-69/1 on 16 December 2000 and that they had first been held in the local police station. 2. The detention in pre-trial detention centre IZ-69/1 16. The applicants arrived at the pre-trial detention centre IZ‑69/1 in the town of Tver on 16 December 2000.", "The first applicant remained there until 24 July 2001 and the second applicant until 31 July 2001. (a) The first applicant 17. According to the first applicant, between 16 and 19 December 2000 he had been detained in cell no. 42. 18.", "On 20 December 2000 he was transferred to cell no. 60. Between 30 December 2000 and 23 January 2001 he was held in cell no. 42. From 23 January to 11 March 2001 he was detained in cell no.", "54. For eleven days between 11 and 22 March 2001 he was detained in a punishment cell. On 22 March 2001 he was transferred back to cell no. 54 and remained there until 17 April 2001. Between 17 April and 24 July 2001 he was detained in cell no.", "23. On 24 July 2001 the first applicant left facility no. IZ-69/1 for another penitentiary establishment to serve his prison sentence. 19. The Government submitted that the dates of detention in the various cells in facility no.", "IZ-69/1 given by the first applicant were erroneous. The first applicant had been placed in cell no. 42 on 15 December and had remained there for only one day. He was then transferred to cell no. 60, where he stayed until 19 December 2000.", "Between 20 and 24 December 2000 the first applicant was detained in cell no. 42. He was transferred to cell no. 54 on 25 December 2000 and remained there until 22 January 2001. Between 23 January and 10 March 2001 the first applicant was held in cell no.", "120. From 11 to 18 March 2001 he was held in cell no. 54. On 19 March 2001 the first applicant was transferred to cell no. 23, where he remained until he left facility no.", "IZ-69/1 on 24 July 2001. 20. From the above, it follows that the parties agreed that the first applicant has been detained in cells no. 23, 42, 54 and 60. In addition, the first applicant maintained that he had spent 11 days in a punishment cell and the Government maintained that he had spent some 45 days in cell no.", "120. (i) Conditions of detention in cell no. 23 21. The applicant submitted that cell no. 23 measured 30 square metres.", "It had twenty-five sleeping places and accommodated between eighty and ninety detainees. 22. The Government submitted that the cell measured 45.3 square metres and had eleven sleeping places. It had a system of artificial and natural ventilation and was lit by four 40-watt daylight lamps. The prison administration submitted a letter in which it certified that there had been eleven inmates in the cell on 17 April 2001.", "(ii) Conditions of detention in cell no. 42 23. According to the first applicant, the cell measured 24 square metres, had nineteen bunk beds and was occupied by between 45 and 50 detainees at all times during his stay there. 24. According to the Government, the cell measured 31.9 square metres, had eight bunk beds and was lit by four 80-watt day lamps.", "The prison administration submitted a letter in which it certified that there had been seven inmates in the cell on 16 December 2000. The cell had both natural and artificial ventilation systems. 25. According to the prison administration, on 25 December 2000, the date of the first applicant’s departure from cell no. 42, there had been eight inmates in the cell.", "(iii) Conditions of detention in cell no. 54 26. According to the first applicant, cell no. 54 measured 16 square metres, had nine beds and accommodated between ten and twelve detainees. 27.", "The Government submitted that the cell in question measured 27.6 square metres and had seven sleeping places. It had a system of natural and artificial ventilation and was lit by four 40-watt day lamps. The prison administration submitted a letter in which it certified that there had been seven inmates in the cell on 23 January 2001 and that on 19 March 2001, the date of the first applicant’s departure from cell no. 54, there had been six inmates in the cell. (iv) Conditions of detention in cell no.", "60 28. According to the first applicant, cell no. 60 measured 16 square meters, with six beds, and had held between twelve and fourteen infected detainees at the time of the applicant’s detention. It had a constantly high level of humidity as it was situated right above the prison baths. Also, every other night the only toilet in the cell was decontaminated with half a bucket of chlorine-based reagent.", "Since the toilet flush was inactive during the night, the chlorine-based reagent combined with the humidity and urine caused corrosive damage to detainees’ lungs and eyes. 29. According to the Government, the cell in question measured 22.4 square metres, had both artificial and natural ventilation systems and five sleeping places and was lit by four 80-watt day lamps. The prison administration submitted a letter in which it certified that there had been three inmates in the cell on 20 December 2000. (v) Conditions of detention in punishment cell 30.", "The first applicant submitted that the punishment cell measured 4 square metres, with only one sleeping place and eleven inmates. The applicant submitted that there had no toilet in the cell and that detainees had used a bucket, which had been emptied once a day but had never been washed or decontaminated. 31. The Government submitted that this cell measured 8.8 square metres, had two sleeping places, both natural and artificial ventilation, and was lit by one 150-watt bulb. The prison administration submitted a letter in which it certified that on 11 March 2001 there had been two inmates in the cell.", "(b) The second applicant 32. Between 16 December 2000 and 17 April 2001 the second applicant was detained first in cell no. 102 and then in no. 84. During the period between 17 April and 30 July 2001 he was held in cell no.", "21. For fourteen days in May 2001 the second applicant was detained in the punishment cell. 33. The Government submitted that on 16 December 2000 the second applicant had been detained in cell no. 102.", "As of 28 December 2000 he was placed in cell no. 84. On 17 April 2000 he was transferred to cell no. 21. As of 17 May 2001 he was transferred to cell no.", "117. From 24 May to 31 July 2001 he was detained in cell no. 21. 34. From the above it follows that the parties agree that the second applicant spent some time in cells nos.", "21, 84 and 102. In addition, the second applicant maintains that he had spent 14 days in a punishment cell and the Government maintained that he had spent some seven days in cell no. 117. (i) Conditions of detention in cell no. 21 35.", "The second applicant submitted that cell no. 21 measured 17 square metres, had twelve sleeping places and was occupied by more than 43 inmates. 36. The Government submitted that the same cell measured 20.7 square metres, had five sleeping places, artificial and natural ventilation systems, and was lit by two 150-watt bulbs. On 17 April 2001 it had accommodated four inmates.", "The prison administration submitted a letter in which it certified that on 24 May 2001 there had been four inmates in the cell. (ii) Conditions of detention in cells nos. 102 and 84 37. The second applicant submitted that cells no. 102 and no.", "84 measured 7.5 square metres, had four bunk beds and accommodated more than six detainees. 38. The Government submitted that cell no. 102 measured 9 square metres and had two sleeping places. Cell no.", "84 measured 9.8 square metres and had two bunk beds. Both cells had natural and artificial ventilation and were lit by two 40-watt day lamps. On 16 December 2000 there had been two inmates in cell no. 102. The prison administration submitted a letter in which it certified that on 28 December 2000 there had been two inmates in cell no.", "84. (iii) Conditions of detention in the punishment cell 39. According to the second applicant, he had been detained for fourteen days in May 2001 in a punishment cell measuring approximately 4 square metres, with one bed and twelve detainees. 40. According to the Government, the cell no.", "117 measured 8.2 square metres, had two sleeping places and, according to the prison administration, on 17 May 2001 had contained two inmates. (a) General information on establishment IZ-69/1 41. The applicants submitted that they had taken walks in the detention centre courtyard every day. The walks had lasted between ten minutes and one hour depending on the guards’ mood. The courtyard was exposed to the elements and had no roof, and in bad weather the walks usually lasted at least an hour.", "42. The Government did not comment on these allegations. 43. According to the applicants, detainees could not take a shower more than twice or three times a month and the water in the shower was barely warm. 44.", "The Government submitted that the applicants had been allowed to take a shower once a week for at least fifteen minutes. 45. The applicants also submitted that all the cells they had described lacked proper ventilation systems and were very hot in summer and cold in winter. 46. According to the Government, all the cells referred to above had both artificial and natural ventilation systems.", "The windows in all of the applicants’ cells were double glazed and had a window leaf for ventilation. Furthermore, the heating system in the prison was fully operational and the temperature in the cells was within the permissible range (+20o C in winter and +24o C in summer). 47. According to the applicants, all the cells were infected with lice, fleas and bugs, none of the toilets in the cells offered detainees any privacy and the authorities had failed to provide them with fresh linen, blankets or crockery. They submitted three photographs of a cell in the detention centre in question.", "None of the beds in the photographs had any bed linen on them. 48. The Government submitted that both applicants had been provided with an individual sleeping place and had a mattress, a pillow with two pillowcases, two blankets, two sheets and three towels. In addition, they were given a mug, a spoon and a bowl. The bed linen was changed once a week after the inmates had taken a shower.", "There was a brick wall 1.20 metres high separating the toilet area from the living area in all the cells. The authorities submitted plans of the interior of all the cells and their dimensions. They further submitted that during the relevant period they had carried out disinfection works, including fumigating and disinfesting each cell twice a month. 49. The applicants alleged that the catering had been extremely poor.", "50. The Government submitted that inmates were given food three times a day, in accordance with the relevant norms. 51. The applicants further submitted that all the cells had been heavily overcrowded and that during the preliminary stage of the proceedings visits to the prison by an investigator had coincided with their turn to sleep and their lunchtime, so that they were effectively deprived of sleep and food. The detainees had to sleep in turns and had no way of washing themselves or shaving.", "52. The Government submitted that the cells in question had not been overcrowded. They referred to statements of the prison authority in this regard (see, for more details, the sections below on specific cells). 53. The Government submitted in respect of the period between 15 December 2000 and 31 July 2001 that the number of bunk beds in the establishment had remained constant, that there had been 536 sleeping places in total, that 127 cells (nos.", "1-14, 15-25, 25a, 26-34, 34a, 35-57, 63‑110, 112-20, 124-34, with a capacity ranging from 2 to 14 sleeping places) had been used in that prison, and that the daily total number of detainees during that period had been on average around 2,300 (ranging from 1,423 on 28 December 2000 to 2,589 on 27 April 2001). 54. The Government submitted detailed plans and dimensions in respect of each of the cells mentioned by the applicants. 3. The conditions of transportation and detention in the courthouse 55.", "The applicants submitted that for attendance at court hearings they had usually been taken out of the detention centre early in the morning, at around 5 a.m., and were not brought back until 8.30 or 9 p.m. While they were being moved, the applicants were kept either in a small space measuring 0.5 m x 0.65 m along with another detainee, or in a bigger space measuring 2 m x 0.65 m containing between seven and twelve detainees. No warm food or toilet facilities were provided during transport or in the detention cells of the court. While waiting for a hearing, between court sessions or while waiting for other detainees after the hearing, each of the applicants had been kept for hours in a small unventilated cell in the courthouse measuring approximately 1.5 m x 1.5 m, together with up to two other prisoners. 56.", "According to the applicants, they were transported to the courts on eleven occasions each: 29 December 2000, 16 and 24, January, 8 February, 9, 10, 11, 12, 13 and 17 April, and 3 July 2001. They also submitted that the prison vans had been unsuitable for transportation of prisoners because of the lack of artificial and natural ventilation or toilet facilities and overcrowding. They also pointed out that the actual distance travelled had been longer because the prison van had had both to deliver detainees to and collect them from five different regional courts around the city. They submitted that it had taken six hours: three for delivery and three for collection and the return journey. 57.", "The Government submitted that the inmates had breakfast before going to court, were returned to the detention centre for lunch and had dinner after the court sessions. The Government submitted a statement by Mr I. B., an official in charge of transportation of detainees, dated 9 August 2007, in which he certified that his convoy teams had never exceeded the limits of transport capacity of the prison vehicles. The Government also submitted drawings of the interior of such vehicles. They could not provide more detailed information on the exact number of transported detainees as the relevant archived documents had been destroyed on 11 August 2005 on the expiry of the storage time-limit.", "58. The Government submitted that the first applicant had made ten return journeys on the following dates: 29 December 2000 (the District Court), 24 January 2001 (the District Court), 8 February 2001 (the District Court), 9, 10, 11, 12 and 13 April 2001 (the District Court), 17 April 2001 (the District Court), and 3 July 2001 (the Regional Court). The second applicant made nine return journeys on the following dates: 29 December 2000 (the District Court), 24 January 2001 (the District Court), 9, 10, 11, 12 and 13 April 2001 (the District Court), 17 April 2001 (the District Court), and 3 July 2001 (the Regional Court). 59. The distance between facility no.", "IZ-69/1 and the District and Regional Courts was three and four kilometres respectively. 60. As regards the detention cells in the District Court, the Government submitted that there were six of them, each designed for two persons, containing benches, artificial lighting, natural ventilation and measuring 5.26, 3.56, 3.86, 3.73, 3.71, 3.8 square metres respectively. The detainees were allowed to go to the WC room upon request. 4.", "Statements by various officials and human rights NGO reports 61. The applicants referred to reports on human rights in Russia by the Moscow Helsinki Group NGO of 1999, 2000 and 2001. A 2000 report on the events of 1999 stated that the situation in pre-trial detention centres in Russia was very bad overall, as the detention centres contained four times more detainees than the number of places available (2,765 detainees and 680 places). The 2001 report on the events of 2000 mentioned the Tver Region as being affected by the issue of overcrowded pre-trial detention centres and complaints about deficient catering. The 2002 report on the events of 2001 referred to dozens of former inmates who spoke of arbitrariness and “lawlessness” in the detention centre in question.", "62. According to the applicant, the newspaper Nezavisimaya gazeta published an interview given by a number of officials, including Minister of Justice Yu. Chayka, his deputy Yu. Kalinin and the head of the Department of Execution of Penalties of the Ministry of Justice, during a press conference in the Butyrskaya pre-trial detention centre. The applicant claimed that they had admitted that the numbers of inmates in Russian SIZOs and prisons exceeded capacity by 52.2%, the most difficult situation being in the cities of Moscow and St Petersburg, the towns of Tver and Tula and the republic of Chuvashiya.", "II. Relevant domestic law and practice A. Rules on the detention regime in pre-trial detention centres (as approved by Decree no. 148 of the Ministry of Justice of 12 May 2000) 63. Rule 42 provided that all inmates, whether suspects or defendants, had to be given, among other things: a sleeping place; bedding consisting of one mattress, one pillow and one blanket; bed linen consisting of two sheets and a pillowcase; a towel; crockery and cutlery, including a bowl, a mug and a spoon; and seasonal clothes (if the inmate had no clothes of his own).", "64. Rule 44 stated that cells in pre-trial detention centres must be equipped, among other things, with a table and benches with enough seating for the number of inmates, sanitation facilities, tap water, day lamps and night‑time lighting. 65. Rule 46 provided that prisoners were to receive food three times a day, with warm meals provided in accordance with the norms laid down by the Government of Russia. 66.", "Under Rule 47, inmates had the right to have a shower at least once a week for at least fifteen minutes. They were to receive fresh bed linen after they had taken a shower. 67. Rule 143 provided that an inmate could receive visits from his lawyer, family members or other persons, subject to written permission from an investigator or an investigative body, the number of visits being limited to two per month. B.", "Order no. 7 of the Federal Service for the Execution of Sentences dated 31 January 2005 68. Order no. 7 of the Federal Service for the Execution of Sentences of 31 January 2005 deals with implementation of the “Pre-trial detention centres 2006” programme. 69.", "The programme is aimed at improving the functioning of pre-trial detention centres so as to ensure their compliance with the requirements of Russian legislation. It expressly acknowledges the issue of overcrowding in pre-trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem. 70. The programme mentions pre-trial detention centre IZ-69/1 amongst the ones affected. In particular, the programme states that, on 1 July 2004, the detention centre had a capacity of 1,160 inmates and in reality accommodated 1,587 detainees, in other words, 36.8% more than the permitted number.", "III. Relevant Council of Europe documents 71. The relevant extracts from the General Reports of the European Committee for the prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows: Extracts from the 2nd General Report [CPT/Inf (92) 3] “46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly.", "Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint. 47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners ... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature ... 48.", "Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ... 49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ... 50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment.", "The cumulative effect of such conditions can prove extremely detrimental to prisoners. 51. It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ...” Extracts from the 7th General Report [CPT/Inf (97) 10] “13.", "As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive. The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ...” Extracts from the 11th General Report [CPT/Inf (2001) 16] “28.", "The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports ... 29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions. 30.", "The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy ...” THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTION 72.", "In their observations on the merits of the case the Government argued that the complaint about the conditions of transportation was inadmissible on grounds of the applicant’s failure to exhaust domestic remedies in that connection. 73. The Court observes that a similar argument has already been examined and rejected by it in its admissibility decision of 28 June 2007. 74. The Court would again underline that the Government merely noted that the applicants had not lodged any complaints with the domestic authorities concerning the conditions of transportation.", "The Government neither specified what type of petition would, in their view, have been an effective remedy nor provided any further information as to how such a petition could have prevented the alleged violation or its continuation or provided the applicants with adequate redress. In the absence of such evidence, the Court finds that the Government have not substantiated their claim that the remedy the applicants had allegedly failed to exhaust was an effective one (see, among other authorities, Kranz v. Poland, no. 6214/02, § 23, 17 February 2004; Skawinska v. Poland (dec.), no. 42096/98, 4 March 2003; and Maltabar and Maltabar v. Russia (dec.), no. 6954/02, 28 June 2007).", "75. The Court rejects the Government’s preliminary objection accordingly. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 76. Relying on Article 3 of the Convention, the applicants complained of the appalling conditions of their detention pending trial.", "They also specifically mentioned the allegedly deplorable conditions of their transportation to and from court hearings. Article 3 provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 77. The Government submitted that the applicants’ conditions of detention and transportation had been satisfactory. They commented on the applicants’ factual allegations (see the statement of facts above) and denied any issues under Article 3.", "78. The applicants disagreed and maintained their initial position. They referred to human rights reports of 1999, 2000 and 2001 by the Moscow Helsinki Group, to the order of the Federal Service of Execution of Sentences and to statements made by various officials which, in their view, confirmed their allegations. They also argued that the data and figures provided by the Government were erroneous. B.", "The Court’s assessment 79. The Court notes that the question of the applicants’ compliance with the six-month rule in respect of the events in the local police station on 15 December 2000 arises. 80. The Court observes that it has previously held that it cannot set aside the application of the six-month rule solely because a government has not made a preliminary objection to that effect (see Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I and, more recently, Blečić v. Croatia [GC], no.", "59532/00, § 68, ECHR 2006‑...). 81. Thus, the Court finds it necessary to examine whether the applicants’ allegations in respect of their stay in the local police station on 15 December 2000 were lodged in time. The Court will then turn to the complaints about the conditions of detention in facility no. IZ-69/1 and the conditions of the applicants’ transportation to and from court hearings.", "1. The applicants’ compliance with the six-month time-limit 82. The applicants’ detention in the local police station ended on 16 December 2000, whereas the application was not lodged with the Court until 30 December 2001, which is more than six months later (see, inter alia, Nurmagomedov v. Russia (dec.), no. 30138/02, 16 September 2004). 83.", "Having regard to the difference in nature of the applicants’ allegations in respect of the local police station, which concerned the deprivation of food and sleep, and their complaints in respect of facility no. IZ-69/1, the bulk of which dealt with the overcrowding in cells, the Court does not find any special circumstances which would enable it to construe the detention in the local police station and their subsequent detention in facility no. IZ-69/1 as a “continuing situation” which could bring the events complained of by the applicants within the Court’s competence (see, by contrast, Igor Ivanov v. Russia, no. 34000/02, § 30, 7 June 2007; Benediktov v. Russia, no. 106/02, § 31, 10 May 2007; and Guliyev v. Russia, no.", "24650/02, § 33, 19 June 2008). 84. It follows that the complaint in respect of the local police station was introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. 2. The conditions of detention in pre-trial detention centre IZ-69/1 85.", "The Court would note that the parties disagree on just about every aspect of the applicants’ conditions of detention, including the dates of their detention in various cells of the detention centre, the size of the cells, the number of beds, and so on. Most importantly, the Government deny that the cells in question were overcrowded or cramped, and have submitted official certificates and drawings of the cells provided by the authorities of the detention centre in question to that effect, whereas the applicants insist on their initial account of events. 86. Having observed the documents submitted by the parties, the Court finds that it need not resolve the parties’ disagreement on all of the aforementioned aspects as the case file contains sufficient documentary evidence to confirm the applicants’ allegations of severe overcrowding in pre-trial detention centre IZ-69/1, which is in itself sufficient to conclude that Article 3 of the Convention has been breached. 87.", "Firstly, the Court would point out a very obvious discrepancy between the information submitted by the prison authority and the Government’s position expressed in their observations on the merits of the case denying any overcrowding in that prison. In fact, the prison authority certified that the applicants’ cells had not been overcrowded on certain specific days, but there is nothing in the statements by the prison authority to confirm the lack of overcrowding in respect of each day of the applicants’ detention in facility no. IZ-69/1. Thus, the Government’s reference to the certificates submitted by the prison administration, whilst informative, is not entirely conclusive. 88.", "Secondly, and most importantly, the Court notes that from the general information on the functioning of facility no. IZ-69/1 at the relevant time (see paragraph 53) it cannot avoid the impression that the pre-trial detention centre was severely overcrowded. If the data submitted by the prison authority is correct and at the time the centre did indeed have a total of 536 sleeping places in 127 cells for an average daily number of detainees of around 2,300, then the only conclusion to be drawn from this information is that the centre contained well over four times more inmates than the number it was designed for. In such circumstances, the applicants, who spent around seven months there and frequently changed cells, could not have remained unaffected by the problem. In the light of this finding, the Court – even proceeding on the assumption that the information on the dimensions and capacity of the cells in question submitted by the Government was correct – cannot but accept the applicants’ allegations concerning the severe overcrowding of the cells as, depending on the exact dimensions of the cell in question, the detainees would have had around one square metre of space per person.", "89. The Court has frequently found a violation of Article 3 of the Convention on account of lack of personal space afforded to detainees (see Khudoyorov v. Russia, no. 6847/02, §§ 104 et seq., ECHR 2005-X (extracts); Labzov v. Russia, no. 62208/00, §§ 44 et seq., 16 June 2005; Novoselov v. Russia, no. 66460/01, §§ 41 et seq., 2 June 2005; Mayzit v. Russia, no.", "63378/00, §§ 39 et seq., 20 January 2005; Kalashnikov v. Russia, no. 47095/99, §§ 97 et seq., ECHR 2002-VI; and Peers v. Greece, no. 28524/95, §§ 69 et seq., ECHR 2001-III). 90. Having regard to its case-law on the subject and the material submitted by the parties, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.", "Although in the present case there is no indication that there was a positive intention to humiliate or debase the applicants, the Court finds that the fact that the applicants were obliged to live, sleep and use the toilet in the same cell as so many other inmates for over seven months was itself sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and to arouse in them feelings of fear, anguish and inferiority capable of humiliating and debasing them. 91. There has therefore been a violation of Article 3 of the Convention because the applicants were subjected to inhuman treatment on account of the conditions of their detention from 16 December 2000 to 24 and 31 July 2001 (for the first and second applicant respectively) in facility no. IZ-69/1. 3.", "The conditions of transportation 92. The Court notes that the parties submitted different accounts of the conditions of the applicants’ transport to the courthouse and their stay there. In particular, they disagreed on the number, duration and dates of these journeys, the passenger capacity of the prison vans, the number of prisoners travelling with the applicants, the dimensions of the cells in the courthouses and the number of detainees kept there at the same time as the applicants (see paragraphs 55-60). 93. Nevertheless, the parties’ submissions on the number of journeys in the prison van did not diverge substantially.", "The applicants stated that they had both travelled on eleven occasions (see paragraph 56), whereas according to the documents submitted by the Government the first and second applicants travelled ten and nine times respectively (see paragraph 58). 94. The Court has previously found a violation of Article 3 of the Convention in a Russian case where the applicant was transported in an overcrowded prison van (see Khudoyorov, cited above, §§ 112-20); however, the applicant in that case was transported in the van no fewer than 200 times in four years of detention. In the instant case the applicants were taken to various courts eleven times at the most, with the bulk of such trips taking place only once or twice a month. 95.", "Furthermore, in the present case it cannot be established “beyond reasonable doubt” that the ventilation, lighting or sanitary conditions in the court cells or prison vans, the overall daily duration of transportation and the catering arrangements were unacceptable from the standpoint of Article 3; nor is it possible to contest the information produced by the Government with respect to access to toilet facilities (see paragraphs 57 and 60). 96. The Court reiterates that it must be satisfied, on the basis of the materials before it, that the conditions of the applicants’ detention constituted treatment which exceeded the minimum threshold for Article 3 of the Convention to apply. In that connection, it notes that the applicants’ allegations about the overcrowding of prison vans and court cells have not been sufficiently substantiated. In fact, nothing in the case file or the documents submitted by the parties confirms them either in whole or in part.", "The applicants neither raised their grievances in this respect before any of the competent domestic authorities, including the prison administration, so as to able to furnish the Court with their answers in this respect (ibid. ), nor submitted statements or the names of their fellow inmates who could confirm their allegations (compare Starokadomskiy v. Russia, no. 42239/02, § 56, 31 July 2008, and Vlasov v. Russia, no. 78146/01, § 67, 12 June 2008). Thus, the crucial evidence which could have supported their claims is missing.", "Furthermore, the Court has no reason to doubt the Government’s intentions in so far as they did not furnish it with data concerning the number of detainees transported with the applicants during the relevant period of time. The archived documents containing that information were destroyed due to the expiry of the storage time-limits on 11 August 2005, that is, a few months before 4 November 2005, which is the date on which the case was communicated to the respondent Government. Thus, the Court does not find it necessary to draw any negative inferences from their conduct. It should also be noted that the Government and the relevant prison authority consistently denied all of the applicants’ factual allegations in this respect and seem to have provided the Court with all information that remained available, such as pictures of the inside and outside of prison vans, dimensions of the court cells, dates of journeys and statements of participating officials (see paragraphs 57-60). 97.", "Given the above considerations, the Court concludes that it has not been established “beyond reasonable doubt” that the applicants endured any distress and hardship during their transportation to the District and Regional Court and their detention in the courthouse premises capable of attaining the minimum level of severity sufficient to bring the complaint within the scope of Article 3 of the Convention. 98. Accordingly, there has been no violation of Article 3 of the Convention in this respect. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 99.", "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 100. The applicants claimed 66,000 and 33,000 euros (EUR) respectively in respect of non-pecuniary damage. 101. The Government considered the applicants’ claims unsubstantiated and excessive.", "102. Making its assessment on an equitable basis, the Court awards the applicants EUR 3,000 each under this head, plus any tax that may be chargeable. B. Default interest 103. 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. Dismisses the Government’s preliminary objection; 2. Declares the complaint concerning the events in the local police station on 15 December 2000 inadmissible on account of the applicants’ failure to comply with the six-month rule; 3. Holds that there has been a violation of Article 3 of the Convention on account of the appalling conditions of the applicants’ detention in facility no. IZ-69/1 between 16 December 2000 and late July 2001; 4.", "Holds that there has been no violation of Article 3 of the Convention on account of the conditions of the applicants’ transportation to and from the courthouse pending the criminal proceedings against them; 5. Holds (a) that the respondent State is to pay each applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 29 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]
[ "FOURTH SECTION CASE OF TOMASZEWSKA v. POLAND (Application no. 9399/03) JUDGMENT STRASBOURG 14 April 2009 FINAL 14/07/2009 This judgment may be subject to editorial revision. In the case of Tomaszewska v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,Päivi Hirvelä,Ledi Bianku,Nebojša Vučinić, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 24 March 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 9399/03) against the Republic of Poland 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, Ms Krystyna Tomaszewska (“the applicant”), on 14 February 2003.", "2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The applicant was granted leave to use the Polish language in the proceedings before the Court (Rule 34 § 3 of the Rules of Court). 3. On 23 May 2008 the Court decided to give notice of the application to the Government.", "It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3). THE FACTS I THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1932 and lives in Łomża. A. Main proceedings 5.", "On 7 March 1991 the applicant instituted administrative proceedings. She sought compensation for the expropriation of her real property which took place on 16 October 1957 by a decision of the Presidium of the Regional National Council (Prezydium Wojewódzkiej Rady Narodowej). 6. On 11 June 1991 the Director of the Łomża District Office refused to grant the applicant compensation for the expropriated real estate. She appealed.", "7. On 25 September 1991 the Łomża Governor upheld the Council’s decision. 8. On 23 January 1992 the Supreme Administrative Court dismissed the applicant’s request for compensation. Following a judgment of the Supreme Administrative Court on 15 May 1994 the applicant requested that the property in question be returned to her.", "9. On 29 July 1994 the Director of the Łomża District Office refused to restore the property. It was found that the property had been used in accordance with the provisions of the original decision of 16 October 1957. 10. On 28 September 1994 the Łomża Governor upheld the director’s decision.", "The applicant appealed. 11. On 10 February 1995 the Supreme Administrative Court dismissed the applicant’s appeal. 12. Subsequently on an unspecified date in July 1997 the applicant made a request to the Łomża Governor to have the original decision of 16 October 1957 declared null and void pursuant to Article 156 § 1 of the Code of Administrative Procedure (CAP).", "13. On 6 August 1997 the Łomża Governor dismissed her request. The applicant appealed. 14. On 24 June 1998 the proceedings were discontinued by a decision of the President of the Office for Housing and Town Development.", "It was established that after the entry into force on 1 January 1998 of the Land Administration Act of 21 August 1997 (Ustawa o gospodarce nieruchomościami) the Łomża Governor was no longer competent to examine the applicant’s appeal. In this decision the President designated himself as the competent authority and subsequently on 22 July 1998, at the applicant’s request, resumed the examination of the case. 15. On 18 October 1999 the President granted the applicant’s request to declare the decision of 1957 null and void and quashed the decision. 16.", "On 8 November 1999 the Łomża Administration Board (Zarząd Miasta) requested to have the case re-examined, contesting the reasoning given for the President’s decision. 17. On 30 October 2000 the President upheld his decision. 18. On 16 January 2001 the Łomża Administration Board filed a cassation appeal with the Supreme Administrative Court.", "19. On 23 August 2002 the Supreme Administrative Court quashed the appealed decision and remitted the case. 20. On 8 November 2002 the President of the Office for Housing and Town Development, having re-examined the case, refused to quash the decision of 16 October 1957. 21.", "On 22 November 2002 the applicant filed an application to have her case re-examined again, enclosing additional documents. 22. On 31 January 2003 the President upheld his own decision of 8 November 2002. The applicant appealed. 23.", "On 20 October 2004 the Warsaw Regional Administrative Court decided to suspend the proceedings in order to establish which authority was competent to examine the appeal in light of the liquidation of the Office for Housing and Town Development. The applicant lodged a complaint against this decision. The proceedings were eventually resumed on 23 February 2005. 24. On 21 April 2005 the Warsaw Regional Administrative Court dismissed the applicant’s appeal.", "On 25 July 2005 she lodged a cassation appeal. 25. On 27 September 2005 the Warsaw Regional Administrative Court rejected her cassation appeal due to a formal shortcoming, namely failure to pay court fees. 26. On 21 December 2005 the Supreme Administrative Court dismissed a complaint by the applicant against the decision of 27 September 2005.", "The court found that the shortcoming could not be rectified, since the applicant was represented by a professional legal adviser, of whom due diligence was required. It was the final decision given in the case. 27. On 18 April 2006 the applicant applied to the Supreme Administrative Court to have her case reinstated. This application was dismissed on 23 August 2006.", "B. Proceedings under the 2004 Act 28. On 18 November 2004 the applicant lodged a complaint with the Supreme Administrative Court under section 18 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”), alleging excessive length of proceedings pending before an administrative court. 29. On 16 December 2004 the Supreme Administrative Court dismissed her complaint.", "The court found that cases were examined by an administrative court in the order of the date of their introduction. In consequence, all cases lodged before the applicant’s case had been introduced had priority over hers. Hence, the delay in recognition of the applicant’s motion by a court was justified by a high number of cases preceding the applicant’s. For this reason the court did not identify any undue delays in the proceedings resulting in their length being excessive. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 1. Inactivity of administrative authorities 30. For a summary of the relevant domestic law, see Kaniewski v. Poland, no. 38049/02, 8 February 2006 and Koss v. Poland, no. 52495/99, 28 March 2006.", "2. Length of proceedings 31. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no.", "61444/00, §§ 34-46, ECHR 2005-V. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS 32. The applicant complained that the length of the proceedings in her case 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...” 33. The Government contested that argument.", "In particular they stressed that the proceedings for annulment of the original decision of 1957 (see paragraph 12 above), given their extraordinary character under the Polish Code of Administrative Procedure (CAP), should be considered as a separate set of proceedings and not as their continuation. Accordingly they maintained that the period to be taken into consideration by the Court was to be reduced. 34. The Court reiterates at the outset that the period which falls under its competence ratione temporis began only on 1 May 1993, when the recognition by Poland of the right of individual petition took effect. 35.", "The Court notes that the administrative proceedings commenced on 7 March 1991, when the applicant sought compensation for the expropriation of her real property by the decision of 16 October 1957 (see paragraph 5 above). Subsequently, on 15 May 1994 the applicant modified her plea and filed a new application, requesting that the real property in question be returned to her (see paragraph 8 above). Eventually, in July 1997 the applicant filed a new application to have the expropriation decision of 1957 declared null and void (see paragraph 12 above). The Court observes that the administrative proceedings in question had had the same object throughout their duration, namely the real property, and were aimed at remedying the expropriation which occurred in 1957. The Court notes however that, as stressed by the Government (see paragraph 33 above), the applicant by modifying the subject matter of the proceedings in July 1997 instituted de facto a new set of proceedings under Article 156 § 1 of the Polish Code of Administrative Procedure (CAP).", "It follows that for the purposes of Article 6 § 1 of the Convention and having regard to the requirements of the six-month rule contained in Article 35 § 1 of the Convention, the Court will only consider the length of the final set of the proceedings – namely the proceedings initiated in July 1997, which ended on 21 December 2005. The period in question thus lasted eight years and five months at three levels of jurisdiction. A. Admissibility 36. The Government raised a preliminary objection that the applicant had not exhausted all domestic remedies available to her under Polish law, as required by Article 35 § 1 of the Convention. In particular, they maintained that she had failed to have recourse to a complaint of inactivity on the part of the administrative authorities as provided by the Polish Code of Administrative Procedure of 1960 and the 1995 Act on the Supreme Administrative Court.", "37. The applicant contested the Government’s findings and stressed that she had filed a complaint of length of proceedings available under the 2004 Act. 38. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system. The rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach.", "In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996‑VI, pp. 2275–76, §§ 51–52). 39. The Court notes that the applicant had recourse to the remedy under the 2004 Act in respect of excessive length of proceedings (see paragraphs 28-29). The Court also notes that it has already examined this remedy for the purposes of Article 35 § 1 of the Convention and found it effective in respect of complaints about the excessive length of judicial proceedings in Poland (see Michalak v. Poland (dec.) no.", "24549/03, §§ 37-43). 40. In this connection, the Court reiterates that although Article 35 § 1 requires that the complaints intended to be brought subsequently before the Court should have been first made to the appropriate domestic body, it does not require that, in cases where the national law provides for several parallel remedies in various branches of law, the person concerned, after an attempt to obtain redress through one such remedy, must necessarily try all other means (see, mutatis mutandis, H.D. v. Poland (dec.), no. 33310/96, 7 June 2001; Kaniewski v. Poland, no.", "38049/02, §§ 32-39, 8 November 2005; and Cichla v. Poland, no. 18036/03, §23-26, 10 October 2006). 41. The Court considers therefore that, having exhausted the available remedy provided by the 2004 Act, the applicant was not required to embark on another attempt to obtain redress by filing an additional complaint based on the inactivity of the administrative authorities. Accordingly, the Court concludes that, for the purposes of Article 35 § 1 of the Convention, the applicant has exhausted domestic remedies.", "For these reasons, the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed. 42. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 43. 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). 44.", "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). Furthermore, the Court considers that, in dismissing the applicant’s complaint that the proceedings in her case had exceeded a reasonable time, the Supreme Administrative Court failed to apply standards which were in conformity with the principles embodied in the Court’s case-law (see Majewski v. Poland, no. 52690/99, § 36, 11 October 2005). 45. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.", "Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 46. 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 47. The applicant claimed 716,233 Polish zlotys (PLN)[1] in respect of pecuniary damage and 10,000 euros (EUR) in respect of non-pecuniary damage. 48. The Government, referring to the applicant’s supplementary letter of 19 October 2008 enclosing a valuation of the real property which was at stake in the proceedings, maintained that the applicant had only claimed pecuniary damages in the amount of PLN 716,233 and failed to make any claims in respect of non-pecuniary damage resulting from the present complaint. It appears, however, that the Government overlooked the applicant’s observations joined to her claims for just satisfaction submitted also on 19 October 2008.", "49. 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, the Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 2,400 under that head. B.", "Costs and expenses 50. The applicant did not make any claim for costs and expenses involved in the proceedings. C. Default interest 51. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (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, the following amount, to be converted into Polish zlotys at the rate applicable at the date of settlement: EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 14 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Lawrence EarlyNicolas BratzaRegistrarPresident [1] 174,691 euros (EUR)" ]
[ "FIRST SECTION CASE OF FOMIN AND OTHERS v. RUSSIA (Application no. 34703/04) JUDGMENT STRASBOURG 26 February 2013 FINAL 08/07/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Fomin and Others v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Elisabeth Steiner,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Julia Laffranque,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 5 February 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "34703/04) against the Russian Federation lodged on 10 August 2004 with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Russian nationals, Mr Aleksandr Ivanovich Fomin, Ms Tamara Ivanovna Fomina, Ms Tatyana Aleksandrovna Fomina, Ms Yulia Aleksandrovna Fomina (“the first”, “the second”, “the third” and “the fourth” applicant), who were born in 1938, 1946, 1970, and 1976 respectively, and live in Magnitogorsk, Chelyabinsk Region. On 30 March 2011 the Court received a power of attorney issued in the first applicant’s name by Ms Olga Aleksandrovna Fomina, born in 1976 (“the fifth applicant”), whose name was also mentioned in subsequent submissions. In the course of the proceedings before the Court, the third, fourth and fifth applicants got married and changed their names to Ms Tatyana Aleksandrovna Gnatyuk, Ms Yulia Aleksandrovna Minkina and Ms Olga Aleksandrovna Ilyina respectively. 2. The Russian Government (“the Government”) were represented by Mr G. Matyusknin, the Representative of the Russian Federation at the European Court of Human Rights.", "3. In particular the applicants alleged that their property rights had been violated on account of the failure of the State to redeem governmental bonds. 4. On 8 December 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Proceedings for redemption of State bonds 5. On an unspecified date the first applicant bought 1982 State premium bonds (облигации Государственного внутреннего выигрышного займа 1982 года), which were issued by the USSR Government in 1982 in order to finance certain State programmes. It was stipulated at the time of issue that the bonds would be redeemed by 2004 at the latest.", "6. In 1992, the Government of the Russian Federation acknowledged their succession in respect of the USSR’s obligations under the 1982 loan and suspended payments under the 1982 State premium bonds. 7. Subsequently, the first applicant converted all but forty-four 1982 State premium bonds into 235 1992 Russian bonds. 8.", "Between 1995 and 2000, a series of legislative and regulatory acts was enacted providing for the conversion of Soviet securities, including 1982 State premium bonds, into special Russian promissory notes. The Government were mandated to devise a procedure for the conversion and to fix the value of the promissory notes. Although regulations on the conversion were adopted in 2000, the actual conversion did not start and application of the regulations remained suspended. 9. The first applicant brought proceedings before the Ordzhonikidzevskiy District Court of Magnitogorsk, seeking redemption of his 1992 Russian bonds and affirmation that the forty-four 1982 State premium bonds had retained their purchase power.", "10. On 28 March 2005 the court granted the claim in part, declaring that the 1982 bonds had retained their value and purchase power proportionate to the USSR currency exchange rate in 1990. The judgment entered into force. 11. The first applicant immediately brought proceedings before the Pravoberezhniy District Court of Magnitogorsk to recover the value of nine of his 1982 State bonds.", "12. By a judgment of 17 May 2005 the court dismissed the claim, finding that the Government had not yet developed a conversion mechanism for the bonds. On 21 July 2005 the judgment was upheld on appeal by the Chelyabinsk Regional Court. 13. At the present time the first applicant holds nine 1982 State premium bonds with a nominal value of 450 roubles.", "B. Non-enforcement of a judgment against a private party 14. On 20 June 1997 the Pravoberezhniy District Court of Magnitogorsk ordered the debtor, M., to repay the applicants 1,100,000 Russian roubles (RUB). 15. On 20 June 2003 the same court awarded the applicants interest on the unpaid debt in the amount of RUB 1,100,000. 16.", "Following the bailiff’s failure to recover the debt, in 2003 the applicants brought a civil claim against M., seeking determination of his share in a flat that he owned jointly with his spouse and child, and its seizure to enforce the court decisions. 17. On 21 October 2003 the Ordzhonikidzevskiy District Court of Magnitogorsk disallowed the claim on the ground that the flat was M.’s only housing and hence could not be seized for recovery of the debt. 18. By a decision of 19 February 2004 the Chelyabinsk Regional Court upheld the judgment on appeal.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 19. A summary of the relevant domestic law and practice is provided in the judgment in the Yuriy Lobanov v. Russia case (no. 15578/03, §§ 13‑23, 2 December 2010). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 20. The applicants complained that their property rights had been violated by the Russian authorities’ failure to fulfil their obligations under the 1982 State premium bonds. The complaint falls to be examined under Article 1 of Protocol No. 1, which reads as follows: “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 21. The Court considers that the second, third, and fourth applicant had neither taken part themselves in any of the relevant proceedings at the national level, nor submitted any complaints on the matter in their own name before the Court. Further, the Court notes that the fifth applicant was neither mentioned in the application forms submitted by the other applicants, nor submitted an application form of her own. Therefore, in respect of the second, third, fourth, and fifth applicants the application must be rejected in accordance is with Article 35 § 3 and 4 of the Convention.", "22. The Court notes that the first applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. Arguments of the parties 23. The applicant alleged that the prolonged failure of the State to redeem the nine 1982 State premium bonds had violated his property rights. He considered that the nine bonds effectively constituted his possessions and that their status was recognised by the domestic courts. Failure to redeem the bonds had resulted in interference with his property rights which was unlawful, had no legitimate aim, and did not ensure a fair balance between public and private interests.", "24. The Government acknowledged that the nine 1982 State premium bonds may be considered as a possession within the meaning of Article 1 of Protocol No. 1. At the same time they contended that the interference with the applicant’s property rights had been lawful since the necessary domestic legal framework had been put in place. They further stressed that, as the Court had acknowledged in the case Malysh and Others v. Russia (no.", "30280/03, § 80, 11 February 2010), the harsh economic situation in Russia in the 1990s necessitated some restrictions on private property, and thus the interference had pursued a legitimate aim. Lastly, the Government argued that a fair balance between public and private interests had been ensured in the applicant’s case, because he had been afforded the opportunity – and indeed had chosen – to convert the majority of his 1982 State premium bonds into 1992 Russian bonds. In respect of the remaining bonds, he had not used that option and thus could not be considered to be a victim within the meaning of Article 34 of the Convention. 2. The Court’s assessment 25.", "The Court is mindful that on several previous occasions it has been called upon to rule whether governmental bonds issued in the USSR, but later recognised as Russian state debt, constitute possessions within the meaning of Article 1 of Protocol No. 1. The Court has consistently concluded that, given that Soviet securities were recognised under Russian legislation as Russian Federation Government debt and that such recognition entails compensation or redemption, those securities are considered as possessions under the Convention (see, among other authorities, Malysh and Others, cited above; Tronin v. Russia, no. 24461/02, 18 March 2010; Yuriy Lobanov, cited above; and Andreyeva v. Russia, no. 73659/10, 10 April 2012) 26.", "The Court notes that in the present case, both the applicant and the Government agreed that the 1982 State premium bonds constituted the applicant’s possessions within the meaning of Article 1 of Protocol No. 1. Equally, both parties agreed that there had been an interference with the applicant’s property rights. Having regard to the circumstances of the case and the case-law cited above, the Court finds no reason to reach a diverging conclusion. 27.", "Thus the issue to be resolved by the Court is whether such interference complied with the requirements prescribed within the Convention system. The Court reiterates that, for the interference to be compatible with Article 1 of Protocol No. 1, it must be lawful, pursue a legitimate aim, and ensure a fair balance between public and private interests (see Broniowski v. Poland [GC], no. 31443/96, §§ 147‑51, ECHR 2004‑V). 28.", "In the Yuriy Lobanov case (cited above), the Court has already dealt with a fundamentally identical issue concerning an individual’s inability to redeem 1982 State premium bonds. The Court found that, while the interference had been lawful and had pursued a legitimate aim, a fair balance had not been struck between the interests of the applicant and those of the State. The Government had not given any satisfactory justification, in terms of Article 1 of Protocol No. 1, for their continuous failure over many years to implement an entitlement conferred on the applicant by Russian legislation (ibid., §§ 49-52, and 54). 29.", "Nor have the Government advanced such a justification in the present case. The fact that the applicant had an opportunity to convert – and indeed converted – the majority of his 1982 State premium bonds into 1992 Russian bonds did not relieve the State of its obligation to ensure a fair balance between public and private interests in respect of the nine bonds retained by the applicant. Russian legislation allowed the conversion of certain Soviet securities into Russian securities as an alternative to redemption, and the applicant was under no obligation to opt for it. 30. The foregoing considerations are sufficient to enable the Court to conclude that there has accordingly been a violation of Article 1 of Protocol No.", "1 on account of the prolonged and unjustified failure of the State to put in practice the procedure for redemption of 1982 State premium bonds. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 31. Lastly, the applicants complained under Article 6 of the Convention and Article 1 of Protocol No. 1 of various violations in the course of the first and second sets of proceedings.", "However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that these complaint do not disclose any violation of the provisions invoked. They are inadmissible and must be rejected in accordance with Article 35 § 1 and 3 (a) of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 32. 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 33. The first applicant claimed 27,954,725 Russian roubles (RUB) (698,868 euros (EUR)) in respect of pecuniary damage for the nine bonds he currently owns. The nominal value of the bonds is 450 roubles. 34. The Government disagreed.", "They contended that the first applicant’s method of calculation had no legal basis and that he had failed to take into account the redenomination of the rouble in 1998. 35. The Court notes that indeed the applicant’s calculation is not based on any method in the domestic law and ignores the redenomination of the Russian currency. Having regard in particular to the just satisfaction awarded to the applicants in cases raising identical issues under the Convention (see, for example, Yuriy Lobanov, cited above, (just satisfaction)), the Court awards EUR 1,200 to the first applicant as compensation in respect of pecuniary damage. 36.", "The applicant did not submit a claim for non-pecuniary damage. Having regard to the case-law and the well-established practice, the Court finds that there are no grounds for awarding any sum on that account. B. Costs and expenses 37. The applicant did not claim any costs and expenses.", "Accordingly, the Court considers that there is no call to award any sum on that account. 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 first applicant’s complaint about violation of his property rights by failure of the State to redeem 1982 State premium bonds admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 1 of Protocol No. 1; 3. Holds (a) that the respondent State is to pay the first applicant Mr Aleksandr Ivanovich Fomin, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,200 (one thousand two hundred euros) in respect of pecuniary damage, plus any tax that may be chargeable, 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. 4. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 26 February 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]
[ "CASE OF KUDŁA v. POLAND (Application no. 30210/96) JUDGMENT STRASBOURG 26 October 2000 In the case of Kudła v. Poland, The European Court of Human Rights, sitting as a Grand Chamber composed of the following judges: MrL. Wildhaber, President,MrsE. Palm,MrJ.-P. Costa,MrA. Pastor Ridruejo,MrG.", "Bonello,MrJ. Makarczyk,MrP. Kūris,MrR. Türmen,MrsF. Tulkens,MrsV.", "Strážnická,MrP. Lorenzen,MrM. Fischbach,MrJ. Casadevall,MrsH.S. Greve,MrA.B.", "Baka,MrsS. Botoucharova,MrM. Ugrekhelidze,and also of Mr P.J. Mahoney, Deputy Registrar, Having deliberated in private on 7 June and 18 October 2000, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case was referred to the Court, in accordance with the provisions applicable prior to the entry into force of Protocol No.", "11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), by the European Commission of Human Rights (“the Commission”) on 30 October 1999 and by a Polish national, Mr Andrzej Kudła (“the applicant”), on 2 December 1999 (Article 5 § 4 of Protocol No. 11 and former Articles 47 and 48 of the Convention). 2. The case originated in an application (no. 30210/96) against the Republic of Poland lodged with the Commission under former Article 25 of the Convention by the applicant on 12 April 1995.", "3. The applicant alleged, in particular, that he had not received adequate psychiatric treatment during his detention on remand, that his detention had been unreasonably lengthy, that his right to a “hearing within a reasonable time” had not been respected and that he had had no effective domestic remedy whereby to complain about the excessive length of the criminal proceedings against him. 4. The Commission declared the application partly admissible on 20 April 1998. In its report of 26 October 1999 (former Article 31 of the Convention) [Note by the Registry.", "The report is obtainable from the Registry. ], it expressed the opinion that there had been a violation of Article 3 of the Convention (by fourteen votes to thirteen); that there had been a violation of Article 5 § 3 (unanimously); that there had been a violation of Article 6 § 1 (unanimously); and that it was not necessary to examine whether there had been a violation of Article 13 (by eighteen votes to nine). 5. Before the Court the applicant, who had been granted legal aid, was represented by Mr K. Tor and Mr P. Sołhaj, lawyers practising in Cracow (Poland). The Polish Government (“the Government”) were represented by their Agent, Mr K. Drzewicki, of the Ministry of Foreign Affairs.", "6. On 6 December 1999 a panel of the Grand Chamber decided that the case should be considered by the Grand Chamber (Rule 100 § 1 of the Rules of Court). The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court. The President of the Court directed that in the interests of the proper administration of justice (Rules 24, 43 § 2 and 71), the case should be assigned to the same Grand Chamber as the case of Mikulski v. Poland (application no. 27914/95).", "7. The applicant and the Government each filed a memorial. 8. Subsequently the President of the Grand Chamber invited the Government to produce the applicant’s medical records kept by Cracow Remand Centre during his detention on remand after 4 October 1993. The Government supplied the relevant documents on 12 May 2000.", "Copies were sent to the applicant on 25 May 2000. 9. A hearing took place in public in the Human Rights Building, Strasbourg, on 7 June 2000 (Rule 59 § 2). There appeared before the Court: (a) for the GovernmentMrK. Drzewicki, Agent,MrsM.", "Wąsek-Wiaderek,MrK. Kaliński, Counsel,MrW. Dziuban, Adviser; (b) for the applicantMrK. Tor,MrP. Sołhaj, Counsel.", "The Court heard addresses by Mr Sołhaj, Mr Drzewicki, Mr Kaliński Mrs Wąsek-Wiaderek and Mr Tor. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. The applicant’s detention and the proceedings against him 10. On 8 August 1991 the applicant was brought before the Cracow Regional Prosecutor (Prokurator Wojewódzki), charged with fraud and forgery and detained on remand.", "Since the applicant reported to the prosecutor that he was suffering from various ailments – in particular, depression – the authorities ordered that he be examined by a doctor. After the examination, which was carried out a few days later, the applicant was found fit to be detained in prison. He was placed in Cracow Remand Centre (Areszt Śledczy). 11. Later, on an unspecified date, the applicant appealed against the detention order.", "On 21 August 1991 the Cracow Regional Court (Sąd Wojewódzki) dismissed his appeal, finding that there were strong indications that he had committed the offences with which he had been charged. Referring to the results of his medical examination, the court found no circumstances which would justify his release on health grounds. 12. From August 1991 to the end of July 1992 the applicant filed some thirty applications for release and appeals against decisions refusing to release him. 13.", "In the meantime, in October 1991, the applicant had attempted to commit suicide in prison. From 4 November 1991 he went on hunger strike for an unspecified period. 14. In November 1991 the authorities ordered that the applicant be examined by doctors. The relevant report was made by experts of the Faculty of Forensic Psychiatry of the Jagiellonian University on 25 November 1991.", "The doctors considered that the applicant was not fit to be detained in an ordinary prison and recommended that, if his detention was to be continued, he should be confined in the psychiatric ward of a prison hospital. The applicant was subsequently taken to Bytom Prison Hospital, where he was placed in a ward for internal diseases and given treatment for his mental condition. The applicant stayed in the hospital for an unknown period. He was then transferred back to Cracow Remand Centre. 15.", "On 20 January and 27 February 1992 the applicant was examined by specialists in forensic medicine. They considered that he needed psychiatric treatment in prison but that it was not necessary to place him in the psychiatric ward of a prison hospital. 16. On 30 April 1992 a bill of indictment against the applicant was lodged with the Cracow Regional Court. In all, twenty-nine charges were brought against him and his nine co-defendants.", "The case file comprised nineteen volumes. The prosecution requested the court to hear evidence from ninety-eight witnesses. 17. On 15 June 1992, at the court’s request, doctors from the Cracow Clinic of Psychiatry and the Faculty of Medicine of the Jagiellonian University reported on the applicant’s psychological state. Their report stated, inter alia: “The patient shows persistent suicidal tendencies.", "Following the medical examination, we find that he is suffering from a deep syndrome of depression accompanied by thoughts of suicide. In the light of the intensity of the suicidal thoughts and of the fact that he has already attempted to commit suicide, he should receive psychiatric treatment. His detention seriously endangers his life (a grave risk of a further suicide attempt) ...” 18. On 27 July 1992 the Cracow Regional Court quashed the detention order. 19.", "On 26, 27 and 28 October and on 14 and 15 December 1992 the court held hearings in the applicant’s case. A hearing listed for 8 February 1993 was cancelled because the applicant failed to appear. His lawyer submitted a certificate to the effect that the applicant was on five days’ sick-leave; however, the court ordered that the applicant should, within three days, submit a medical certificate issued by a forensic expert, “failing which preventive measures [środki zapobiegawcze] to ensure his presence at the trial [will] be imposed on him”. The applicant did not submit the required certificate but, on 12 February 1993, informed the court that he was undergoing climatic treatment in Świnoujście and was to stay there until 7 March 1993. On 18 February 1993, since the applicant had not informed the court of the address at which summonses could be served on him, the court ordered that a “wanted” notice be issued with a view to locating and redetaining him on the ground that he had failed to attend hearings.", "The next hearing scheduled for 16 March 1993 was cancelled due to the applicant’s absence. 20. The detention order of 18 February 1993 had not been enforced by 4 October 1993, when the applicant was arrested by the police in connection with a traffic offence. He was placed in Cracow Remand Centre. 21.", "The Regional Court listed hearings for 6 October and 15 and 17 November 1993 but cancelled all of them because the applicant’s mental state (in particular, his difficulties in concentrating) did not allow him to participate properly in the trial. In a prison doctor’s note made on 17 November 1993 his state was described as follows: “Is able to take part in today’s proceedings (with limited active participation on account of [illegible words] difficulty in concentrating).” According to a further expert report (obtained by the court at the end of 1993) the applicant was “not suffering from mental illness” at that time and his mental state was “not an obstacle to keeping him in detention”. 22. Meanwhile, on 18 October 1993, the applicant’s lawyer had unsuccessfully appealed against the detention order, arguing that the applicant, after his release on 27 July 1992, had received continuous treatment for his severe depression and that his failure to appear before the trial court had been due to his psychological state. 23.", "Between October 1993 and November 1994 the applicant made twenty-one further unsuccessful applications for release and appealed, likewise unsuccessfully, against each refusal. 24. On 13, 14 and 16 December 1993 the court held hearings. Hearings scheduled for the end of January 1994 were cancelled as, on 26 January 1994, the applicant had attempted to commit suicide by taking an overdose (see paragraphs 63-64 below). 25.", "The trial continued on 14, 15 and 16 February 1994. The hearings listed for 9 and 10 March 1994 were cancelled because the presiding judge was ill. Subsequent hearings took place on 14, 15 and 16 June 1994. In the meantime the applicant had undergone psychiatric observation in Wrocław Prison Hospital (see paragraph 58 below). 26.", "The next hearing took place on 11 July 1994. The hearings listed for 12 and 14 July 1994 were cancelled because the applicant had withdrawn the power of attorney granted to his defence counsel. The trial continued on 20, 21 and 22 September, 25 and 26 October, and 14 and 15 November 1994. The hearings listed for 20, 21 and 22 December 1994 were cancelled because one of the applicant’s co-defendants was admitted to hospital at that time. 27.", "In the meantime, on 17 November 1994, the applicant had complained to the President of the Cracow Regional Court about the length of his detention and the conduct of the proceedings in his case. He complained, in particular, that all of his nine co-defendants had been released, whereas he was still being detained despite the fact that the overall length of his detention had now exceeded two years. He asserted that the minutes of the hearings had not reflected witnesses’ testimony, that the court had failed to enter in the record his and his lawyer’s submissions and had not allowed him to express his version of the facts of the case freely. The criminal proceedings against him, which had to date lasted more than four years, were, to use his term, a “nightmare”. 28.", "On 7 December 1994 the applicant complained to the court about his psychiatric treatment in prison. The presiding judge asked the prison authorities for explanations. They informed him of the number of medical examinations undergone by the applicant, gave details of them and produced copies of the relevant medical records. 29. At about the same time, the applicant again requested the court to release him on health grounds.", "He also referred to his family situation, maintaining that his lengthy detention was putting a severe strain on his family. On 8 December 1994 the Cracow Regional Court dismissed the application. 30. On 4 January 1995, on an appeal by the applicant, the Cracow Court of Appeal (Sąd Apelacyjny) upheld the Regional Court’s decision and held that his detention should continue in view of the reasonable suspicion that he had committed the offences in question and the fact that he had been detained on the ground of the risk that he would abscond. The court also found that the situation of the applicant’s family, although difficult, was not a circumstance that could militate in favour of his release.", "31. On 25 January 1995 the applicant’s lawyer applied to the Cracow Regional Court to have the detention order quashed and the applicant released under police supervision. He stressed that on 23 January 1995 the applicant had again tried to commit suicide in prison, by attempting to hang himself (see paragraphs 69-70 below). This event, taken together with his chronic depression, had been a clear warning that continuing detention could jeopardise his life. He further pointed out that the applicant had been redetained only because of his absence from hearings.", "That ground could not warrant his detention any longer because evidence against him had already been heard and keeping the applicant in detention did not serve the purpose of ensuring the proper conduct of the trial. 32. On 13 February 1995 the Cracow Regional Court dismissed that application. It held that, according to a report from the prison authorities, the applicant’s suicide attempt had been of an attention-seeking nature and that the original grounds for his detention were still valid. The relevant report, dated 10 February 1995, reads: “Further to the [Regional] Court’s request regarding the accused, we confirm that Andrzej Kudła, who remains at your disposal, ... at 4.45 a.m. on 23 January this year, attempted suicide in order to attract attention to his case.", "On the basis of information from, and the conclusions of, the duty doctor, psychiatrist and psychologist, it was established that the prisoner suffered from personality disorders manifesting themselves as reactive depression. The result of the prisoner’s action was a slight abrasion of the skin on his neck in the form of a stripe made by the rope after hanging; no neurological changes were observed. The prisoner carried out this demonstration as he considers that the criminal proceedings are taking a very long time and because he is distancing himself from the charges laid against him. Despite his emotional problems, he is in control of the situation and is putting pressure on the [prison authorities]. By decision of the Governor, he did not receive disciplinary punishment for his behaviour.", "Psycho-corrective discussions [were held with him], aimed at explaining the real threats to the prisoner’s health and life arising from his behaviour. In a subsequent psychiatric consultation (carried out after the suicide attempt) a regression of the symptoms of reactive depression was noted. He continues to be held in a cell with others because of the possibility of his self-destructive behaviour arising from a subjective feeling of suffering. He is classed as a difficult prisoner and therefore remains under constant observation and under the control of the prison security and medical staff. [Stamp and signature illegible]” 33.", "On 25 February 1995 the applicant’s lawyer appealed against the Regional Court’s decision, submitting that the applicant’s mental health had significantly deteriorated and that he was constantly suffering from depression. He requested the court to appoint psychiatric and other medical experts to assess the applicant’s state of health, instead of relying on the assessment made by the prison authorities. He also maintained that the length of the proceedings was inordinate and stressed that the applicant had already spent two years and four months in detention. 34. On 2 March 1995 the Cracow Court of Appeal dismissed the appeal.", "The court considered that it was not necessary to call medical experts and that the applicant’s detention should continue in order to ensure the proper conduct of the proceedings. Later, between 8 March and 1 June 1995, the applicant made four further unsuccessful applications for release and lodged similarly ineffective appeals against decisions to keep him in detention. 35. On 13, 14 and 15 March, 3, 4 and 5 April, and 4, 5, 30 and 31 May 1995 the Regional Court held hearings and heard evidence from witnesses. Certain witnesses, who had previously failed to appear, were brought to the court by the police.", "36. On 1 June 1995 the Cracow Regional Court convicted the applicant of fraud and forgery and sentenced him to six years’ imprisonment and a fine of 5,000 zlotys (PLN). On 2 June 1995 both the applicant and his lawyer filed a notice of appeal. 37. On 1 August 1995 the applicant complained to the Minister of Justice that the trial court had not prepared the statement of reasons for its judgment within the statutory time-limit of seven days.", "He submitted that the delay had already amounted to two months. 38. At some later date the applicant requested to be released, arguing that his prolonged detention had had very harmful effects on his health and on the well-being of his family. On 14 August 1995 the Cracow Regional Court dismissed his application. On 31 August 1995, on an appeal by the applicant, the Cracow Court of Appeal upheld that decision and observed that his detention was warranted by the severity of the sentence imposed.", "39. On another unspecified date the applicant complained to the Minister of Justice about the length of the proceedings in his case, pointing out that the Cracow Regional Court had failed to provide him with the statement of reasons for its judgment within the statutory time-limit. That had significantly prolonged the appellate proceedings. On 28 August 1995 the Head of the Criminal Department of the Ministry of Justice, in reply to that complaint, informed him that it was likely that the statement of reasons for the judgment would exceed two hundred pages and that the failure to comply with the statutory time-limit was due to the fact that the judge rapporteur had been on leave. 40.", "On 27 September 1995, at the Regional Court’s request, the applicant was examined by forensic psychiatrists from the Collegium Medicum – Faculty of Forensic Medicine of the Jagiellonian University in Cracow. The relevant part of their report reads: “... As can be seen in the file, and in accordance with the findings of the medical experts, the defendant underwent observation in the psychiatric ward of Wrocław Prison Hospital. In the course of the hospital observation, attempts at suicide and lengthy, vague losses of consciousness were observed. The comprehensive conclusions ... of the report by the psychiatric experts in Wrocław showed that the defendant exhibited personality disorders and a predisposition to situational reactions, which do not militate decisively against him being in prison, provided there is guaranteed outpatient psychiatric care. [The applicant] explained that he was still in the remand centre and felt very ill, he had a permanent headache located in the apex, radiating to the nape.", "He very often became breathless and had difficulty breathing, particularly at night. On those occasions he asked the officers for help and they took him to the medical ward. On most occasions the doctor prescribed Relanium [diazepam], which did not relieve his suffering. He claimed that he continued to take Relanium at doses of at least 30 mg at night and 15 mg during the day. This medicine ‘organised him’, as he said, and he could not function without it.", "He felt constantly tired, did not sleep at night and was annoyed by his continued stay in prison. He considered this preposterous, as he had already ‘overserved’ any sentence he could be given. During a conversation with the defendant, it was observed that he had an abrasion of the epidermis at the base of the neck. When his shirt collar was opened, it was found to be a linear abrasion of the epidermis around the front section of the neck, corresponding to the furrows found on a hanging victim. The defendant explained that ... he had tried to hang himself with a sheet, but had been resuscitated.", "This was his second attempt at suicide and he could not explain why he behaved in this way. He maintained that he had moments when he felt as if his consciousness was interrupted and that at these times he tried to take his own life, mainly by hanging but also by taking drugs and slashing himself with a razor. He claimed that there was also an occasion when he left home after a family dispute and woke up several weeks later in a boarding house in Świnoujście. He did not understand how he came to be there or what had happened to him during those weeks. The person under examination is currently making good verbal contact, is oriented, his mood is somewhat subdued, he is tense, irritable and experiences a strong sense of injustice.", "He states that he is being treated inappropriately. He receives some medicines which do not improve his state of mind and he considers that this treatment only ‘subjects him to psychotropic behaviour’. After the psychiatric examination, the defendant was sent to the EEG department to undergo a specialist examination. The results of that examination are attached to the report. Report The examination of the defendant Andrzej Kudła, male, 33 years of age, and the analysis of the results of previous examinations and medical and psychological observations performed during hospitalisation lasting several weeks show that his current mental state is the result of his personality disorders and predisposition to decompensation in difficult situations.", "These disorders are not psychotic in nature but further suicide attempts will prove to be a real threat to his health. For this reason, we also consider that if the legal proceedings require that the defendant spend a further period in prison, he should be sent to a hospital ward and be supervised by specialist staff. He should also be guaranteed access to a psychiatrist and a psychologist. Expert Expert Dr Elżbieta SkupieńDr Andrzej Zięba” 41. On 6 October 1995 the applicant received the statement of the reasons for the judgment and, at some date thereafter, lodged an appeal.", "The case file was transferred to the Cracow Court of Appeal on 14 November 1995. 42. On 22 February 1996 the Court of Appeal quashed the conviction and ordered a retrial on the ground that the trial court had been incorrectly constituted and that there had been numerous breaches of procedural provisions. During the appellate hearing the applicant’s lawyer had asked the court to quash the detention order, but without success. 43.", "On 11 April 1996 the case file was sent to the Regional Court. The Regional Court subsequently made a severance order and thereafter the applicant was tried separately from several other defendants. 44. On 30 April 1996 the applicant requested that the preventive measure imposed on him be lifted or varied. On 28 May 1996 the Cracow Regional Court gave a decision in which it stated, inter alia: “... At the present stage of the case, proper conduct of the proceedings can be ensured by imposing preventive measures other than detention.", "... The Court therefore quashes the detention order on condition that the applicant puts up bail of PLN 10,000 within one month from the date on which this decision is served on him. ...” 45. The applicant appealed against that decision and requested that the bail be reduced and set in the light of his financial circumstances or, alternatively, that the court secure proper conduct of the trial by ordering him to submit to police supervision. 46.", "On 11 June 1996 the trial court received a report from a psychiatric expert it had appointed. The expert found that the applicant was in a state of chronic depression accompanied by suicidal thoughts. He considered that the applicant was able to participate in hearings but that continuing detention could jeopardise his life because of the likelihood that he would attempt to commit suicide. 47. On 20 June 1996 the Cracow Court of Appeal dismissed the applicant’s appeal against the decision of 28 May 1996, holding that the sum set for bail was not excessive, given the cost of the damage resulting from the commission of the offences with which he had been charged and the serious nature of those offences.", "The court attached considerable importance to the fact that after the first order for his detention had been quashed in July 1992, the applicant had absconded and had been redetained on that ground. Bail, the court added, was designed to secure his presence at the trial and to prevent him from committing any further acts aimed at obstructing the proper course of the proceedings. Having regard to all the circumstances of his case, bail had therefore been set at an appropriate level. 48. Shortly afterwards, the applicant complained to the Ombudsman (Rzecznik Praw Obywatelskich) that the overall length of his detention had now exceeded three years.", "The complaint was referred to the President of the Cracow Court of Appeal, who on 12 July 1996 sent a letter to the applicant. The relevant part of that letter reads: “... You were indicted for fraud and forgery on 30 April 1992. The bill of indictment concerned ten co-defendants and evidence from ninety-eight witnesses was to be obtained. The proceedings were delayed because you had been in hiding until your subsequent detention in October 1993. You have also made numerous applications for release.", "... The delay in the proceedings between the date of the trial court’s judgment and the date on which the case file was sent to the Court of Appeal was justified by the size of your case file and the length of the statement of reasons for the judgment (29 volumes and 140 pages respectively). ... The statement of reasons was ready before 16 August 1995 and was sent out on 16 September 1995 because the judge rapporteur was on leave. The only delay occurred in respect of handling your application for release of 30 April 1996[;] it was examined on 28 May 1996 since from 1 May to 5 May 1996 there had been a public holiday.", "...” 49. Meanwhile, the applicant had again applied to the Cracow Regional Court to release him under police supervision or to reduce the bail set by the court on 28 May 1996. On 2 July 1996 the court refused the application. The applicant’s lawyer appealed against that decision and argued that in the light of the psychiatric report of 11 June 1996 the applicant should be released because his life was in danger. 50.", "On 18 July 1996 the Cracow Court of Appeal dismissed the appeal, pointing out that the danger to the applicant’s life was “not absolute” because he could obtain psychiatric treatment in prison. The court considered that, given the applicant’s behaviour after his release in July 1992, his detention should continue in order to secure the proper course of the trial unless he put up bail of PLN 10,000. 51. On 31 July 1996 the applicant again requested the Regional Court to reduce the amount of security or to release him under police supervision. He submitted that he did not have sufficient financial resources to pay such a substantial sum of money.", "On 19 August 1996 the court dismissed his application as manifestly ill-founded. It observed that the applicant’s arguments concerning the question of bail had been an “unjustified dispute with the institutions of justice” and that bail could be put up not only by the applicant himself but also by third parties. 52. Later, the applicant requested the Regional Court to release him so that he could provide the required security. On 10 September 1996 the court dismissed this request, holding, inter alia: “...", "It is logical that [the applicant] should be released after bail is paid. The accused’s request to reverse the sequence of events is against the rules of procedure and common sense and must therefore be dismissed. ...” 53. The retrial was to start on 10 October 1996 but was postponed because one of the applicant’s co-defendants had meanwhile been detained in connection with other criminal proceedings against him. 54.", "On 29 October 1996 the Cracow Regional Court quashed the detention order after the applicant’s family had paid bail of PLN 10,000 to the court. 55. The next two hearings were listed for 18 March and 17 April 1997 but the trial was again postponed as another co-defendant was ill. Subsequent hearing dates were set for 6, 21 and 23 October 1997. The Regional Court later listed hearings for the following dates in 1998: 15 January, 26 February, 19 March, 6 and 28 April, 2, 22 and 24 June, 13 July, 23 September, 3 and 30 October, and 17 and 24 November.", "On 4 December 1998 the court gave judgment. The applicant was convicted as charged and sentenced to six years’ imprisonment. 56. He appealed on 19 April 1999. On 27 October 1999 the Cracow Court of Appeal varied the trial court’s judgment and reduced the applicant’s sentence to five years’ imprisonment.", "57. Subsequently the applicant lodged a cassation appeal (kasacja). On 24 February 2000 the Cracow Court of Appeal, having found that the applicant had complied with the relevant formal requirements for such appeals, forwarded his appeal to the Supreme Court (Sąd Najwyższy). The proceedings in the Supreme Court are still pending. B.", "Medical treatment received by the applicant during his detention from 4 October 1993 to 29 October 1996, as shown by the medical register kept by Cracow Remand Centre 58. The applicant was held at Cracow Remand Centre from 4 October 1993 to 29 October 1996, with only one interruption: on 9 March 1994 he was transferred to Wrocław Prison Hospital where, until 26 May 1994, he underwent psychiatric observation ordered in other criminal proceedings against him. 59. The medical register shows that the applicant was examined by a doctor shortly after being detained. On 6 October 1993 the applicant asked to be examined by a psychiatrist.", "The examination took place on 15 October. The applicant was diagnosed as suffering from reactio situatione (situational reaction). He had been examined by or had consulted a prison doctor on three previous occasions. 60. In November 1993 the applicant was examined by prison doctors eight times.", "It was recorded that he was suffering from chronic insomnia and lack of appetite and, subsequently, from recurring headaches, dizziness and difficulty in concentrating. 61. On 10 December 1993 the applicant was examined by a psychiatrist. He was diagnosed as suffering from personality disorder and depressive reaction. During that month, on four further occasions, he consulted or was examined by doctors in the prison outpatient ward.", "He complained of insomnia and requested a change of medicine. On 24 December 1993 a doctor recommended that he be examined by a psychiatrist. 62. On 4 January 1994 the applicant started to complain about darkness in front of his eyes and headaches. 63.", "On 26 January 1994 the applicant attempted suicide by taking an overdose. The doctor on duty made the following entry: “Patient unconscious, no verbal contact. ... From the report given by [his cell-mates] it transpires that yesterday he took the evening dose of medication ... nobody saw him taking any other medication. Diagnosis: intoxicatio medicamentosa acuta per os susp. [suspected acute drug poisoning by mouth].", "Medical recommendations: hospital observation and urgent psychiatric treatment.” 64. The applicant was admitted to the prison hospital and stayed there from 27 to 28 January 1994, the diagnosis being “status post intoxicationem medicamentosam”. He underwent several medical tests (blood-cell morphology, toxicological examination of urine, electrocardiography). 65. On 27 February 1994 the applicant was examined by a psychiatrist and diagnosed as suffering from neurotic disorder.", "66. From 26 May 1994 (the date of his return from Wrocław Prison Hospital) to the beginning of November 1994 the applicant consulted the prison outpatient doctors on thirteen occasions. He complained mainly about difficulty in getting to sleep and recurring headaches lasting several days but also about cold and skin ailments. In September 1994 he asked several times for an appointment with a psychiatrist. He was examined by a psychiatrist on 9 November 1994 and diagnosed as having neurotic disorder.", "67. In the meantime, on 5 November 1994, the prison doctor on duty had asked for a further appointment with a psychiatrist for the applicant. The psychiatrist examined the applicant on 7 December 1994 and confirmed his previous diagnosis. The register records that the applicant complained about dizziness and sleep disorder. 68.", "On 2 January 1995 the doctor on duty requested a follow-up appointment with a psychiatrist for the applicant. On 11 and 13 January 1995 the doctor noted that the applicant had not reported back to him. On 16 January 1995 the applicant was given an unspecified medicine. 69. On 23 January 1995 the applicant attempted to commit suicide by hanging himself.", "On that day doctors made two notes in the medical register. The relevant part of the first note, written by the doctor on duty, reads: “At approximately 4.30 a.m. he made a conspicuous attempt to commit suicide by hanging himself on a sanitary appliance on the wall. Blood pressure 110/60 ... In the left nostril was a small amount of foaming blood. Abrasions of the epidermis were found on the neck consistent with the scars of a hanging victim.", "... He does not want to communicate orally. ... Diagnosis: conspicuous attempt to commit suicide by hanging. Medical recommendations: psychiatric test ...” The second note, made by a specialist in internal medicine, reads as follows: “General condition good.", "... Able to communicate logically. He stated that this had not been his first attempt at suicide. Diagnosis: condition following attempted suicide. Medical recommendations: psychiatric test.", "Admission to hospital for treatment not required.” 70. On 24 January 1995 the applicant was examined by a psychiatrist, who made the following report: “Good verbal communication, emotions satisfactory. ... He was in the psychiatric ward of Wrocław Prison Hospital ... to June 1994. Attempted suicide: ‘I can’t take any more.’ He is anxious.", "Disturbed sleep, loss of appetite, nausea, vomiting. The case has lasted three years – without a judgment, he had no previous convictions. He was frightened by his actions: ‘I don’t know what came over me.’ Diagnosis: condition following attempted suicide by hanging. Situational depressive reaction.” 71. On 3 February 1995 the applicant was again examined by a psychiatrist.", "The doctor’s note reads: “Good contact. Full orientation, balanced mood. No psychotic symptoms. Complains: ‘I feel unwell, I have had enough of this, I do not sleep well, I will hang myself.’ Diagnosis: personality disorder; auto-aggressive reaction.” 72. In March 1995 the applicant was examined by doctors six times.", "Two of those examinations were carried out by psychiatrists. The relevant part of a medical certificate issued after the first examination reads: “Cracow, 7 March 1995 Medical Certificate As to the state of health of the prisoner Prisoner’s complaints, previous illnesses and operations: He is currently submitting the following complaint: difficulty concentrating, psychomotor agitation, feelings of inner tension, recurring pain in the epigastric region. Medical history shows frequent attempts at suicide, including by hanging and drug overdose. He is under regular psychiatric supervision. ... Psychiatric consultation 7 March 1995.", "Situational reaction with depressive features. Fit to take part in court proceedings. ...” After the second examination, carried out on 31 March 1995, a doctor noted: “Good contact, full orientation, dysphoric mood. Complaints – tension ... sleep disorder, difficulty in concentrating. Diagnosis: neurotic disorder.” 73.", "From the beginning of April to the end of December 1995 the applicant, either at his own request or at the request of prison doctors, was examined by psychiatrists at least once a month. Apart from that, he received treatment for other ailments. As regards the applicant’s mental state, it appears from the medical register that he repeatedly complained of depression, sleep disturbances, tension, difficulty in concentrating, irritation and lack of improvement of his condition. 74. In the period from the beginning of January to the end of August 1996 the applicant was examined by doctors on thirty-two occasions; twelve examinations were carried out by psychiatrists.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 75. 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) – 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.", "76. The Code listed as “preventive measures”, inter alia, detention on remand, bail and police supervision. Article 209 set out the general grounds justifying imposition of the preventive measures. This provision read: “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.” Article 217 § 1 defined grounds for detention on remand. The relevant part of this provision, in the version applicable until 1 January 1996, provided: “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. ...” 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.” The Code set out the 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. Article 213 § 1 provided: “A preventive measure [including detention on remand] shall be immediately lifted or varied if the basis for it has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one.” Article 225 stated: “Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of those measures, are considered adequate.” The provisions for “mandatory detention” (for instance, detention pending an appeal against a sentence of imprisonment exceeding three years) were repealed on 1 January 1996 by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes.", "Finally, Article 218 stipulated: “If there are no special reasons to the contrary, detention on remand should be lifted, in particular, if: (1) it may seriously jeopardise the life or health of the accused; or (2) it would entail excessively burdensome effects for the accused or his family.” 77. Under Polish law “release on bail” does not mean release on condition that a detainee undertakes to pay a specified sum to the court if he fails to appear before it, but release on condition that the required security is paid to the court by either the detainee himself or sureties before the detainee is released. 78. Article 219 of the Code dealt with medical treatment of an accused during detention on remand. It provided the following: “If the state of health of an accused requires treatment in a medical establishment, he cannot be further detained except in such an establishment.” 79.", "Article 214 of the Code of Criminal Procedure provided that an accused could at any time lodge an application for release. It read: “An accused may at any time apply to have a preventive measure lifted or varied. Such an application shall be decided by the prosecutor or, after the bill of indictment has been lodged, by the court competent to deal with the case, within a period not exceeding three days.” 80. Article 371 § 1 of the Code laid down a time-limit for preparing the statement of reasons for the judgment of the trial court where an appeal had been brought. The relevant provision read: “The statement of the reasons for the judgment shall be prepared within seven days from the date on which a notice of appeal has been lodged; in a complex case, when it is impossible to prepare it within the prescribed time, the president of the court may extend that time for a specified period ...” 81.", "The Code set out two principal appellate remedies, called “appellate measures”: an appeal, which, under Articles 374 et seq., could be brought solely against judgments and an interlocutory appeal which, under Articles 409 et seq., could be brought against decisions other than judgments and against orders for preventive measures. There was (and still is) no specific provision expressly providing for remedies against inactivity on the part of the judiciary in the course of criminal proceedings. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 82. The applicant claimed that he had not received adequate psychiatric treatment when in detention from 4 October 1993 onwards.", "He had been held at Cracow Remand Centre, where there had been no psychiatric ward and where no serious effort to treat his chronic depression had been made. In his submission, this had resulted in his repeated attempts to commit suicide in prison and constituted inhuman and degrading treatment within the meaning of Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 83. The applicant asserted that Article 219 of the Code of Criminal Procedure imposed an obligation on the authorities to at least consider whether his state of health was such as to require that he be placed in an appropriate medical establishment (see paragraph 78 above). Indeed, they had been well aware that he had suicidal tendencies, which had inevitably been aggravated by the extreme conditions of imprisonment. They had had before them abundant evidence to that effect because he had previously been released pending trial in view of the danger to his life posed by his continued detention.", "84. From 4 October 1993 to 29 October 1996, that is to say for three years, he had again been detained on remand. During that time he had only once received treatment in a “medical establishment” within the meaning of Article 219. In March 1994, the court had placed him for several months in the psychiatric ward of Wrocław Prison Hospital. In the applicant’s view, the court had done so only because his state had markedly deteriorated after his suicide attempt in January 1994.", "85. The applicant further maintained that, after that short period of specialist treatment, he had again been transferred to Cracow Remand Centre where he had received no medication that could have prevented him from making further suicide attempts and where he had been detained in difficult prison conditions together with convicted criminals. This he had found psychologically unbearable, and on 23 January 1995 he had again attempted to commit suicide. He contended that the prison authorities had arbitrarily and groundlessly labelled the suicide attempt as being not genuine, but of an attention-seeking nature and they had reported the event to the court in that manner. They had not mentioned that a day later a psychiatrist had diagnosed his behaviour as a “situational depressive reaction”.", "Despite that diagnosis, he added, the authorities had not done anything substantial to improve his condition or to provide him with adequate psychiatric assistance. Not only had the trial court failed to ensure continuous supervision of his health and of the conditions of his detention but it had taken no notice of the doctors’ reports on his state either. In particular, he had been held in prison from 11 June to 29 October 1996 even though on the first of those dates the psychiatric expert had assessed his state as very serious and stated that his continued detention had been putting his life at risk. In sum, keeping him in detention regardless of the fact that it could have endangered his life and failing to give him adequate medical assistance amounted to treatment contrary to Article 3 of the Convention. 86.", "The Government disputed that – apart from the applicant’s subjective feelings – the treatment complained of had attained the minimum level of severity required to fall within the scope of Article 3. They first of all maintained that in the light of the medical evidence produced by them before the Court, there could be no doubt that the relevant authorities had carefully and frequently monitored the applicant’s state of health and provided him with medical assistance appropriate to his condition. 87. As to whether the authorities had fulfilled their obligation to place the applicant in an “appropriate medical establishment”, pursuant to Article 219 of the Code of Criminal Procedure, the Government pointed out that the medical records showed that he had been admitted to prison hospitals whenever it had proved necessary. Apart from the aforementioned observation in Wrocław, he had been placed in hospital after his second suicide attempt.", "That being so, no shortcomings on the part of the authorities could be found in that respect. 88. Nor could it be said, the Government added, that the courts had not checked whether the applicant had received proper medical assistance or had not made sure whether his condition had been compatible with continued detention. They had frequently asked the prison services about the applicant’s health and, where necessary, inspected the findings of psychiatric examinations or even intervened with a view to improving the situation. For instance, the trial court had immediately reacted to the applicant’s complaint about the psychiatric treatment received in prison (which he had made on 7 December 1994) and had asked the relevant prison services for an explanation.", "In addition, the court had on several occasions asked psychiatrists to prepare reports on the applicant’s health. 89. In conclusion, the Government invited the Court to uphold the opinion expressed by the dissenting members of the Commission, who had considered that while it might well be argued that the authorities should have paid more attention to the applicant’s psychiatric condition, they had nevertheless not exposed him to suffering of such severity as to constitute inhuman or degrading treatment. 90. As the Court has held on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of democratic society.", "It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, among many other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 69, ECHR 1999-IX, and Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). 91. However, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3.", "The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see, for example, the Raninen v. Finland judgment of 16 December 1997, Reports of Judgments and Decisions 1997-VIII, pp. 2821-22, § 55). 92. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them.", "On the other hand, the Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see, mutatis mutandis, the Tyrer v. the United Kingdom judgment of 25 April 1978, Series A no. 26, p. 15, § 30; the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 39, § 100; and V. v. the United Kingdom cited above, § 71). 93. Measures depriving a person of his liberty may often involve such an element.", "Yet it cannot be said that the execution of detention on remand in itself raises an issue under Article 3 of the Convention. Nor can that Article be interpreted as laying down a general obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to obtain a particular kind of medical treatment. 94. Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (see, mutatis mutandis, the Aerts v. Belgium judgment of 30 July 1998, Reports 1998-V, p. 1966, §§ 64 et seq.). 95.", "The Court observes at the outset that in the present case it was not contested that both before and during his detention from 4 October 1993 to 29 October 1996 the applicant had suffered from chronic depression and that he had twice attempted to commit suicide in prison. His state had also been diagnosed as personality or neurotic disorder and situational depressive reaction (see paragraphs 58-67 and 69-72 above). 96. The Court further observes that the medical evidence which the Government produced to it (but not to the Commission) shows that during his detention the applicant regularly sought, and obtained, medical attention. He was examined by doctors of various specialisms and frequently received psychiatric assistance (see paragraphs 59-74 above).", "From the beginning of October to the end of December 1993 he had several times been examined by psychiatrists in prison (see paragraphs 59-61 above). At the end of 1993 the trial court obtained a report from a psychiatrist confirming that his state of health was at that time compatible with detention (see paragraph 21 above in fine). Shortly after his 1994 suicide attempt, an event which in the light of the evidence before the Court does not appear to have resulted from or have been linked to any discernible shortcoming on the part of the authorities, the applicant was given specialist treatment in the form of psychiatric observation in Wrocław Prison Hospital from 9 March to 26 May 1994 (see paragraph 58 above). Later, after the observation in Wrocław, he also underwent two further follow-up examinations, on 9 November and 7 December 1994 (see paragraphs 66-67 above). 97.", "Admittedly, that did not prevent him from making another attempt to take his life in January 1995 (see paragraph 69 above). However, the Court, while it does not consider it necessary to express a view on whether that attempt was, as the authorities asserted, of an attention-seeking character or a manifestation of the suffering caused by his disorder, does not find on the material before it anything to show that they can be held responsible for what happened. 98. Similarly, the Court cannot discern any subsequent failure on their part to keep the applicant under psychiatric observation. On the contrary, it finds that from the beginning of 1995 to his release on 29 October 1996 the applicant was examined by a psychiatrist at least once a month.", "In 1996 alone, that is to say, before being released, he underwent twelve such examinations (see paragraphs 70-74 above). 99. The Court accepts that the very nature of the applicant’s psychological condition made him more vulnerable than the average detainee and that his detention may have exacerbated to a certain extent his feelings of distress, anguish and fear. It also takes note of the fact that from 11 June to 29 October 1996 the applicant was kept in custody despite a psychiatric opinion that continuing detention could jeopardise his life because of a likelihood of attempted suicide (see paragraphs 46-50 above). However, on the basis of the evidence before it and assessing the relevant facts as a whole, the Court does not find it established that the applicant was subjected to ill-treatment that attained a sufficient level of severity to come within the scope of Article 3 of the Convention.", "100. Accordingly, there has been no violation of that Article in the present case. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 oF THE CONVENTION 101. The applicant complained, secondly, that his detention on remand had been excessive and he alleged a violation of Article 5 § 3 of the Convention, the relevant part of which provides: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial.", "Release may be conditioned by guarantees to appear for trial.” A. Period to be taken into consideration 102. In the proceedings in question the applicant was twice detained on remand. He was detained for the first time on 8 August 1991 and remained in custody for nearly a year, that is to say, until 27 July 1992. Then, he was arrested on 4 October 1993 and thereafter spent some three years in detention before being released on bail on 29 October 1996 (see paragraphs 10, 18-20 and 54 above).", "103. However, as Poland’s declaration recognising the right of individual petition for the purposes of former Article 25 of the Convention took effect on 1 May 1993, the period of the applicant’s detention before that date lies outside the Court’s jurisdiction ratione temporis. 104. Furthermore, the Court reiterates that, in view of the essential link between Article 5 § 3 of the Convention and paragraph 1 (c) of that Article, a person convicted at first instance cannot be regarded as being detained “for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence”, as specified in the latter provision, but is in the position provided for by Article 5 § 1 (a), which authorises deprivation of liberty “after conviction by a competent court” (see, for example, the B. v. Austria judgment of 28 March 1990, Series A no. 175, pp.", "14-16, §§ 36-39). Accordingly, the applicant’s detention from 1 June 1995, the date of his original first-instance conviction, to 22 February 1996, the date on which that conviction was quashed and his case remitted, cannot be taken into account for the purposes of Article 5 § 3. 105. The Court consequently finds that the period to be taken into consideration consisted of two separate terms, the first lasting from 4 October 1993 to 1 June 1995 and the second from 22 February to 29 October 1996, and amounted to two years, four months and three days. B. Reasonableness of the length of detention 106.", "The applicant submitted that the authorities had failed to give sufficient grounds for his detention. First of all, there had been no valid reason justifying his detention from 4 October 1993 onwards, because he had submitted a medical certificate confirming that he had been on sick-leave and had therefore duly justified his absence from the hearings in February and March 1993. Furthermore, it had been evident from the very beginning that the imposition of measures other than detention – such as bail or police supervision, or both of those measures – could have secured his presence at the trial. 107. In any event, he submitted, pre-trial detention lasting two years and four months could not be regarded as “reasonable”.", "Indeed, in the proceedings in issue, he had spent in detention not merely these two years and four months falling within the Court’s jurisdiction ratione temporis and within the ambit of Article 5 § 3, but a total of four years and thirteen days. 108. The Government replied that the main reason why the applicant had been redetained on 4 October 1993 had not been his failure to appear before the court in February and March 1993 but his lawyer’s failure to comply with the time-limit set for submitting a forensic expert’s medical certificate as to the applicant’s state of health. 109. The applicant’s detention, they argued, had resulted from his own behaviour.", "It was imposed in view of the risk of his absconding because he had absconded after his release in July 1992. Subsequently the trial court had considered releasing the applicant on bail. In order to lessen the risk of his absconding again, it had set bail at 10,000 zlotys (PLN), a sum which had been appropriate for the damage caused by the commission of the offences in question but which the applicant had regarded as excessive and had not secured for several months. The delay in his release had therefore been due to the late payment of the required security and had been caused by the applicant himself. The authorities, the Government considered, had displayed due diligence in handling his case and there had been no periods of inertia attributable to their conduct.", "In view of that, the Government invited the Court to hold that the length of the applicant’s detention had not exceeded a “reasonable time” within the meaning of Article 5 § 3 of the Convention. 110. The Court reiterates that the question of whether or not a period of detention is reasonable cannot be assessed in the abstract. Whether it is reasonable for an accused to remain in detention must be assessed 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, Labita, cited above, §§ 152 et seq.).", "It falls in the first place to the national judicial authorities to ensure that, in a given case, 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 or against the existence of the above-mentioned requirement of public interest justifying a departure from the rule in Article 5 and must set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the well-documented facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see the Muller v. France judgment of 17 March 1997, Reports 1997-II, p. 388, § 35). 111. 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 (ibid.). 112. The Court observes that in the instant case it does not appear to be contested that the principal reason why the authorities ordered that a “wanted” notice be issued and the applicant again be detained on remand was his failure to comply with the time-limit for submitting a medical certificate and to indicate an address at which summonses could be served on him during his treatment in Świnoujście (see paragraph 19 above). On those two facts the Cracow Regional Court and the Cracow Court of Appeal based their opinion that there was a risk that the applicant would abscond, a risk which justified his being detained to ensure the proper conduct of the proceedings.", "The courts reiterated that opinion in nearly all their decisions dismissing the numerous applications for release he made in the years following his arrest on 4 October 1993 (see paragraphs 29-34 above). 113. Again, the risk of his absconding was one of the main factors that the Regional Court took into account when determining the amount of bail required from the applicant (see paragraphs 44-47 above). That risk warranted his detention pending a decision on the value of the security (see paragraphs 49-54 above) and, apart from the reasonable suspicion that the applicant had committed the offences of fraud and forgery, was indeed the main reason why he was held in detention for the period in issue. 114.", "The Court agrees that that basis, in addition to the suspicion that the applicant had committed the criminal offences in question, could initially suffice to warrant his detention. However, with the passage of time that ground inevitably became less relevant and, given that before being redetained on 4 October 1993 the applicant had already spent nearly a year in detention (see paragraphs 10-18 and 102-03 above), only very compelling reasons would persuade the Court that his further detention for two years and four months was justified under Article 5 § 3. 115. In the instant case the Court has not found any such reasons, especially as the courts, despite repeatedly referring to the two aforementioned instances of the applicant’s failure to comply with a court order, did not mention any other circumstance capable of showing that the risk relied on actually persisted during the entire relevant period. 116.", "The Court accordingly concludes that the reasons relied on by the courts in their decisions were not sufficient to justify the applicant’s being held in detention for the period in question. 117. There has, therefore, been a violation of Article 5 § 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 oF THE CONVENTION 118.", "The applicant further maintained that his right to a trial “within a reasonable time” had not been respected and that there had accordingly been a violation of Article 6 § 1 of the Convention, the relevant part of which provides: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” A. Period to be taken into consideration 119. There was no dispute over when the proceedings started; it was common ground that the relevant date was 8 August 1991, when the applicant was charged. The parties did, however, disagree over whether the proceedings could be regarded as still pending for the purposes of Article 6 § 1. 120.", "The applicant asserted that the “charge against him” had not yet been determined because the examination of the merits of his cassation appeal was pending in the Supreme Court. 121. The Government argued that the trial had ended on 27 October 1999, when the Cracow Court of Appeal delivered the final judgment and that it was irrelevant whether or not the applicant had lodged a cassation appeal with the Supreme Court, because that appeal was an exceptional remedy whereby only final judgments could be contested. 122. The Court reiterates that Article 6 § 1 does not compel the States to set up courts of appeal or of cassation.", "Nevertheless, a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before them the fundamental guarantees contained in Article 6 (see, among other authorities, the Delcourt v. Belgium judgment of 17 January 1970, Series A no. 11 pp. 13-15, § 25, and the Brualla Gómez de la Torre v. Spain judgment of 19 December 1997, Reports 1997-VIII, p. 2956, § 37). While the manner in which Article 6 is to be applied in relation to courts of appeal or of cassation depends on the special features of the proceedings in question, there can be no doubt that appellate or cassation proceedings come within the scope of Article 6 (see, mutatis mutandis, the Twalib v. Greece judgment of 9 June 1998, Reports 1998-IV, pp. 1427-28, § 46).", "Accordingly, the length of such proceedings should be taken into account in order to establish whether the overall length of the proceedings was reasonable. 123. Consequently, and in the absence of any evidence to show that the Supreme Court has already given a ruling in the applicant’s case, the Court finds that the proceedings have so far lasted for more than nine years. However, given its jurisdiction ratione temporis (see paragraph 103 above), the Court can only consider the period of seven years and some five months which have elapsed since 1 May 1993, although it will have regard to the stage reached in the proceedings on that date (see, for instance, Humen v. Poland [GC], no. 26614/95, §§ 58-59, 15 October 1999, unreported).", "B. Reasonableness of the length of the period in issue 124. The Court will assess the reasonableness of the length of the proceedings in the light of the particular circumstances of the case and having regard to the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities. On the latter point, what is at stake for the applicant has also to be taken into account (see, among many other authorities, the Philis v. Greece (no. 2) judgment of 27 June 1997, Reports 1997-IV, p. 1083, § 35, and the Portington v. Greece judgment of 23 September 1998, Reports 1998-VI, p. 2630, § 21). 125.", "The applicant submitted that the judicial authorities themselves had made his case complex because they had organised the trial badly. First of all, there had been nine co-defendants indicted together with the applicant, even though the charges against them had had no connection with those laid against him. This had resulted in ninety-eight witnesses being summoned; however, the testimony of only seven of them had been relevant to the applicant’s case. Secondly, at the original trial, the court had been improperly constituted, and that had resulted in the judgment being quashed and a retrial ordered. Thirdly, the court made a late severance order and had eventually dealt with his case separately after his original first-instance conviction had been quashed.", "Had it done that at the outset, the charges against him would have been determined sooner. 126. The applicant went on to argue that the inefficient manner in which the authorities had handled his case had been the main reason why the proceedings had lasted for so long. Furthermore, over the lengthy period of nineteen months from February 1996 to September 1997, the Regional Court had failed to display due procedural diligence. The courts were therefore wholly responsible for the excessive length of his trial.", "127. The Government disagreed and argued that the case was complex on account of the volume of evidence, the number of charges against the applicant and his co-defendants and the large number of the witnesses heard. 128. In their view, the applicant had substantially contributed to prolonging the proceedings. He had failed to appear at a number of hearings.", "He had absconded, causing a stay in the trial from March to October 1993. The psychiatric observation undergone by him and the need to place him in hospitals had also caused delays. In sum, the length of the proceedings had been attributable mainly to his conduct. 129. Referring to the conduct of the relevant authorities, the Government pointed out that there had been no sign of inactivity on their part.", "On the contrary, the courts had shown due diligence in handling the case and, although there had been some, albeit negligible, delays on their part, the “reasonable time” requirement had nevertheless been complied with in the applicant’s case. 130. The Court considers that, even though the case was of some complexity, it cannot be said that this in itself justified the entire length of the proceedings. It is true that in February and March 1993 the applicant failed to appear before the court and that, as a result, the trial was adjourned to October 1993 (see paragraphs 19-21 above). However, the Court finds no evidence to demonstrate that at any subsequent stage of the proceedings the applicant showed dilatory conduct or otherwise upset the proper conduct of the trial.", "In view of that, the Court considers that his conduct did not contribute substantially to the length of the proceedings. The Government maintained that the courts, although responsible for some delays, had not on the whole failed to determine the case within a reasonable time. The Court observes, however, that the duty to administer justice expeditiously was incumbent in the first place on them, especially as during the substantial part of his trial the applicant had been in custody and had suffered from serious depression. This required particular diligence of them in dealing with his case. In this connection the Court notes that after the applicant’s original first-instance conviction was quashed on 22 February 1996, the retrial was scheduled for 10 October 1996 but began only on 18 March 1997, that is to say, after a lapse of more than a year.", "It was then postponed to October 1997 (see paragraphs 42 and 53-55 above). Admittedly, the postponement was – at least in some part – caused by events attributable to the applicant’s co-defendants (see paragraphs 53 and 55 above). Nevertheless, that lack of progress in the proceedings resulted in a total delay of nearly one year and eight months, a delay for which the Court does not find a sufficient justification and which it considers incompatible with the diligence required under Article 6 § 1. 131. Accordingly, the Court cannot regard the period of time that elapsed in the instant case as reasonable.", "There has, therefore, been a violation of Article 6 § 1 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 13 oF THE CONVENTION 132. The applicant submitted, lastly, that he had had no effective remedy whereby to raise the issue of the excessive length of the proceedings in his case before a national authority. In his view, there had, accordingly, been a violation of Article 13 of the Convention, which provides: “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.” 133.", "In the present case the Court has been invited to determine the scope of the Contracting States’ obligation under Article 13 to provide a person with an “effective remedy before a national authority” if the Convention right asserted by the applicant is the right to a “hearing within a reasonable time” guaranteed by Article 6 § 1. The applicant argued that Article 13 should be interpreted as requiring such an “effective remedy”; the Government disputed that. The Commission did not find it necessary to determine this issue. A. Arguments of the parties 1.", "The applicant 134. The applicant, both in his memorial and at the hearing before the Court, relied heavily on the opinion of the dissenting members of the Commission, who had considered not only that it was necessary to examine his complaint under Article 13 but also that there had been a breach of that provision. In addition, he referred to the Commission’s report in the case of Mikulski v. Poland (application no. 27914/95, Commission’s report of 10 September 1999, unpublished), in which the Commission, having found no violation of Article 6 § 1 of the Convention in respect of the length of criminal proceedings against the applicant, had nevertheless expressed the view that there had been a violation of Article 13 on account of the lack of any remedy whereby he could have put the substance of his complaint about the length of those proceedings before a competent national authority. 135.", "The applicant considered, as the Commission had done in the Mikulski report, that even though in certain cases Article 6 § 1 could be seen as a lex specialis in relation to Article 13 – for instance in cases where a person complained that his right of access to a tribunal had not been respected – the same did not hold true for complaints about infringements of the right to a hearing within a reasonable time. In such cases Article 13 of the Convention should in principle apply irrespective of whether a violation of Article 6 § 1 had been found. 136. He also pointed out that an individual’s entitlement to an effective remedy under Article 13 did not depend on whether or not a violation of his Convention rights had in fact been found but on whether he had an arguable claim that those rights had been violated. 137.", "According to the applicant, Polish legislation had not provided any legal remedy whereby he could have effectively contested the length of the criminal proceedings against him and had his right to a “hearing within a reasonable time” enforced. In consequence, his right to an “effective remedy before a national authority” within the meaning of Article 13 had not been respected. 2. The Government 138. The Government disagreed with the applicant on all points.", "In their memorial they subscribed to the view expressed by the majority of the Commission and maintained that it was not necessary to examine whether in the present case there had also been a violation of Article 13 of the Convention on account of the alleged absence of an “effective domestic remedy” against excessive length of proceedings. 139. At the hearing, they further argued that the approach adopted by the Commission in the Mikulski case had been inconsistent with the Court’s established case-law on the relationship between Articles 6 § 1 and 13 of the Convention and that the Commission’s opinion in that case was entirely unsupported by the ratio legis of the latter provision. In that context, they stressed that the Court had given numerous judgments – they referred in particular to those in the cases of Kadubec v. Slovakia (judgment of 2 September 1998, Reports 1998-VI) and Brualla Gómez de la Torre (judgment cited above) – in which it had consistently held either that “the requirements of Article 13 are less strict than, and are here absorbed by, those of Article 6” or that “the role of Article 6 § 1 in relation to Article 13 is that of a lex specialis, the requirements of Article 13 being absorbed by those of Article 6 § 1”. It was noteworthy that the Court had applied the same lex specialis approach in respect of Article 5 § 4 of the Convention which, like Article 6 § 1, guaranteed a right of a strictly procedural character.", "140. The Government also referred to the cases of Pizzetti v. Italy, judgment of 26 February 1993, Series A no. 257-C, Giuseppe Tripodi v. Italy, no. 40946/98, 25 January 2000, unreported, and Bouilly v. France, no. 38952/97, 7 December 1999, unreported, maintaining that the Court, after finding a violation of the right to a “hearing within a reasonable time”, had consistently held that it was not necessary to examine the complaint about the lack of a remedy for the excessive length of those proceedings under Article 13.", "The Government stressed that the Commission itself had cited that form of words in the present case, referring to the Pizzetti judgment. Yet in the Mikulski case the Commission had deemed that judgment irrelevant because it had found no violation of the right to a hearing within a reasonable time but had considered that the applicant nevertheless had an “arguable claim” that the right had been violated and that the less strict guarantees of Article 13 had therefore come into play. 141. Such a conclusion, the Government maintained, had been inconsistent with the Commission’s own approach in the Pizzetti case, in which it had considered that Article 13 was not applicable where the alleged violation of the Convention had taken place in the context of judicial proceedings (see the Pizzetti judgment cited above, opinion of the Commission, pp. 41-42).", "142. The Government said that they saw no convincing reason to reconsider the existing clear, consistent case-law of the Court on the relationship between Articles 6 § 1 and 13 of the Convention. In particular, they criticised the Commission’s argument in the Mikulski case that, given the very large number of complaints about the excessive length of proceedings, the applicability of Article 13 to the right to a hearing within a reasonable time might be of considerable practical importance in giving effect at domestic level to one of the fundamental procedural guarantees in Article 6. On the contrary, they argued that creating a separate, new remedy – which would for all practical purposes mean establishing an additional right of appeal – could only prolong the length of proceedings in domestic courts. 143.", "In that connection, they asserted that if a State had a backlog of business in its system of justice, it would not seem reasonable to remedy the situation by requiring that State to create a new judicial or other means of complaining about delays in proceedings. The length of proceedings should be looked on as a structural dysfunction and more comprehensive measures would be needed to counteract it. 144. Furthermore, the Government added, carrying literal interpretation ad absurdum would lead to the conclusion that there should also be an “effective remedy before a national authority” for persons who complained of a violation of Article 13. For all those reasons the Government concluded that Article 6 § 1 of the Convention was a lex specialis in relation to Article 13 and that consequently the latter provision did not apply to cases in which the applicant’s complaint about the length of proceedings was examined under Article 6 § 1.", "145. The Government finally submitted that should the Court find it necessary to examine the case under Article 13, there had been no violation of that provision. They acknowledged that there was no single, specific remedy in Poland whereby to complain about delays in judicial proceedings. However, they were of the opinion that in the criminal proceedings against him the applicant could have raised the issue of their length in his appeals against decisions to prolong his detention or in the applications for release he made under Article 214 of the Code of Criminal Procedure (see paragraph 79 above). The applicant could also have lodged a complaint with the president of the court dealing with his case or with the Minister of Justice.", "That would have resulted in those persons’ putting his case under their administrative supervision. The administrative supervision might, in principle, have resulted in disciplinary sanctions being imposed on the judge if he or she had failed to conduct the trial effectively and expeditiously. Although it could not give any direct redress to such a complainant, the Government maintained that the aggregate of remedies referred to by them satisfied the requirements of Article 13 of the Convention. B. The Court’s assessment 1.", "Whether it is necessary to examine the complaint under Article 13 146. In many previous cases in which the Court has found a violation of Article 6 § 1 it did not consider it necessary also to rule on an accompanying complaint made under Article 13. More often than not this was because in the circumstances Article 6 § 1 was deemed to constitute a lex specialis in relation to Article 13. Thus, where the Convention right asserted by the individual is a “civil right” recognised under domestic law – such as the right of property – the protection afforded by Article 6 § 1 will also be available (see, for example, the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, pp.", "31-32, § 88). In such circumstances the safeguards of Article 6 § 1, implying the full panoply of a judicial procedure, are stricter than, and absorb, those of Article 13 (see, for example, the Brualla Gómez de la Torre judgment cited above, p. 2957, § 41). The Court has applied a similar logic in cases where the applicant’s grievance has been directed at the adequacy of an existing appellate or cassation procedure coming within the ambit of both Article 6 § 1 under its “criminal” head and Article 13 (see the Kamasinski v. Austria judgment of 19 December 1989, Series A no. 168, pp. 45-46, § 110 – in relation to nullity proceedings before the Supreme Court).", "In such cases there is no legal interest in re-examining the same subject matter of complaint under the less stringent requirements of Article 13. 147. There is, however, no overlap and hence no absorption where, as in the present case, the alleged Convention violation that the individual wishes to bring before a “national authority” is a violation of the right to trial within a reasonable time, contrary to Article 6 § 1. The question of whether the applicant in a given case did benefit from trial within a reasonable time in the determination of civil rights and obligations or a criminal charge is a separate legal issue from that of whether there was available to the applicant under domestic law an effective remedy to ventilate a complaint on that ground. In the present case the issue to be determined before the Article 6 § 1 “tribunals” was the criminal charges brought against the applicant, whereas the complaint that he wanted to have examined by a “national authority” for the purposes of Article 13 was the separate one of the unreasonable length of the proceedings.", "In comparable cases in the past, the Court has nonetheless declined to rule on an accompanying complaint of the absence of an effective remedy as guaranteed by Article 13, considering it unnecessary in view of its prior finding of a breach of the “reasonable time” requirement laid down in Article 6 § 1 (see, among other examples, the judgments cited above: Pizzetti, p. 37, § 21; Bouilly, § 27; and Giuseppe Tripodi, § 15). 148. In the Court’s view, the time has come to review its case-law in the light of the continuing accumulation of applications before it in which the only, or principal, allegation is that of a failure to ensure a hearing within a reasonable time in breach of Article 6 § 1. The growing frequency with which violations in this regard are being found has recently led the Court to draw attention to “the important danger” that exists for the rule of law within national legal orders when “excessive delays in the administration of justice” occur “in respect of which litigants have no domestic remedy” (see, for example, Bottazzi v. Italy [GC], no. 34884/97, § 22, ECHR 1999-V; Di Mauro v. Italy [GC], no.", "34256/96, § 23, ECHR 1999-V; A.P. v. Italy [GC], no. 35265/97, § 18, 28 July 1999, unreported; and Ferrari v. Italy [GC], no. 33440/96, § 21, 28 July 1999, unreported). 149.", "Against this background, the Court now perceives the need to examine the applicant’s complaint under Article 13 taken separately, notwithstanding its earlier finding of a violation of Article 6 § 1 for failure to try him within a reasonable time. 2. Applicability of Article 13 to complaints alleging a violation of the right to a hearing within a reasonable time 150. The Government argued that Article 13 did not apply to cases in which the applicant’s complaint about the length of proceedings was examined under Article 6 § 1. They also referred to the Commission’s opinion in the Pizzetti case that Article 13 was not applicable where the alleged violation had taken place in the context of judicial proceedings (see paragraphs 139-44 above).", "151. The Court finds nothing in the letter of Article 13 to ground a principle whereby there is no scope for its application in relation to any of the aspects of the “right to a court” embodied in Article 6 § 1. Nor can any suggestion of such a limitation on the operation of Article 13 be found in its drafting history. Admittedly, the protection afforded by Article 13 is not absolute. The context in which an alleged violation – or category of violations – occurs may entail inherent limitations on the conceivable remedy.", "In such circumstances Article 13 is not treated as being inapplicable but its requirement of an “effective remedy” is to be read as meaning “a remedy that is as effective as can be having regard to the restricted scope for recourse inherent in [the particular context]” (see the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 31, § 69). Furthermore, “Article 13 does not go so far as to guarantee a remedy allowing a Contracting State’s laws to be challenged before a national authority on the ground of being contrary to the Convention” (see the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 47, § 85). Thus, Article 13 cannot be read as requiring the provision of an effective remedy that would enable the individual to complain about the absence in domestic law of access to a court as secured by Article 6 § 1.", "As regards an alleged failure to ensure trial within a reasonable time, however, no such inherent qualification on the scope of Article 13 can be discerned. 152. On the contrary, the place of Article 13 in the scheme of human rights protection set up by the Convention would argue in favour of implied restrictions of Article 13 being kept to a minimum. By virtue of Article 1 (which provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”), the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights.", "This subsidiary character is articulated in Articles 13 and 35 § 1 of the Convention. The purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, as a recent authority, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). The rule in Article 35 § 1 is based on the assumption, reflected in Article 13 (with which it has a close affinity), that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights (ibid.). In that way, Article 13, giving direct expression to the States’ obligation to protect human rights first and foremost within their own legal system, establishes an additional guarantee for an individual in order to ensure that he or she effectively enjoys those rights.", "The object of Article 13, as emerges from the travaux préparatoires (see the Collected Edition of the “Travaux Préparatoires” of the European Convention on Human Rights, vol. II, pp. 485 and 490, and vol. III, p. 651), is to provide a means whereby individuals can obtain relief at national level for violations of their Convention rights before having to set in motion the international machinery of complaint before the Court. From this perspective, the right of an individual to trial within a reasonable time will be less effective if there exists no opportunity to submit the Convention claim first to a national authority; and the requirements of Article 13 are to be seen as reinforcing those of Article 6 § 1, rather than being absorbed by the general obligation imposed by that Article not to subject individuals to inordinate delays in legal proceedings.", "153. The Government, however, argued that requiring a remedy for inordinate length of proceedings under Article 13 is tantamount to imposing on States a new obligation to establish a “right of appeal”, in particular a right to appeal on the merits, which, as such, is guaranteed only in criminal matters under Article 2 of Protocol No. 7 to the Convention; and that in practice the exercise of such a remedy could only prolong proceedings in domestic courts (see paragraphs 142-43 above). 154. The Court does not accept the Government’s submissions.", "A remedy for complaining about unreasonable length of proceedings does not as such involve an appeal against the “determination” of any criminal charge or of civil rights and obligations. In any event, subject to compliance with the requirements of the Convention, the Contracting States – as the Court has held on many previous occasions – are afforded some discretion as to the manner in which they provide the relief required by Article 13 and conform to their Convention obligation under that provision (see, for example, the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, pp. 329-30, § 106). As to the suggestion that requiring yet a further remedy would result in domestic proceedings being made even more cumbersome, the Court would observe that even though at present there is no prevailing pattern in the legal orders of the Contracting States in respect of remedies for excessive length of proceedings, there are examples emerging from the Court’s own case-law on the rule on exhaustion of domestic remedies which demonstrate that it is not impossible to create such remedies and operate them effectively (see, for instance, Gonzalez Marin v. Spain (dec.), no. 39521/98, ECHR 1999-VII, and Tomé Mota v. Portugal (dec.), no.", "32082/96, ECHR 1999-IX). 155. If Article 13 is, as the Government argued, to be interpreted as having no application to the right to a hearing within a reasonable time as safeguarded by Article 6 § 1, individuals will systematically be forced to refer to the Court in Strasbourg complaints that would otherwise, and in the Court’s opinion more appropriately, have to be addressed in the first place within the national legal system. In the long term the effective functioning, on both the national and international level, of the scheme of human rights protection set up by the Convention is liable to be weakened. 156.", "In view of the foregoing considerations, the Court considers that the correct interpretation of Article 13 is that that provision 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. 3. Compliance with the requirements of Article 13 157. As the Court has held on many occasions, Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, among many other authorities, the Kaya judgment cited above).", "The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint; however, the remedy required by Article 13 must be “effective” in practice as well as in law (see, for example, İlhan v. Turkey [GC], no. 22277/93, § 97, ECHR 2000-VII). The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective. Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see, among many other authorities, the Silver and Others v. the United Kingdom judgment of 25 March 1983, Series A no.", "61, p. 42, § 113, and the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, pp. 1869-70, § 145). 158. It remains for the Court to determine whether the means available to the applicant in Polish law for raising a complaint about the length of the proceedings in his case would have been “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred. 159.", "The Court notes at the outset that the Government did not claim that there was any specific legal avenue whereby the applicant could complain of the length of the proceedings but submitted that the aggregate of several remedies satisfied the Article 13 requirements. They did not, however, indicate whether and, if so, how the applicant could obtain relief – either preventive or compensatory – by having recourse to those remedies (see paragraph 145 above). It was not suggested that any of the single remedies referred to, or a combination of them, could have expedited the determination of the charges against the applicant or provided him with adequate redress for delays that had already occurred. Nor did the Government supply any example from domestic practice showing that, by using the means in question, it was possible for the applicant to obtain such a relief. That would in itself demonstrate that the means referred to do not meet the standard of “effectiveness” for the purposes of Article 13 because, as the Court has already said (see paragraph 157 above), the required remedy must be effective both in law and in practice.", "160. Accordingly, the Court holds that in the present case there has been a violation of Article 13 of the Convention in that the applicant had no domestic remedy whereby he could enforce his right to a “hearing within a reasonable time” as guaranteed by Article 6 § 1 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 161. 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 162.", "Under the head of pecuniary damage, the applicant claimed a sum of 480,000 zlotys (PLN) for loss of profits from his commercial activity, caused by his lengthy detention. The applicant further asked the Court to award him 800,000 United States dollars (USD), or their equivalent in zlotys, for moral suffering and distress resulting from a violation of his Convention rights. 163. The Government considered that the sums in question were inordinately excessive. They requested the Court to rule that the finding of a violation would constitute in itself sufficient just satisfaction.", "In the alternative, they invited the Court to make an award of just satisfaction on the basis of its case-law in similar cases and national economic circumstances. 164. The Court’s conclusion, on the evidence before it, is that the applicant has failed to demonstrate that the pecuniary damage pleaded was actually caused by his being held in custody for the relevant period. Consequently, there is no justification for making any award to him under that head. 165.", "On the other hand, the Court accepts that the applicant has certainly suffered non-pecuniary damage – such as distress and frustration resulting from the protracted length of his detention and trial – which is not sufficiently compensated by the findings of violation of the Convention. Making its assessment on an equitable basis, the Court awards the applicant PLN 30,000 under this head. B. Costs and expenses 166. The applicant, who received legal aid from the Council of Europe in connection with the presentation of his case, sought reimbursement of USD 30,400 for costs and expenses incurred in the proceedings before the Court.", "167. In their memorial the Government invited the Court to make an award, if any, only in so far as the costs and expenses claimed were actually and necessarily incurred and were reasonable as to quantum. At the hearing they said that the claim for costs and expenses was excessive in the extreme. 168. The Court has assessed the claim in the light of the principles laid down in its case-law (see Nikolova v. Bulgaria [GC], no.", "31195/96, § 79, ECHR 1999-II; Öztürk v. Turkey [GC], no. 22479/93, § 83, ECHR 1999-VI; and Witold Litwa v. Poland, no. 26629/95, § 88, ECHR 2000-III). Applying the said criteria to the present case and making its assessment on an equitable basis, the Court considers it reasonable to award the applicant PLN 20,000 for his costs and expenses together with any value-added tax that may be chargeable, less the 10,589 French francs received by way of legal aid from the Council of Europe. C. Default interest 169.", "According to the information available to the Court, the statutory rate of interest applicable in Poland at the date of adoption of the present judgment is 21% per annum. FOR THESE REASONS, THE COURT 1.Holds unanimously that there has been no violation of Article 3 of the Convention; 2.Holds unanimously that there has been a violation of Article 5 § 3 of the Convention; 3.Holds unanimously that there has been a violation of Article 6 § 1 of the Convention; 4.Holds by sixteen votes to one that there has been a violation of Article 13 of the Convention; 5.Holds unanimously (a)that the respondent State is to pay the applicant, within three months, the following amounts: (i) PLN 30,000 (thirty thousand Polish zlotys) in respect of non-pecuniary damage; (ii) PLN 20,000 (twenty thousand Polish zlotys) in respect of costs and expenses, together with any value-added tax that may be chargeable, less FRF 10,589 (ten thousand five hundred and eighty-nine French francs) to be converted into zlotys at the rate applicable at the date of delivery of this judgment; (b)that simple interest at an annual rate of 21% shall be payable from the expiry of the above-mentioned three months until settlement; 6.Dismisses unanimously the remainder of the applicant’s claims for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 26 October 2000. Luzius WildhaberPresidentPaul Mahoney Deputy Registrar In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Mr Casadevall is annexed to this judgment. L.W.P.J.M.", "partly dissenting OPINION OF JUDGE casadevall (Translation) 1. I do not share the majority’s view that it was necessary for the Court to depart from precedent and hold in the instant case that it had to rule also on the complaint based on an alleged violation of Article 13, that there had been no effective remedy, when it had already found a violation of Article 6 § 1 because a reasonable time had been exceeded in the same proceedings. 2. Given, in particular, the wording of Article 13, which is as succinct as it is broad, there is certainly nothing to prevent its being applied to the various aspects of the “right to a court” embodied in Article 6 § 1[1]. I have no difficulty with that.", "On the other hand, the complications – of all kinds – that this new case-law is likely to entail for the Court, for the member States and, above all, for the only persons intended to benefit from the protection afforded by the Convention, the applicants, make me fear that the cure is worse than the disease, for the following reasons. 3. The first relates to the grounds given for departing from precedent. I can accept, in theory, the reasoning in paragraph 147 of the judgment, according to which there is neither overlap nor absorption where, as in the present case, the alleged violation that the individual wishes to bring before a national authority is a violation of the right to trial within a reasonable time. However, the remainder of the reasoning, based on the continuing accumulation of length-of-proceedings cases before the Court, is of no legal interest[2].", "In July 1999, in the Italian length-of-proceedings cases cited in paragraph 148 of the judgment, the Court did, indeed, rule that the accumulation of identical breaches reflected a continuing situation that had still not been remedied and in respect of which litigants had no domestic remedy. That accumulation of breaches led it to hold that there was a practice incompatible with the Convention. It is true that since then there have been more and more findings of violations based solely or principally on the excessive length of proceedings in a good many member States. But by the terms of the Convention, the Court has a duty to consider and try applications as submitted to it by litigants. To state, as the Court does in paragraph 149, that the time has now come, on account of the number of applications relating to length of proceedings, to examine the complaint under Article 13 taken separately smacks, in my view, more of expediency than of law.", "4. Moreover, it is not certain that the level of judicial protection afforded at European level by the Convention will be strengthened merely because the Court will now be able to find a double violation – firstly on account of the excessive length of the proceedings and secondly on account of the lack of any effective remedy to complain about it. The finding of an additional violation of Article 13 is not in itself such as to overcome the endemic structural problems besetting the judicial systems of certain member States, any more than the finding that there is a practice incompatible with the Convention has been. It will not make it easier to reduce the Court’s caseload, at least not in the medium term. 5.", "The aim of this finding of a violation of Article 13 is to confront the States with their responsibilities, in accordance with the subsidiarity principle, and to encourage them to establish in their domestic legal systems an effective remedy that will enable litigants to complain of excessive length of proceedings. Supposing such a remedy is instituted, I can hardly see how the structural problem of the unreasonable length of proceedings could be remedied by the obligation to first exhaust, as required by Article 35 of the Convention, an additional remedy designed to make it possible to complain about the length of proceedings. There is nothing to warrant an assumption that such an action would be heard within a more reasonable time than the main proceedings. Nor does anything warrant an assumption that the main proceedings would be speeded up as a result of bringing such an action. Ultimately only the litigant would suffer the consequences of this situation.", "6. I also think that after this departure from precedent other issues will necessarily arise on which the Court will have to rule. According to the Court’s settled case-law, for instance, the remedy required by Article 13 must be “‘effective’ in practice as well as in law” and likely to afford the person concerned “appropriate relief”[3]. However, a mere finding in the domestic courts of a breach of the obligation to rule within a reasonable time – made after such a remedy has been exhausted – and even, in an appropriate case, the award of compensation for non-pecuniary damage, will not make it possible to describe the remedy as effective if the main proceedings are still pending. In that event, several years later, the applicant will be compelled to submit his application to the Court, relying on a violation of Article 6 § 1 and also, in this instance rightly, of Article 13.", "The effectiveness of human‑rights protection will not thereby be strengthened, quite the contrary. 7. Although the Court reiterates[4] that the States “are afforded some discretion as to the manner in which they provide the relief required by Article 13”, and although what is meant is “a remedy that is as effective as can be having regard to the restricted scope for recourse inherent in [the particular context]”[5], the requirement of effectiveness means that such a remedy must be provided by an authority distinct – and independent – from the one that is ruling on the merits of the case since it is the latter that is responsible for the failure to rule within a reasonable time and therefore for the violation alleged by the applicant. Furthermore, the decisions of such an authority should be legally binding, since otherwise the requirement of effectiveness would not be satisfied[6]. 8.", "Lastly, I should like to point out that in an appreciable number of cases the Court has found a violation of the right to a hearing within a reasonable time where the length of proceedings has been excessive in member States’ supreme courts[7]. To whom should litigants turn either to have proceedings expedited or to secure compensation for loss resulting from a violation of Article 6 § 1 where the violation has been committed by the highest court in the land? 9. For all the above reasons, I am not able to concur with the majority inasmuch as they consider it necessary to hold that there has been a violation of Article 13 of the Convention. To my mind, it would have sufficed in the instant case to find a violation of Article 6 § 1.", "[1]. Paragraph 151 of the judgment. [2]. “… in the light of the continuing accumulation of applications before [the Court] …” (paragraph 148 of the judgment). [3].", "See, among other authorities, the Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI. [4]. Paragraph 154 of the judgment. [5]. Paragraph 151 of the judgment.", "[6]. A petition to a Parliamentary Commissioner who has no power to grant redress is not an effective remedy (see the Silver and Others v. the United Kingdom judgment of 25 March 1983, Series A no. 61, p. 43, § 115). [7]. See, for example, the Ruiz-Mateos v. Spain judgment of 23 June 1993, Series A no.", "262, p. 23, § 51; and, more recently, Gast and Popp v. Germany, no. 29357/95, ECHR 2000-II; Savvidou v. Greece, no. 38704/97, 1 August 2000, unreported; or Guisset v. France, no. 33933/96, ECHR 2000-IX." ]
[ "SECOND SECTION CASE OF BABAJANOV v. TURKEY (Application no. 49867/08) JUDGMENT STRASBOURG 10 May 2016 FINAL 10/08/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Babajanov v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Julia Laffranque, President,Işıl Karakaş,Nebojša Vučinić,Paul Lemmens,Ksenija Turković,Jon Fridrik Kjølbro,Stéphanie Mourou-Vikström, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 19 April 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "49867/08) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Uzbek national, Mr Mohammad Kuranbay Babajanov (“the applicant”), on 17 October 2008. 2. The applicant, who had been granted legal aid, was represented by Mr A. Yılmaz, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3.", "On 17 October 2008, when the application was lodged, the applicant’s representative requested that the Court adopt an interim measure, under Rule 39 of the Rules of Court, to stop the applicant’s threatened deportation to Iran or Uzbekistan. 4. On the same day the President of the Chamber to which the case was allocated rejected the applicant’s request under Rule 39 of the Rules of Court, as there was no evidence of an imminent danger of deportation. 5. On 6 April 2010 the applicant’s representative repeated the request under Rule 39 of the Rules of Court.", "6. On 7 April 2010 the request under Rule 39 was rejected once again, in the absence of any relevant new information regarding the applicant’s situation. 7. On 7 September 2011 the application was communicated to the Government. On 12 March and 13 June 2012 the Government and the applicant submitted their observations respectively.", "8. On 7 April 2015 the Chamber decided, under Rule 54 § 2 (c) of the Rules of Court, to invite the parties to submit further written observations on the admissibility and merits of the application. In particular, the parties were requested to respond to the question as to whether the applicant could claim to be a victim of a violation of the Convention, within the meaning of Article 34 of the convention, in relation to his complaints concerning his alleged threatened deportation to Iran or Uzbekistan. The Government were further requested to submit copies of administrative courts’ decisions in cases concerning removal of asylum seekers rendered subsequent to the entry into force of the Foreigners and International Protection Act (Law no. 6458).", "9. On 30 April 2015 and 10 June 2015 the applicant and the Government submitted their further observations and supporting documents respectively. On 16 July 2015 the Government replied to the submissions of the applicant. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A.", "Facts as presented by the applicant 10. The applicant was born in 1975 and lives in Turkey. 11. In 1999 the applicant fled from Uzbekistan to Tajikistan because of pressure from the police, who suspected him of anti-constitutional activities in connection with his alleged Islamic religious beliefs and practices. He feared, in particular, that if he stayed in Uzbekistan, he would face persecution from the State authorities, and would eventually be imprisoned and tortured like some of his fellow Muslim friends.", "In support of his allegation of the risk of ill-treatment in Uzbekistan, the applicant submitted a copy of a list of persons who had been charged with offences against the State. The list had been prepared by the Human Rights Centre “Memorial”, a non-governmental organisation based in Moscow, and included the applicant’s name. According to this document, the applicant was charged under Article 159 § 4 of the Uzbekistan Criminal Code (attempting to violently overthrow the State’s constitutional order). At the top of the document, it was explained that the list had been compiled on the basis of the “Bulletin on the Search for Criminals” prepared by the criminal investigation and counter-terrorism department of the Ministry of the Interior of Uzbekistan and published in Tashkent in May 2003. 12.", "From Tajikistan, the applicant went on to Afghanistan and Pakistan. In 2005 he arrived in Iran, where he settled in Zahedan. The applicant applied to the United Nations High Commissioner for Refugees (“the UNHCR”) in Zahedan for recognition as a refugee. He lived in Zahedan for two years without experiencing any major problems. In 2007, however, together with some other Uzbek asylum seekers who had left their country for the same reasons, the applicant decided to flee from Iran following deportation threats.", "He claimed that the threats had been a response to certain disagreements with the Iranian authorities over their living conditions. 13. On 18 November 2007 the applicant entered Turkey illegally through Van and went to Ankara to apply for refugee status at the UNHCR. Following a preliminary interview, the applicant was referred to the UNHCR office in Van. The Van office issued him with an asylum seeker certificate.", "Subsequently, he registered with the Van police headquarters and started the domestic temporary asylum procedure. Thereafter he was given a temporary residence permit until 24 September 2008 and was ordered to report to the police three times a week for signature. It appears that the other Uzbek asylum seekers who had fled Iran together with the applicant were granted similar certificates and permits after following the same procedural steps. 14. On an unspecified date the Van police sent a notice to a number of Uzbek families requiring them to appear at the police station on 12 September 2008.", "The notice stated that their attendance was required for the distribution of food rations and school stationery. 15. Although the applicant did not receive such a notice, at 2 p.m. on 12 September 2008 he went to the police station for signature, as part of his weekly routine. Once at the police station, some twenty-nine asylum seekers, including the applicant, were placed in detention. Their personal items, including identity documents, money and telephones, were confiscated.", "They were driven to the border at around 9 p.m. the same evening and forcibly deported to Iran. The applicant was allegedly ill‑treated and threatened by the police during deportation. 16. After crossing the border to Iran on foot, the Uzbek asylum seekers, including the applicant, were captured and held hostage by people smugglers, who demanded 5,000 United States dollars to spare their lives and to release them. The asylum seekers contacted some other Uzbeks who had managed to escape deportation from Turkey and obtained the ransom fee.", "The smugglers made them walk for three days to Yüksekova, a town close to the Iranian border of Turkey, where they were released. 17. After re-entering Turkey illegally, the applicant went back to Van together with the other Uzbek asylum seekers. They requested legal advice from the Van Bar Association, which, along with two Turkish non-governmental organisations, published a report on 28 September 2008 regarding the Uzbek asylum seekers’ collective expulsion. It was argued in the report, inter alia, that the expulsion of the Uzbeks by the Turkish State authorities, despite their valid residence permits, had had no legal basis.", "It was also alleged that the expulsion had been motivated by political considerations to improve relations with Uzbekistan, which had been strained following the acceptance by Turkey of members of Uzbek opposition groups, such as the applicant, as asylum seekers in recent years. 18. On 11 October 2008 a number of Uzbek asylum seekers, who had previously been deported to Iran on 12 September 2008, were collected from their homes by police officers from the Van police headquarters. The same evening, they were deported to Iran once again. The applicant, however, escaped this deportation by pure chance, as the police did not have his correct home address.", "19. The deportation of the applicant and the other Uzbek nationals was brought to the attention of the national and international public through press releases from various NGOs and the UNHCR. In particular, seven human rights and refugee rights organisations, including Amnesty International, issued a press release in which they condemned the forced illegal deportation of the applicant and the other Uzbek nationals to Iran. Likewise, a Turkish parliamentarian issued a press release within the Parliament and criticised the removal as well as the existing refugee protection system in Turkey. 20.", "On an unspecified date the applicant’s representative sent letters to, inter alia, the Human Rights Commission of the Parliament of Turkey, the Human Rights Commission of the Van Governor’s office and the Ministry of the Interior. 21. On 26 November 2008 the head of the Human Rights Commission of the Parliament of Turkey replied to the applicant’s representative that the Ministry of the Interior had informed the Parliament, in a letter dated 11 November 2008, that the applicant had been deported to Iran, a safe third country, in compliance with the legislation in force. 22. In his reply dated 22 April 2009, in his capacity as head of the Human Rights Commission of the Van Governor’s office, the Deputy Governor of Van informed the applicant’s representative that the applicant and the other deportees had been removed to Iran in compliance with the legislation in force and that Iran was a safe third country where the applicant had lived before he had arrived in Turkey in 2007.", "23. On 16 March 2010 the UNHCR Ankara Office sent a letter to the applicant’s representative, informing him that the UNHCR had learned that the applicant, along with a number of other Uzbek nationals, had been illegally deported to Iran and that the applicant’s asylum claim was under review. The UNHCR also informed the applicant’s representative that on 26 September 2008 they had sent a letter to the Turkish authorities requesting the latter to take the necessary measures to grant the applicant and other Uzbek nationals who had been deported on 12 September 2008 residence permits with a view to legalizing their status in Turkey pending the completion of the procedures with regard to their cases. 24. Since 2008, the applicant has been living in Turkey in hiding and his application for refugee status under the mandate of the UNHCR is still under consideration.", "On 4 December 2013 and 28 March 2014 he was interviewed by officers from the UNHCR’s Ankara office regarding his application for refugee status. He has not received any information from the Turkish authorities as to his request for asylum. The applicant cannot approach the Turkish authorities to apply for asylum or to obtain a temporary residence permit for fear of being deported to Iran, like the other Uzbek asylum seekers who were deported once again to Iran in October 2008. Moreover, he cannot appoint a lawyer to undertake the necessary legal and procedural actions on his behalf before the domestic authorities as he does not possess the necessary identity documents required to issue a power of attorney before a notary public. B.", "Facts as presented by the Government 25. When the applicant applied for asylum in Turkey in December 2007, he informed the authorities that he had been granted refugee status in Iran by the UNHCR. His application was registered and he was asked not to leave the city of Van. 26. On 14 February 2008 the applicant left Van and returned there on 26 August 2008.", "He subsequently repeated his asylum request. 27. On an unspecified date the applicant’s asylum request was assessed in the light of Article 33 of the Convention Relating to the Status of Refugees, the European Convention on Human Rights, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the national legislation. He was subsequently deported to Iran, a safe third country, where he was recognised as a refugee by the UNHCR. According to a document signed by two police officers and one military officer, submitted by the Government, twenty-nine Uzbek and Afghan nationals, including the applicant, were deported on 12 September 2008.", "28. According to the Government, the applicant was not deprived of his liberty. Moreover, his identity documents were not confiscated. II. RELEVANT DOMESTIC LAW 29.", "A description of the relevant domestic law and practice at the material time can be found in the case of Ghorbanov and Others). 30. On 11 April 2014 the Foreigners and International Protection Act (Law no. 6458) entered into force. Sections 52-60 of the Act concern the procedure for the removal of foreign nationals from Turkey, the judicial review of removal orders and detention pending removal.", "In particular, Sections 52 and 53 stipulate the procedure for issuing removal orders, their notification to the parties concerned and the procedure for appeal. Sections 54 and 55 of Law no. 6458 list the persons with regard to whom removal decisions shall be issued and those who are exempted from removal, respectively. Sections 57, 58 and 59 contain the rules concerning the administrative detention of foreign nationals pending removal and the standards of removal centres. Finally, Section 60 concerns the implementation of the removal orders.", "Sections 61 to 90 of the same Act concern the principles and rules governing applications for international protection. In particular, Articles 61‑64 concern the types of international protection available and exclusion from international protection. Articles 65-79 contain the rules regarding, inter alia, the application for international protection, registration of applicants, administrative detention of persons seeking asylum, the latter’s residence and reporting obligations, interviews, accelerated procedure and the situation of unaccompanied minors. Article 80 of the Act stipulates the rules for administrative review of decisions on international protection requests and the judicial remedies. Articles 83 and 84 concern the issuing of “international protection identity documents” and travel documents for persons seeking asylum.", "Articles 85 and 86 stipulate the circumstances in which international protection status is terminated and cancelled, respectively. Finally, Sections 88-90 concern the rights and obligations of persons demanding and granted international protection. III. INTERNATIONAL MATERIAL REGARDING THE DEPORTATION OF THE APPLICANT AND OTHER UZBEK AND AFGHAN NATIONALS TO IRAN ON 12 SEPTEMBER 2008 31. In his report published on 1 October 2009, following his visit to Turkey on 28 June to 3 July 2009 (CommDH(2009)31), Mr Thomas Hammarberg, then Commissioner for Human Rights of the Council of Europe, stated the following: “...VI.", "Issues relating to forced returns of asylum seekers and refugees 66. The Commissioner notes with concern that NGOs as well as UNHCR continue to report incidents of deportation and refoulement of UNHCR recognized refugees and registered asylum seekers. He is aware that the UN Committee on the Elimination of Racial Discrimination (CERD) also expressed concern over these reports and called upon Turkey to refrain from deporting refugees or persons registered with UNHCR as asylum seekers... 69. Reports indicated that in 2008 there was an increase in forcible returns of refugees and asylum seekers to countries where they were at risk of serious human rights violations including irregular deportations resulting in the death or injury of asylum seekers, one example being a group of Uzbek refugees twice forcibly returned to Iran, first in September and then in October 2008. During the first forcible return, members of the group were said to have been beaten and threatened with rape unless they crossed back into Iran... 71.", "UNHCR also informed the Commissioner that refugees and asylum seekers properly registered in the national procedure for temporary asylum are protected from refoulement, and the Government generally tolerates the presence of those registered only with UNHCR. However, UNHCR has observed with concern that the instances of refoulement of persons of concern to the Office are becoming more frequent. In 2008, 13 refugees recognized under UNHCR’s Mandate and 9 asylum seekers were refouled (mainly to Iran and Iraq), and 50 refugees and 5 asylum seekers have been deported to third countries (mainly to Iran, Iraq and Syria). 72. The Turkish authorities informed the Commissioner that asylum seekers, who are not granted refugee status but are assessed to have a risk of persecution in their countries of origin, are allowed to temporarily stay on grounds of subsidiary protection and protection with humanitarian considerations.", "The Commissioner appreciates the expressed commitment of the Turkish authorities to compliance with the principle of non-refoulement as laid out in Article 33 of the 1951 UN Refugee Convention which places a prohibition on sending asylum seekers back to countries where their life or freedom would be threatened. He calls upon the Turkish authorities to ensure effective implementation of this principle by border patrols and speedy, efficient investigation into cases of alleged violations. Furthermore, he urges prompt ratification of Protocol No. 4 to the European Convention on Human Rights that was signed by Turkey in 1992 and, inter alia, proscribes the collective expulsion of aliens...” 32. In its 2008 Report on Human Rights Practices in Turkey, the United States Department of State noted the following: “...On September 12, 22 Uzbekistan citizens, who had earlier been recognized as refugees by the UNHCR in Iran but later came to Van seeking resettlement to a third country, were deported to Iran.", "The refugees were rounded up without notice and taken to an unmarked, mountainous portion of the border and forced to walk into Iran. The group included women and children, who were also forced to walk across the mountains under dangerous conditions. Later, the same group paid Iranian smugglers $5,000 to bring them back across the unmarked border to reach Van on September 23. The UNHCR formally approached authorities requesting that the refugees be granted temporary asylum in the country, as they presented credible documentation showing they had reason to fear refoulement to Uzbekistan if they returned to Iran. On October 13, all 22 of the refugees, along with another family of three Uzbekistan citizens who had filed a stop-deportation petition with the ECHR in September, were re-deported to Iran...” 33.", "On 17 and 30 September 2008 Amnesty International issued two statements expressing concerns regarding the forcible return of the applicant and other Uzbek nationals to Iran. In its statement dated 17 September 2008, Amnesty International noted, inter alia, the following: “On 12 September, a group of 24 Uzbekistani nationals, who have been living for around a year in the eastern Turkish town of Van, were expelled to Iran. The group are now held by an unidentified Iranian group. Amnesty International fears for their safety while they are being held by the unidentified group and also that they could be subjected to forcible return to Uzbekistan by the Iranian authorities if and when they are released by the group that is currently holding them. If returned to Uzbekistan the adults of the group would be at risk of incommunicado detention, torture or other ill-treatment.", "The group have been recognized as refugees by the UNHCR. ... The families are originally from Uzbekistan, though they left for Tajikistan in the late 1990s to escape persecution and arrest for worshipping at a mosque outside state control and under an imam accused by the Uzbekistani authorities of anti-state activities. They left Tajikistan for Afghanistan in 1999 but left because of war there in 2001. They eventually made their way to Iran, where they were recognized as refugees by the UNHCR.", "The group fled to Turkey from Iran in 2007 after they had been threatened with forcible return to Uzbekistan. 22 of them were subsequently recognized again as refugees by the UNHCR in Turkey. The status of two is yet to be determined. The families were linked to the Islamic Movement of Uzbekistan (IMU), an armed opposition group in whose camps they stayed, both in Tajikistan and Afghanistan, possibly under duress.” 34. In its report “Stranded: Refugees in Turkey Denied Protection” released in 2009, Amnesty International expressed its concerns regarding the deportation of the applicant and the other Uzbek nationals to Iran on 12 September 2008: “...The forcible return on two occasions of a group of UNHCR recognized Uzbekistani refugees in September and October of 2008 illustrates the Turkish authorities’ increased flouting of both international non-refoulement obligations and the procedures of national law in the case of forcible returns.", "On 12 September, 24 Uzbekistani refugees, 15 of them children, were forced into Iranian territory by Turkish law enforcement officials. It was alleged that officials had persuaded the group to come to the Van Directorate of Security in order that stationery would be provided for the children’s education. Commenting to the press on these allegations, a senior official within the Van Directorate of Security was quoted as saying that the group was not complying with reporting requirements and that although the police methods may differ from others, the method of getting the refugees to the station did not matter. During this deportation, members of the group were allegedly beaten by security officials and women and girls were threatened with rape unless they left Turkey. The refugees were subsequently held hostage by an unnamed group in Iran which threatened to kill them.", "They were released after a week following the payment of a ransom of US$ 5,000. They then returned irregularly to Turkey...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S DEPORTATION ON 12 SEPTEMBER 2008 35. The applicant complained under Articles 2 and 3 of the Convention that his summary deportation to Iran without an assessment of his asylum claim and without a deportation order and whilst he had valid residence permits, had violated their rights guaranteed in Articles 3 and 13 of the Convention. He submitted that there had been a real risk of his refoulement from Iran to Uzbekistan, where he was likely to be tortured and executed on account of his political opinions and religious beliefs.", "36. The Court considers that the applicant’s aforementioned complaints should be examined from the standpoint of Article 3 of the Convention alone. Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 37. The Government contested the applicant’s arguments. A. Admissibility 38.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions 39. The applicant submitted that his deportation to Iran had exposed him to a risk of ill-treatment given that there had been a real risk of his refoulement from Iran to Uzbekistan. He contended that in Uzbekistan he was charged with attempting to violently overthrow the State’s constitutional order under Article 159 § 4 of the Criminal Code and that international non-governmental organisations, such as Amnesty International and Human Rights Watch, reported widespread torture and other ill‑treatment of detainees and prisoners in Uzbekistan. The applicant further claimed that Iran had deported numerous refugees to their countries of origin. The applicant further submitted that he had been deported to Iran without an assessment of his asylum claim and without being served with a deportation order and that his deportation had been illegal under domestic law, as his residence permit had been valid until 24 September 2008.", "40. The Government argued, referring to the Court’s decision in the case of Ghorbanov and Others v. Turkey ((dec.), no. 28127/09, 24 August 2010), that the applicant had not run a risk of deportation from Iran to Uzbekistan. They contended that the applicant had not been deported to Uzbekistan, but to Iran, a safe third country where he had been recognised as a refugee under the UNHCR mandate and had lived for seven years before arriving in Turkey. The Government opined that, in its decision in Ghorbanov and Others v. Turkey, the Court had also considered Iran as a “safe third country”.", "The Government further argued that prior to 12 September 2008 the applicant had failed to comply with the rules governing the asylum procedure as he had left Van pending the outcome of his asylum application. According to the Government, on 12 September 2008 the applicant had been deported in accordance with the domestic law to a safe third country subsequent to an assessment of his asylum claim. However, he re-entered Turkish territory illegally. 2. The Court’s assessment 41.", "It is the Court’s settled case-law that as a matter of international law, and subject to their treaty obligations, including those arising from the Convention, Contracting States have the right to control the entry, residence and removal of aliens. However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case Article 3 implies an obligation not to deport the person in question to that country (see Saadi v. Italy [GC], no. 37201/06, §§ 124-125, ECHR 2008; and M.D. and M.A.", "v. Belgium, no. 58689/12, § 54, 19 January 2016). 42. Besides, the Court considers that in view of the fact that Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe and that it prohibits in absolute terms torture and inhuman or degrading treatment or punishment, a claim that there exist substantial grounds for fearing a risk of treatment contrary to Article 3 must be subjected to a close review and an independent and rigorous examination (see Jabari v. Turkey, no. 40035/98, § 50, ECHR 2000‑VIII; Sultani v. France, no.", "45223/05, § 63, ECHR 2007‑IV (extracts); and M.D. and M.A., cited above, § 55). 43. Turning to the particular circumstances of the present case, the Court first observes that, in their submissions to the Court, the Government argued that the applicant had not run a risk of deportation from Iran to Uzbekistan, referring to the Court’s decision of 24 August 2010 in the case of Ghorbanov and Others v. Turkey. The Court notes that the applicant was removed to Iran on 12 September 2008 along with twenty-eight other persons of Uzbek and Afghan origin (see paragraphs 15 and 27 above).", "The above-cited case of Ghorbanov and Others was brought by nineteen of those Uzbek nationals who had been deported to Iran at the same time as the applicant. In the partial decision in that case, the applicants’ complaint under Article 3 that they had risked deportation from Iran to Uzbekistan was declared inadmissible as being manifestly ill-founded. The decision, in so far as it concerned the deportation which had taken place on 12 September 2008, was based on the fact that those applicants were refugees recognised by the UNHCR in Iran and had lived in that country prior to their arrival in Turkey. In this regard, the Court stresses that it does not share the Government’s view that Iran was considered to be a “safe third country” in that decision. Such an assessment is nowhere to be found in the Court’s decision in the case of Ghorbanov and Others.", "Besides, the applicant in the present application lived in Iran for approximately two and a half years as an asylum seeker, whereas the adults among the applicants in the case of Ghorbanov and Others lived in the same country for six years as refugees. Thus, in the Court’s view, the present application has to be distinguished from the case of Ghorbanov and Others. In any case, the Court finds that the central question to be answered in the present case is not whether the applicant ran a real risk of ill-treatment in Iran or in Uzbekistan as such but whether the Turkish authorities carried out an adequate assessment of the applicant’s claim that he would be at risk of ill-treatment in case of deportation to Iran with refoulement to Uzbekistan before he was deported from Turkey to Iran on 12 September 2008 (see M.D. and M.A., cited above, § 58). Therefore, the Court’s examination will be limited to ascertaining whether the State authorities had fulfilled their procedural obligations under Article 3 of the Convention (see F.G. v. Sweden [GC], no.", "43611/11, § 117, 23 March 2016). 44. In this connection, the Court first observes that the applicant applied both to the UNHCR in Turkey and to the national authorities and claimed asylum (see paragraph 13 above). His application to the UNHCR in Turkey was under consideration at the material time. Also, the applicant’s claim that on 12 September 2008 he had gone to the police station for signature as part of his weekly routine (see paragraph 15 above) was not contested by the Government.", "The Court therefore finds it established that the applicant was an asylum seeker who was residing legally in Turkey on the day of his deportation. 45. The Court notes that the applicant did provide some detailed information about his personal situation and the reasons for his fear of ill‑treatment and that his arguments were supported by documents (see §§ 11-12 above). Having regard to the information and documents provided by the applicant, the Court finds that the applicant adduced evidence capable of proving that there were substantial grounds for believing that, if he was deported to Iran with the risk of refoulement to Uzbekistan, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention. Therefore, the Turkish authorities were under an obligation to address the applicant’s arguments and carefully assess the risk of ill-treatment if the applicant was to be deported to Iran with the risk of refoulement to Uzbekistan, in order to dispel any doubts about possible ill‑treatment (see, inter alia, Müslim v. Turkey, no.", "53566/99, §§ 72 and 74, 26 April 2005; Ryabikin v. Russia, no. 8320/04, § 112, 19 June 2008; Iskandarov v. Russia, no. 17185/05, §§ 128-135, 23 September 2010; Auad v. Bulgaria, no. 46390/10, §§ 101-108, 11 October 2011; Azimov v. Russia, no. 67474/11, §§ 112-113, 18 April 2013; L.M.", "and Others v. Russia, nos. 40081/14, 40088/14 and 40127/14, §§ 114-118, 15 October 2015; M.D. and M.A., cited above, § 55; and F.G., cited above, § 120). 46. Against this background, the Court observes that the Government were explicitly requested to make submissions as to whether the applicant’s asylum request had been examined and refused; whether a deportation order had been issued for his removal; and then whether the applicant had been notified that his asylum claim had been refused.", "They were also asked to provide copies of the documents relevant to the applicant’s request for asylum, including the assessment made by the national authorities, the deportation order and the formal notification of his removal, but they failed to do so. The Government also failed to respond to the Court’s aforementioned questions and there are no documents in the case file to show that the applicant was notified of a formal deportation order. The Government solely submitted that the applicant’s asylum claim had been assessed, without specifying the outcome of the assessment. 47. All of the above leads the Court to conclude that the applicant – an asylum seeker and a legal resident in Turkey – was deported to Iran, a non-member State of the Council of Europe, in the absence of a legal procedure providing safeguards against unlawful deportation and without a proper assessment of his asylum claim.", "48. In this regard, the Court emphasises that, in view of the importance attached to Article 3 of the Convention, the absolute character of the right guaranteed by Article 3 and the irreversible nature of the potential harm if the risk of ill-treatment materialised, it is for the national authorities to be as rigorous as possible and to carry out a careful examination of allegations under Article 3, in the absence of which the domestic remedies cannot be considered to be effective (see M.D. and M.A., cited above, § 66). 49. Hence, in the absence of an examination, by the national authorities, of the applicant’s claim that he would face a real risk of treatment contrary to Article 3 if removed to Iran or to Uzbekistan and of a legal procedure providing safeguards against unlawful deportation, the Court considers that the applicant’s deportation to Iran on 12 September 2008 amounted to a violation of Article 3 of the Convention (see M.D.", "and M.A., cited above, § 67). II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION ON ACCOUNT OF THE CIRCUMSTANCES IN WHICH THE APPLICANT WAS DEPORTED TO IRAN ON 12 SEPTEMBER 2008 50. The applicant complained under Articles 3, 6 and 13 of the Convention that he had been unlawfully deported to Iran on 12 September 2008 without an individual assessment of his situation and claims, and whilst he was legally residing in Turkey, and that he had not been informed of the decision to deport him to Iran on 12 September 2008 and, thus, had had no effective domestic remedies to challenge it. 51.", "The Government submitted that the applicant’s claims were not substantiated. 52. The Court considers that this part of the application should be examined under Article 13 of the Convention alone. However, having regard to its reasoning which led it to conclude Article 3 of the Convention was breached in the present case, the Court finds nothing that would justify a separate examination of the same facts from the angle of Article 13 of the Convention. It therefore deems it unnecessary to rule separately on either the admissibility or the merits of the applicant’s complaints under this head (see M.D.", "and M.A., cited above, § 70). III. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S THREATENED DEPORTATION TO IRAN OR UZBEKISTAN 53. The applicant complained under Articles 2 and 3 of the Convention that he was currently under a threat of deportation to Iran or Uzbekistan, which would expose him to a clear risk of death or ill-treatment on account of his political opinions and religious beliefs. He also complained, under Articles 6 and 13 of the Convention, that the absence of domestic remedies prevented him from challenging his threatened deportation.", "He contended that as his identity documents had been confiscated by the police on 12 September 2008, he was unable to appoint a lawyer to take legal steps on his behalf. 54. The Court considers that the applicant’s complaints should be examined from the standpoint of Articles 3 and 13 of the Convention, which read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 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.” 55. The Government contested these claims. A.", "The parties’ submissions 1. The Government 56. In their submissions dated 12 March 2012, the Government submitted that the applicant had been living in hiding in Turkey since 2008, during which time he had had the opportunity to pursue his asylum claims before the domestic authorities but had failed to do so. They therefore argued that the applicant had not exhausted the domestic remedies available to him. In support of their arguments, the Government submitted copies of decisions in three cases which concerned detention and removal of foreign nationals, examined by the Supreme Administrative Court.", "The Government further argued that Iran was a safe third country in so far as it concerned the applicant. 57. In the first of those cases, A.A., an Iranian refugee who was held in a removal centre, requested the Ministry of the Interior to release him and subsequently lodged a case with the Ankara Administrative Court. A.A. argued mainly that his detention was unlawful. On 17 September 2008 the Ankara Administrative Court ordered A.A.’s release as an interim measure and on 21 January 2009 the court annulled the administrative decision to detain him.", "On 20 May 2009 and 29 January 2010 the Supreme Administrative Court rejected the requests of the Ministry of the Interior for an interim measure and annulment of the Ankara Administrative Court’s judgment respectively (case no. 2009/3343). 58. The second decision submitted by the Government concerned the refusal of the Ministry of the Interior of the asylum claim of a certain M.Y.S., an Afghan national who had been recognised as a refugee under the UNHCR mandate, and the refusal to grant him a residence permit. The administrative decision was taken on 13 March 2009.", "Upon M.Y.S.’s request for its annulment, on 11 November 2009 the Ankara Administrative Court annulled the administrative decision in question. In 15 December 2010 the judgment of 11 November 2009 was upheld (case no. 2010/881). 59. The third case concerned a deportation order issued on 27 March 2009 against a certain G.M., an Afghan national, whose asylum claim had been rejected.", "On 16 December 2009 the Ankara Administrative Court annulled the removal order in question and on 16 March 2010 the Supreme Administrative Court rejected the Ministry of Interior’s request for the suspension of the execution of the judgment of 16 December 2009 (case no. 2010/2346). 60. In their further observations of 10 June and 16 July 2015, the Government contended that the Foreigners and International Protection Act (Law no. 6458), which entered into force on 11 April 2014, reinforced the protection of asylum seekers and refugees in Turkey.", "They further stated that it was unknown to them whether the applicant was still in Turkey. 61. In reply to the Court’s request dated 7 April 2015 to submit copies of administrative courts’ decisions in cases concerning removal of asylum seekers issued subsequent to the entry into force of Law no. 6458, the Government submitted three judgments rendered by Ankara and Istanbul Administrative Courts and a decision of the Supreme Administrative Court annulling deportation orders given by administrative authorities. 62.", "The judgment issued by the Ankara Administrative Court on 21 April 2015 contained an examination of the lawfulness, in the light of the provisions of Law no. 6458, of a deportation order issued on 28 June 2014 in respect of a Russian national who had been married to a Turkish national and whose residence permit had been annulled following her divorce (case no. 2014/2246). 63. The judgments of the Istanbul Administrative Court dated 20 March and 17 April 2015 contained an examination of the lawfulness, in the light of the provisions of Law no.", "6458, of deportation orders issued on 7 October 2014 and 9 April 2014 against two foreign nationals who had both been suspected of having committed criminal offences respectively (case nos. 2014/2430 and 2014/2085). 64. The Supreme Administrative Court’s decision dated 30 May 2015 (case no. 2009/8048) contained an examination of the lawfulness of an administrative decision dated 29 April 2009 to remove from Turkey a Chinese national of Uighur origin, whose asylum application had been rejected.", "In conducting its examination the Supreme Administrative Court did not refer to Law no. 6458, but to the legal provisions governing expulsion of foreign nationals which had been in force prior to the entry into force of Law no. 6458. 2. The applicant 65.", "In his submissions dated 13 June 2012, the applicant submitted that he was in Turkey and risked deportation to Iran or Uzbekistan if apprehended by the national authorities. In response to the Government’s objection regarding the rule of exhaustion of domestic remedies, the applicant submitted that he had not been served with a deportation order and therefore he was unable to challenge any decision before the administrative courts to remove him from Turkey. He further maintained that, in any event, the available legal remedies were not effective, as they did not have automatic suspensive effect. 66. In his submissions dated 30 April 2015, the applicant once again contended that he was in Turkey, and believed that he would be removed from Turkey if he applied to the national authorities or was apprehended by them.", "He contended that there were serious shortcomings in the application of Law no. 6458. In this regard, he submitted that some asylum seekers were removed from Turkey to unsafe countries without the opportunity to have access to domestic remedies and some others were still being held in administrative detention despite court orders for their release. He also noted that there were approximately ten applications pending before the Constitutional Court of Turkey regarding the deportation of asylum seekers to Syria, Ukraine, the United Arab Emirates and Russia before the merits of their asylum applications had been examined. 67.", "In support of his claims, the applicant submitted, inter alia, documents concerning a Russian national of Chechen origin. According to a letter sent to the police branch at the Istanbul Atatürk Airport by the Istanbul police headquarters, that person was to be deported on 1 April 2015 to Ukraine before his asylum claim was examined and while the proceedings brought against the removal order were pending before the Istanbul Administrative Court. 68. The applicant also submitted a press statement made by eight non‑governmental organisations in Turkey on 23 February 2015 condemning the expulsion of Uzbek nationals, including women and children, to Syria. According to the press statement, in August 2014 and January and February 2015, a number of Uzbek and Chechen nationals who had been held in a removal centre in south Turkey were expelled to a region of Syria controlled by the Islamic State of Iraq and Al-Sham (ISIS) without having had access to their lawyers and the opportunity to challenge the removal orders.", "According to the press statement, three of these foreign nationals were executed by ISIS. The applicant’s lawyer also submitted some news articles dated 22 January and 10 February 2015, according to which Uzbek refugees were detained in foreigners’ removal centres for no reason. The lawyer argued that, in view of these developments, the applicant was now under the threat of deportation to Uzbekistan, Iran or Syria. B. The Court’s assessment 69.", "The Court does not find it necessary to examine the Government’s objection that the applicant failed to exhaust domestic remedies, since it considers that this part of the application is inadmissible for the reasons set out below. 70. The Court observes at the outset that the respondent State did not raise any objection as to the Court’s competence ratione personae in relation to the applicant’s complaints under this head. In Mustafa Tunç and Fecire Tunç v. Turkey ([GC], no. 24014/05, §§ 122-124, 14 April 2015), the Grand Chamber held that any plea of inadmissibility, including lack of victim status as was the plea in that case, should in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of an application, unless the events which were alleged to have deprived the applicant of his or her victim status had occurred after the decision on admissibility, or where the objection concerned a matter which went to the Court’s jurisdiction rather than a question of admissibility in the narrow sense of that term.", "In the present case, the issue of victim status was raised by the Court on 7 April 2015, when the Court invited the parties to submit further written observations on the admissibility and merits of the case, including on the question of victim status. Furthermore, the issue of victim status and the risk of deportation are closely linked to the new Foreigners and International Protection Act which entered into force on 11 April 2014 and which has been invoked by the Government in the context of exhaustion of domestic remedies. Therefore, the Court finds that the issue of victim status calls for consideration by the Court. 71. In cases where applicants have faced expulsion or extradition, the Court has consistently held that an applicant cannot claim to be the “victim” of a measure which is not enforceable.", "It has adopted the same stance in cases where execution of a deportation or extradition order has been stayed indefinitely or otherwise deprived of legal effect, and where any decision by the authorities to proceed with deportation can be appealed against before the relevant courts (see ibid., § 85 and the cases cited therein). 72. The Court further reiterates that if an applicant has not yet been expelled or extradited when the Court examines the case, the relevant time for the assessment of whether a real risk of treatment contrary to Article 3 exists will be that of the proceedings before the Court (see, among many others, Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 69, ECHR 2005‑I; Saadi, cited above, § 133; Chahal v. the United Kingdom, 15 November 1996, §§ 85-86, Reports of Judgments and Decisions 1996‑V; Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 215, 28 June 2011; Mohammadi v. Austria, no.", "71932/12, § 63, 3 July 2014; and F.G., cited above, § 115). In the Court’s view, the same principle applies in the assessment of an applicant’s victim status, that is to say, the assessment of the existence of the risk of expulsion or extradition from a country, in cases of expulsion and extradition where the applicant has not been removed at the time of the examination of the case by the Court. 73. In the present case, the Court observes at the outset that the Government submitted that they did not have any information as to whether the applicant was in Turkey. However, given that he was interviewed by officers from the UNHCR’s Ankara office in 2013 and 2014 (see paragraph 24 above) and that the parties did not submit any information or document demonstrating that he had left Turkey, the Court finds credible the applicant’s submission that he is living in hiding in Turkey.", "In this regard, the Court further notes that neither the Government nor the applicant have submitted any information or document demonstrating that between the date on which the applicant re-entered Turkey in September 2008 and the present day, a deportation order with legal effect, which is currently valid, was issued in respect of the applicant. In the absence of such a deportation order, the Court finds that the applicant does not currently appear to face an imminent risk of removal from Turkey. 74. However, the Court has already found that the applicant was removed to Iran in 2008 without a deportation order (see paragraph 47 above). In this connection, the Court recalls that in the case of Abdolkhani and Karimnia (cited above), the Government’s objection regarding the applicants’ victim status based on the absence of deportation orders issued in their respect was rejected.", "In that judgment, the Court noted that the national authorities had deported the applicants to Iraq on at least one occasion without a deportation order or without one having been served on them. It therefore considered that the absence of deportation orders could not lead to the conclusion that the applicants did not risk being deported to Iraq or Iran by the Turkish authorities (see Abdolkhani and Karimnia, cited above, §§ 54 and 55). 75. In its judgment in Ahmadpour v. Turkey (no. 12717/08, § 37, 15 June 2010), the Court examined the merits of the applicant’s allegations that she would be exposed to a real risk of death or ill‑treatment if removed to Iran, even though she had been granted a temporary residence permit in Turkey.", "The Court noted that the residence permit had not been granted following or pending an examination of the applicant’s claims regarding the alleged risks that she would face in Iran, and had been valid for only a short period of time. Moreover, at the time of the adoption of the judgment, the applicant’s residence permit was in the process of being renewed by the national authorities. The Court therefore considered that the applicant was still at risk of being removed to Iran, despite the fact that she had been legally resident in Turkey. 76. The present case however differs from the cases above in that the legal framework governing the removal of foreign nationals from Turkey at the time of the adoption of the aforementioned judgments (see Abdolkhani and Karimnia, cited above, §§ 29‑44) was different from the legislation currently in force.", "77. In this connection, the Court notes that on 11 April 2014 the new Foreigners and International Protection Act (Law no. 6458) entered into force in Turkey. Sections 61 to 90 of the Act concern the principles and rules governing applications for international protection, in particular, the types of international protection available; the procedure for processing applications for international protection; the issuing of “international protection identity documents” for persons seeking asylum; and the rights and obligations of persons demanding and granted international protection. The Act also provides administrative and judicial remedies against decisions of the national authorities and sets out the procedural safeguards within those remedies.", "78. The Court further observes that Sections 52 to 56 and 60 of the same Act contain rules regarding the removal of foreign nationals from Turkey and legal safeguards against unlawful and arbitrary deportation, such as the obligation to notify the persons concerned or their representatives of the issuing of deportation orders and the right to appeal against deportation decisions before the administrative courts, with automatic suspensive effect. 79. In this regard, the Court observes that the Government did not provide to the Court any domestic judicial decision in cases concerning removal of asylum seekers delivered subsequent to the entry into force of Law no. 6458 and containing an application of the provisions of the Law in issue.", "Besides, the applicant argued that there had been reports of deportation of asylum seekers pending the outcome of their asylum requests and without having been provided with the opportunity to have access to their lawyers. However, in the present case, the Court is not called upon to judge whether the remedies provided in Law no. 6458 are effective, in law and in practice, within the meaning of Articles 13 and 35 of the Convention. Besides, the information and documents submitted by the parties in support of their additional observations of 30 April, 10 June and 16 July 2015 are insufficient in order to conclude that the applicant is still under the same threat of illegal deportation as he faced in 2008. In the light of the aforementioned provisions of Law no.", "6458, there appear to be strong indications that, following the entry into force of the new legislation, it is open to the applicant to contact the national authorities in order to claim international protection and to request to be provided with an identity document, if, as he alleged, his documents were confiscated. 80. Furthermore, in the event of a fresh deportation order in the future, it would be open to the applicant to resort to a judicial procedure in which his claim of possible ill-treatment and/or death in the country of destination would be assessed domestically in accordance with the new procedures provided for by Law no. 6458 (see Asalya v. Turkey, no. 43875/09, § 89, 15 April 2014).", "81. In these circumstances, the Court considers that the applicant cannot be considered to be a victim within the meaning of Article 34 of the Convention in relation to his complaints concerning his threatened deportation from Turkey. 82. It follows that these complaints are incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected in accordance with Article 35 § 4. 83.", "The Court stresses that the above finding is without prejudice to any examination that it might carry out regarding the application of the provisions of Law no. 6458 in the future, and does not prevent the applicant from lodging a new application with the Court and from making use of the available procedures, including under Rule 39 of the Rules of Court, in respect of any new circumstances that may arise, in compliance with the requirements of Articles 34 and 35 of the Convention (see Bakoyev v. Russia, no. 30225/11, § 100, 5 February 2013; Budrevich v. the Czech Republic, no. 65303/10, § 69, 17 October 2013; and Asalya, cited above, § 92). IV.", "ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 84. The applicant complained under Article 5 of the Convention that his detention by the security forces prior to his removal on 12 September 2008 had been unlawful, that he had not been informed of the reasons for his deprivation of liberty in the course of his deportation, and that he had had no means of challenging its lawfulness. The Court considers that these complaints should be examined from the standpoint of Article 5 §§ 1, 2 and 4 of the Convention, which read as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.", "2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. ...” 85.", "The Government contested the applicant’s allegations. A. Admissibility 86. The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. Alleged violation of Article 5 § 1 of the Convention 87. The applicant maintained his allegation that he had been unlawfully deprived of his liberty on 12 September 2008. 88.", "The Government submitted that the applicant had been deported on 12 September 2008, but had not been deprived of his liberty. 89. The Court has already examined the same grievance in the case of Abdolkhani and Karimnia (cited above, §§ 125-135), in which it found that in the absence of clear legal provisions establishing the procedure for ordering detention with a view to deportation, the applicants’ detention had not been “lawful” for the purposes of Article 5 of the Convention. 90. In the instant case, the Court observes that it is not in dispute between the parties that the applicant was deported on 12 September 2008.", "Given that the applicant had to be detained by the national authorities in order to be removed to Iran, there are no particular circumstances which would require it to depart from its findings in the above-mentioned judgment. The fact that the applicant’s detention lasted for a brief period has no impact on its “unlawful” nature (see Ghorbanov and Others, cited above, § 43). There has therefore been a violation of Article 5 § 1 of the Convention. 2. Alleged violation of Article 5 § 2 of the Convention 91.", "The applicant reiterated his allegations. 92. The Government did not submit any observations on this point. 93. The Court notes that the Government were explicitly requested to make submissions as to whether the applicant had been informed of the reasons for his detention and to provide the documents relevant to his detention, but failed to do so.", "In the absence of a reply from the Government, the Court is led to conclude that the reasons for the applicant’s detention on 12 September 2008 were never communicated to him by the national authorities (see Ghorbanov and Others, cited above, § 46). There has therefore been a violation of Article 5 § 2 of the Convention. 3. Alleged violation of Article 5 § 4 of the Convention 94. The applicant reiterated his allegations.", "95. The Government did not submit any observations on this point. 96. The Court observes that according to the applicant’s submissions, he was detained for a few hours before his removal to Iran on 12 September 2008. In the light of its case-law, according to which Article 5 § 4 does not deal with remedies which may serve to review the lawfulness of a short‑term detention that has already ended, the Court does not find it necessary to determine the merits of the applicant’s complaint under Article 5 § 4 of the Convention (see Slivenko v. Latvia [GC], no.", "48321/99, §§ 158-159, ECHR 2003‑X; M.B. and Others v. Turkey, no. 36009/08, § 45, 15 June 2010; and Ghorbanov and Others, cited above, § 49). V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 97. The applicant contended under Article 2 of the Convention that his deportation to Iran had exposed him to various deadly hazards, such as being kidnapped by people smugglers and being shot by border guards.", "The applicant further complained under Article 3 of the Convention that he had been ill-treated by security forces during his deportation to Iran on 12 September 2008. He claimed under Article 8 of the Convention that his deportation had infringed his right to respect for private and family life. He complained under Article 14 that he had been discriminated against by the State authorities because of his nationality. Lastly, he contended under Article 4 of Protocol No. 4 and Article 1 of Protocol No.", "7 that he and the other Uzbek asylum seekers had been deported collectively and in breach of the procedural safeguards relating to the expulsion of aliens. 98. In its decision of 24 August 2010 in the case of Ghorbanov and Others ((dec.), cited above), the Court declared the same complaints brought by the other Uzbek asylum seekers who had been deported to Iran along with the applicant inadmissible. The Court found that the complaints under Articles 2, 3, 8 and 14 of the Convention were manifestly ill-founded. In particular, the applicants’ complaints that they had been taken hostage by people-smugglers, that they had run the risk of being shot by border patrol officers and that they had been ill-treated by police officers during the two deportation incidents were considered to be unsubstantiated due to the fact that the applicants had not provided any evidence or detailed information.", "The Court considered therefore that the applicants had not laid the basis of an arguable claim in respect of these complaints. The Court further held that, since Turkey had not ratified Protocols Nos. 4 and 7, the complaints under Article 4 of Protocol No. 4 and Article 1 of Protocol No. 7 were incompatible ratione personae with the provisions of the Convention.", "99. The Court finds no particular circumstances in the instant case which would require it to depart from its conclusions in the aforementioned decision. Therefore, the applicant’s complaints under Articles 2, 3, 8 and 14 of the Convention are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. Similarly, the applicant’s complaints under Article 4 of Protocol No. 4 and Article 1 of Protocol No.", "7 are incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 100. 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 101.", "The applicant claimed 190 Turkish liras (TRY) (approximately 83 euros (EUR)) in respect of pecuniary damage. He alleged that the police had confiscated all his personal belongings when he had been arrested and had never returned his money or his mobile phone. He further claimed EUR 40,000 in respect of non-pecuniary damage. 102. The Government submitted that the applicant’s claims were excessive.", "103. The Court notes that it cannot be established, on the basis of the case file, whether the applicant was in possession of the aforementioned items when he was detained. It therefore rejects the applicant’s claim regarding the alleged pecuniary damage. On the other hand, it considers that the applicant must have suffered non‑pecuniary damage which cannot be compensated for solely by the finding of violations. The Court therefore awards the applicant EUR 6,500 in respect of non-pecuniary damage.", "B. Costs and expenses 104. The applicant also claimed EUR 3,050 for his lawyer’s fee and EUR 590 for the other costs and expenses incurred before the Court. In this connection, he submitted a timesheet showing that his legal representative had carried out thirty hours and thirty minutes’ legal work, an agreement concluded with his representative according to which his representative’s tariff was EUR 100 per hour, a sheet containing information on postal, translation and photocopying expenses, a number of telephone bills and an invoice for postal expenses. 105.", "The Government contested this claim, pointing out that only costs actually incurred could be reimbursed. 106. 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 3,052 for the proceedings before the Court. From this sum should be deducted the EUR 850 granted by way of legal aid under the Council of Europe’s legal-aid scheme.", "C. Default interest 107. 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 3 concerning the applicant’s deportation to Iran on 12 September 2008 and the complaints under Article 5 concerning the alleged unlawfulness of his detention on 12 September 2008, the alleged failure of the authorities to inform the applicant of the reasons for his detention and the alleged lack of a remedy whereby he could challenge the lawfulness of his detention admissible; 2. Holds that there is no need to examine the admissibility or the merits of the complaint under Article 13 of the Convention concerning the applicant’s deportation to Iran on 12 September 2008; 3.", "Declares and the remainder of the application inadmissible; 4. Holds that there has been a violation of Article 3 of the Convention on account of the applicant’s deportation to Iran on 12 September 2008; 5. Holds that there has been a violation of Article 5 § 1 of the Convention; 6. Holds that there has been a violation of Article 5 § 2 of the Convention; 7. Holds that there is no need to examine the complaint under Article 5 § 4 of the Convention; 8.", "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: (i) EUR 6,500 (six thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 3,052 (three thousand and fifty-two euros), less EUR 850 (eight hundred and fifty euros) granted by way of legal aid, plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 9. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 May 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithJulia LaffranqueRegistrarPresident" ]
[ "THIRD SECTION CASE OF DIAMANTE AND PELLICCIONI v. SAN MARINO (Application no. 32250/08) JUDGMENT STRASBOURG 27 September 2011 FINAL 08/03/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Diamante and Pelliccioni v. San Marino, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Corneliu Bîrsan, President,Josep Casadevall, ad hoc judge,Egbert Myjer,Ján Šikuta,Ineta Ziemele,Luis López Guerra,Nona Tsotsoria, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 30 August 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "32250/08) against the Republic of San Marino lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 7 July 2008 by Ms Augusta Diamante, an Italian national born in 1973, who is also acting on behalf of her child, Ms Greta Pelliccioni, who has dual nationality, Italian and San Marinese, and was born in 2004 (“the applicants”). 2. The applicants were represented by Mr E. Borghesi, a lawyer practising in Rimini. The San Marino Government (“the Government”) were represented by their Agent, Mr Lucio Daniele, and their Co-Agent, Mr Guido Bellatti Ceccoli. 3.", "The applicants alleged a violation of Articles 6 and 8 of the Convention, on account of the decisions delivered by the domestic courts in the custody and contact proceedings. The second applicant further alleged a violation of Article 2 of Protocol No. 4 to the Convention. 4. On 14 June 2010 the Court decided to give notice of the application to the Government.", "It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 5. The Government of Italy, who had been notified by the Registrar of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 § 1 (a)), indicated their intention to do so. 6. The applicants and the Government each submitted observations.", "Observations were also received from the Government of Italy and the Associazione Pro Bimbi, an independent non-profit organisation, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2 of the Rules of Court). 7. Ms Kristina Pardalos, the judge elected in respect of San Marino, was unable to sit in the case (Rule 28). Accordingly Judge Josep Casadevall was appointed to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 8. The first applicant, while resident in San Marino, had a relationship and was cohabiting with Mr X. in San Marino. 9. On 9 December 2004 the second applicant was born of this relationship, in Rimini, Italy. She was granted dual nationality, Italian and San Marinese.", "The family lived in X.’s villa in San Marino. 10. Mr X. left the villa in July 2006 and allegedly stopped sending the applicants any financial allowances. A. The custody proceedings 11.", "On 8 November 2006 Mr X. lodged a request with the San Marino Tribunal for sole custody and restitution of the villa. 12. Following a deferral request by Mr X., the first hearing was held on 4 December 2006, the date when the first applicant intervened in the proceedings, and demanded custody of the child, the right to remain living in the family home and maintenance. 1. The first custody decree 13.", "By a decree of 4 December 2006, the relevant court, namely the Commissario della Legge of San Marino, granted custody to the first applicant. Mr X. was entitled to visiting rights as follows: Mondays and Wednesdays from 2 p.m. to 9 p.m. and one day (Saturday or Sunday) on alternate weekends from 10.30 a.m. to 6 p.m. It refused to decide on maintenance, inviting the parents to reach an agreement. It further ordered the intervention of the “servizio minori” (children’s services) to verify each parent’s aptitude and the quality of the relationship with the child. 2.", "The decisions on the respect of contact rights, maintenance, schooling and the second custody decree 14. On 14 December 2006 the first applicant requested children’s services to decide on the transfer of the second applicant to a kindergarten in Rimini, Italy. The aim of this request was to allow the applicants to live with the second applicant’s grandmother for economic reasons, since Mr X. had allegedly failed to pay them any allowances. 15. On 18 December 2006 Mr X. requested an urgent hearing, complaining that for the last two weekends the first applicant had denied him contact rights and had changed the arrangements.", "Consequently, the Commissario della Legge, considering that the father had a right to see his daughter every weekend, requested children’s services to intervene in order to ensure that contact rights were respected. 16. On 21 December 2006 the first applicant reiterated that on 4 December 2006 the court had ordered visits on the Saturday or Sunday of alternate weekends, and not every weekend as interpreted on 18 December 2006. 17. On 22 December 2006 the first applicant requested to take the child on a five-day holiday.", "The Commissario della Legge ordered the relevant notification. 18. On 1 March 2007 the Commissario della Legge ordered children’s services to consider whether transfer to the Rimini institution would be in the interest of the minor. 19. On 15 March 2007 children’s services filed their first report, stating that it was important to consider the needs of the child who “will probably reside in San Marino”.", "The report noted that the institution in Rimini hosted older children, and that Mr X. showed his availability to pick up the child from school if it were in San Marino. It advised that attending a nursery in San Marino would allow better monitoring on the part of the children’s services. 20. On 10 April 2007, in view of the announced holiday, children’s services temporarily amended the visiting schedule, in agreement with the parties. 21.", "On 12 April 2007 the first applicant informed the Commissario della Legge that she had found a job in Rimini, where she planned to move, and therefore she was ready to leave the villa. 22. On 17 April 2007 the Commissario della Legge, having regard to the children’s services’ report (above) and after soliciting further reports, held that, until children services gave different advice, the child should remain in San Marino. It referred the case back to children’s services. 23.", "Following further submissions, on 5 May 2007 the first applicant requested an urgent hearing as she was having difficulty taking care of the child since Mr X. was not paying the maintenance due. 24. On 18 May 2007 the Commissario della Legge, having regard to the economic situation of the parents and to the fact that the first applicant remained living in the villa, decided that Mr X. had to pay the applicants maintenance amounting to 500 euros (EUR), as from November 2006. 25. On 31 May 2007 children’s services drew up another report, finding that although conflict between the parents persisted, the father had an excellent relationship with the daughter.", "It advised that there be joint custody of the child, who should be placed prevalently with the mother in view of her tender age; it proposed two possible contact schedules, both eventually including two overnight stays per week. It further suggested maintaining the current schooling situation. 26. On 14 June 2007 the first applicant, having signed a lease agreement for an apartment in Rimini the previous month, informed the Commissario della Legge that she intended to move there with her daughter, while maintaining their official residence in San Marino. 27.", "On 21 June 2007 the first applicant made further submissions. It appears that the applicants moved to Rimini on the same day. 28. By a decree of 25 June 2007 the Commissario della Legge granted joint custody, holding that the child should remain living in Rimini, where she was settled with the mother, and should continue to attend the Rimini kindergarten for the following school year, as this appeared to be in the best interests of the child. It further ordered children’s services to monitor the situation.", "This decision was based on the children’s services report of 31 May 2007 (see above). 3. The residence order 29. On 9 August 2007 children’s services submitted a new report, which found that the first father-child visits were held in an untroubled atmosphere and that Mr X. was spending all the appropriate time with the child. It noted that between 13 and 16 July the first applicant went on holiday with the child without informing Mr X. of the destination and that thereafter she had frequently informed children’s services that visits could not take place because of her or her daughter’s alleged illnesses or because she refused to give up the daughter.", "30. In August 2007 Mr X. lodged various submissions, including a complaint that the first applicant was denying his rights to visit their daughter and requesting that the relevant orders be executable in the Italian State. 31. By an order of 20 August 2007 the Commissario della Legge specified that the order of 25 June 2007 must be considered “provisionally executable”. 32.", "On 22 August 2007 children’s services drafted a report, which found that the first applicant was obstructing visiting arrangements which had not been previously arranged and was refusing to cooperate with children’s services. 33. Both parties continued to make regular submissions. 34. By an order of 21 September 2007, the Commissario della Legge held that unilateral changes to scheduled visits had no effect, since the arrangements had been established by prior orders, which were subject to alteration by future court orders.", "It held that Mr X. had the right to have his child by his side, unsupervised, and that the child should maintain residence in San Marino. It further explained that residence meant “a situation of permanent stay in a territory”. 35. A children’s services report of 17 October 2007 related that the first applicant was failing to take the second applicant to children’s services and that monitoring had become difficult since 9 August 2007. 4.", "The order regarding the court’s competence and the third custody decree 36. On 24 October 2007 the first applicant challenged the competence of the San Marino Tribunal, namely the Commissario della Legge, in so far as proceedings were pending before the Tribunal of Bologna, Italy (see below). The parties informed the tribunal that the relevant ex parte counsellors had been appointed and meetings had started. 37. On 12 November 2007 the Commissario della Legge rejected the objection.", "It held that the first applicant had accepted the San Marino jurisdiction throughout all the proceedings and various decrees; in effect this request had been made out of time. 38. On the merits of the pending case, the Commissario della Legge found no reason to alter the current custody order. Joint custody had been opted for to protect the child from the unhappy situation in which the mother excluded the father from any decision-making. Joint custody and support from children’s services allowed the creation of an educational programme for the parents to allow for the growth and well-being of the child.", "This was what the parents had to aim for during the current joint custody regime. Welcoming the appointment of ex parte experts/counsellors, it reiterated the need for supervision by children’s services. Only upon further reports by children’s services and experts would the tribunal be able to establish whether any modifications to the regime were necessary or whether schooling in San Marino would be more appropriate. 5. The fourth custody decree 39.", "On 15 November 2007 Mr X. requested that the child be returned to San Marino, offering the mother lodgings with the daughter. On 9 January 2008 Mr X. enrolled the child in a nursery in San Marino, notwithstanding that she was still living in Rimini. 40. On 24 January 2008 Mr X. made a request for sole custody and for the child to be moved to a school in San Marino. 41.", "On 28 January 2008 the Commissario della Legge requested children’s services to draw up a report on the merits of schooling in San Marino. 42. The ensuing report of 8 February 2008 considered that Mr X. was having difficulty seeing the child, as for a while the mother had unilaterally interrupted the father’s visits (for example, nine out of fourteen overnight stays with the father had not occurred and six consecutive Sunday visits had been missed), and that the mother was not cooperating with children’s services. Consequently, the establishment of an educational programme had not been successful. It found on the one hand that the first applicant’s anger towards the father was persistent and involved the child.", "On the other hand the father had shown consideration and put the needs of the child first. He sincerely loved his daughter and was cooperating with children’s services. The father and the child had a warm and caring relationship, and the child felt comfortable and happy in his presence. It appeared however that the child might have fears of losing her loved ones, probably due to the various moves, which had also detached her from members of her extended family. The report therefore advised the grant of temporary sole custody to the father, with regular supervised visits by the mother, until this could be reversed.", "It concluded that schooling should be in accordance with the custody decision, as this would be favourable to the child’s emotional stability, notwithstanding the unfortunate moves of house. It also advised psychotherapeutic and parental education support for the parents, together with further monitoring by children’s services. 43. On 12 February 2008 the Commissario della Legge ordered that an extraordinary hearing of the parties (comparizione delle parti) be held on 19 February 2008. The order was notified on 14 February 2008.", "The next day the first applicant’s main lawyer communicated his inability to attend and requested an adjournment. The opposing party opposed this request, but no notification reached the first applicant’s legal counsel. (a) A period of absence 44. On 13 February 2008 Mr X. collected the child and did not return her. On the same day Mr. X’s lawyer sent the first applicant a fax informing her that the child would not return home to the mother as the father was availing himself of the time accumulated from the missed visits.", "The child could, however, be contacted by telephone at specific times. 45. On 15 February 2008 the first applicant’s representatives requested X.’s lawyers to inform them where the child had been taken, the date of return, and arrangements as to the handing over of the child. X.’s lawyers’ reply was immediate but inconclusive, in that, no details had been given. Thus, the first applicant’s representatives informed children’s services about what had happened and complained about the father’s lawyers.", "In reply, Mr X.’s lawyers explained that the child was on holiday with her father and that they did not know where they had gone. On the same day, the first applicant’s lawyers requested that the hearing set for 19 February be deferred due to the inability of her regular lawyer, who had dealt with the relevant experts, to attend the hearing for professional reasons. Mr X.’s lawyers opposed this, however, it appears that no notification of this opposition took place. 46. The following day, the first applicant lodged written submissions, reiterating that in accordance with the decree of 25 June 2007 the child had been placed with the mother for the school year.", "Complaining about Mr X.’s actions and those of children’s services, she requested the tribunal to restore the status quo ante. 47. On 18 February 2008, while the child was still missing, Mr X.’s representatives requested that the minor be placed in San Marino. They emphasised that the second applicant’s presence outside San Marino limited the San Marino courts’ power over the second applicant’s rights abroad. The first applicant objected, maintaining that the child should return to Rimini.", "She further insisted that any missed paternal visits in the summer of 2007 had not been malicious but had been the result of physical circumstances. (b) The custody decree of 19 February 2008 48. On 19 February 2008 a substitute judge sat as the Commissario della Legge. The first applicant, through her co-lawyer, referred to their request for a brief postponement in view of the absence of the habitual judge and her habitual co-lawyer, who was more aware of the case details. Moreover, there had been a lack of collaboration on the part of children’s services and counsellors, her counsellors had not been summoned, and the child had been kidnapped by the father.", "Her request was refused without detailed reasons. The substitute judge considered it opportune to take a decision urgently. Consequently, the first applicant’s co-lawyer withdrew from the case. A further request by the first applicant for a short suspension in order for another lawyer to be appointed was refused. 49.", "The case was therefore heard without representation for the first applicant. Mr X. was represented by his lawyers and enjoyed the assistance of a counsellor. After the cross-examination was over, the substitute judge delivered his decision on the same date. 50. He found that, in view of the report by children’s services of 17 October 2007 and 8 February 2008, the child risked being denied the benefit of her father’s presence, as the first applicant had prevented the father’s visits and obstructed children’s services’ meetings.", "Any argumentation by the first applicant presented in her written pleadings had not been persuasive. Consequently, while upholding joint custody, it was ordered that the child live with her father in San Marino and that she be transferred to the San Marino nursery from 20 February 2008. The mother was entitled to supervised visits from Monday to Friday from 13.15 to 15.00, or as children’s services deemed opportune. 6. The continuation of proceedings 51.", "On 22 February 2008 the Commissario della Legge, acknowledging that there were no obstacles to acceding to the first applicant’s request to spend a weekend with her daughter at the father’s house, requested the children’s services to draw up a new calendar of visits. On the same date, following Mr X.’s request for an authorisation (“nullaosta”) for the child’s passport, the tribunal solicited the first applicant’s agreement, noting that expatriation of the minor would in any case require the tribunal’s authorisation. 52. On 25 February 2008 children’s services submitted a report stating that the child frequently reiterated her wish to stay with the mother and was showing a certain reluctance to be with the father. The report concluded that persistent pressure by the mother may lead to Parental Alienation Syndrome.", "53. On 26 February 2008 the first applicant submitted that the unavailability of the child for certain paternal visits while she was in the mother’s care was for medical reasons. 54. On 27 February 2008 Mr X. requested the suspension of the time-limits for appeal, pending friendly settlement negotiations. On the same day children’s services reported that mother-child visits should take place at the father’s house.", "It proposed a new schedule of visits, which would eventually include an overnight stay. It also included visits with the maternal extended family. 55. The following day, Mr X. pointed out that the first applicant had not been favourable to the return of the second applicant to San Marino. He alleged that she was in bad faith and reiterated that, according to The Hague Convention on the Civil Aspects of International Child Abduction (“The Hague Convention”), visits with a parent who had removed a child required special precautionary measures.", "On the same day children’s services prepared a calendar of supervised visits up to August 2008, the date of the entry into force of The Hague Convention. 7. The appeal proceedings 56. On 6 March 2008 an appeal was lodged against the interim order of 19 February 2008 before the “Giudice delle Appellazioni Civili”. Lamenting that in the absence of treaties safeguarding repatriation the child remained susceptible to removal by the mother, Mr X.’s representatives proposed a favourable calendar for visits, namely Mondays, Wednesdays and Fridays from 6.30 p.m. to 9..30 p.m., alternate Saturdays from 4.30 to 7.30 p.m. and alternate Sundays from 9 a.m. to 12 noon, plus other visits by the extended family and in due course overnight stays by the mother.", "On the same day the first applicant accepted the proposed schedules, complaining that children’s services were in practice reducing her visit times by half an hour and at times by one hour due to other engagements, but objected to the suspension of the proceedings. She further submitted one of the second applicant’s passports to the court. 57. On 17 March 2008 the first applicant appealed, complaining of procedural irregularities pertaining to the interim decree of 19 February 2008. In particular she alleged a breach of her right to defence, since she had not been represented.", "Unlike her, Mr X. had had the benefit of counsel. Moreover, there had not been adequate notification, and therefore the hearing had not been in accordance with the law. Furthermore, the substitute judge should have abstained, as he had decided another case between the same parties. 58. On 19 March 2008 Mr X. cross-appealed.", "59. On 27 March 2008 Mr X., in his cross-appeal, lodged a request for sole custody and contended that the first applicant had breached her judicial obligations, having allegedly taken the child away, and had attempted to evade San Marino jurisdiction. He emphasised that in view of Italy’s delay in accepting San Marino’s accession to The Hague Convention dated 14 December 2006, the latter had not yet entered into force between the two states. In accordance with the treaty, transfer of the minor to Italy would be unlawful. 60.", "On the same date the first applicant submitted that she was having difficulty visiting her daughter due to her working hours. On 22 April 2008 the first applicant’s psychological counsellor wrote to children’s services offering the first applicant as available for discussion and collaboration. She further requested children’s services to provide her with a copy of the educational project to be undertaken and relevant information and video clips taken in respect of the child’s supervision. On 23 April 2008 the mother again made a request for information and to see the relevant video recordings of her visits to her daughter. 61.", "On 24 April 2008 it was established that cross-examination was necessary for the purposes of the case. 62. On 30 April 2008 children’s services informed the first applicant that her request had been sent to the relevant judicial authorities, since information about minors was covered by professional secrecy. 63. In the meantime various email exchanges took place between April and June in an attempt to negotiate an agreement so that the first applicant would agree to withdraw the pending criminal charges (see below) against Mr X.", "Meetings with counsellors and a psychologist were held. 64. Following a request from the first applicant, on 6 May 2008 the Commissario della Legge ordered the urgent transmission of the file to the appeal judge. 65. On 12 May 2008 the Giudice delle Appellazioni Civili remitted Mr X.’s appeal of 27 March 2008 to the Commissario della Legge, who was competent to revise the matter and give any other determination in respect of the placement of the child.", "66. On 16 May 2008 the primo termine probatorio was opened in relation to the original appeal. Hearings and/or submissions were made on 23 October 2008, 12 and 19 March, 23 April, 18 and 13 June, 3 July and 26 October 2009 and 18 January 2010. Following the requests and the consequent submission of rogatory letters, it was established that the first applicant’s lawyer had judicial engagements in Rimini, explaining his absence from the hearing in question. 67.", "The appeal proceedings against the decision of 19 February 2008 were eventually decided on 7 March 2011 (see paragraph 137 below). 8. Judicial and non-judicial isolation in San Marino 68. On 15 April 2008 the first applicant’s representatives complained to children’s services that the child was isolated, in that she was constantly supervised. 69.", "In a report dated 22 April 2008 children’s services requested the judge to prohibit the legal representatives of the parties from attending the child’s visits. 70. On 5 June 2008 the first applicant’s lawyers made submissions in reply, highlighting the importance of re-establishing mother-child relations. On the same day Mr X. reiterated his request for temporary sole custody (see above 27 March 2008). Although not intending to travel with the child, he requested a San Marino passport for the second applicant.", "71. On 6 June 2008 the Commissario della Legge noted that revision of the decree could only take place if new events took place subsequent to the decree, in order to avoid any overlap with the appeal judgment. He further requested the parties to agree on the mother’s visiting schedule, on further cooperation for the benefit of the child, and lastly asked whether the mother agreed to the issue of a San Marino passport, which would be retained by the court together with the Italian passport, any travel having to be agreed by the parents or authorised by the court. 72. On 19 June 2008 Mr X. reiterated that the prohibition on the child’s leaving the country needed to be maintained until the entry into force of the Hague Convention.", "He further requested a definitive judgment in favour of sole custody to be executable immediately on Italian territory. 73. In the meantime, further submissions were made, together with the reports of the parents’ psychologists. 74. On 11 July 2008, in an apparently informal way, the Commissario della Legge confirmed that the child could not leave San Marino.", "75. On 15 July 2008 the Commissario della Legge nominated an expert and ordered an expert opinion (“consulenza tecnica d’ufficio” – “CTU”) in respect of: the child’s relationship with the parents, the personal characters of the parents, their ability to take on parental functions, in particular vis-a-vis granting the other parent contact with the minor, and any proposals in respect of the situation. (a) order related to video recordings 76. On 16 July 2008 the first applicant made an urgent request to be allowed to take her child to Italy before The Hague Convention entered into force, namely from 21 to 28 July 2008. She further requested the release of the information and related videotapes of mother-child meetings before the child services, and that children’s services and the San Marino hospital issue a report on the psycho-physical health of the child.", "77. Following a request by Mr X., by a decree of 17 July 2008, the Commissario della Legge noted that the second applicant’s San Marino passport had been submitted to the authorities, and requested the first applicant to submit the latter’s Italian passport. It further held that the decree of 19 February 2008 fell within the competence of the Giudice delle Appellazioni Civili. It then held that the CTU’s opinion was required to define an educational project and the advice of children’s services was necessary to determine the suitability of any permanent visiting schedule between the mother and child. It refused the pending request for the video recordings of their visits, on the basis that they had no right to such materials, children’s services acting as an assistant to the judge in this connection and not as a court expert.", "(b) Continued isolation 78. On 22 July 2008 the first applicant contacted children’s services to inform them as regards her availability to discuss the forthcoming holiday calendar. The following day a new calendar of visits, together with a short report, was submitted to the judge by children’s services. 79. On 23 July 2008 children’s services presented another report in respect of the request relating to the period of 19 to 28 July 2008, during which the first applicant would have been on leave.", "They suggested daily visits from Tuesday 22 to Monday 28 July 2008, ranging from two to six hours per day, including hour-long visits with the extended family. 80. Following a request by the mother, on 24 July 2008 the CTU requested children’s services to issue instructions for the period after 28 July 2008. 81. On 29 July 2008 children’s services drafted a new calendar of visits, ranging from three to six hours per day (no visit on Saturday), until Sunday 3 August.", "The latter was acknowledged by the judge. 82. On 1 August 2008 the first applicant’s submissions included a request for a continuous period of mother-child care to allow her to take the child on holiday, after she had been confined to San Marino for nearly six months. On the same day the Commissario della Legge, noting that children’s services had not had enough time to deal with all the requests in view of their dates of submission and that the first applicant had for the third time altered the dates of her leave, ordered an immediate reply to the pending, urgent request for the extended period of the child’s placement with the mother from 9 to 17 August 2008. 9.", "Release and period of agreement 83. By emails dated 1 July 2008 the first applicant requested children’s service to allow a more flexible calendar of visits. On 8 August 2008 children’s services issued a new calendar for the relevant period, only allowing one overnight visit and permitting most of the remaining visits to take place outside San Marino, but they had to be in the presence of the father. It suggested that changes should be made gradually. The latter was acknowledged by the judge.", "84. Following the mother’s objection, on 12 August 2008 the previous arrangement was reiterated by the judge. 85. On 18 August 2008 Mr X. gave his consent for an extended visit between mother and child. On the same date the Commissario della Legge asked for a report from children’s services on the development of the visits in the preceding week, and for a new calendar to be issued.", "86. On 19 August 2008 children’s services reported that the visits had been regular, organised and fruitful. The child was happy to spend time with the mother and it was clear that she needed to be by the side of both parents. They issued a new calendar of visits, suggesting entire alternate weekends with each parent, with weekend intervals when each parent had the child for one day, together with overnight stays during the week at her mother’s home. 87.", "By a decree of the same date the Commissario della Legge confirmed that, the disputes having been resolved, the visits should remain in accordance with the children’s services report of the same day. Moreover, since Mr X. was able to visit the child in Italy, prohibition on the parents’ taking the child outside the country remained valid only in respect of States other than Italy and San Marino. 10. Insight into medical conditions during the continuation of proceedings 88. By an order of 12 September 2008, a substitute judge for the Commissario della Legge held that the frequency of visits with the minor would be in accordance with the agreed specific indications submitted.", "89. On 16 September 2008 the CTU met the parents’ technical counsellors (“CTPs”). 90. On 23 October 2008 Mr X. submitted that he was the subject of ongoing criminal proceedings in Italy (see below) and reiterated that the first applicant had not submitted the second applicant’s Italian passport. 91.", "On 30 November 2008 psychological reports on both parents were drawn up. The report about the mother which, inter alia, mentioned depressive and impulsive attitudes, appeared less favourable than that of the father, although it appeared from the reports that Mr X. was immature. 92. Following further submissions, by a decree of 19 December 2008, the Commissario della Legge acknowledged that the second applicant would spend the week of 24 December to the morning of 31 December 2008 with the father and from the afternoon of 31 December 2008 to 7 January 2009 with the mother. Travel details had to be exchanged between the parents and the child had to be visited by a doctor to confirm that she was in good health and to determine whether there were any contraindications to her travelling.", "He further authorised the father to travel with the child during the relevant period and allowed the release of the passport. 93. According to a children’s services report of 20 December 2008, the second applicant was having difficulty adjusting to (her parents’) two different environments. 94. Negotiations between the parents continued: however, the first applicant refused to drop the pending criminal charges against Mr X.", "95. On 22 December 2008, Mr X. requested to stop paying maintenance, stating that each parent should be financially responsible for the child for the period in which she was with them. 96. On 2 and 12 February 2009 the Commissario della Legge, confirmed the qualifications of the first applicant’s CTP. On 24 February 2009 a meeting with the parties’ CTPs took place.", "97. A children’s services report dated 25 February 2009 found that the second applicant’s character had deteriorated compared to the previous year. She was less tranquil, naughtier and at times mischievous. She appeared to be more loyal to the mother and had difficulty in facing up to the conflict between her parents. Although the child had a good relationship with the father, she also showed hostility towards him which appeared to have been induced by the mother.", "If such psychological pressure persisted there existed the risk of Parental Alienation Syndrome. 98. Upon request, on 6 March 2009 the Commissario della Legge granted an extension to the relevant expert. 99. On 17 March 2009 the Commissario della Legge postponed a decision in respect of maintenance and ordered both parties to submit the second applicant’s passport, reiterating the prohibition on the child’s expatriation.", "100. On 20 March 2009 the parties’ experts submitted their report. 101. On 30 March 2009 the CTU finalised the report which had been commissioned on 15 July 2008 (see above). The report was a result of various meetings with the parties which had been recorded.", "The report concluded that there were no particular problems with the parent’s diverse personalities or with their relationship with their child. However, it established that Mr X. was more aware of the second applicant’s need to have adequate time with both parents, and was thus more likely to allow regular contact with the child by the mother, always under strict supervision by children’s services. Moreover, the mother’s intention of persisting with criminal proceedings against the father did not strike a note in her favour. It suggested psychological therapy to resolve the existing conflict and to allow them to fully assume their roles as parents. 102.", "On 16 April 2009 the first applicant made a request before the Commissario della legge for copies of the recordings of the meetings attached to the CTU’s report. 103. On 23 April 2009 the same request was made by Mr X., who further requested copies of all relevant communications mentioned in the report, between the parties, their experts, the lawyers and children’s services. 104. On the same day the court ordered those recordings and communications to be provided to the parties, subject to the payment of costs by those parties.", "105. Following Mr X.’s request of 30 April 2009 to order a new report by children’s services, in view of the psychological pressure to which the second applicant was being subjected by her mother, the Commissario della legge ordered the said report on 4 May 2009. 106. On 14 May 2009 further submissions were made by the mother, together with a report regarding the second applicant drawn up by the first applicant’s CTP. It was reported that the second applicant’s situation was stress-related; because of her young age she needed and wanted the presence of her mother.", "She was therefore suffering as a result of the mother’s absence, and constant requests for the child to be removed from her mother could only worsen the child’s situation. It was in favour of requesting specialised medical advice for the child. 107. On 18 May 2009 children’s services submitted a report indicating that the child’s psychological condition was deteriorating, that she was refusing to take part in games representing the family, and that she had become more isolated at school. Moreover, the child had developed a tic and frequent belching, probably due to anxiety.", "108. On the same day and on 25 May 2009 respectively, the first applicant requested the court to allow a specialised doctor to diagnose the child and to prescribe treatment, as well as a neuropsychiatric examination. 109. On 27 May 2009 and 1 June 2009 Mr X.’s expert submitted his report. 110.", "On 5 June 2009 Mr X. objected to the first applicant’s requests. On the same day the Commissario della legge held, noting that Mr X. had suggested that another doctor (Mr C.) should conduct therapy with his daughter, that she was being carefully monitored by reliable experts from children’s services, and that any psychological diagnosis should be included in the treatment already in place, which should be continued. 111. On 22 July 2009 the Commissario della legge held that the psychotherapy was to be conducted by Mr C., who should also verify whether the child was experiencing any discomfort. 112.", "On 5 August 2009 the court acknowledged two experts on behalf of Mr X. and authorised them to assist in the drawing up of the reports. 113. On 14 September 2009 Mr C. accepted his appointment. 114. Following further submissions, and the first applicant’s complaints about Mr X.’s absences, on 24 November 2009 the Commissario della legge held that, when one of the parents could not take care of the child, it was for the other parent to so do and not the grandparents, and that the parents should collaborate when taking decisions regarding the minor.", "115. On 2 February 2010 further reports were requested from the CTU. 116. Proceedings were still under way on the date of communication of the present application to the respondent Government. B.", "Parallel proceedings 1. Proceedings instituted by the first applicant before the Bologna Juvenile Tribunal 117. By an application of 1 August 2007, the first applicant requested the Juvenile Tribunal of Bologna to intervene in the custody proceedings in favour of sole custody of the mother. 118. On 10 August 2007 the Public Prosecutor’s Office advised against this action for lack of Italian jurisdiction.", "On 23 October 2007 the first applicant made a request for urgent measures. 119. By a decree of 29 October 2007, the Juvenile Tribunal suspended proceedings in view of the fact that proceedings were pending in San Marino. 2. Proceedings instituted by the father before the Bologna Juvenile Tribunal 120.", "It appears that in 2008 Mr X. requested the Juvenile Tribunal of Bologna to return the child to San Marino. The first applicant was not informed of these proceedings. On 14 March 2008 the Public Prosecutor’s Office advised the court to refuse the request. 121. By a decree of 6 June 2008, the Juvenile Tribunal refused the request to return the child to San Marino.", "It noted that, as Italy had not yet accepted San Marino’s adhesion to the Hague Convention that Convention could not apply to the present case. 3. Criminal Proceedings against the first applicant in San Marino 122. Mr X. pressed charges against the first applicant on 4 September 2007, for failure to make the child available for one of his visits. On 4 December 2007 it was considered that these proceedings should be archived since relevant certificates proving the child’s illness at the time were submitted.", "The following day the case was archived by the Procuratore del Fisco (Attorney General). On 6 December 2007 the case was archived by the Commissario della Legge. 4. Criminal proceedings against Mr X. in San Marino 123. On 19 February 2008 the first applicant pressed charges against Mr X., with the Gendarmeria di San Marino, for international kidnapping.", "124. Following the first applicant’s testimony, on 29 May 2009 the Commissario della Legge held that there had not been the prerequisites for the accusation. Mr X. had not had the intention to kidnap the child. He could not be held responsible since he had only planned to take the child on a short holiday, which in some way or other could be said to have been agreed to by children’s services, in order to allow the father to recover the unilaterally impeded and therefore lost visits. The case was therefore sent for an opinion to the Procuratore del Fisco.", "With the latter’s agreement, on 10 June 2009 the Commissario della Legge ordered that the case be archived. 5. Criminal proceedings against Mr X. in Italy 125. On 10 May 2008 the first applicant pressed charges against Mr X. with the Rimini police headquarters for international kidnapping. 126.", "On 23 February 2009 the Commissario della Legge ordered the judicial police of San Marino to carry out the identification of Mr X. 127. By a summons of 19 July 2010 Mr X was informed that he was being indicted and that the trial would start on 24 October 2011. 6. Consular requests 128.", "Consular visits with the parties concerned were only successful in respect of the first applicant. Meanwhile diplomatic attempts by the Italian Government, seeking an adequate solution from the San Marino authorities, remained unfruitful. C. The continuation of proceedings following communication of the application to the respondent Government. 129. Following notification of the pending application before the Court by the Government Agent, on 26 July 2010, by reason of the inferences as to the impartiality of the relevant judge in the application pending before the Court, the Commissario della Legge hearing the ordinary custody and contact proceedings withdrew.", "130. Proceedings continued under a new judge appointed by the former judge. According to the applicants, this choice had been arbitrary, as the new judge, who did not usually practise in the civil sphere, was a professor at the same university as the former judge and X’s legal counsel. This choice highlighted the former judge’s partiality. 131.", "Submissions were made regarding several issues, inter alia the child’s presence at Mr X.’s wedding, schooling, exclusive custody, and urgent measures related to the child’s medical needs. Where necessary, decrees were delivered upon the information submitted by the parties, the experts and children’s services. 132. Subsequently, on 13 September 2010 an updated CTU was submitted. The CTU acknowledged that his initial conclusions (of July 2008) had to be altered, having regard to the application lodged before the Court by the first applicant; as such the action reflected her contradictory behaviour.", "After hearing the parties he concluded that the second applicant should be placed with the father for the coming school year, that schooling should be in San Marino and that the mother should maintain her previously established visiting rights. The same was confirmed by a children’s services report. 133. On 20 September 2010, following an adjournment because Mr X. was still on honeymoon, the first applicant made further submissions, focusing on the protection of her rights under Article 8 of the Convention. She submitted a favourable report by her CTP and requested that i) the child be placed with her, ii) the child be put into the Rimini elementary school, iii) a neuropsychiatric report be drawn up by the Rimini hospital iv) monitoring of visits be withdrawn, or in the alternative that San Marino children’s services be replaced by neuropsychiatric services or that the psychologist be replaced.", "134. Having heard all the relevant parties and submissions the Commissario della Legge delivered its decision on 21 September 2010. Noting the high level of conflict persisting between the parties and their representatives, it considered that the decision must be temporary and subject to further change. It ordered joint custody, that the child be schooled in San Marino, that she be placed with the father during the week and with the mother at weekends, that Christmas and Easter festivities would be spent with the mother with the exception of Christmas Eve, Epiphany and the weekend after, which would be spent with the father, and that the parents continue to follow psychotherapy for another twelve months. It further ordered children’s services to continue monitoring the child’s progress, the expert to submit information about the child-parent relationship, particularly in view of the father’s remarriage, and any relevant medical needs.", "135. Feeling aggrieved by the comments in the above-mentioned decision in relation to the parties’ representatives, legal counsel for the first applicant gave up their mandate. Proceedings are still pending and the first applicant has no longer been represented during these proceedings. 136. Meanwhile, the appeal proceedings against the decision of 19 February 2008 continued and were decided on 7 March 2011.", "137. The Giudice per le Appellazioni Civili rejected the first applicant’s appeal. The court considered that Article 6 of the Convention had detailed provisions regarding criminal proceedings, but nothing in relation to civil proceedings. Thus, it was a matter subject solely to ordinary law. That being stated, he considered that in the instant case there had not been a breach of the right to defence or to the right to cross-examination (contraddittorio).", "Indeed, the first applicant had originally been represented at the opening of the hearing, thus, the prerequisites existed to hear the case and to cross-examine. It was only following the rejection of the request for an adjournment that the first applicant’s co-lawyer forfeited her mandate. Moreover, when the latter forfeited her mandate she was not forfeiting her colleague’s mandate, who therefore remained counsel to the applicant. The court further noted that there existed no law recognising a right to defer a case. The decision in relation to the existence of a legitimate impairment was subject to the judge’s discretion after hearing the relevant arguments.", "In the present case, the results of the investigation and rogatory enquiry with the Rimini Tribunal could not lead to the existence either of a legitimate impediment or of an ex post one. The Commissario della Legge had according to his prerogatives considered it opportune to decide the case speedily in view of the urgency and gravity of the matter. Indeed, it shared the view that, there not being any legal and binding procedural requirements in this respect, in the urgent circumstances of the case the decision could have been taken even in the absence of one of the parties (audi alteram partem). Moreover, the appeal judge considered perplexing the fact that the first applicant was contesting a situation she had created herself. Lastly, as to the impartiality complaint, the first applicant had not challenged or requested the withdrawal of the Commissario della Legge at the relevant time.", "II. RELEVANT DOMESTIC LAW A. The 1980 Hague Convention on the Civil Aspects of International Child Abduction “the Hague Convention” 138. The preamble of the Convention includes the following statement as to its purpose: “ ...to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, ...” 139. The object of such a return is that, following the restoration of the status quo ante, the conflict between the custodian and the person who has removed or retained the child can be resolved in the State where the child is habitually resident.", "140. Article 3 of the Convention reads as follows: “The removal or the retention of a child is to be considered wrongful where (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or the retention; and (b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. ...” B. Law of 17 June 2008 amending criminal procedure 141. Section 7 (1) of the law of 17 June 2008 amending criminal procedure “the Criminal Procedure Act”) provided that an order that the case be archived must promptly be notified to the Attorney General (procuratore del fisco), the person charged, the victim, and the person who had pressed the charges.", "It must further be communicated to the executive magistrate (“magistrato dirigente”). An appeal can be lodged against such an order, by the person charged or the victim, within thirty days of its notification. The appeal shall be lodged with the Giudice delle Appellazioni Civili, who must be a different judge than the one who originally decided the merits of the cause. He or she should deliver a reasoned decision within thirty days. An order upholding the appeal application must require the investigation stage to be reopened and the magistrato dirigente must assign the case file to a new investigating judge.", "142. Its section 10 regarding transitional measures provided that this law was applicable to all criminal proceedings in which notice of the crime had reached the inquiring magistrate at a date following its entry into force. The law did not apply to proceedings pending at the date of its entry into force if they were published and archived within the following nine months of its entry into force. THE LAW I. PRELIMINARY OBJECTIONS The Government’s preliminary objection regarding the first applicant’s standing also to act on her child’s behalf 1.", "The parties submissions 143. The Government submitted that the second applicant did not have standing to act in the proceedings given her young age. In order to act on behalf of her child, the first applicant should have obtained the father’s authorisation and/or that of the judge (giudice tutelare), but she had not done so. Awarding her that status could create a conflict situation in that even her father could lodge an application before the Court on her behalf. Moreover, certain aspects of her complaints, such as those relating to procedural aspects of the proceedings, could clearly have no effect on the second applicant, as she was not a party to the domestic proceedings.", "144. Referring to the court’s case-law, the applicants submitted that the second applicant had locus standi. This was even clearer, considering that the first applicant was not only the biological mother, but also had joint custody of the child and enjoyed parental rights. 2. The third-party Government 145.", "The Italian Government submitted that the second applicant had full locus standi in the proceedings, on the basis of the Court’s case-law regarding representation by parents, particularly when the representing parent is in conflict with the authorities and is contesting their decisions in the light of the Convention provisions. 3. The Court’s assessment 146. The Court points out that in principle a person who is not entitled under domestic law to represent another may nevertheless, in certain circumstances, act before the Court in the name of the other person. In particular, minors can apply to the Court even, or indeed especially, if they are represented by a mother who is in conflict with the authorities and who criticises their decisions and conduct as not consistent with the rights guaranteed by the Convention.", "In the event of a conflict over a minor’s interests between a natural parent and a person appointed by the authorities to act as the child’s guardian, there is a danger that some of those interests will never be brought to the Court’s attention and that the minor will be deprived of effective protection of his or her rights under the Convention. Consequently, even where a mother has been deprived of parental rights - and indeed that is one of the causes of the dispute which she has referred to the Court - her standing as the natural mother suffices to afford her the necessary power to apply to the Court on the child’s behalf, too, in order to protect his or her interests. Moreover, the conditions governing individual applications are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 34 of the Convention and, whilst those purposes may sometimes be analogous, they need not always be so (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, §§ 138-39, ECHR 2000‑VIII).", "147. The Court accordingly concludes that the first applicant, the natural mother who still has parental rights, the exercise/limitations of which she is disputing before the Court, has standing to act on behalf of her child, and therefore the Government’s preliminary objection must be dismissed. II. ALLEGED VIOLATION OF ARTICLES 8 AND 6 OF THE CONVENTION 148. The applicants complained under Article 8 about the custody proceedings, in particular about the order of 19 February 2008, and in general about the restrictions imposed on the applicants’ visits.", "Under Article 6 they complained that the hearing leading to the latter decision had been unfair, and about the length of the entire proceedings. The relevant Articles, in so far as relevant, read as follows: Article 8 “1. Everyone has the right to respect for his ... family life ... 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.” Article 6 “In the determination of his civil rights and obligations ... everyone is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law.” 149. The Government contested that argument.", "150. The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998‑I). While Article 6 affords a procedural safeguard, namely the “right to court” in the determination of one’s “civil rights and obligations”, Article 8 serves the wider purpose of ensuring proper respect for, inter alia, family life. In this light, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see Iosub Caras v. Romania, no. 7198/04, § 48, 27 July 2006, and Moretti and Benedetti v. Italy, no.", "16318/07, § 27, ECHR 2010‑... (extracts)). 151. In the instant case the Court considers that the complaint raised by the applicants under Article 6 is closely linked to their complaint under Article 8, and may accordingly be examined as part of the latter complaint. A. Admissibility 152. The Government originally objected that the complaint against the decision of 19 February 2008 was inadmissible for non-exhaustion of domestic remedies since the appeal against that decision was still pending.", "However, pending these proceedings, the Government informed the Court that the proceedings had ended. 153. In this light the Court considers that the objection has been withdrawn, or in any event that it is to be dismissed. The Court notes that the 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 parties’ and third parties’ submissions (a) The applicants’ submissions 154. The applicants complained that they had suffered a breach of their rights under Articles 8 and 6 and of the Convention, in particular in view of the decree of 19 February 2008, where the first applicant had not been duly represented and in which the judge had based his decision solely on statements by children’s services and the father, notwithstanding the latter’s abduction of the minor.", "As a result, the restrictions imposed on the first applicant, together with the six-month period of isolation in San Marino, were contrary to Article 8 and the entire proceedings were unreasonably lengthy, more than four years, and that no final decision had yet been taken, contrary to Article 6. 155. In the applicants’ view, the judicial authorities and children’s services were biased, as it appeared from, for example, social services’ foregone conclusion that the second applicant would have resided in San Marino (paragraph 19 above), the decision of 18 December 2006, in favour of Mr X., containing an erroneous interpretation of a previously crystal-clear order (paragraph 15 above) and the decision of 19 February 2008 which had been arbitrary and discriminatory. They considered it inconceivable that an abduction planned with children’s services would have been endorsed by the judge. Similarly, the restrictions placed on the mother on the basis of her alleged intention of removing the child were unfounded, as the first applicant had shown reasons, by means of the relevant certification, why the child could not attend certain visits with Mr X.", "As a result of the impugned decision which found for joint custody, the first applicant could only see her daughter for a few hours (up to 11 August 2008), having every time to make a trip to San Marino from Italy, and unlike the father she was not able to take the child on holiday for a few days. 156. The applicants explained that during the domestic proceedings the first applicant was represented by two lawyers, only one of whom was familiar with the meeting with children’s services and the party’s experts, while the other representative had withdrawn. They submitted that, bearing in mind the issue of the child’s abduction and other evidence which came to light only after the date of the hearing had been fixed, of which the judge was made aware, it was crucial to have her lawyer present at that hearing. In the absence of that lawyer, the judge should at least have appointed a lawyer to represent her.", "Thus, the decision in question had been given in breach of the adversarial principle. 157. As to children’s services the applicants submitted that the person responsible for their case file only had a degree in pedagogy and not in psychology, thus could not sign in that capacity, and could not properly assess the child’s medical condition. Moreover, children’s services had not acted in such a way as to foster joint parenting, and had repeatedly refused the first applicant’s expert access to relevant documents and video recordings of meetings with the child. It followed that the domestic court did not exercise any supervision of the work of children’s services in that respect.", "Another supposedly independent expert, the psychologist in charge of monitoring the meetings held at X.’s house, was the psychologist of a committee with which relatives of X. were involved. They further submitted that their expert, a psychological consultant for the Council of the Order of Psychologists of San Marino (“the Order”), had not been in accordance with the reports drawn up by children’s services, which, in her view, had not been supported by scientific evidence. In this respect the expert complained to the Order, in particular about the procedures used by children’s services, the lack of training, their omissions and lack of co-operation. 158. Lastly, the applicants submitted that the authorities’ actions following the lodging of the application with the European Court of Human Rights had been inappropriate.", "The applicants contended that following the introduction of their case before the Court, the judge in charge of the domestic proceedings had refused to continue to hear the case. She had however appointed another judge, an action which in the applicants’ view was not consonant with her refusal to hear the case. Indeed, the unusual choice of the judge who would have been her successor in hearing the case raised doubts as to his impartiality. They noted that once they became aware of the application to the court, the CTU’s reports had been altered in their disfavour, and the content of the subsequent decrees had tastelessly made reference to the same. (b) The Government’s submissions 159.", "The Government submitted that the impugned decision of 19 February 2008, granting joint custody and holding that the second applicant should live with the father, was based on the fact that, as appeared from the expert evidence submitted by children’s services, there was a high level of conflict between the parents and the mother was reluctant to allow contact with the father. The Government pointed out that in June 2007 the mother had taken the child to Italy, notwithstanding the decision of 17 April 2007, which held that the child should remain in San Marino (see paragraph 22 above), and from 2007 the first applicant had repeatedly refused to allow contact with the father, contrary to the decree of 25 June 2007 (paragraph 29 above). Thus, the impugned decision had been taken in the best interest of the child, having considered that the father was the parent who would have allowed contact with the other parent. The court’s conclusion had been based on the objective findings by children’s services following their monitoring of the parent-child relationships, which repeatedly found that the mother was hindering the child’s contact with the father, to the extent that in 2009 they feared the second applicant was suffering from Parental Alienation Syndrome (paragraph 97 above). 160.", "As to the child services, the Government submitted that according to law their function included providing residential care services (assistenza domiciliare) in all cases where there existed difficulties in parent-child relationships. They were judge auxiliaries/assistants, representing the institutional instrument allowing the court to acquire all the necessary elements to correctly evaluate any decision related to custody and adoption. Children’s services, as public employees, were subject to Public Employment Law and to supervision by the Social Security Institute. Failure to abide by the duties imposed could lead to disciplinary sanctions as imposed by law through the Disciplinary Board. Children’s services personnel were qualified individuals, with degrees in psychology and/or pedagogy with a two year specialisation course in Psychology or with at least five years’ service in the health sector, who have been successful in a public competition and whose profession therefore guaranteed their independence and impartiality.", "Moreover, such qualities had often been confirmed by L.C., a court expert, whose authority in child therapy was indisputable. In reply to the third-party intervener, the Government considered that the dual role carried out by children’s services was functional, enabling parents to reach agreements in the best interest of the child. Thus, the claims in that connection were completely unfounded and unsubstantiated. 161. The Government highlighted that the applicant had exercised all her contact rights punctually as ordered by the impugned decree, within the agreed arrangements, irrespective of her reluctance to allow contact with the father.", "Any cautionary measures adopted, such as the presence of the psychologist or children’s services, had been deemed necessary to avoid any risk of child removal, bearing in mind the first applicant’s prior behaviour. Such measures were in accordance with the Hague Convention on the Civil Aspects of International Child Abduction. 162. The Government further submitted that the proceedings leading to the decree had been duly notified and conducted in the presence of both parties, who were allowed to make all the relevant submissions, and the fact that one of the applicant’s lawyers was not able to attend was irrelevant. They further noted that one of her lawyers, who had previously relinquished his mandate, had been reinstated.", "The lack of organisation of the first applicant’s defence could not weigh against the judge’s decision to proceed with urgency, as had been requested by the first applicant. 163. As to the alleged impartiality of the judge, the Government submitted that notification of the application to the domestic judge and the attachment of the documents to the domestic case file served the purposes of a procedure for the abstention of the judge from the case. The judge appointed subsequently was an administrative judge, who in terms of law could also be assigned to civil cases, as also confirmed by the decision of the executive magistrate (“magistrato dirigente”) of 1 December 2010. His impartiality was crystal clear, as could be seen from the fact that he even increased the time period during which the minor was to be placed with the mother.", "Moreover, according to the Government, no argument could be made in relation to the father’s alleged kidnapping, since this issue did not appear from the children’s services reports or any judicial decisions. Moreover, they insisted that the father had not abducted the child but was simply on holiday with her. (c) The third-party Government’s submissions 164. The Italian Government firstly noted that Mr X.’s behaviour amounted to kidnapping, in so far as his action to take away the child and not return her to her mother according to stipulated conditions had not been authorised by a judge. They further submitted that the allegation that the first applicant had attempted to kidnap the child was not substantiated, as it was clear from the decree of 25 June 2007 (see paragraph 28 above) that the applicants were authorised to reside in Rimini, Italy.", "In consequence, it could not be acceptable that the first applicant’s contact rights were hindered by the application of the Hague Convention conditions, which did not apply to the first applicant’s situation. Moreover, when Mr X. started requesting that these conditions apply (February 2008) the Hague Convention was not yet applicable to issues between the two states, as it had entered into force only on 1 August 2008. 165. The Italian Government considered it deplorable that the hearing leading to the impugned decision had taken place without legal representation for the first applicant, and that the refusal of the judge to grant an adjournment for this purpose raised issues as to the fairness of the proceedings under Article 6 § 1. They reiterated that the domestic jurisdictions had to make a detailed examination of the family’s situation and take into consideration other elements, such as the emotional, psychological, material and medical needs of the child, as well as undertaking an overall assessment of the balance between competing interests, bearing in mind the best interests of the child.", "In their view a violation of Article 6 § 1 persisted, in that after nearly three years the appeal proceedings against the impugned decision had not yet been terminated. This delay was not understandable in view of the delicate situation, the best interest of the child and her rights under Article 8. Moreover, the Italian Government were of the view that the deterioration in the second applicant’s health from 2009 onwards could have been due to incompetence on the part of children’s services, as evidenced by the Associazione Pro Bimbi’s submissions (see below). They therefore requested the Court to examine the role played by children’s services in so far as they appeared to have put aside the interests of the child in favour of those of the father. 166.", "Lastly, they considered that the first applicant must have suffered distress at seeing her child being moved from one place of residence to another. However, her good faith towards Mr X. had been evident even by her recent agreement to allow the child to attend Mr X.’s wedding. The Italian Government considered that a joint custody regime should have been accompanied by a decision to have the child reside with the mother, which according to child psychology studies was a fundamental period in children of such a young age. Moreover, bearing in mind that it appeared that the second applicant was often left in the care of her paternal grandparents, the Government had trouble understanding the choice of the San Marino authorities to order residence with the father. 167.", "In the light of the circumstances of the case the Italian Government was of the view that the San Marino Government had violated the applicant’s rights under Article 8 in conjunction with Article 6. (d) The third-party intervener’s submissions 168. The Associazione Pro Bimbi provides, through its activities, support for parenting and the well-being of minors. It receives support from, inter alia, the Ministries of Public Instruction, Health, Justice, and Foreign Affairs. They submitted that in 2009 they had received a number of requests from separated parents in respect of their loss of parental rights and/or joint custody.", "Some of these cases had turned out to be extremely alarming from the point of view of the right to joint parenting and regular contact rights. These complaints mainly concerned children’s services. During the association’s discussions on child custody, strong criticisms of children’s services were voiced by parents, in particular in respect of their lack of qualifications and ineffective support for parents. Many spoke about their distressing experiences in trying to see their children, particularly in cases of parents with dual nationality, who publicly complained that they had faced discriminatory treatment from the services. The association therefore invited children’s services and the Council of the Order of Psychologists of San Marino (“the Council”) to attend subsequent sessions.", "Unlike the Council, children’s services did not send any representatives. The Council’s representative, in reply to questions set, confirmed that in San Marino it sufficed to have a degree in pedagogy without a further professional qualification to be employed by children’s services. Moreover, they were not subject to monitoring by the Council and were not bound by a code of conduct. 169. The association further cited a letter from children’s services in which they acknowledged that, with a total of only seven staff members and a lack of resources and funding, they were not in a position to carry out effectively their role of support for judges and protection of minors of 150 families, of whom fifty were cases of high-conflict separations which were often hard to mediate.", "The association also considered that it was anomalous for the staff of children’s services to assume conflicting roles, namely the function of public officials reporting to judges and also as mediators providing support for families and children. Concerned about the above matter, the association had sent letters to the head of the Institute for Social Security, who was in charge of children’s services. The latter responded that a commission of enquiry would be set up and investigations carried out. Up to the date of submissions no response had been received. 2.", "The Court’s assessment (a) General principles 170. The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life even when the relationship between the parents has broken down (see Keegan v. Ireland, 26 May 1994, § 50, Series A no. 290). Family life in the Contracting States encompasses a broad range of parental rights and responsibilities in regard to care and custody of minor children. The care and upbringing of children normally and necessarily require that the parents or an only parent decide where the child must reside and also impose, or authorise others to impose, various restrictions on the child’s liberty.", "Thus, the children in a school or other educational or recreational institution must abide by certain rules which limit their freedom of movement and their liberty in other respects. Likewise a child may have to be hospitalised for medical treatment. Family life in this sense, and especially the rights of parents to exercise parental authority over their children, having due regard to their corresponding parental responsibilities, is recognised and protected by the Convention, in particular by Article 8 (see Nielsen v. Denmark, 28 November 1988, § 61, Series A no. 144). 171.", "Domestic measures hindering enjoyment of family life such as a decision granting custody over children to a parent constitutes an interference with the right to respect for family life (see, for example, Hoffmann v. Austria, judgment of 23 June 1993, Series A no. 255-C, p. 58, § 29, and Palau-Martinez v. France, no. 64927/01, § 30, ECHR 2003-XII). 172. Any such interference constitutes a violation of this Article unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 and can be regarded as “necessary in a democratic society”.", "Necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see W. v. the United Kingdom, 8 July 1987, § 60, Series A no. 121.) 173. Although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective “respect” for family life. These obligations may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights and the implementation, where appropriate, of specific steps (see Zawadka v. Poland, no.", "48542/99, § 53, 23 June 2005). The Court has repeatedly held that Article 8 includes a right for parents to have measures taken with a view to their being reunited with their children, and an obligation on the national authorities to take such measures. This also applies to cases where contact and residence disputes concerning children arise between parents (see Kosmopoulou v. Greece, no. 60457/00, § 44, 5 February 2004). 174.", "In both the negative and positive contexts, regard must be had to the fair balance which has to be struck between the competing interests of the individual and the community, including other concerned third parties, and the State’s margin of appreciation (see W. v. the United Kingdom, cited above, § 59, and Keegan, cited above, § 49). 175. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Thus, the Court recognises that the authorities enjoy a wide margin of appreciation when deciding on custody (see, inter alia, C. v. Finland, no. 18249/02, § 53, 9 May 2006 and Wildgruber v. Germany, (dec.) nos.", "42402/05 and 42423/05, 29 January 2008). However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of contact, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child would be effectively curtailed (see T.P. and K.M. v. the United Kingdom [GC], no.", "28945/95, § 71, ECHR 2001‑V (extracts). 176. Where the measures in issue concern parental disputes over their children, it is not for the Court to substitute itself for the competent domestic authorities in regulating contact and residence disputes, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance (see Zawadka, cited above, § 54, and Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299-A).", "Moreover, lack of cooperation between separated parents is not a circumstance which can by itself exempt the authorities from their positive obligations under Article 8. It rather imposes on the authorities an obligation to take measures to reconcile the conflicting interests of the parties, keeping in mind the paramount interests of the child (see Zawadka, cited above, § 67) which, depending on their nature and seriousness, may override those of the parent (see Hoppe v. Germany, no. 28422/95, § 49, 5 December 2002). 177. Article 8 contains no explicit procedural requirements, but this is not conclusive of the matter.", "The local authority’s decision-making process clearly cannot be devoid of influence on the substance of the decision, notably by ensuring that it is based on relevant considerations and is not one-sided, and hence neither is, nor appears to be, arbitrary. Accordingly, the Court is entitled to have regard to that process to determine whether it has been conducted in a manner that, in all the circumstances, is fair and affords due respect to the interests protected by Article 8. What has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Article 8 (see W. v. the United Kingdom, cited above, § 62 and 64 in fine). In conducting its review in the context of Article 8 the Court may also have regard to the length of the local authority’s decision-making process and of any related judicial proceedings.", "An effective respect for family life requires that future relations between parent and child be determined solely in the light of all relevant considerations and not by the mere passage of time (ibid., § 65; see also H. v. the United Kingdom, 8 July 1987, § 90, Series A no. 120). 178. It is of paramount importance for parents always to be placed in a position enabling them to put forward all arguments in favour of obtaining contact with the child and to have access to all relevant information which is at the disposal of the domestic courts (see Sahin v. Germany [GC], no. 30943/96, § 71, 8 July 2003, and Kosmopoulou, cited above, § 49).", "It is, moreover, for the authorities to show that there are compelling reasons for refusing a data subject’s request to be provided with a copy of their personal data files (see Tsourlakis v. Greece, no. 50796/07, § 44, 15 October 2009). (b) Application of the above principles to the present case 179. In the present case the Court notes that in December 2006 the competent national courts granted sole custody of the child to the first applicant. Six months later, in June 2007 the domestic court ordered joint custody and that the child should live and attend school for the following school year in Rimini, Italy, where she had established herself with the mother.", "However, by an order of 21 September 2007 the domestic courts decided that the second applicant should reside in San Marino, as Mr X. had the right to easy and unsupervised contact with his child. On 12 November 2007 joint custody was upheld as being in the best interest of the child. By a decision of 19 February 2008, the court, again upheld joint custody and ordered the child to be returned to San Marino to live with her father and to attend school there. This decision was confirmed on appeal three years later. In the meantime a number of orders had been issued on the matter, upholding joint custody and residence with the father, in San Marino.", "180. The Court observes that from 2007 onwards, the first applicant’s rights had diminished from full custody, to a right to supervised contact, to be held in San Marino, of nearly two hours per day. Subsequently, contact hours changed to three hours on alternate days, including an overnight stay, and remained subject to the same conditions up to August 2008. Following that date contact hours increased to two to six hours per day, overnight stays, and alternate weekends with the parents, up to entire weeks over the Christmas holiday period. Most of these visits were nevertheless supervised either by the father or his legal representatives, children’s services or CTU experts, who videoed the meetings.", "181. It has not been contested by the parties that the domestic decisions related to the applicants’ custody and contact rights constituted interference with the applicants’ family life which was in accordance with the law, and the Court considers that the measures pursued the legitimate aims of the protection of health or morals and/or the protection of the rights and freedoms of others, namely the child and her parents. It remains to be ascertained whether the measures were necessary in a democratic society. 182. The Court notes that in this sphere its review is not limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith.", "In exercising its supervisory jurisdiction, the Court cannot confine itself to considering the impugned decisions in isolation, but must look at them in the light of the case as a whole; it must determine whether the reasons adduced by the domestic courts were relevant and sufficient (see Olsson v. Sweden (no. 1), 24 March 1988, § 68, Series A no. 130). 183. In reviewing whether the domestic courts based their decisions on relevant grounds, the Court observes that the domestic courts persistently reiterated the best interests of the child.", "They based their decisions on a number of further considerations, such as the relationship between the parents, the inherent problems of joint custody in such cases, particularly were it transpired that one parent was, for the most part, hostile towards the other and hindered contact rights, the attitude and availability of the parents and the specific environments involved. In each of their decisions they relied on detailed and complete reports from the children’s services (see, for example, paragraphs 22, 28, 38, 50 and 77) which were drawn up following constant and specific requests by the domestic courts. These reports were a result of the constant monitoring performed by the service. From 2007 onwards the courts further had the benefits of reports by ex-parte counsellors and experts, and from 2008 onwards also reports by the CTU. Moreover, the parties had regularly made written and oral submissions before the court and were allowed to air all their requests and concerns, which the courts undoubtedly took into consideration.", "184. In this light, the Court finds it reasonable, that the courts considered it necessary - for the protection of the child’s interests - not to maintain in place a sole custody order in favour of the first applicant but to award the parents’ joint custody, neither does it appear illogical to have opted for residence with the father. It is also noted that the domestic courts did not exclude a change in regime if circumstances so required. Furthermore, the domestic courts took due care to recommend education programmes for the family and to foster the parents’ reconciliation and co-operation in the best interest of their daughter. 185.", "As to contact rights, the Court has already observed the details of the regime applied (see paragraph 180 above). It reiterates that the national authorities having the benefit of direct contact with all the persons concerned are better placed than the international judge to assess such needs. The Court considers that the measures adopted do not appear manifestly arbitrary or unfair. In consequence, it is not for the Court to enter into a detailed assessment of the most appropriate contact arrangements. It suffices for the Court to note that these rights were not denied or suppressed at any moment, the applicants having maintained constant and regular contact with each other, and the first applicant having retained joint custody over the second applicant.", "While supervision and often limitation as to the venue of contact meetings (the father’s residence), must have restricted the purpose of visits between mother and child, limiting to some extent their contact and the opportunity to develop their relationship - a matter which was in both of their interests and particularly the child’s, whose interest is paramount - the Court considers that monitoring by the child services was necessary to allow the domestic courts to make informed decisions as to custody and contact rights. Moreover, such monitoring also served to ensure the child’s well being. The Court is ready to accept that while there was no threat of violence or serious health issues (see, a contrario, Gluhaković v. Croatia, no. 21188/09, § 63, 12 April 2011) there could have been a risk of psychological abuse as evidenced by the suggestions that the child might develop Parent Alienation Syndrome, thus justifying the father’s presence at meetings. This having been said, the Court refutes the Government’s argument that such limitations were necessary as a precautionary measure against a possible abduction by the first applicant.", "The Court notes that when the first applicant moved to San Marino, she had informed the judge (see paragraph 26), similarly, when requested to submit the second applicant’s passport she did so (see paragraph 56). While she appeared to be more hesitant to submit the second passport, the Court notes that in the meantime it was Mr X. who had requested a second passport and who was allowed to travel with the child (see paragraphs 70 and 92). Moreover, it had been repeatedly stated by the courts that travel was banned unless authorised by it (see paragraphs 51, 70 and 99), a measure which in principle deterred unilateral decisions to take the child away. Furthermore, the Court notes that there is nothing in the case file which gives objective grounds for any fear of the applicants’ absconding, particularly since the first applicant’s family lived in Rimini, not far from San Marino, and indeed any mere suspicions or fears which Mr X. might have had had neither been substantiated nor confirmed by the courts. Lastly, the Court notes that the presence of the parties’ lawyers had not been court ordered, and indeed it was the children’s services that requested the court to prohibit such a practice (see paragraph 69 above).", "Thus, any discomfort caused in this respect could have easily been avoided by the parties’ good will. 186. As to the applicants’ contention that the children’s services were biased and unqualified, the Court considers that quite apart from the submissions made by the third-party intervener association, the matter remains unsubstantiated, and in any event the Court has not discerned any proof of the lack of effectiveness of such a service, particularly where, as in the present case, the proposals made by the service do not appear to be manifestly arbitrary or discriminatory. While it is true that the domestic courts have a duty to exercise constant vigilance, particularly as regards action taken by social services, to ensure the latter’s conduct does not defeat the authorities’ decisions (see Scozzari and Giunta v. Italy [GC], cited above, § 179), the Court notes that in the present case, the applicants had ample possibilities to criticise and contest the children’s services qualifications, actions and findings in the contentious proceedings, as in fact the first applicant had done in relation to the children’s services failure to facilitate her contact rights (see paragraphs 46, 48 and 56 above). Moreover, when at issue, the domestic courts considered that the children’s services were made up of reliable experts (see paragraph 110 above).", "187. The Court reiterates that, whilst Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect for the interests safeguarded by Article 8. In assessing whether the domestic courts’ reasons were also sufficient for the purposes of Article 8 § 2, the Court will notably have to determine whether the decision-making process, seen as a whole, provided the first applicant with the requisite protection of her interest. 188. The Court notes that, throughout the proceedings, the applicant, represented by counsel, had the opportunity to present her arguments in writing and orally.", "Indeed she had presented ample submissions to the domestic courts as evidenced by the voluminous documentation submitted to the Court. As to the hearing of 19 February 2008 on the merits of her and Mr X.’s requests, the Court considers that given the fact that the first applicant’s representative had been duly notified of the date of the hearing (see paragraph 43 above), that at the actual hearing she had originally been represented by co-counsel, and that she had had the opportunity to submit written pleadings, it cannot be said that her involvement had not been effective at that stage. This is more so in view of the fact that in cases concerning a person’s relationship with his or her child there is a duty to exercise exceptional diligence in view of the risk that the passage of time may result in a de facto determination of the matter. In this light, and bearing in mind that the decision of 19 February 2008 only confirmed the retention of a joint custody regime which had previously been decided (see paragraphs 28 and 38 above) the Court finds reasonable the refusal of the domestic court to adjourn the hearing. 189.", "As to the applicants’ complaint that the proceedings were unreasonably lengthy, while the Court finds reprehensible that the appeal against this decision took three years to be decided (6 March 2008 to 7 March 2011), it notes that various orders were delivered and arrangements made in the meantime, and that the first applicant’s access rights have been regularly maintained, the calendar of visits being changed regularly by agreement of the parties and the assistance of children’s services. As to the overall length of the proceedings the Court notes that the first applicant intervened in the custody and contact proceedings in December 2006 and the proceedings are to date still pending. However, it is evident from the facts of the case that there have not been any significant lapses of inactivity, or adjournments for reasons related to internal organisation (see, a contrario Veljkov v. Serbia, no. 23087/07, § 88, 19 April 2011 and Wildgruber v. Germany, nos. 42402/05 and 42423/05, § 61, 21 January 2010).", "Indeed it also transpires that the parties’ requests for urgent hearings had been immediately followed up, with the domestic courts calling on extraordinary hearings of their own motion when necessary (see, for example, paragraph 43 above). Thus, although parallel proceedings and the fact that the courts had to decide a number of ancillary matters simultaneously must have detracted from the required speediness of custody proceedings, the Court considers that overall the domestic courts appear to have dealt with the proceedings with the requisite diligence. 190. In so far as the applicant argued that she had been denied access to the proper documentation, namely that by a decision of 17 July 2008, the first applicant was denied access to the video recordings of her visits with the second applicant, the Court considers that the information contained in those recordings was pertinent to the applicants’ relationship and could have allowed the first applicant to become aware of any apparent negative points which could have influenced the judge against her and if necessary take them into account, in future, with a view to improving the relationship with her child. The only reason given by the domestic court for such a refusal was that the applicant had no right to such materials, children’s services being the judge’s auxiliary (see paragraph 77 above).", "The Court is not persuaded by this reasoning and no other compelling reasons supporting their refusal to provide the video recordings have been put forward. However, it notes that nine months later the parties’ requests for CTU recordings and all relevant documentation had been granted (see paragraph 104 above), thus, the first applicant could make use of such relevant information for the purposes of the proceedings which were still ongoing. Thus, the initial refusal cannot suffice to conclude that the State failed to comply with its positive obligations to ensure respect for the first applicant’s private and family life. 191. Lastly, as to the claims, raised in the applicants’ observations, regarding the impartiality of the relevant judges, the Court observes, as did the appeal court, that no request for the withdrawal of such judges had been made at the relevant time.", "192. Having regard to the state’s margin of appreciation in this sphere, and having considered the case as a whole, the Court is satisfied that the domestic courts’ procedural approach provided adequate material on which to reach decisions based on relevant and sufficient reasons while adequately involving the first applicant in the decision-making process. 193. It follows that there has not been a violation of Article 8 of the Convention in respect of the applicants. III.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 194. The applicants complained that they did not have an effective domestic remedy in respect of the second applicant’s abduction as a result of the tribunal’s decision to archive the case against Mr X. They relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties’ submissions 195. The applicant’s submitted that the law referred to by the Government which came into force on 1 September 2008, provided in its Article 10 of the transitional and final rules as follows –“the present law applies to all criminal proceedings for which notice of the crime reached the investigating judge in the period after the law came into force.", "The present law does not apply to cases pending on the date when it came into force if they are published and filed within the following nine months.” In the present case, the proceedings against Mr X. were filed on the last possible day, thus excluding any possibility of an appeal. 196. The Government submitted that the first applicant could have lodged an appeal before the Judge of Criminal Appeals (Giudice delle Appelazioni Penali), against the Commissario della Legge’s decision of 10 June 2009 to archive the case, which, if upheld, could order the reopening of the preliminary investigation and assign it to a different inquiring magistrate. Such an action was provided for by Article 135 of the Code of Criminal Procedure as amended in 2008 and which came into force on 1 September 2008. The latter provided the accused and the injured party with the possibility of lodging an appeal within thirty days of notification of the order that no further action would be taken.", "The Government further submitted that the transitional provisions mentioned by the applicants were not applicable to the case in question. However, even if this were so, the decision to archive the case was delivered several days after the expiration of the nine months from its entry into force. 197. The Italian Government supported the observations submitted by the San Marino Government. B.", "The Court’s assessment 198. The Court notes that the parties disagreed as to the application of the relevant law and they have not submitted any information as to the functioning of the legal amendment in practice. Nor did the Government give an explanation as to why the transitional measures did not apply to the present case. However, the Government contended that even if they had the applicants would still have been in time to appeal. 199.", "Indeed, the Court observes that the transitional provisions clearly stated that the new law, providing for a right to appeal, would not apply to cases which were archived within nine months of its coming into force. It notes that the amendment to the law came into force on 1 September 2008 and the case was archived on 10 June 2009, thus more than nine months after the entry into force of the amendment. It therefore appears that in principle an appeal was available to the applicants. In the present circumstances and in the light of the submissions on the matter, the Court considers that since the applicants failed to even attempt an appeal, it would be speculative to examine whether such a remedy would have been effective. 200.", "It follows that this part of the complaint must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 TO THE CONVENTION 201. The first applicant complained that from February to August 2008 the second applicant was not allowed to leave the State of San Marino, contrary to Article 2 of Protocol No.", "4, which reads as follows: “1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3.", "No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.” 202. The Government contested that argument. A. Admissibility 203.", "The Government submitted that the second applicant, as a minor, did not have an autonomous right to freedom of movement, and therefore could not be considered a victim. 204. The Court makes reference to its conclusion about the second applicant’s victim status, above. Moreover, it notes that the rights guaranteed by this provision apply to any person, and not solely to adults. In the present case, the first applicant and Mr X. had joint custody over the second applicant.", "In consequence, they were in principle both authorised and capable of enabling the second applicant’s travel, had it not been for any restrictions imposed by the national courts. 205. It follows that the Government’s objection in this respect must be dismissed. 206. The Court further notes that this complaint is linked to the one examined above under Article 8 and must therefore likewise be declared admissible.", "B. Merits 1. The parties’ submissions 207. The applicants submitted that although the first applicant had joint custody the second applicant’s movements were restricted as a result of the limitations imposed on her by the court. Indeed from 13 February 2008 up to 11 August 2008 the second applicant was confined to the territory of San Marino, for no legitimate reason.", "It was clear that such a measure had been granted in order to prevent Italian courts from having the jurisdiction to decide on the case. 208. The Government submitted that the applicant’s restrictions arose from the court decisions ordering the child to be resident with the father in San Marino and the mother’s contact rights to be exercised in San Marino and such a decision could not constitute a violation of the said provision. 209. The Italian Government considered that the limitations imposed on the second applicant’s freedom of movement, namely prohibiting her from going to Italy, had the aim of distancing the second applicant from her mother and her maternal family.", "They stated that the reasons put forward by children’s services and the CTU had been contradictory and no specific reasons had been given for the decision to keep the second applicant with the father and not with the mother, particularly in view of her tender age and needs. In consequence, in their view, there had been a violation of the second applicant’s rights under Article 2 of Protocol No. 4. 2. The Court’s assessment 210.", "The Court reiterates that the right of freedom of movement as guaranteed by paragraphs 1 and 2 of Article 2 of Protocol No. 4 is intended to secure to any person the right to liberty of movement within a territory and the right to leave that territory, which implies a right to leave for any country of the person’s choice to which he or she may be admitted. Thus, freedom of movement prohibits any measure liable to infringe that right or to restrict the exercise thereof which is not “in accordance with the law” and does not satisfy the requirement of a measure which can be considered “necessary in a democratic society” in the pursuit of the legitimate aims referred to in the third and fourth paragraph of the above-mentioned Article (see Baumann v. France, no. 33592/96, § 61, ECHR 2001‑V (extracts). As regards the proportionality of the interference, the Court has particular regard to the duration of the measure in question (see Nikiforenko v. Ukraine, no.", "14613/03, § 56, 18 February 2010). 211. The Court reiterates that an obligation to ask the authorities permission to leave each time does not correspond to the sense of the concept “freedom of movement” (see Ivanov v. Ukraine, no. 15007/02, § 85, 7 December 2006). The Court considers that the series of domestic decisions banning travel, and dispossessing the second applicant of her passport, in the present case, restricted the second applicant’s right to liberty of movement in a manner amounting to an interference, within the meaning of Article 2 of Protocol No.", "4 to the Convention (see Roldan Texeira v. Italy (dec.), no. 40655/98, 26 October 2000, and Baumann, cited above, § 62). 212. The parties did not dispute that the decisions banning travel from the territory of San Marino in the present case were compatible with domestic procedural law and had a basis in the national legal order. 213.", "As to the legitimate aim cited by the Government, the Court reiterates its earlier assessment that there were no objective grounds founding any fear of the second applicant being kidnapped by her mother. Nevertheless, bearing in mind that at the relevant time San Marino was not a party to the Hague Convention, the Court recognises that the domestic courts felt bound to issue directions which could provide alternative protection against any such eventuality. In these circumstances, the Court therefore is ready to accept that the measure pursued the maintenance of “ordre public” and the protection of the rights of others. 214. The Court observes that in the present case the second applicant was confined to the territory of San Marino from at least 22 February 2008 to 11 August 2008.", "Bearing in mind the short duration of the restriction, the Court considers that the measure at issue was proportionate to the aim pursued (see, mutatis mutandis, Roldan Texeira, (dec.), cited above). 215. Accordingly, there has not been a violation of Article 2 of Protocol No. 4 to the Convention. V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 216.", "The applicants further complained that the circumstances created by the judicial authorities, the CTU and the children services amounted to inhuman and degrading treatment, particularly as a result of the period of isolation in San Marino. Indeed, as a result, the second applicant suffered psychological distress. Moreover, the first applicant had been pressured by these entities into withdrawing her complaints against Mr X., which were eventually archived. They cited Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 217. The Court reiterates that, to fall within the scope of Article 3, the treatment in question must attain a minimum level of severity.", "The assessment of that minimum level is, in the nature of things, relative, and depends on all the circumstances of the case, and in particular on the nature and context of the treatment, how long it lasted, the physical and mental effects and, in some cases, on the sex, age and state of health of the person concerned. On this basis, it is not sufficient for the treatment to include some unpleasant aspects (see Bove v. Italy, (dec.) no. 30595/02, 18 November 2004). 218. The Court considers that, while the proceedings and related events have surely been a source of stress and anxiety to the applicants in the light of the circumstances of the present case, it cannot be said that they have reached the threshold proscribed by Article 3.", "219. It follows that this complaint is inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention. VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 220. Lastly, the applicants complained under Article 1 of Protocol No.", "1, about the amount of maintenance awarded by the order of 18 May 2007, which erroneously considered that the first applicant did not need to pay rent. 221. The Court reiterates that, in accordance with Article 35 § 1 of the Convention, it can only deal with the matter if the relevant complaint is raised within a period of six months from the date on which the final decision was taken (see Debono v. Malta, (dec.) no. 34539/02, 3 May 2005). In the present case the final decision in relation to this complaint was delivered on 18 May 2007 and was therefore taken more than six months before the lodging of this application with the Court on 7 July 2008.", "222. It follows that this complaint is inadmissible for non-compliance with the six-month rule set out in Article 35 § 1 of the Convention, and must be rejected pursuant to Article 35 § 4. FOR THESE REASONS, THE COURT 1. Declares unanimously the complaint concerning Article 8 of the Convention and Article 2 of Protocol No. 4 to the Convention admissible and the remainder of the application inadmissible; 2.", "Holds by five votes to two that there has not been a violation of Article 8 of the Convention; 3. Holds by five votes to two that there has not been a violation of Article 2 of Protocol No. 4 to the Convention. Done in English, and notified in writing on 27 September 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaCorneliu BîrsanRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Ziemele joined by judge Tsotsoria is annexed to this judgment.", "C.B. S.Q. DISSENTING OPINION OF JUDGE ZIEMELE JOINED BY JUDGE TSOTSORIA 1. I do not share the opinion of the majority in this case. I note that the Court’s case-law has crystallised the following principles that the national authorities have to follow in striking a balance between the competing interests of the child and the parents.", "First of all, in the balancing process particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parents (see Maumousseau and Washington v. France, no. 39388/05, §§ 66 and 67, 6 December 2007, and Sommerfeld v. Germany [GC], no. 31871/96, § 64, ECHR 2003‑VIII). Secondly, the observance of the procedural requirements implicitly enshrined in Article 8 of the Convention means that the persons concerned must be guaranteed sufficient involvement in the decision-making process and that the domestic courts must conduct an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature (see Maumousseau and Washington, cited above, paragraph 74, and more recently, Neulinger and Shuruk, [GC], no. 41615/07, § 139, 6 July 2010).", "2. I note that while the applicant and the child had moved to Rimini in Italy with the permission of the relevant authorities in San Marino (paragraph 28 of the judgment), problems started to emerge in August 2007 which seem to have led to the adoption of the new order whereby San Marino was made the child’s residence (paragraph 34). It is unclear how the parents’ submissions were represented in these proceedings and the majority does not refer to this problem either (paragraph 179). In January 2008 Mr X asked for sole custody of the child. It is because of this request that a more extensive expert report on the situation was drawn up, noting also the state of mind of the child (paragraph 42).", "It appears to me that this was a particularly crucial moment in the proceedings. However, the first applicant’s legal representation was not ensured since the immediate notification by her lawyer of his inability to attend the extraordinary hearing was not accepted. Furthermore, at that meeting the applicant’s submissions were refused without detailed reasoning. In the meantime, Mr X had arbitrarily retained the child in San Marino (paragraphs 43, 44 and 48). 3.", "I do not share the view of the majority that the applicant’s involvement in the above-mentioned crucial hearing was effective (paragraph 188). In my view, the domestic courts did not conduct an in-depth examination of the entire family situation. 4. Moreover, the child was taken away from the mother on 13 February 2008. When a year later, on 25 February 2009, a report on the child was drawn up, it was noted that her character had deteriorated (paragraph 97), and it continued to deteriorate (paragraph 107).", "The Court has repeatedly stated in similar cases that the domestic authorities should, above all, keep the best interests of the child in mind. I fail to see – and the medical reports seem to confirm this view – how the course of action taken by the San Marino authorities served the best interests of the child. Certainly, I do not see in the reasoning of the domestic authorities how the principle of the best interests of the child affected one decision or another. It is surprising that Mr X was allowed to effectively kidnap the child and that more in-depth reports on the child’s well-being only appeared in the later stages of the proceedings. 5.", "I believe that the Court’s case-law does not merely require abundant activity on the part of the domestic authorities in such sensitive cases. It actually requires that the State take the kind of steps capable of leading to a better appraisal of what is in the best interests of the child. I fail to see that this was the guiding principle behind the actions taken by the authorities in San Marino and for that reason I would have found a violation in this case." ]
[ "THIRD SECTION CASE OF DRAFT - OVA A.S. v. SLOVAKIA (Application no. 72493/10) JUDGMENT STRASBOURG 9 June 2015 FINAL 09/09/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of DRAFT - OVA a.s. v. Slovakia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Luis López Guerra,Ján Šikuta,Kristina Pardalos,Johannes Silvis,Valeriu Griţco,Branko Lubarda, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 19 May 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "72493/10) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 29 November 2010 by a private joint-stock company established under the laws of the Czech Republic, DRAFT - OVA a.s. (“the applicant company”). 2. The applicant company was represented by Advokátska kancelária JUDr. Radomír Bžán, s.r.o., a law firm with its registered office in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.", "3. The applicant alleged, in particular, that the quashing of a final and binding judgment in its favour following an extraordinary appeal on points of law lodged by the Prosecutor General at the request of the defendant, an entity in which the State was a major shareholder, had breached its rights under Articles 6 § 1 of the Convention and Article 1 of Protocol No. 1. 4. On 11 June 2013 the application was communicated to the Government.", "At the same time, the Government of the Czech Republic were invited to intervene as a third party (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), in response to which they submitted that they had no intention of so doing. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant company was established in 1993 and has its registered office in Opava (the Czech Republic). A.", "Background 6. The present application concerns claims against a Slovak gas company (“the defendant”) dating back to 1998 when the defendant was still a State‑owned enterprise and when its director and statutory representative was Mr J.D. It came to light subsequently that, at the time, Mr J.D. had issued a number of promissory notes (vlastná zmenka) in the name of the defendant for large amounts of money (see Michaela Huserová, Administrator in Bankruptcy of Union banka, a.s. in liquidation and Stroden Management Limited v. Slovakia (dec.), no. 760/04, 9 November 2010).", "7. Prior to becoming the statutory representative of the defendant, Mr J.D. had served a term as Minister of Industry and two terms as Minister of the Economy. In 1999 he was murdered in circumstances that are yet to be clarified. 8.", "The promissory notes have always been contested by the defendant. Nevertheless, they have been negotiated among many parties and have given rise to a deal of litigation, including the proceedings in the present case. They have also attracted extensive media attention. 9. In 2001, the defendant was transformed into a joint‑stock company.", "It then underwent privatisation and 49% of its shares were sold to private foreign investors. 10. The contract for the privatisation of the defendant contains a clause pursuant to which the State agreed to indemnify the investors for any loss they might incur on account of the promissory notes signed by Mr J.D. 11. Of relevance for the present application is the fact that at the time, 51 % of the defendant’s shares were held by the State, while the remaining 49 % were held by a private party.", "At present, the defendant is wholly owned by the State. B. Action 12. On 23 December 2005 the applicant company instituted proceedings against the defendant before the Bratislava V District Court (Okresný súd). Then and at all stages of the proceedings, it was represented by a lawyer.", "The applicant company relied on a promissory note for the payment of the equivalent of some 11,350,000 euros (EUR) signed by Mr J.D. in the name of the defendant on 29 September 1998. The date of issue indicated on the promissory note was 1 October 1998. On the basis of that note and four endorsements on it, the applicant company claimed to be the holder of the note and sought a judicial order for the defendant to pay the above-mentioned amount with interest and some additional associated amounts. 13.", "On 17 February 2006, in summary proceedings, the District Court issued a payment order (zmenkový platobný rozkaz) for the amounts claimed. The defendant protested (námietky) and appealed (odvolanie), but the order was upheld in ordinary proceedings by, respectively, the District Court on 21 May 2007 and the Bratislava Regional Court (Krajský súd) on 28 April 2009. 14. Both the District Court and the Regional Court held hearings at which the legal representatives of the parties and two witnesses were heard and documentary evidence as adduced by the parties was examined. 15.", "The courts concluded that the promissory note had been validly issued in the name of the defendant by Mr J.D. ; that, at the time of issue, the note had been incomplete as it had had no maturity date; and that its maturity date, 1 November 2005, had been added to it later. The courts dismissed the defendant’s claims that the note had been issued for payment “at sight”, that it had accordingly been intended to be presented for payment within a year of its date of issue (section 34 of the Bills of Exchange, Promissory Notes and Cheques Act (Law no. 191/1950 Coll. – Zákon zmenkový a šekový) – “the Act”); and that, in the absence of such presentation, it had been statute-barred three years after its maturity date (section 70 of the Act).", "The courts rather considered the note to be a blank promissory note, in which case the missing maturity date would be added later under an agreement entered into for that purpose, as envisaged by section 10 of the Act. Under that provision, in the circumstances, the only argument that the defendant could raise against the applicant company was that it had acquired the note in bad faith or that, in acquiring it, the applicant company had been guilty of gross negligence. As regards the adding of the maturity date to the promissory note, the courts heard as a witness one of the previous holders of the note – A., who at the same time was an executive of another of the note’s previous holders. He submitted before the court that he had had an oral understanding with Mr J.D. about adding the maturity date to the note and that the date had accordingly been added to the note by another previous holder of the note.", "The courts further noted that the contract under which the applicant company had acquired the promissory note contained a declaration by the previous holder that it had already acquired the note with the maturity date, and that the maturity date had been added to the note in compliance with the arrangements previously made. In the courts’ assessment, the applicant company had acted in reliance on those assurances and it was up to the defendant to disprove them, which it had failed to do. It had equally failed to establish the other defences it had sought to rely on. 16. As no ordinary appeal lay against the appeal court’s judgment, following its service on the parties, the matter was resolved with the force of a final and binding decision (právoplatnosť) on 8 June 2009.", "C. Extraordinary review 17. On 5 June 2009 the defendant filed a petition with the Office of the Prosecutor General (“the PG”) requesting the latter to exercise his discretionary power to challenge the above-mentioned judgments by way of an extraordinary appeal on points of law (mimoriadne dovolanie – “extraordinary appeal”). 18. The PG decided to accede to the request and on 10 June 2009 he challenged the contested judgments in the Supreme Court (Najvyšší súd). The PG relied on Article 243h § 3 of the Code of Civil Procedure (Law no.", "99/1963 Coll., as amended – “the CCP”) (see paragraph 49 below), which provides that reasons for an extraordinary appeal may be submitted within sixty days of the introduction of the extraordinary appeal if there is the risk of considerable economic damage or other irreparable consequences. In that respect, the PG argued that the contested judgments were directly enforceable and that the volume of the case file was extensive. The reasons for appealing would therefore be submitted later. 19. At the same time, the PG requested that the enforceability of the contested judgments be suspended.", "Pursuant to Article 234ha of the CCP (see paragraph 50 below), by virtue of this request, the enforceability was immediately and automatically suspended, pending the Supreme Court’s decision to dismiss the request or, in the absence of such a decision, pending the outcome of the proceedings before the Supreme Court on the extraordinary appeal. In support of his request, the PG submitted that the defendant, in which the State was a major shareholder, had been ordered to pay a large sum of money. If that sum were to be paid and if the Supreme Court were to allow the extraordinary appeal, it would give rise to a claim for repayment of unjustified enrichment in an equally significant amount. Such a claim would not be secured and its settlement would be uncertain and risky. 20.", "In the absence of a decision on the part of the Supreme Court to dismiss the PG’s request, the enforceability of the payment order in the applicant company’s favour remained suspended until the PG’s extraordinary appeal had been decided on its merits (see below). 21. Meanwhile, on 23 July 2009, the PG had submitted the reasons for his appeal. 22. The main argument was that the courts had erred in the application of the law (especially section 10 of the Act) to the facts that were decisive for assessing whether the applicant company had acted with gross negligence in acquiring the promissory note, in particular in relation to adding the maturity date.", "In the PG’s view, it had been grossly negligent of the applicant company to have contented itself with the declarations of the seller as to the existence of and compliance with the arrangements for adding the maturity date to the note (see paragraph 15 above in fine) without pursuing any proper enquiries. This was all the more so as it was generally known that the defendant had contested the notorious “promissory notes of Mr J.D.”, and that in view of the sum of money concerned the note in the present case was clearly outwith the ordinary course of business. Moreover, it was obvious how little the applicant company had paid to acquire the promissory note and the payment conditions were peculiar. On the latter points, the PG submitted that the price payable for the promissory note by the applicant company was no more than 50 % of its nominal value and that 98.8 % of that price was payable only on collection of payment under the note. Those and other elements indicated that the transactions in respect of the note had been speculative in nature.", "In the PG’s view, in those circumstances, the applicant company had been grossly negligent; the defendant was entitled to claim that there had been no valid arrangement for adding the maturity date to the promissory note; and it was up to the applicant company to show that such an arrangement had existed and had been complied with, failing which the note was payable “at sight,” and any claims based on it were statute-barred. In the PG’s submission, requiring the defendant to show that no arrangement for adding the maturity date to the note had existed would amount to a probatio diabolica because the non-existence of a fact was not capable of being proven. 23. On 4 September 2009 the applicant company submitted its observations in reply to the extraordinary appeal and to the defendant’s petition for that remedy. It disputed the PG’s arguments and submitted, inter alia, that the burden of proof in respect of the allegedly unlawful alteration of the note after its issuance rested solely with the defendant.", "The applicant company had been under no duty to enquire into the existence of and compliance with any arrangement for adding the maturity date to the note. In that respect, it emphasised that in judicial proceedings concerning promissory notes, the burden of proof in principle always rested with the issuer, and only with the issuer. 24. On 12 May 2010 the Supreme Court, sitting in chambers, allowed the appeal, quashed the contested judgments and remitted the matter to the District Court for a new determination. It did so having in principle accepted the line of argument advanced by the PG and having noted, in particular, that the testimony of A. as regards the alleged understanding with Mr J.D.", "about the adding of the maturity date to the note had been contradicted by other evidence and was as such implausible. 25. The Supreme Court’s judgment was served on the applicant company’s lawyer on 7 July 2010. As a result, the case was remitted to the first instance. The further course of the proceedings before the ordinary courts is described in paragraphs 31 et seq.", "below. D. Constitutional complaint 26. On 6 September 2010 the applicant company challenged the Supreme Court’s judgment of 12 May 2010 in the Constitutional Court (Ústavný súd) by way of a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended). The applicant company relied, inter alia, on Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1, invoking its rights to a fair trial, in particular access to a court, equality of arms, protection of property, as well as the principles of legal certainty and rule of law. The applicant company argued that there was a systemic problem as the principle of the parties’ procedural equality had been breached by the mere existence of the extraordinary appeal proceedings. The dispute over the promissory note was of a commercial and as such private-law nature. Any room for interference by the State with judicial proceedings and final and binding decisions in such a dispute was therefore particularly narrow. The position in the present case was aggravated by the fact that the PG’s extraordinary appeal favoured the defendant, an entity in which the State had a majority interest.", "In addition, the applicant company contested the application of the existing rules in its specific case, since the PG had interfered by extraordinary means with a final and binding judgment in the State’s favour. The applicant company pointed out the particular circumstances of the case, including the fact that the two lower levels of jurisdiction had determined the matter unanimously, that they had already dealt with the arguments that were subsequently reiterated by the PG, and that the re‑assessment of the case had involved not only questions of law, but also questions of fact. In conclusion, the interference with the final and binding judgment in favour of the applicant company had been without any acceptable justification. Furthermore, the applicant company noted that the Government of the Slovak Republic had previously publically declared that what had been termed “[Mr J.D. ]’s promissory notes” would never be honoured.", "In view of that declaration as well as the Government’s contractual obligation to indemnify investors in the defendant for any losses that they might incur on account of the promissory notes signed by Mr J.D (see paragraph 10 above), the extraordinary appeal had not served any greater good as envisaged by the applicable statute, but had rather served the Government’s political and economic interests. As the Supreme Court had not clearly distanced itself from those considerations, it could not be regarded as independent and impartial. Lastly, as the quashed judgments had been final and binding, they had constituted possessions and their quashing was an interference with those possessions, in violation of Article 1 of Protocol No. 1. 27.", "On 11 November 2010 the applicant company added further reasons to its constitutional complaint, relying on the Report on the Independence of the Judicial System adopted by the Venice Commission at its 82nd plenary session on 12 and 13 March 2010, with particular reference to the revision of judges’ decisions outside the appeals procedures (see paragraphs 58 et seq. below). In addition, the applicant company pointed out the circumstances of the adoption of the amendment (Law no. 484/2008 Coll.) to the CCP allowing the reasons for extraordinary appeals to be added at a later date, and for such appeals to have “automatic suspensive effect”.", "In particular, the amendment had been adopted with retroactive effect and with the aim of reversing the outcome of a specific, albeit unrelated, dispute. 28. On 26 April 2011 the Supreme Court, as the defendant to the complaint, submitted its observations in reply and, on 12 January 2012, the applicant company submitted a rejoinder. 29. On 19 January 2012 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded.", "It observed that the statutory framework for the examination of individual complaints did not allow it to examine the compliance of statutes with the Constitution and international instruments as such. It could therefore only review the application of the existing statutory rules in the applicant company’s individual case. It also observed that the statutory provisions on extraordinary appeals were an integral part of the legal system of Slovakia and that there was a presumption of their constitutionality. It further noted that the PG had no power to lodge such an appeal of his or her own motion, but could only do so following the filing of a petition by those concerned, on grounds strictly defined by the CCP and within the time-limit prescribed by it. In the present case, the PG’s extraordinary appeal had been prompted by a petition by the defendant and it had relied on appropriate grounds.", "In that regard, the Constitutional Court noted that the extraordinary appeal was concerned with the distribution of the burden of proof, which was a preliminary but crucial matter in the case at hand. On the facts, it was determinative for its outcome in that, in the event of a failure to establish the given elements of the case, the party upon which the burden of proof rested would automatically lose it. The Constitutional Court also noted the Supreme Court’s finding that the rigidity of the lower courts’ interpretation of the statutory premise that the burden of proof in this type of case rested on the issuer of the promissory note had been arbitrary and one-sided, and that its effects had suppressed the object and purpose of the CCP and the Act. Thus, in the Constitutional Court’s assessment, the extraordinary appeal had not been motivated merely by a differing legal view but rather by an error of procedure. It thus satisfied the requirements of the Convention for an acceptable interference with an adjudicated matter.", "As to the merits of the case, the Constitutional Court noted that it was not a court of further appeal against decisions of the ordinary courts. It found the reasoning of the Supreme Court congruous and convincing, and found no constitutionally relevant unfairness, arbitrariness or irregularity in the proceedings. Furthermore, the Constitutional Court drew a distinction between the PG, who had lodged the extraordinary appeal, and the Supreme Court, which had decided on it, finding no grounds to doubt the Supreme Court’s independence and impartiality. In any event, it had been open to the applicant company to challenge any of the Supreme Court’s judges involved in the case for bias, which it had not done. As to equality of arms, the Constitutional Court noted that the applicant company had had – and had amply used – the opportunity to present its views as regards the extraordinary appeal, and found that the applicable guarantees had been respected.", "As regards the applicant company’s property claim, the Constitutional Court reiterated its established case-law, pursuant to which a general court could not bear “secondary liability” for a violation of fundamental rights and freedoms of a substantive nature unless there had been a constitutionally relevant violation of the rules of procedure. However, no such procedural issue had been established. 30. The Constitutional Court’s decision was served on the applicant company’s lawyer on 16 February 2012. It was not amenable to appeal.", "E. Further course of the proceedings 31. Following the quashing of the judgments of 21 May 2007 and 28 April 2009 by the Supreme Court on 12 May 2012, the case was remitted to the District Court for re‑examination in the light of the principles set out by the Supreme Court. 32. The action was thus re-examined and again dismissed at first instance by the District Court on 29 October 2012 and, following an appeal lodged by the applicant company, by the Regional Court on 19 September 2013. 33.", "The District Court held a hearing and new evidence was taken. Having examined the evidence and in view of the legal opinions expressed by the Supreme Court, the court concluded that the applicant company had been mala fides in acquiring the promissory note, and that it had failed to show that the note had been issued as a blanket note or that any arrangement had been made for adding a maturity date to it. Thus, the note had been payable “at sight” and any claims based on it were statute-barred. 34. Following service of the written version of the Regional Court’s judgment on the parties, the dismissal of the action became final and binding on 23 October 2013.", "F. Another similar case brought by the applicant company 35. In another case the applicant company sued the same defendant for payment under another promissory note, also issued by Mr J.D. on behalf of the defendant on 1 October 1998. The note was for the same amount as in the present case and the relevant circumstances were similar. 36.", "Following the applicant company’s action, a payment order was issued on 6 March 2006. However, it was then quashed on 21 May 2007 following a protest by the defendant. The latter decision was upheld on 29 January 2008 following an appeal lodged by the applicant company. 37. The applicant company subsequently twice petitioned the PG to challenge by way of an extraordinary appeal the judgments quashing the payment order and dismissing its appeal.", "Among other things, it referred to the PG’s extraordinary appeal of 10 June 2006 in the present case (see paragraphs 18 et seq. above) and submitted that the judgments mentioned in the preceding paragraphs contained the same structural and technical flaws, save for the outcome, which that time had been to the applicant company’s disadvantage. 38. In a letter of 5 October 2010 the PG informed the applicant company that its repeated petition had ultimately been dismissed. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Code of Civil Procedure 1. Various provisions 39. Article 1 of the CCP lays down the procedures to be applied by the courts and to be followed by the parties in civil proceedings, with a view to ensuring fair and just protection of the rights and legitimate interests of the parties, and promoting compliance with the statutory law, fulfilment of duties and respect for the rights of fellow citizens. 40.", "Under Article 101 § 1, the parties to the proceedings are required to contribute to the purpose of the proceedings, in particular by giving a truthful and complete description of all the relevant facts, adducing evidence and abiding by the instructions of the court. 41. Pursuant to Article 120 § 1, the parties to the proceedings are required to adduce evidence to uphold their claims. 42. Under Article 159 § 3, as soon as a matter has been resolved by force of a final and binding decision or a judgment, it may not give rise to new proceedings.", "2. Appeals on points of law 43. The relevant provisions concerning appeals on points of law (dovolanie) are summarised, for example, in the Court’s decision in Ringier Axel Springer Slovakia, a.s. v. Slovakia (no. 35090/07, §§ 65-68, 4 October 2011, with further references). Appeals on points of law have no automatic suspensive effect, as the power to suspend the enforceability of the impugned decision lies with the Supreme Court (Article 243).", "3. Extraordinary appeals 44. Extraordinary appeals on points of law are regulated by the provisions of Articles 243e et seq. 45. The PG has the power to challenge a decision of a court by means of an extraordinary appeal.", "He or she may do so following the filing of a petition by a party to the proceedings or another person concerned or injured by the decision, provided that the PG concludes that: the final and binding decision has violated the law; the protection of the rights and legitimate interests of individuals, legal entities or the State requires that such an appeal be brought; such protection cannot be achieved by other means; and the matter at hand is not excluded from judicial review (Articles 243e § 1 and 243f § 2). 46. An extraordinary appeal may only be lodged against a ruling in a decision which has been contested by the party to the proceedings or the person concerned or injured by that decision (Article 243e § 2). Unless a statute provides otherwise, the PG is bound by the scope of the petition for an extraordinary appeal (Article 243e §§ 3 and 4). 47.", "Further conditions of admissibility of an extraordinary appeal are listed in Article 243f § 1. They comprise (a) major procedural flaws within the meaning of Article 237 (see, for example, Ringier Axel Springer Slovakia, a.s. v. Slovakia, no. 41262/05, § 62, 26 July 2011), (b) other errors of procedure resulting in an erroneous decision on the merits, and (c) incorrect assessment of points of law. 48. An extraordinary appeal is to be lodged with the Supreme Court within one year of the contested judicial decision becoming final and binding (Article 243g).", "49. If the PG concludes, following the filing of a petition by a party to the proceedings or another person concerned or injured by the impugned decision, that there is the risk of considerable economic loss or other serious irreparable consequences, the extraordinary appeal may be lodged without stating the reasons for appeal. The reasons must then be stated within sixty days of the lodging of the extraordinary appeal with the Supreme Court, failing which the proceedings will be discontinued (Article 243h §§ 3 and 4). 50. If the extraordinary appeal is accompanied by a request that the enforceability of the contested decision be suspended, its enforceability must be suspended following the lodging of the extraordinary appeal with the Supreme Court (Article 243ha § 1).", "The duration of such a suspension is regulated by Article 243ha § 2, pursuant to which the suspension ceases (a) when the request is dismissed or (b) with a decision on the extraordinary appeal, unless extended by the Supreme Court, no later than one year from the lodging of the extraordinary appeal with it. 51. The provisions of Article 243h §§ 3 and 4 and Article 243ha §§ 1 and 2 mentioned in the two preceding paragraphs were introduced in the CCP by an amendment (Law no. 484/2008 Coll.) which entered into force on 28 November 2008.", "52. A copy of the extraordinary appeal is to be sent to the parties to the proceedings for observations. The decision on the extraordinary appeal must be sent to the parties to the proceedings and to the PG (Article 243i § 1 and Article 243j). 4. Reform of the CCP 53.", "The results of the ongoing work to re-codify the rules on civil procedure are summarised in a 2013 green paper (Návrh legislatívneho zámeru rekodifikácie civilného práva procesného) of the re-codification commission under the auspices of the Ministry of Justice. The green paper envisaged abolishing extraordinary appeals on the grounds that there are doubts as to their compatibility with the Convention, especially as regards the principles of equality of arms, legal certainty and res judicata. Extraordinary appeals are retained, albeit in a modified form, in the final text of the new Code of Civil Contentious Procedure (Civilný sporový poriadok). B. The Constitutional Court’s practice concerning extraordinary appeals 54.", "In a decision (uznesenie) of 19 July 2000 in an unrelated case (no. PL. ÚS 57/99), the Constitutional Court dismissed a motion by the Supreme Court that certain provisions of the CCP concerning extraordinary appeals were contrary to the Constitution. That motion was lodged by the Supreme Court in the context of extraordinary appeal proceedings instituted by the PG concerning the review of an administrative decision on a restitution claim (see Veselá and Loyka v. Slovakia (dec.), no. 54811/00, 23 November 2004).", "In its decision, the Constitutional Court observed, inter alia, that the extraordinary appeal was an extraordinary means for ensuring that judicial decisions were not only formally final but also substantively correct. A clear discrepancy between the degrees of respect shown for those two principles in an individual case could justify an interference with the former principle for the benefit of the latter. However, that would be so only in instances of a striking violation of constitutional principles of procedure, the principle of a fair trial or a denial of justice, which were not amenable to correction by other means. According to the Constitutional Court, for an extraordinary appeal to be acceptable its use had to be limited to instances of the most serious errors in procedure or the outcome of the procedure (linked to either factual or legal assessment), and to instances where other available legal remedies had been exhausted. Moreover, the Constitutional Court held that by virtue of the power to lodge an extraordinary appeal, the PG was a statutory intermediary for ensuring protection of the rights of the parties and other persons concerned or injured by the contested decision.", "55. In a decision of 29 October 2003 in an unrelated case (no. IV. ÚS 197/03) concerning an individual complaint, the Constitutional Court held, inter alia, that in extraordinary appeal proceedings before the Supreme Court the PG did not have the standing of a party to the proceedings as such, but rather had a sui generis standing, similar to that of the parties. In such proceedings, the PG had no subjective interest of his or her own.", "Rather, the protection from unlawful final and binding decisions pursued in those proceedings served the general interest. 56. In a decision of 3 June 2008 in another unrelated case (no. IV. ÚS 180/08) concerning an individual complaint, the Constitutional Court observed, among other things, that individuals and legal entities that had petitioned the PG to lodge an extraordinary appeal had no legal claim to have such an appeal lodged and that, conversely, the PG was under no legal duty to accommodate the request.", "It was entirely within the PG’s discretion to decide whether or not to lodge an extraordinary appeal. The extraordinary appeal was an extraordinary remedy. There was no legal right to have it lodged on one’s behalf. A petition for an extraordinary remedy did not enjoy constitutional protection and was not covered by the catalogue of fundamental rights. C. Bills of Exchange, Promissory Notes and Cheques Act 57.", "The relevant part of the Act is modelled along the lines of the 1930 Geneva Convention Providing a Uniform Law for Bills of Exchange and Promissory Notes. The relevant parts of the Convention provide as follows: “Article 10 If a bill of exchange, which was incomplete when issued, has been completed otherwise than in accordance with the agreements entered into, the non-observance of such agreements may not be set up against the holder unless he has acquired the bill of exchange in bad faith or, in acquiring it, has been guilty of gross negligence. ... Article 17 Persons sued on a bill of exchange cannot set up against the holder defences founded on their personal relations with the drawer or with previous holders, unless the holder, in acquiring the bill, has knowingly acted to the detriment of the debtor. ...", "Article 33 1. A bill of exchange may be drawn payable: At sight; ... At a fixed date. ... Article 34 A bill of exchange at sight is payable on presentment. It must be presented for payment within a year of its date.", "... Article 70 1. All actions arising out of a bill of exchange against the acceptor are barred after three years, reckoned from the date of maturity. ... Article 75 A promissory note contains: 1.", "The term ‘promissory note’ inserted in the body of the instrument and expressed in the language employed in drawing up the instrument; 2. An unconditional promise to pay a determinate sum of money; 3. A statement of the time of payment; 4. A statement of the place where payment is to be made; 5. The name of the person to whom or to whose order payment is to be made; 6.", "A statement of the date and of the place where the promissory note is issued; 7. The signature of the person who issues the instrument (maker). ... Article 76 ... 2. A promissory note in which the time of payment is not specified is deemed to be payable at sight.", "... Article 77 1. The following provisions relating to bills of exchange apply to promissory notes so far as they are not inconsistent with the nature of these instruments, Endorsement (Articles 11 to 20); Time of payment (Articles 33 to 37); ... Limitation of actions (Articles 70 and 71); ... 2. The following provisions are also applicable to a promissory note: ... and provisions concerning a bill of exchange in blank (Article 10).", "... Article 78 1. The maker of a promissory note is bound in the same manner as an acceptor of a bill of exchange. ...” III. Relevant European texts A. Venice Commission’s Report on the Independence of the Judicial System 58.", "The report was adopted by the European Commission for Democracy through Law (“the Venice Commission”) at its 82nd Plenary Session (12‑13 March 2010). 59. In section III 9. entitled “Final character of judicial decisions”, the report refers to Principle I(2)(a)(i) of Recommendation No. R (94) 12 of the Committee of Ministers of the Council of Europe on the Independence, Efficiency and Role of Judges, which provides: “decisions of judges should not be the subject of any revision outside the appeals procedures as provided for by law”. The relevant part of the report continues: “It should be understood that this principle does not preclude the re-opening of procedures in exceptional cases on the basis of new facts or on other grounds as provided for by law.", "66. While the [Consultative Council of European Judges] concludes in its Opinion No. 1 (at 65), on the basis of the replies to its questionnaire, that this principle seems to be generally observed, the experience of the Venice Commission and the case law of the [Court] indicate that the supervisory powers of the Prokuratura in post-Soviet states often extend to being able to protest judicial decisions no longer subject to an appeal. 67. The Venice Commission underlines the principle that judicial decisions should not be subject to any revision outside the appeals process, in particular not through a protest of the prosecutor or any other state body outside the time limit for an appeal.” B.", "Recommendation CM/Rec(2012)11 of the Committee of Ministers to member States on the role of public prosecutors outside the criminal justice system 60. The Recommendation was adopted by the Committee on 19 September 2012 and its relevant part reads as follows: “Recalling also that every member of the Council of Europe has accepted the principle of the rule of law and of the enjoyment by all persons within its jurisdiction of the human rights set out in the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5); ... 2. Where the national legal system provides public prosecutors with responsibilities and powers outside the criminal justice system, their mission should be to represent the general or public interest, protect human rights and fundamental freedoms, and uphold the rule of law. C. Common principles 3.", "The responsibilities and powers of public prosecutors outside the criminal justice system should in all cases be established by law and clearly defined in order to avoid any ambiguity. 4. As in the criminal law field, public prosecutors should exercise their responsibilities and powers outside the criminal justice system in full accordance with the principles of legality, objectivity, fairness and impartiality. ... 11. Where the public prosecutor is entitled to make a decision affecting the rights and obligations of natural and legal persons, such powers should be strictly limited, defined by law and should not prejudice the parties’ right to appeal on points of fact and law to an independent and impartial tribunal.", "The public prosecutor should act independently from any other power and his or her decisions should be reasoned and communicated to the persons concerned. ... In relation to the principles of legal certainty and res judicata 22. In order to comply with the principles of legal certainty and res judicata, the grounds upon which the public prosecutor may seek a review of the final decision of a court should be limited to exceptional cases and the review processed within a reasonable time limit. Except in cases where the review does not concern the rights and obligations of the parties, as set out in the decision under review, the parties to the original proceedings should be informed of the review and, should they so wish, given the opportunity to be joined to the proceedings.” C. Opinion No.", "3 (2008) of the Consultative Council of European Prosecutors (CCPE) on “The role of prosecution services outside the criminal law field” 61. The Opinion was adopted by the CCPE at its 3rd plenary meeting (15‑17 October 2008). In addition to the matters mentioned above, the relevant part of the summary of recommendation reads as follows: “The CCPE is of the opinion that States where prosecution services have non criminal competences should ensure that these functions are carried out in accordance with the principles governing a democratic state under the rule of law and in particular that: a. the principle of separation of powers is respected in connection with the prosecutors’ tasks and activities outside the criminal law field and the role of courts to protect human rights; b. the respect of impartiality and fairness characterises the action of prosecutors acting outside the criminal law field as well; c. these functions are carried out ‘on behalf of society and in the public interest’, to ensure the application of law, respecting fundamental rights and freedoms and within the competencies given to prosecutors by law, as well as the Convention and the case-law of the Court; d. such competencies of prosecutors are regulated by law as precisely as possible; e. no undue intervention in the activities of prosecution services occurs; f. when acting outside the criminal law field, prosecutors enjoy the same rights and obligations as any other party and do not enjoy a privileged position in the court proceedings (equality of arms); g. the action of prosecution services on behalf of society to defend public interest in non criminal matters does not violate the principle of binding force of final court decisions (res judicata) with some exceptions established in accordance with international obligations including the case-law of the Court; h. the obligation of prosecutors to motivate their actions and to make these motivations open for persons or institutions involved or interested in the case; ... j. the developments in the case-law of the Court concerning prosecution services’ activities outside the criminal law field is followed closely in order to ensure that the legal basis for such activities and the corresponding practice are in full compliance with the relevant judgments;”. THE LAW I. PRELIMINARY ISSUES 62.", "The Government argued that, in so far as the applicant company had sought to challenge the existing statutory framework for extraordinary appeals, its constitutional complaint had not been an effective remedy for the purposes of Article 35 § 1 of the Convention and, consequently, its complaint before the Court had been lodged belatedly. 63. The applicant company disagreed and submitted that the six-month time-limit had not started to run until the Constitutional Court’s decision had been served on its lawyer, namely on 16 February 2012 (see paragraph 30 above). In any event, in their view the existing statutory framework for extraordinary appeals amounted to a continuing situation that had violated its Convention rights. That situation would not come to an end until that remedy was abolished altogether.", "64. The Court observes that part of the present application concerns the mere existence of the concept of the extraordinary appeal, which in the applicant company’s view was as such incompatible with the guarantees of legal certainty. It considers that the Government’s inadmissibility objection needs no separate response because the relevant part of the application is in any event inadmissible on the following grounds. 65. The Court reiterates that in proceedings originating in an application lodged under Article 34 of the Convention it has to confine itself, as far as possible, to the examination of a concrete case before it.", "Its task is not to review domestic law and practice in abstracto, but to determine whether the manner in which they were applied to or affected the applicant gave rise to a violation of the Convention. Accordingly, Article 34 does not provide individuals with a remedy in the nature of an actio popularis (see, for example, Klass and Others v. Germany, 6 September 1978, § 33, Series A no. 28; Slivková v. Slovakia (dec.), no. 32872/03, 14 December 2004; and Fruni v. Slovakia, no. 8014/07, § 133, 21 June 2011).", "66. The Court notes that there is an ongoing process of reform of the procedural rules in Slovakia, with particular attention being paid to extraordinary appeals. It is also aware of the particular sensitivity in Convention terms of the extraordinary appeal in certain specific types of proceedings in Slovakia (see López Guió v. Slovakia, no. 10280/12, §§ 66 and 108, 3 June 2014). In view of the above-mentioned parameters of its jurisdiction, the Court will confine its examination of the present case to the applicant company’s specific situation and the concrete repercussions of the impugned legislative provisions and their implementation on the applicant company only.", "67. Conversely, in so far as the applicant company may be understood as challenging the existing legislative framework in abstracto, the relevant part of the application is incompatible ratione personae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 68. The applicant company complained that the extraordinary appeal lodged by the PG, the ensuing proceedings before the Supreme Court and the Supreme Court’s decision on it had been contrary to the guarantees of a fair hearing by an independent and impartial tribunal under Article 6 § 1 of the Convention, the relevant part of which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ... ” A. Admissibility 69.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ arguments 70. The applicant company alleged a breach of the guarantees of equality of arms, legal certainty and an independent and impartial tribunal. 71. On the first count, it argued that the mere existence of the extraordinary appeal proceedings had been contrary to the equality-of-arms principle. This was all the more so in that the contested appeal had favoured the defendant, which was an entity in which the State had a majority interest; that the PG belonged to the executive power; that the lodging of the extraordinary appeal had fallen within the PG’s exclusive discretion; and that the applicant company itself had been unsuccessful in having an extraordinary appeal lodged on its behalf.", "72. On the second count, the applicant company contended that there had been no good reason for interfering with the original, final and binding judgments in its favour and, more specifically, that the dispute in question had been of a private‑law nature. The extraordinary appeal had been concerned not only with points of law, but also with points of fact which had been no more than ordinary in nature. The two lower levels of jurisdiction had already determined those points unanimously. The defendant had had other means of asserting its rights directly, in particular by way of an appeal on points of law.", "The extraordinary appeal had not resulted in a final determination of the dispute but rather in its prolongation. Nor had it served any greater good than the Government’s political and economic interests. Moreover, it had been lodged with the reasons to be added later and with an automatic suspensive effect, based on a legislative amendment adopted with retroactive effect with the aim of reversing the outcome of a specific, albeit unrelated, dispute. 73. On the third and last count, the applicant company reiterated some of the above-mentioned arguments.", "It added that, in the extraordinary appeal, the PG had argued that the courts should have taken into account the public notoriety of promissory notes issued by Mr J.D. In their submission, by not distancing itself clearly from such a consideration, the Supreme Court had lost its credibility as an independent and impartial tribunal. 74. In reply, the Government summarised the applicable procedural framework, emphasised that the extraordinary appeal in the present case had been lodged at the request of one of the parties to the proceedings, the defendant, and considered that it had been decided on within the parameters of the Court’s case-law. In that regard, the Government submitted that the promissory notes legislation in Slovakia had in practice been forgotten until its renaissance after the changes of 1989.", "In the early period of its revival there had been a certain naivety as regards the legal nature of the instrument and its potential to secure payments based on abstract obligations without any basis. In the present case, the applicant company must have realised that it had made claims originating from a promissory note that had been issued without any basis. In view of the large sum of money involved, the notoriety of Mr J.D.’s promissory notes and the circumstances in which the applicant company had acquired that note, the original judgments in the applicant company’s favour had been viewed by the public as resulting from a fundamental failure of the judicial system. The interest in having those judgments rectified therefore prevailed over the principle of legal certainty. In addition, the Government submitted that the litigation in the present case had revolved around the adding of the maturity date to the contested promissory note.", "The resolution of that question in turn depended on the distribution of the burden of proof. In distributing the burden of proof, the courts had originally committed a fundamental procedural error, incompatible with the principle of legal certainty, by requesting the defendant to prove the non-existence of facts, which may not be proven as a matter of principle. They had thus placed the defendant in a deadlock, contrary to the fundamental principles of the law of procedure and formal logic. 75. The applicant company referred to its previous arguments, pointing out in particular that the issue of burden of proof that lay at the heart of the Supreme Court’s decision to quash the final and binding judgments in the applicant company’s favour had not involved any fundamental legal questions, but merely a different view of an ordinary question of law, which the lower courts had resolved properly and with final effect.", "Had any fundamental procedural errors been committed by the lower courts, they would have fallen within the purview of Article 237 of the CCP, which provided for an appeal on points of law to be directly available to the applicant company. Moreover, the applicant company considered that nothing in the Government’s submission had had any relevance to its claims that the State, of which the PG was an organ, had a proprietary interest in the defendant. 2. The Court’s assessment (a) General principles 76. The Court notes that the present case raises interrelated issues of equality of arms, legal certainty and independent and impartial tribunal.", "The problem at the heart of the application is that a final and binding judgment in the applicant company’s favour was quashed following an extraordinary appeal lodged by the PG at the request of the defendant, an entity in which the State had a proprietary interest. 77. In that regard, the Court observes that the relevant Convention principles have been summarised in its judgment in the case of Giuran v. Romania (no. 24360/04, §§ 28-32, ECHR 2011 (extracts), with further references) as follows: - The right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, the relevant part of which declares that the rule of law is part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question.", "- That principle does not allow a party to seek the reopening of proceedings merely for the purpose of a re-hearing and a fresh decision on the case. The mere possibility of there being two views on the subject is not a ground for re-examination. - Departures from that principle are justified only when made necessary by circumstances of a substantial and compelling character. Higher courts’ powers to quash or alter binding and enforceable judicial decisions should be exercised for the purpose of correcting fundamental defects. That power must be exercised so as to strike, to the maximum extent possible, a fair balance between the interests of an individual and the need to ensure the effectiveness of the system of justice.", "- The relevant considerations to be taken into account in this connection include, in particular, the effect of the reopening and any subsequent proceedings on the applicant’s individual situation and whether the reopening resulted from the applicant’s own request; the grounds on which the domestic authorities overturned the judgment in the applicant’s case; the compliance of the procedure at issue with the requirements of domestic law; the existence and operation of procedural safeguards in the domestic legal system capable of preventing abuses of this procedure by the domestic authorities; and other pertinent circumstances of the case. In addition, the review must afford all the procedural safeguards of Article 6 § 1 and must ensure the overall fairness of the proceedings. - In a number of cases the Court, while addressing the notion of “a fundamental defect”, has stressed that merely considering that the investigation in the applicant’s case was “incomplete and one-sided” or led to an “erroneous” acquittal cannot in itself, in the absence of jurisdictional errors or serious breaches of court procedure, abuses of power, manifest errors in the application of substantive law or any other weighty reasons stemming from the interests of justice, indicate the presence of a fundamental defect in the previous proceedings. 78. On the same matter, the Court has also held that the review of final and binding decisions should not be treated as an appeal in disguise and that the principle of legal certainty may be set aside in order to ensure a correction of fundamental defects or miscarriage of justice (see, for example, Ryabykh v. Russia, no.", "52854/99, § 52, ECHR 2003-IX) and to rectify “an error of fundamental importance to the judicial system”, but not for the sake of legal purism (see Sutyazhnik v. Russia, no. 8269/02, § 38, 23 July 2009). 79. As to the principle of equality of arms, the Court reiterates specifically that, as one of the elements of the broader concept of a fair trial, it requires each party to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, for example, Nideröst-Huber v. Switzerland, 18 February 1997, § 23, Reports of Judgments and Decisions 1997‑I). (b) Application of those principles in the present case 80.", "The Court acknowledges at the outset that the applicant company’s claims on the basis of the contested promissory note were adjudicated with the force of a res judicata and that the final and binding judgment in its favour was quashed following the application of an extraordinary remedy. Therefore, it must be ascertained whether the interference with the originally completed proceedings in the present case was compatible with the guarantees of Article 6 of the Convention, in particular with the principles of the rule of law, legal certainty and equality of arms inherent in that provision. 81. With reference to its case-law cited above, the Court considers it appropriate to examine first whether there has been any circumstance of a substantial and compelling character to justify a departure from the principle that, where the courts have finally determined an issue, their ruling should not be called into question. 82.", "It notes that, in that respect, the Government have submitted that the domestic litigation in the present case concerned an area of law that had been rediscovered at the relevant time after a long period of practical abandonment. As confirmed by the final judgment in the case, in the original round of proceedings the courts had committed a fundamental procedural error in the distribution of the burden of proof, which was determinative of the outcome. The original judgment had thus been wrong in law and, in view of all the circumstances, it had been seen by the public as a fundamental failure of the judicial system, calling for correction. 83. Leaving aside the question whether the error of law identified by the Government is procedural or substantive in nature, the Court is not convinced that it constituted a circumstance justifying an interference with the final and binding judgment in the present case.", "The Court notes that in the original round of proceedings the applicant company’s claim was examined twice by the court of first instance, of which the former examination was summary and led to the payment order of 17 February 2006, while the latter was full-fledged and led to the judgment of 21 May 2007, and that the action was then re-heard and re-examined at the appellate level, culminating in the judgment of 28 April 2009 (see paragraphs 13 et seq. above). The Court also notes that the payment order and both judgments were in favour of the applicant company and that the reasoning behind the two judgments was congruous. 84. The Court observes that the Government’s arguments before it are somewhat different from those advanced by the PG in his extraordinary appeal and those accepted by the Supreme Court in its decision on that appeal.", "Nevertheless, it has not been argued by the Government and neither has it been established otherwise that there was any obstacle to submitting any of these arguments in the original round of proceedings. The extraordinary appeal may thus be seen as a further appeal or, in other words, an appeal in disguise in terms of the Court’s above-cited case-law. 85. In addition, the Court finds it of relevance that the litigation was of a private-law nature. Moreover, the further arguments in the extraordinary appeal in relation to those advanced by the defendant in the original round of proceedings were advanced by the PG while the State had an interest in the outcome of the proceedings through its majority shareholding in the defendant and as a result of the indemnification clause in the privatisation contract concerning the remaining shareholding in the defendant (see paragraphs 10 and 11 above).", "And what is more, the Government do not appear to have given any answer to the applicant company’s argument that, in the case of any major procedural irregularity, there was another remedy available to the applicant company directly, an (ordinary) appeal on points of law. 86. The Court finds that the forgoing considerations allow for no other conclusion than that, in so far as substantiated, there were no circumstances justifying the interference with the final, binding and enforceable judgment in the applicant company’s favour. That interference was in breach of the principle of legal certainly as well as that of equality of arms. There has accordingly been a violation of Article 6 of the Convention.", "This finding makes it unnecessary for the Court to examine separately on the merits the remaining components of the applicant company’s complaint under that Article. III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 87. The applicant company complained that the quashing of the final and binding judgment in its favour constituted an interference with its possessions, in violation of Article 1 of Protocol No.", "1 to the Convention, which reads as follows: “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 88. The Court notes that this complaint is factually and legally linked to that examined above under Article 6 of the Convention on the merits. It considers that the present complaint is likewise not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 89. The Government acknowledged that the adjudicated claims of the applicant company had constituted “possessions” and that their quashing had amounted to an interference with those possessions within the meaning of Article 1 of Protocol No.", "1. However, they emphasised that the quashing of the judgments in question had been in full compliance with the law, legitimate, and had not placed an excessive individual burden on the applicant company. 90. The applicant company disagreed and reiterated the complaint. It emphasised in particular that, although the quashing of the final and binding judgment in its favour had been in compliance with the law, it had not followed any legitimate aim and had constituted an excessive individual burden on it.", "91. The Court reiterates that the existence of a debt confirmed by a binding and enforceable judgment furnishes the judgment beneficiary with a “legitimate expectation” that the debt would be paid, and constitutes the beneficiary’s “possessions” within the meaning of Article 1 of Protocol No. 1. The quashing of such a judgment amounts to an interference with the beneficiary’s right to peaceful enjoyment of his or her possessions (see Brumărescu v. Romania [GC], no. 28342/95, § 74, ECHR 1999‑VII) which, in order to be compatible with the requirements of that provision, must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights (see Sporrong and Lönnroth v. Sweden, 23 September 1982, § 69, Series A no.", "52). In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions (see Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, § 38, Series A no. 332). 92. In the present case the applicant company was the beneficiary of a final and binding judicial order for the payment of an amount of money, which was quashed following the application of an extraordinary remedy.", "In the light of the legal principles reiterated above, and noting the Government’s admission to that effect, the order constituted the applicant company’s “possessions” and its quashing amounted to an interference with those possessions. 93. Even assuming that such an interference may be regarded as being in compliance with the law and serving a public interest, in the light of its above finding of a violation of the applicant company’s rights under Article 6 of the Convention, the Court finds that the interference may not be considered justified since a fair balance was not preserved and the applicant company was required to bear an individual and excessive burden (see Brumărescu, cited above, §§ 75-80). It follows that there has been a violation of Article 1 of Protocol No. 1.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 94. 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 95. The applicant company claimed 25,762,763.22 euros (EUR) in respect of pecuniary damage, this aggregate amount consisting of the amounts awarded in the original round of proceedings and interest for late payment as of the day of the introduction of the claim.", "It also claimed EUR 100,000 in respect of non‑pecuniary damage. 96. As regards the former claim, the Government stated that if the applicant company had incurred any pecuniary damage, a potential finding by the Court of a violation of its Convention rights would provide a basis for reopening the domestic proceedings under Article 228 § 1 (d) of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended), and that the applicants could seek compensation in such reopened proceedings. As regards the latter claim, the Government considered it excessive.", "97. As to the claim in respect of pecuniary damage, the Court observes that the provision invoked by the Government appears to provide the applicant company with a way of having the impugned proceedings reopened and that the defendant to be potentially affected by any such reopening is at present wholly owned by the State (see paragraph 11 above). 98. The Court considers that the applicant company must have suffered non-pecuniary damage. Making its assessment on an equitable basis, the Court awards the applicant company EUR 10,000, plus any tax that may be chargeable, in respect of non-pecuniary damage.", "B. Costs and expenses 99. The applicant also claimed EUR 1,017,028.16 for legal fees incurred before the domestic courts and the Court and EUR 817.55 for translation costs. The former claim was accompanied by an itemised chart explaining the calculation of its amount, the latter by itemised bills. 100.", "The Government contested the claim in respect of legal fees as unsubstantiated. Moreover, as to the legal fees allegedly incurred at the domestic level, the Government considered the claim unfounded and, as to those allegedly incurred before the Court, overstated. Concerning the translation costs, they submitted that they had no objections to the claim. 101. 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 (see, for example, Iatridis v. Greece (just satisfaction) [GC], no.", "31107/96, § 54, ECHR 2000-XI). Furthermore, Rule 60 § 2 of the Rules of Court provides that itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part. 102. In the instant case, the Court observes that the applicant company has not substantiated its claim in respect of legal fees by any relevant supporting documents establishing that it was under an obligation to pay for the cost of legal services or has actually paid for them. Accordingly, the Court decides not to award any sum under this head (Ištván and Ištvánová v. Slovakia, no.", "30189/07, § 122, 12 June 2012). On the other hand, it awards EUR 817.55, plus any tax that may be chargeable to the applicant company, for the translation costs. C. Default interest 103. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the application inadmissible in so far as it is aimed at challenging the existing legislative framework in abstracto; 2. Declares the remainder of the application admissible; 3. Holds that there has been a violation of Article 6 of the Convention; 4. Holds that there has been a violation of Article 1 of Protocol No. 1; 5.", "Holds (a) that the respondent State is to pay the applicant company, within three months the following amounts: (i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 817.55 (eight hundred seventeen euros and fifty five cents), plus any tax that may be chargeable to the applicant company, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant company’s claim for just satisfaction. Done in English, and notified in writing on 9 June 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsJosep CasadevallRegistrarPresident" ]
[ "FIRST SECTION CASE OF NAWROT v. POLAND (Application no. 77850/12) JUDGMENT STRASBOURG 19 October 2017 FINAL 05/03/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Nawrot v. Poland, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Linos-Alexandre Sicilianos, President,Kristina Pardalos,Krzysztof Wojtyczek,Ksenija Turković,Armen Harutyunyan,Pauliine Koskelo,Jovan Ilievski, judges,and Abel Campos, Section Registrar, Having deliberated in private on 19 September 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "77850/12) against the Republic of Poland 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, Mr Krzysztof Nawrot (“the applicant”), on 20 November 2012. 2. The applicant was initially represented by Mr J. Zaleski, a lawyer practising in Katowice. After the submission of his observations on the admissibility and merits he withdrew the power of attorney granted to his lawyer. The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska, of the Ministry of Foreign Affairs.", "3. The applicant complained under Article 5 § 1 of the Convention that his detention in a psychiatric hospital had been unlawful. He further alleged a breach of Article 5 § 4 of the Convention, in that he was not afforded an effective possibility of challenging the legality of his deprivation of liberty. 4. On 18 November 2015 the complaints under Article 5 §§ 1 and 4 of the Convention were communicated to the Government, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1981 and is currently serving a sentence of imprisonment in Nysa Prison. A. First set of criminal proceedings against the applicant (robbery) 6.", "On 28 May 2001 the Kielce Regional Court convicted the applicant of robbery and sentenced him to ten years’ imprisonment. The sentence was amended by the Cracow Court of Appeal on 5 December 2001. The applicant has been serving this sentence since 3 September 2000, with interruptions between 13 January 2003 and 13 January 2005; 31 May 2005 and 17 August 2005; and 13 May 2008 and 30 May 2014. B. Second set of criminal proceedings against the applicant (murder) 7.", "In August 2005 the applicant was charged with murdering an Italian citizen, a certain P.A on 9 August 2005. Allegedly, he had repeatedly hit P.A. on the head, causing brain haemorrhages, swelling of the brain, and consequently P.A.’s death. He was also charged with one count of robbery committed on 8 August 2005 and possession of 0.2327gr of MDMA (commonly known as extasy) on 17 August 2005. 8.", "On 20 March 2006, after examining the applicant and analysing his medical file from 2000, psychiatrists concluded that he should undergo a psychiatric assessment, in order to determine whether he could be held criminally responsible for this offence. 9. On 27 March 2006 the Katowice Regional Court ordered that the applicant should undergo a psychiatric assessment in a psychiatric facility. The applicant underwent this assessment in the psychiatric ward of Cracow Detention Centre between 12 April and 30 June 2006. In an opinion dated 18 July 2006 (“the 2006 opinion”), two psychiatrists and a psychologist confirmed that he had been suffering from a chronic psychotic disorder of a delusional type related to organic lesions in his central nervous system, and also from a personality disorder (przewlekłe psychotyczne zaburzenia psychiczne o obrazie zespołu urojeniowego u osoby ze zmianami organicznymi o.u.n.", "; zaburzenia rozwoju osobowości), at the time the offences had been committed, and that he would not have been aware of and could not have controlled his actions. They further recommended that he be placed in a psychiatric hospital, as there was a risk that he could commit similar offences again. In an additional opinion of 12 January 2007 they confirmed their previous findings. 10. On 2 April 2007 the Katowice Regional Court decided to discontinue the proceedings against the applicant, on the basis that he could not be held criminally responsible.", "It further ordered that he be placed in a psychiatric hospital. 11. On 25 May 2007 the Katowice Court of Appeal quashed that decision and remitted the case. 12. The Katowice Regional Court examined the case at two hearings on 5 and 25 September 2007.", "On the former date the court heard evidence from the experts who had prepared the opinions. They confirmed their previous findings. T., an expert who spoke on behalf of the team, stated in particular that the experts had excluded the possibility that the applicant was simulating a mental illness. In support of this statement, he noted that the applicant had been medicated and subjected to a psychological personality test, the MMPI (Minnesota Multiphasic Personality Inventory). The results of the test had confirmed that he could not be feigning the symptoms of a mental illness, as a healthy person would have had a very different reaction to those specific medications.", "The applicant’s lawyer supported the prosecutor’s application for the proceedings to be discontinued. 13. On 25 September 2007 the Katowice Regional Court discontinued the proceedings against the applicant. On the basis of available evidence, the court established that the applicant had committed the offences with which he had been charged. However, as he had been suffering from a mental disorder at the time, he could not be held criminally responsible.", "The court referred to the experts’ opinions and the evidence which they had given during the trial. It also noted that the applicant had undergone psychiatric treatment since 2000. 14. The applicant did not appeal against that decision, and it became final on 10 October 2007. 15.", "On 14 March 2012 the Katowice Court of Appeal refused an application by the applicant to reopen the proceedings in the case. The court admitted that, in view of new evidence (see paragraphs 44 and 46 below), it appeared that the applicant had not murdered P.A., and that he had only participated in the robbery. However, even if the proceedings were reopened, they would have to be discontinued in any event, in view of the applicant’s insanity. C. Detention in a psychiatric facility 1. Initial detention in a psychiatric facility 16.", "On 12 December 2007 the Psychiatric Commission on Security Measures (Komisja Psychiatryczna ds. środków zabezpieczająych – “the Commission”) recommended that the applicant be placed in Branice Hospital. The applicant could not be transferred there immediately, as he was serving a sentence of 10 years’ imprisonment imposed in the first set of criminal proceedings against him (see paragraph 6 above). The Katowice Regional Court asked the penitentiary division of the court to change the order in which the sentences would be served, and to apply the security measure first. On 25 April 2008 the court decided that the applicant should first be placed in a psychiatric facility.", "17. The applicant was admitted to Branice Hospital on 13 May 2008. 18. A hospital psychologist, in opinions of 23 June and 15 December 2008, 20 May and 5 November 2009, confirmed that the applicant should continue treatment in hospital. In her opinion of 20 April 2010 the expert noted that the applicant could be moved to a less secure hospital.", "19. Psychiatrists from Branice Hospital, in opinions of 14 June and 9 December 2008, 19 May and 9 November 2009 and 20 April 2010, also confirmed that the applicant should continue treatment in a psychiatric hospital. In particular, in the opinion of 9 November 2009 the doctors concluded that the applicant was suffering from a delusional disorder related to organic lesions in his central nervous system (zaburzenia omamowo-urojeniowe na podłożu organicznego uszkodzenia o.u.n.). There had been an improvement in his condition following the treatment, however there had been no complete recovery. Accordingly, the applicant’s detention was extended by the Katowice Regional Court on 21 July 2008, 19 January, 22 June and 7 December 2009.", "Neither the applicant nor his representative appealed against those decisions. 20. On 4 May 2010 the applicant was transferred to Lubliniec Hospital, a less secure institution. 21. On 29 October 2010 experts from Lubliniec Hospital gave an opinion following a periodic review of the applicant’s condition.", "They noted that the applicant should continue treatment in a more secure facility. Consequently, on 15 November 2010 the Katowice Regional Court again extended the applicant’s detention. 22. In a joint opinion of 26 August 2011, Lubliniec Hospital psychiatrists confirmed that the applicant should continue treatment in a secure facility, as he still posed a serious threat to public order. 2.", "Psychiatric assessment in Pruszków Hospital 23. Between 28 March and 22 May 2012 the applicant underwent a psychiatric assessment in Pruszków Hospital, pursuant to an order made in the course of the third set of criminal proceedings against him (see paragraph 45 below). The relevant experts were asked to assess his mental state when he had allegedly committed other robberies between June and August 2005 (see paragraph 44 below). 24. On 17 June 2012 two psychiatrists and a psychologist gave a joint opinion (“the Pruszków opinion”), which disagreed with the 2006 opinion (see paragraph 9 above).", "They concluded that the applicant had not been suffering from any mental illness at the time when the offences had been committed (tempore criminis). In their view, the applicant did not have any organic lesions in his central nervous system. Nor did he have a learning difficulty. They agreed that he had a dissocial personality disorder. They noted that, from an early age, the applicant had disregarded the rights and feelings of others, as well as social norms.", "He also failed to learn from his actions and repeated dysfunctional behaviour. However, they were of the opinion that his condition had significantly improved in recent years. While the risk that he would commit a similar offence was not very high, it could not be excluded that, in difficult situations, he might suffer from reactive disorders. It was therefore recommended that any prison sentence served by the applicant should be served in therapeutic conditions. The opinion was submitted to the Katowice Regional Court on 11 September 2012.", "3. Expert opinion in the process of periodic review 25. Meanwhile, on 20 July 2012 psychiatrists from Lubliniec Hospital, in an opinion following a periodic review of the applicant’s condition (“the Lubliniec opinion”), had noted that the applicant had been diagnosed with delusional disorders related to organic lesions in his central nervous system. During his stay in Lubliniec Hospital, no acute psychotic symptoms had been observed. However, in view of the initial diagnosis and his lifestyle, it was felt that the applicant should continue treatment at a psychiatric hospital, as there was still a risk that he might commit criminal offences of significant harm to the community.", "4. The applicant’s initial applications for release 26. At hearings held on 28 August and 24 September 2012 the Katowice Regional Court examined the applicant’s application for release of 24 July 2012. The court heard evidence from Lubliniec experts who had given the opinion of 20 July 2012 (see paragraph 25 above). One of the experts clarified that, in assessing the possible risk of the applicant committing criminal offences, she had relied on the initial diagnosis and his lifestyle (his multiple convictions and the fact that he was young and single with no children).", "She further agreed with the Pruszków experts’ opinion (see paragraph 24 above) that the applicant suffered from a personality disorder. His personality disorder was characterised by a tendency to manipulate and dominate others, and he was self-centred. These elements constituted a risk that the applicant might commit a criminal offence. The expert was not able to answer the court’s question as to whether the applicant could have simulated a mental illness. 27.", "On 24 September 2012 the Katowice Regional Court dismissed the applicant’s application to be released from hospital. With reference to the discrepancies between the two expert opinions, the court held that the Pruszków opinion concerned the applicant’s capacity tempore criminis, while the Lubliniec opinion related to his general progress in treatment and his future prognosis. Moreover, the Pruszków opinion had been given with reference to different offences. The court also noted that both sets of experts agreed that the applicant had suffered from a dissocial personality disorder. In view of the above, the court decided to base its conclusion on the Lubliniec opinion and refused to release the applicant from detention.", "It also held that he should continue treatment in a less secure institution. The applicant did not appeal against that decision. 28. On 28 November 2012 the Katowice Regional Court dismissed a further application by the applicant to be released from detention. It noted that his situation had not changed since the last decision had been given.", "It further decided to place him in a facility with enhanced security. It referred to a letter in which he had informed the authorities that he had been considering an escape from the psychiatric facility. That decision was upheld by the Katowice Court of Appeal on 22 January 2013. 5. The applicant’s first suicide attempt.", "29. On 31 January 2013 the applicant attempted to commit suicide by overdosing on his medication. 30. On 13 February 2013, the applicant was transferred to Cracow Psychiatric Hospital (a hospital with enhanced security). 6.", "The alleged simulation of mental illness 31. On 19 May 2013 the applicant sent a letter to the Katowice Regional Court, claiming that he had been simulating mental illness. He submitted that he owned a medical book on psychiatry and had also seen the film “A Beautiful Mind”, which had helped him to act out the symptoms of mental illness. He also informed the director of Lubliniec Hospital that he had been pretending to have a mental illness. However, she told him that many patients made the same claim.", "7. Proceedings for periodic review 32. Meanwhile, on 19 March 2013, in the context of periodic review proceedings, the Katowice Regional Court had decided to continue the applicant’s detention in a psychiatric facility. The court relied on an expert opinion of 15 March 2013, in which experts from Cracow Psychiatric Hospital had confirmed that the applicant suffered from a dissocial personality and had suffered from a psychotic disorder in the past. They had stressed that there was a risk that the applicant would commit a similar offence of significant harm to the community as a result of his psychiatric condition.", "In particular, the experts had referred to the fact that the applicant was not critical of the offences he had committed or his medical condition. That decision was upheld by the Katowice Court of Appeal on 16 April 2013. 33. On 27 August 2013, pursuant to Article 203 of the Code of Execution of Criminal Sentences (see paragraph 55 below), psychiatrists from Cracow Psychiatric Hospital submitted an opinion concerning the applicant following a periodic review. They confirmed that he had not been suffering from a mental illness, but had a severe dissocial personality disorder.", "They also noted that the applicant claimed to have suffered from a brief psychotic disorder in the past. They were convinced that, between June and August 2005, the applicant had been able to recognise the significance of his actions and control his behaviour. However, the experts considered that it was still likely that he would commit similar offences of significant harm to the community again as a result of his psychiatric condition. This risk was not related to a mental illness, but to a severe personality disorder. The applicant was still in need of complex therapy for personality disorders.", "They experts left the decision as to whether security measures should be continued to the court’s discretion. 34. On 12 September 2013 the experts supplemented their opinion with regard to further questions put by the court. They confirmed that, at the time when the offences had been committed, the applicant had not been suffering from any delusional disorders which could have resulted in a conclusion that he had acted in a state of insanity. They also considered that it was highly likely that he would commit similar offences again.", "This risk was related to the applicant’s lifestyle, his multiple convictions and his inability to learn social skills, but not to a mental illness. They stated that they could not recommend the applicant’s release. Even if he had not been insane at the time when the offences had been committed, there was still a risk that he would commit further offences in view of his dissocial personality disorder. They further concluded that it was not a medical but a legal issue as to whether the applicant’s detention should be lifted. 8.", "The applicant’s further application for release 35. Subsequently, on an unknown date the applicant lodged an application for release. It was examined by the Katowice Regional Court at two hearings: on 17 October and 8 November 2013. The applicant’s representative and psychiatrists were present. The court heard evidence from experts from Cracow Psychiatric Hospital.", "They disagreed with the 2006 opinion and confirmed that the applicant was suffering from a dissocial personality disorder. The experts stated before the court that they had not recommended the applicant’s release, as they were aware that they could have been wrong in their assessment. The experts were also not in a position to give a clear answer to the question of whether the applicant could have simulated a mental illness. They submitted a supplementary opinion in which they noted that on 18 October 2013 the applicant had attempted to commit suicide (see paragraph 39 below). In their opinion, in view of the applicant’s fragile state, it was necessary to place him in a hospital with enhanced security.", "36. On 8 November 2013 the court refused to release the applicant from detention. The court thoroughly examined diverging psychiatric opinions, in particular the 2006 opinion (see paragraph 9 above) and the opinions of 27 August and 12 September 2013 (see paragraphs 33 and 34 above). Relying on the testimonies obtained from experts, it concluded that there were no grounds to doubt the correctness of the 2006 opinion, especially after such a long lapse of time. The court also examined the question of whether the applicant could have simulated a psychotic disorder, and noted the experts’ diverging views in this respect.", "It referred to T.’s expert testimony on 5 September 2007 (see paragraph 12 above) and to the testimony given by the Cracow experts on 17 October 2013 (see paragraph 35 above). It also held that the applicant had been detained in several hospitals, and none of the experts who had examined him there had challenged the initial diagnosis. Lastly, it referred to the applicant’s recent suicide attempt. In conclusion, the court held that there was still a risk that the applicant might commit an offence of significant social harm. 37.", "On 22 November 2013 the applicant’s lawyer lodged an appeal against that decision. He referred to the divergent expert opinions. He also stressed that the applicant had recently been indicted for offences committed in 2005, and that his sanity was not being questioned in those proceedings (see paragraph 45 below). On 25 November 2013 the applicant lodged his own appeal, submitting in particular that he had been simulating a mental illness. 38.", "The Katowice Court of Appeal examined the applicant’s appeal at two hearings: on 21 January and 11 March 2014. On the latter date, relying on the evidence gathered by the Regional Court, it upheld the decision of 8 November 2013 (see paragraph 36 above). The court referred to the reasons given by the Regional Court and considered that it was still likely that the applicant would commit similar offences again. 9. The applicant’s second suicide attempt 39.", "Meanwhile, on 18 October 2013, the applicant had attempted to commit suicide by injecting himself with a significant dose of insulin. He was transferred to the toxicology ward of Cracow University Hospital, where he was treated for two days. 10. The applicant’s release from hospital 40. On 20 January 2014 the applicant was transferred to Toszek Psychiatric Hospital.", "41. On 30 April 2014, pursuant to Article 203 of the Code of Execution of Criminal Sentences (see paragraph 55 below), psychiatrists from Toszek Hospital submitted an opinion concerning the applicant following a periodic review. They confirmed that he only had a dissocial personality disorder and it was unlikely that he would commit similar offences of significant harm to the community again as a result of his psychiatric condition. They further recommended his release from the psychiatric facility. 42.", "On 15 May 2014 the Katowice Regional Court appointed a new defence lawyer for the applicant, to replace the one who had resigned, and set a hearing date for 28 May 2014. On the latter date it heard evidence from the experts from the Toszek Hospital. The experts confirmed the findings they had made in the opinion of 30 April 2014. 43. On 30 May 2014 the Katowice Regional Court gave a decision and ordered the applicant’s release from the psychiatric facility.", "The applicant was released on that date and transferred to Wojkowice Prison in order to serve the remainder of the sentence of imprisonment which had been imposed following the first set of criminal proceedings against him (see paragraph 6 above). D. Third set of criminal proceedings against the applicant (several counts of robbery) 44. On 8 December 2010 the Katowice District Prosecutor charged the applicant with several counts of robbery (carjacking) committed between June and August 2005 (on 23 June, 27 June, 4 July, 5 July and 17 August 2005). Allegedly, the applicant, together with a certain A.I. and one other person, had stolen five cars by using force and intimidating the cars’ drivers (by hitting, kicking and using tear gas).", "During his questioning, the applicant informed the prosecutor that A.I. had been involved in P.A.’s killing. 45. On 30 January 2012 the Katowice Regional Court ordered the applicant to undergo a psychiatric medical examination at Pruszków Hospital in order to assess his mental state at the time when the alleged offences had been committed. As indicated in paragraph 24 above, the medical opinion given by experts from Pruszków Hospital on 17 June 2012 stated that the applicant had had full mental capacity in 2005.", "46. On 25 October 2013 a bill of indictment was lodged with the Katowice Regional Court. A.I. was charged with murdering P.A., and the applicant and a certain T.K. were only charged with theft and several counts of robbery committed in 2005.", "The trial before the Katowice Regional Court began in 2014. 47. During a hearing on 14 January 2015 the court heard evidence from the Cracow Hospital experts who had prepared the opinion of 27 August 2013. As indicated in paragraph 33 above, they confirmed that the applicant had not been suffering from a mental illness, but had a personality disorder. They were also convinced that, between June and August 2005, the applicant had been able to recognise the significance of his actions and control his behaviour.", "The experts disagreed with the opinion of 2006 (see paragraph 9 above). 48. On 22 April 2015 the court heard evidence from psychiatrists from Pruszków Hospital who had prepared the opinion of 17 June 2012 (see paragraph 24 above). They confirmed that, in their opinion, the applicant had not been suffering from a mental illness. They further agreed that it was very likely that the applicant had pretended to have symptoms of a mental illness.", "49. On 22 May 2015 the court heard evidence from the psychologist who, together with two psychiatrists, had prepared the opinion of 18 July 2006 (see paragraph 9 above). He stated that the applicant could have simulated a brief psychotic disorder (zaburzenia psychotyczne) during the psychological tests. 50. On 20 July 2015 the Katowice Regional Court gave judgment.", "The court established that the applicant, together with A.I. and a certain T.K. had participated in the assault on P.A.. The criminal proceedings against the applicant were subsequently discontinued due to his insanity. The court further thoroughly examined the applicant’s mental capacity and found that the applicant had had full mental capacity in the relevant period.", "It convicted A.I. of P.A.’s murder, T.K. of robbery and assault on P.A. and the applicant of several counts of robbery committed on 23 June, 27 June, 4 July, 5 July and 17 August 2005. It also sentenced the applicant to three years’ imprisonment, suspended for seven years.", "51. The applicant did not lodge an appeal against that judgment. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Provisions on criminal liability 52.", "Article 31 § 1 of the Criminal Code contains rules on the absence of criminal liability owing to mental disorders. It provides that, where a person commits an act, if the person is incapable of recognising the significance of the act or controlling his or her actions owing to a mental illness, a mental deficiency or any other serious mental abnormality, that person is not guilty of an offence. B. Security measure and its execution 1. Criminal Code 53.", "Article 93 of the Criminal Code, in its wording until 1 July 2015, read: “The court may impose a security measure (środek zabezpieczający) as provided for in this chapter, which involves committal to a secure medical institution only if necessary in order to prevent the repeated commission of a prohibited act by an offender suffering from mental illness ... mental impairment, or addiction to alcohol or other narcotic drugs. Before imposing such a measure, the court shall hear evidence from psychiatrists and a psychologist...” 54. Article 94, in its wording until 1 July 2015 read: “1. If an offender has committed a prohibited act in a state of insanity as specified in Article 31 § 1, causing significant harm to the community, and there is a high probability that he will commit such an act again, the court shall commit him to a suitable psychiatric institution. 2.", "The duration of the stay at the institution shall not be fixed in advance; the court shall release the offender from the institution if his stay there is no longer deemed necessary. 3. The court may reorder the committal of an offender (as specified in paragraph 1) to a suitable psychiatric institution if it is advisable in the light of the circumstances specified in paragraph 1 or Article 93; such an order may not be issued more than five years after release from the institution.” 2. Code of Execution of Criminal Sentences 55. The relevant parts of Article 203 of the Code of Execution of Criminal Sentences read as follows: “1.", "The director of a closed institution in which a security measure is being executed shall send the court, no less than every six months, an opinion on the state of health of the perpetrator placed in the institution and the progress of his or her treatment or therapy. The opinion shall be sent immediately if, due to a change in the perpetrator’s state of health, the director finds that his or her further detention in the institution is unnecessary. 2. The court may request, at any time, an opinion on the state of health of the perpetrator placed in an institution referred to in paragraph 1, the treatment or therapy administered, and the results thereof.” 56. Article 204 reads: “1.", "No less than every six months, and in the event of receiving an opinion that further detention of the perpetrator in a secure medical institution in which a security measure is being executed is unnecessary, the court shall immediately make a decision as regards the further execution of that measure. If necessary, the court shall refer to the opinion of other medical experts. The decision as regards the further execution of a security measure may be appealed against.” C. Provisions relating to involuntary admission 57. Provisions relating to involuntary admission to a mental health facility are included in the Mental Health Protection Act (ustawa o ochronie zdrowa psychicznego) of 1994. Pursuant to this Act, the admission to a psychiatric hospital of a person who has a mental health disorder or who is mentally disabled and does not consent to treatment in the hospital must be approved by a civil court.", "Section 23 of that Act indicates that a mentally ill person may only be involuntarily admitted to a psychiatric hospital if, because of the illness, he or she is a threat to his or her own life or to another person’s health or life. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 58. The applicant complained under Article 5 of the Convention that his detention in a psychiatric hospital had been unlawful. The Court considers that the complaint falls to be examined under Article 5 § 1 (e) of the Convention, which reads: “1.", "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (e) the lawful detention ... of persons of unsound mind ...” A. Admissibility 59. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. The parties’ submissions (a) The applicant 60. The applicant submitted that, during the criminal proceedings against him, he had been simulating a mental illness, which had been his adopted line of defence. 61.", "The applicant further maintained that, despite the fact that in June 2012 the Pruszków experts had confirmed that he had not been suffering from a mental illness at the time when the offences had been committed (see paragraph 24 above), the domestic courts had refused to release him from hospital. He also referred to the expert opinion of 27 August 2013 which challenged the basis of his detention (see paragraph 33 above). (b) The Government 62. The Government submitted that the applicant had been detained in a psychiatric hospital between 13 May 2008 and 30 May 2014. At the relevant time, when his detention had been ordered, he had been reliably shown to be suffering from a “true mental disorder” on the basis of medical expertise.", "They referred to the decision of the Katowice Regional Court of 25 September 2007, which was based on medical reports (see paragraph 13 above). They further maintained that the requirement that the disorder must be of a kind or degree warranting compulsory confinement had also been entirely fulfilled. 63. Lastly, the Government submitted that the necessity of the applicant’s continued detention had been systematically examined by the domestic authorities. When extending the applicant’s confinement, the courts had relied on a recent psychiatric opinion each time.", "Furthermore, when there had been contradictory expert opinions, the domestic courts had heard the experts in order to resolve all doubts. Lastly, when the courts had lifted the applicant’s detention, he had been released from hospital. 2. The Court’s assessment (a) General principles 64. The Court reiterates that, for the purposes of Article 5 § 1 (e), an individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind, that is, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no.", "33, and Stanev v. Bulgaria [GC], no.36760/06, § 145, ECHR 2012). (b) Application of the above principles to the present case 65. The Court notes at the outset that the applicant does not allege unlawfulness of the initial decision of 25 September 2007 and his subsequent detention in execution of the security measure (see paragraph 13 above). Rather, he complains that his detention became unlawful after 17 June 2012, when the experts confirmed that he had not been suffering from a mental illness at the time when the offences had been committed, that is between June and August 2005 (see paragraph 61 above). 66.", "Accordingly, the Court will focus its examination on the period starting on 17 June 2012, the date of the Pruszków opinion, in which the experts reached the above conclusion (see paragraph 24 above). However, the events dating back to the establishment of his insanity in 2006, which resulted in the imposition of the security measure, will be considered as an important background in reviewing his deprivation of liberty in the period from 17 June 2012 to 30 May 2014, the date of his release. 67. Having regard to the above general principles (see paragraph 64 above), the Court will first examine whether the applicant was reliably shown to be of unsound mind. In other words, whether a true mental disorder was established before a competent authority on the basis of objective medical expertise (see Petschulies v. Germany, no.", "6281/13, § 67, 2 June 2016). 68. The Court observes that the initial validity of the security measure was not contested in the present case. It notes that in September 2007 the Katowice Regional Court found that the applicant was suffering from a delusional disorder related to organic lesions in his central nervous system, and also from a personality disorder. That conclusion was based on expert opinions and further expert testimony before the court (see paragraphs 9 and 12 above).", "The domestic court subsequently discontinued the proceedings and ordered the applicant’s confinement in a psychiatric hospital (see paragraph 13 above). 69. The Court further notes that subsequently the medical diagnosis, the essential element on which the applicant relied, altered. On 17 June 2012 a different set of experts assessing the applicant in the context of another set of proceedings (yet in respect of offences allegedly committed by him during the same period of time, June-August 2005), reached the conclusion that the applicant had a dissocial personality disorder (see paragraph 24 above). The experts examining the applicant as part of a periodic review agreed with that assessment (see paragraphs 26, 32-35 above).", "In their view, the applicant’s personality disorder was characterised by a disregard for the rights and feelings of others and social norms, a failure to learn from his actions, repeated dysfunctional behaviour, a tendency to manipulate and dominate others, and his being self-centred (see paragraphs 24 and 26 above). Those findings were subsequently analysed in depth by the Katowice Regional Court (see paragraph 27 above). 70. In the Court’s view, having regard to the manner in which the applicant’s personality disorder manifested itself, it is doubtful whether the Katowice Regional Court could be said to have established that he was “of unsound mind” within the meaning of Article 5 § 1 (e) of the Convention. 71.", "However, even assuming that the applicant was reliably shown to be of unsound mind, it remains to be examined whether that disorder was of “a kind or degree warranting confinement”. 72. The Court notes firstly that initially the applicant’s mental disorder was indeed considered so serious that he was found to have acted in a state of insanity for the purposes of Article 31 § 1 of the Criminal Code. However, subsequently the experts changed their opinion and agreed that the applicant had been able to recognise the significance of his actions and control his behaviour (see paragraphs 24 and 33 above). 73.", "The Court has repeatedly stressed that the permissible grounds for deprivation of liberty listed in Article 5 § 1 are to be interpreted narrowly (see, among others, Shimovolos v. Russia, no. 30194/09, § 51, 21 June 2011 above). Moreover, in order to amount to a true mental disorder for the purposes of sub-paragraph (e) of Article 5 § 1, the mental disorder in question must be so serious as to necessitate treatment in an institution appropriate for mental health patients (see Glien v. Germany, no. 7345/12, § 85, 28 November 2013). The Court has further expressed doubts as to whether a person’s dissocial personality or dissocial personality disorder alone could be considered a sufficiently serious mental disorder so as to be classified as a “true” mental disorder for the purposes of Article 5 § 1 (e) (see Petschulies, cited above, §77).", "74. The Court is doubtful whether, in the present case, the applicant’s condition was indeed so serious that it warranted compulsory confinement during the whole period in question. In this regard, it points out that on 17 June 2012 the experts considered that his condition had significantly improved over the years (see, paragraph 24 above). In the context of a further periodic review, on 20 July 2012 the experts stressed that during the applicant’s stay in Lubliniec Hospital no acute psychotic symptoms had been observed (see paragraph 25 above). Equally, in their opinion of 27 August 2013 the experts noted that, while the applicant claimed to have suffered from a brief psychotic disorder in the past, at that time he only had a severe dissocial personality disorder (see paragraph 33 above).", "At the same time, they also observed that the question as to whether the applicant’s detention should be lifted was a legal issue, not a medical one (see paragraph 34 above). 75. With regard to the potential risk posed by the applicant’s release, the Court observes that the domestic courts relied on a risk that the applicant might commit a similar criminal offence of significant harm to the community (see paragraphs 32, 36 and 38 above). Initially, the security measure applied in respect of the applicant was indeed mainly based on his involvement in the murder of P.A. (see paragraphs 7 and 13 above).", "However, later on, in the course of the third set of proceedings, another person was charged with P.A.’s murder and the applicant was only charged with several counts of robbery and theft (see paragraph 46 above). It would thus appear that, with the passage of time and the developments regarding the factual basis for the assessment, the possible risk of his reoffending became less significant (see paragraphs 24, 31, 33, 34 and 41 above). 76. In the Court’s opinion, in extending the applicant’s detention in psychiatric hospital beyond 17 June 2012, no sufficient consideration was given to whether the applicant represented an imminent danger to others or to himself (see, mutatis mutandis, Plesó v. Hungary, no. 41242/08, § 65, 2 October 2012, and Stanev, cited above, § 157 ).", "The Court further considers that the reasons given by the domestic courts do not appear sufficient for this purpose (see, paragraphs 25, 27, 32 and 34 above). 77. In those circumstances, the Court is not persuaded that the domestic authorities established that the validity of the applicant’s confinement could be derived from the persistence of a disorder of a kind or degree warranting compulsory confinement. Therefore, his detention between 17 June 2012 and 30 May 2014 fell short of the conditions assumed by Article 5 § 1 (e) of the Convention. There has accordingly been a breach of that provision.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 78. The applicant complained that he could not have effectively challenged the lawfulness of his continued detention. The complaint falls to be examined under Article 5 § 4 of the Convention, which provides: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Admissibility 79. The Court considers that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention.", "No other grounds for declaring it inadmissible have been established. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant 80.", "The applicant submitted that, during his detention in hospital, he had had no access to an effective procedure by which to challenge the lawfulness of his detention. (b) The Government 81. The Government maintained that the procedure by which the applicant had sought to challenge the lawfulness of his detention in a psychiatric facility was in conformity with Article 5 § 4 of the Convention. They submitted that only on one occasion had the applicant made use of the possibility to lodge an appeal against a decision concerning the extension of his detention, namely he had appealed against the decision of 8 November 2013 (see paragraph 37 above). In addition, only on two occasions had he lodged applications to be released from hospital (on 24 July 2012 and on an unknown date in 2013 – see paragraphs 26 and 35 above), and both applications had been dismissed on the basis of expert opinions.", "The Government submitted that the applicant’s legal representative had been present at the court hearings regarding the extension of the applicant’s detention, and could have made submissions and lodged further applications. They concluded by stating that all decisions relating to the extension of the applicant’s detention in a psychiatric facility had met the procedural standards set out in the Convention. 2. The Court’s assessment (a) General principles 82. The Court reiterates that, by virtue of Article 5 § 4, an arrested or detained person is entitled to bring proceedings for review by a court of the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of Article 5 § 1, of his or her deprivation of liberty (see Brogan and Others v. the United Kingdom, 29 November 1988, § 65, Series A no.", "145-B; Reinprecht v. Austria, no. 67175/01, § 31 (a), ECHR 2005-XII; and Idalov v. Russia [GC], no. 5826/03, § 161, 22 May 2012). (b) Application of the above principles to the present case 83. Turning to the circumstances of the present case, the Court accepts that the procedure for reviewing the need for the applicant’s continued deprivation of liberty was accessible to him; the domestic law provided for a periodic review of detention in psychiatric hospitals, and this procedure was followed.", "The procedure had a judicial character and the applicant had access to a court (see paragraphs 35- 38 and 56 above). 84. The Court further notes that the lawfulness of the applicant’s detention in a psychiatric hospital was considered by the domestic courts on a number of occasions at various stages of the proceedings. In his applications for release, the applicant maintained in particular that he was not suffering from a mental illness and that he was feigning such symptoms. On each occasion the domestic court fixed hearings and examined the applicant’s submissions.", "It also heard two sets of experts, thoroughly examined divergences in their opinions, and considered that the applicant’s detention was justified by his condition (see paragraphs 26, 35 and 38 above). The applicant had the opportunity to challenge each of those decisions before the Katowice Court of Appeal, which he did, on two occasions (see paragraphs 28 and 38 above). 85. The Court reiterates that, while Article 5 § 4 of the Convention does not impose an obligation on a judge examining an appeal against detention to address every argument contained in the appellant’s submissions, its guarantees would be deprived of their substance if the judge, relying on domestic law and practice, could treat as irrelevant, or disregard, concrete facts invoked by the detainee and capable of casting doubt on the existence of those conditions essential for the “lawfulness”, for Convention purposes, of the deprivation of liberty (see Nikolova v. Bulgaria [GC], no. 31195/96, § 61, ECHR 1999-II).", "86. In the present case the Court does not consider that the domestic courts treated as irrelevant or disregarded any of the concrete facts relied on by the applicant in his appeals. The Katowice Regional Court examined the arguments submitted by the applicant and rejected them by a reasoned decision. The Katowice Court of Appeal endorsed that reasoning. The Court is satisfied that the scope of the review of the lawfulness of the applicant’s detention carried out by the domestic courts complied with the requirements of Article 5 § 4 of the Convention.", "87. The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 5 § 4. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 88. 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 89. The applicant claimed 8,261,000 euros (EUR) in respect of non‑pecuniary damage. 90. The Government contested this claim 91. The Court notes that the applicant was detained in breach of Article 5 § 1 of the Convention between 17 June 2012 and 30 May 2014 (see paragraph 76 above).", "It considers that this must have caused him distress and frustration. Having regard to the specific circumstances of the case, and making its assessment on an equitable basis, the Court awards the applicant EUR 15,000, plus any tax that may be chargeable, in respect of non‑pecuniary damage. B. Costs and expenses 92. The applicant claimed EUR 4,000 for the costs of his legal representation before the Katowice Regional Court, together with 15% interest on that sum accrued from 2005 until the date of payment.", "He further asked for EUR 4,000 for the costs of his legal representation before the Court, together with 15% interest on that sum accrued from the date of filing his observations until the day of payment. Lastly, he asked for EUR 550 for translation costs, together with 15% interest on that sum accrued from the date of issue of the invoice until the day of payment, and EUR 280 for other costs (postage and copying). 93. The Government submitted that, apart from an invoice for unspecified translation services and a statement made by his representative confirming the amounts indicated, the applicant did not submit any documents confirming the costs and expenses claimed. 94.", "In accordance with 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. The Court notes that the applicant did not provide sufficient documentation as to his costs and expenses. He only submitted a document proving that he had incurred translation costs in the amount of EUR 550. Consequently, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and awards the sum of EUR 550 for costs and expenses in the proceedings before the Court. C. Default interest 95.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Declares, unanimously, the application admissible; 2. Holds, by five votes to two, that there has been a violation of Article 5 § 1 of the Convention; 3. Holds, unanimously, that there has been no violation of Article 5 § 4 of the Convention.", "4. Holds, by five votes to two, (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: (i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 550 (five hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 19 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposLinos-Alexandre SicilianosRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Judges Pardalos and Wojtyczek is annexed to this judgment.", "L.A.S.A.C. JOINT DISSENTING OPINION OFJUDGES PARDALOS AND WOJTYCZEK 1. We are not persuaded by the position of the majority in the instant case. In our view there has been no violation of Article 5 § 1 of the Convention. 2.", "The difficulty of the present case is connected with the fact that in 2012 two apparently divergent expert opinions concerning the mental health of the applicant were issued. The opinion of 17 June 2012 was prepared in a different set of criminal proceedings with the purpose of assessing his mental health at the time when he committed the acts at the basis of his indictment (see paragraph 24 of the judgment). The opinion of 20 July 2012 was prepared for the purpose of a periodic review of the applicant’s condition (see paragraph 25 of the judgment). 3. In our view, the judgment is based on a misunderstanding of the factual circumstances of the case.", "We would like to supplement the facts described in the judgment with the following elements. The psychiatric opinion of 20 July 2012 stated the following: “Krzysztof Nawrot has been diagnosed with delusional disorders related to organic lesions in his central nervous system (zaburzenia omamowo-urojeniowe na podłożu zmian organicznych OUN). During his stay in this department we have not observed acute psychotic symptoms. However, given the diagnosis and his lifestyle we consider that Krzysztof Nawrot should undergo rehabilitation and resocialisation in the Department of Forensic Psychiatry with basic security. In our view there is a probability that the individual concerned will commit offences causing significant harm.” The Katowice Regional Court held two hearings, on 28 August 2012 and 24 September 2012, during which experts were questioned in order to clarify discrepancies between the opinions of 17 June 2012 and 20 July 2012.", "When questioned at the hearing on 24 September 2012, an expert stated “in the strongest possible terms” (z całą stanowczością) that the applicant was suffering from a serious mental illness. She expressed the view that the risk of reoffending was high and explained that in the opinion of 20 July the adjective “high” in the assessment of the risk of reoffending was missing owing to a mistake. The Katowice Regional Court, in its decision of 24 September 2012, stated that it was based on the opinion of 20 July 2012. The reasoning explained why the court had to follow that opinion and why the opinion of 17 June 2012 could not be decisive. The majority state, in this context, in paragraph 70: “In the Court’s view, having regard to the manner in which the applicant’s personality disorder manifested itself, it is doubtful whether the Katowice Regional Court could be said to have established that he was ‘of unsound mind’ within the meaning of Article 5 § 1 (e) of the Convention.” We respectfully disagree.", "The domestic court relied on expert opinions established on 24 September 2012 stating that the applicant was suffering from a serious mental illness. Later, the courts addressed the dissocial personality disorder and, relying on expert opinions, considered that it was so severe that it warranted compulsory confinement. The reasoning of the decision of 24 September 2012, as well as the reasoning of the subsequent decisions, indicates the elements which justify the conclusion that the applicant was of unsound mind within the meaning of the above-mentioned provision. Our colleagues, by referring to the manner in which the applicant’s personality disorder manifested itself, decided to make their own assessment of the applicant’s state of health. For our part we do not have sufficient expert knowledge to contest the findings of the domestic experts in this case.", "More generally, we note that the national courts were in a far better position to assess the value of the expert reports and to determine the factual issue whether or not the applicant was suffering from a mental disorder of a kind or degree warranting compulsory confinement. 4. The psychiatric opinion of 15 March 2013 stated as follows: “... in the current state of Krzysztof Nawrot’s health there is a high probability that he will commit a criminal offence of significant social harm related to his psychiatric illness. Krzysztof Nawrot still requires treatment as a preventive measure in a department with enhanced security” (emphasis added). On 27 August 2013 the experts noted that there was still “... a high risk of [the applicant’s] committing further criminal offences although this risk is not connected with a psychiatric illness but with his deeply disordered personality” (emphasis added).", "The opinion of 12 September 2013 stated: “There is a high risk of [the applicant’s] committing further criminal offences but this risk is not connected to a psychiatric illness. ... We have established a deep personality disorder of a dissocial nature. ... We have not established a psychiatric illness in the sense of long-term psychosis” (emphasis added). The supplementary opinion of 18 October 2013 stated as follows: “... given that there is a high risk that Krzysztof Nawrot will commit [criminal] acts of a similar nature to the one referred to in the order for his placement in detention, or will escape from an enhanced security facility, we recommend that the patient be placed in a maximum security facility in continuation of the preventive measures” (emphasis added). The opinion also stated that there was a high risk of suicide.", "The majority state in paragraph 75: “It would thus appear that, with the passage of time and the developments regarding the factual basis for the assessment, the possible risk of his reoffending became less significant (see paragraphs 24, 31, 33, 34 and 41 above).” In paragraph 76, they further affirm: “In the Court’s opinion, in extending the applicant’s detention in psychiatric hospital beyond 17 June 2012, no sufficient consideration was given to whether the applicant represented an imminent danger to others or to himself (see, mutatis mutandis, Plesó v. Hungary, no. 41242/08, § 65, 2 October 2012, and Stanev, cited above, § 157).” We respectfully disagree. The experts clearly stated in 2012 and 2013 that there was a high risk that the applicant would commit further violent crimes. We note moreover that in Plesó, cited above, the Court referred to the imminent danger test because it was the criterion laid down in the Hungarian legislation for compulsory psychiatric confinement. The Grand Chamber judgment in the case of Stanev ([GC], no.", "36760/06, § 157, ECHR 2012) established the criterion of danger to oneself or others as follows: “In the present case, however, it has not been established that the applicant posed a danger to himself or to others, for example because of his psychiatric condition ...” In our opinion, the present judgment departs from the Stanev test in this respect. 5. In paragraph 50 the Court correctly establishes the following circumstances: “On 20 July 2015 the Katowice Regional Court gave judgment. The court established that the applicant, together with A.I. and a certain T.K.", "had participated in the assault on P.A. The criminal proceedings against the applicant were subsequently discontinued due to his insanity. The court further thoroughly examined the applicant’s mental capacity and found that the applicant had had full mental capacity in the relevant period. It convicted A.I. of P.A.’s murder, T.K.", "of robbery and assault on P.A. and the applicant of several counts of robbery committed on 23 June, 27 June, 4 July, 5 July and 17 August 2005. It also sentenced the applicant to three years’ imprisonment, suspended for seven years.” In paragraph 75, however, the majority state the following: “Initially, the security measure applied in respect of the applicant was indeed mainly based on his involvement in the murder of P.A. (see paragraphs 7 and 13 above). However, later on, in the course of the third set of proceedings, another person was charged with P.A.’s murder and the applicant was only charged with several counts of robbery and theft (see paragraph 46 above).” We respectfully disagree.", "The above-quoted views contradict the factual findings presented in paragraph 50. It has been established that the applicant, together with other persons, participated in the assault during which P.A. was killed. The proceedings against the applicant were discontinued owing to insanity, not because he did not participate in that crime. The other charges were related to completely different crimes committed during the same period.", "As the majority see it, the applicant was “only charged with several counts of robbery and theft”. In our view, the applicant was charged with no less than several counts of robbery, that is to say, serious and violent crimes. Moreover, he was finally convicted of all those crimes. At least one of the violent acts for which he was prosecuted resulted in the death of the victim. In those circumstances there were reasonable grounds to consider that there was a serious risk that the applicant might reoffend and again pose a threat to the life or health of other persons.", "This high risk was stated in the expert opinions on which the domestic courts relied. 6. The majority state the following in paragraph 76: “The Court further considers that the reasons given by the domestic courts do not appear sufficient for this purpose [of extending the applicant’s detention] (see paragraphs 25, 27, 32 and 34 above).” We respectfully disagree. We note that the applicant was examined by psychiatrists and a psychologist at regular intervals in the context of periodic reviews, and that each time the result of the psychiatric examination served as the basis for a fresh judicial decision extending his confinement in the psychiatric unit (see paragraphs 18, 19, 21, 22, 25, 32 and 33 of the judgment). The experts opined that the risk of his committing further violent crimes was high.", "The domestic courts carefully addressed the mental health of the applicant as well as the severity of the applicant’s dissocial personality disorder (see paragraphs 27 and 32 of the judgment). With reference to the expert opinions, the domestic courts repeatedly held that there was a risk that, if released, the applicant would commit yet another criminal offence of significant harm to the community (see paragraphs 27, 32, 36 and 38). Later on, in addition to the risk of his committing further similar offences, the court justified continuation of the applicant’s detention by referring to his second suicide attempt and his consequent fragile condition (see paragraphs 36 and 39 of the judgment). The domestic courts took into consideration the evolution of the applicant’s mental health, since, depending on his condition as continually assessed by experts, he was transferred between less secure hospitals and facilities with enhanced security (see paragraphs 20 and 30). When confronted with conflicting experts opinions the judge held extensive hearings in order to question the experts.", "Moreover, when on 30 April 2014 the experts confirmed that the applicant’s condition had improved and that it was unlikely that he would commit similar offences in the future (see paragraph 41 of the judgment), the court promptly set a hearing date and within one month ordered the applicant’s release from hospital (see paragraphs 42 and 43). In those circumstances, the authorities, in our view, displayed the necessary diligence in assessing the applicant’s condition and the domestic decisions were correctly reasoned. 7. The majority rightly note that the applicant did not contest the initial placement order. We would like to emphasise that, on the other hand, the applicant alleged that he had simulated mental illness.", "This is a very important factual circumstance in the case and we regret that the majority decided not to address it. If the mental illness was simulated, then it is necessary to take into account the fact that the applicant himself contributed to his prolonged placement in a psychiatric hospital. He should then bear the consequences of his deliberate choice. His application before this Court could have been dismissed as abusive. We note furthermore that the applicant’s mental illness was the basis for the discontinuation of one set of criminal proceedings against him.", "If the illness was simulated then he should have been criminally liable for the offence for which he was prosecuted. However, his attitude resulted in his obtaining substantial pecuniary compensation for the situation to which he had himself contributed – as is clear from his own statements. 8. The majority restate in paragraph 67: “The Court has further expressed doubts as to whether a person’s dissocial personality or dissocial personality disorder alone could be considered a sufficiently serious mental disorder so as to be classified as a ‘true’ mental disorder for the purposes of Article 5 § 1 (e) (see Petschulies, cited above, § 77).” We note, in this respect, that in the present case the domestic courts addressed this issue. Firstly, as noted above, the applicant’s personality disorder was not the only basis for his confinement, as the experts established, at least until 2012, that the applicant was suffering from a mental illness.", "Secondly, as mentioned above, the severity of the applicant’s personality disorder was analysed and the courts established that it was so severe that it warranted compulsory confinement. We therefore consider that the second criterion laid down in the Winterwerp judgment (“unsound mind”) was fulfilled in the present case. 9. To sum up: in our opinion, in the instant case the majority did not give sufficient consideration to certain important factual circumstances of the case. The reasons given by the majority to justify finding a violation of Article 5 § 1 of the Convention do not appear sufficient for this purpose." ]
[ "FIRST SECTION CASE OF NEFEDOV v. RUSSIA (Application no. 40962/04) JUDGMENT STRASBOURG 13 March 2012 FINAL 24/09/2012 This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of Nefedov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Anatoly Kovler,Peer Lorenzen,Elisabeth Steiner,Khanlar Hajiyev,Linos-Alexandre Sicilianos,Erik Møse, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 21 February 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "40962/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Sergey Valeryevich Nefedov (“the applicant”), on 10 October 2004. 2. The applicant, who had been granted legal aid, was represented by Ms G. Zaksheyeva, a lawyer practising in Irkutsk. The Russian Government (“the Government”) were represented by Mrs V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicant alleged, in particular, that neither he nor his lawyer had been afforded the opportunity to attend an appeal hearing in the criminal case concerning him. 4. On 11 October 2007 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1966 and lives in Irkutsk. 6. On 24 May 2002 the applicant, the head of the Anti-Drug Trafficking Department of the North-Eastern Customs Office at the time, was arrested on suspicion of abuse of position and drug trafficking. An investigator drew up an arrest record and, in detail, informed the applicant of his rights as an accused, including the right to have legal assistance and the right to remain silent.", "The applicant signed the record, noting that he clearly understood his rights, but he refused legal assistance and decided to make a statement. 7. According to the applicant, police officers beat him up and threatened him and his family. They also promised to release him in exchange for a confession. The applicant wrote a statement confessing to drug trafficking.", "8. On the same date the investigator interrogated the applicant in the absence of counsel, whose assistance the applicant had refused. The refusal was recorded in a report duly dated and signed by the applicant. 9. The police searched the house of the applicant’s co-accused and found a parcel of heroin.", "The applicant claimed that a neighbour, Mr M., had seen a police officer putting the parcel into the closet. 10. On 27 December 2002 the applicant was released on a written undertaking not to leave the town. 11. On 10 March 2004 the Irkutsk Regional Court found the applicant guilty as charged and sentenced him to four years and six months’ imprisonment.", "In view of the applicant’s position, the trial hearings were closed to the press and public. The conviction was based on self‑incriminating statements made during the pre-trial investigation, search records, expert examination reports and witness testimonies. According to the applicant, the trial court refused to hear Mr M. However, as noted in a statement of appeal lodged by the applicant’s co-accused, the trial court had heard Mr M. at least on two occasions: during the investigation phase of the trial, when he had testified and the parties had been allowed to ask questions, and when the trial court, having accepted the parties’ request, had again questioned Mr M. to clarify certain points. 12. The applicant alleged that the judgment of 10 March 2004 had not been pronounced publicly.", "13. According to the Government, following the public pronouncement of the judgment, the Regional Court had notified the applicant of his right to appeal against conviction and had explained “procedural issues pertaining to lodging an appeal” to him. The Government provided the Court with typed notes signed by the applicant and his lawyer and certifying that they had been served with a copy of the judgment of 10 March 2004 and that the applicant had been informed of the ten-day time-limit for lodging an appeal. Another note submitted by the Government was handwritten by the applicant and showed that he had received a copy of the trial court’s records. 14.", "The applicant and his lawyer appealed against the conviction, having lodged lengthy appeal statements. They disputed the applicant’s involvement in the criminal offences he had been found guilty of and disagreed with the way the trial court had established the relevant facts, the distribution of roles between him and his co-defendant and the classification of his own acts. They submitted, in particular, that the trial court had disregarded the applicant’s testimony and statements by witnesses which supported it, in particular, regarding his submissions that he had committed the alleged act of drug trafficking whilst he had been undercover and acting within his official functions. In the appeal statement the applicant did not ask the Supreme Court to ensure his presence at the appeal hearing. 15.", "On 18 June 2004 the head of Detention Facility no. 1 in Irkutsk, where the applicant was detained at the time, received a telegram from the Supreme Court for the applicant informing him of an appeal hearing scheduled for 6 July. The Government also provided the Court with typed summonses not bearing any stamps or signatures. An official of the Supreme Court allegedly sent those summonses on 16 June 2004 to the Bar Association where the applicant’s counsel worked in order to confirm his ability to attend the appeal hearing on 6 July 2004. 16.", "On 6 July 2004 the Supreme Court of the Russian Federation upheld the judgment of 10 March 2004, having endorsed the Regional Court’s reasoning. The applicant was not brought to the appeal hearing. His counsel was also absent. The Supreme Court proceeded in their absence, heard a prosecutor who supported the conviction, and examined the applicant’s and his lawyer’s statements of appeal. II.", "RELEVANT DOMESTIC LAW A. Code of Criminal Procedure of the Russian Federation of 18 December 2001, in force since 1 July 2002 (“CCrP”) 17. Article 51 of the CCrP provides as follows: “1. Participation of legal counsel in criminal proceedings is mandatory if: (1) the suspect or the accused has not waived legal representation in accordance with Article 52 of this Code; (2) the suspect or the accused is a minor; (3) the suspect or the accused cannot exercise his right of defence by himself owing to a physical or mental handicap; (3.1) the court proceedings are to be conducted [in the absence of the accused] in accordance with Article 247 § 5 of this Code; (4) the suspect or the accused does not speak the language in which the proceedings are [to be] conducted; (5) the suspect or the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty; (6) the criminal case falls to be examined by a jury trial; (7) the accused has filed a request for the proceedings to be conducted [without a hearing] under Chapter 40 of this Code; 2. ... 3.", "In the circumstances provided for by paragraph 1 above, unless counsel is retained by the suspect or the accused, or his lawful representative, or other persons on the request, or with the consent, of the suspect or the accused, it is incumbent on the investigator, prosecutor or the court to ensure the participation of legal counsel in the proceedings.” 18. Article 52 of the Code provides that an accused can waive his right to legal assistance, but such waiver must be established in the written form. The waiver can be revoked at any moment. 19. Article 360 establishes the scope of the examination of the case by an appeal court.", "It provides that the appeal court shall examine the legality, validity and fairness of the judgment of the trial court only to the extent to which it has been complained against and only in respect of those convicted who are concerned by the appeal. The appeal court is empowered to reduce the sentence imposed on the convicted person or apply the law of a lesser offence, but shall have no power to impose a more severe penalty or apply a law of a more serious offence. 20. Article 375 § 2 provides that if a convicted person wishes to take part in the appeal hearing, he must indicate that in his statement of appeal. 21.", "Under Article 376 § 2 parties shall be notified of the date, time and place of an appeal hearing no later than fourteen days in advance. A court is to decide whether to summon a convicted person held in custody. Article 376 § 3 provides that a convicted person held in custody who expressed a wish to be present at the examination of his appeal shall be entitled to participate either directly in the court session or to state his case by video link. The court shall take a decision with respect to the form of participation of the convicted person in the court session. A defendant who has appeared before the court shall be always entitled to take part in the hearing.", "Article 376 § 4 states that if persons who have been given timely notice of the venue and time of the appeal hearing fail to appear, this shall not preclude the examination of the case. 22. Article 377 describes the procedure for the examination of cases by the appeal court. It provides, among other things, that at the hearing the court shall hear the statement of the party who had lodged the appeal and the objections of the opposing party. The appeal court shall be empowered, at the party’s request, to directly examine evidence and additional materials provided by the parties to support or disprove the arguments cited in the statement of appeal or in the statements of the opposing party.", "23. Article 378 establishes which decisions the appeal court may take. It provides that the appeal court may decide to dismiss the appeal and uphold the judgment, to quash the judgment and terminate the criminal proceedings, to quash the judgment and remit the case for a fresh trial, or to amend the judgment. 24. Article 379 sets out the grounds for quashing or setting aside judgments on appeal.", "In particular, a judgment shall be quashed or amended on appeal if there is an inconsistency between the conclusions reached by the trial court in the judgment and the facts established by that court. Violation of procedural law and wrongful application of criminal law, as well as unfairness of the judgment, also constitute grounds for reversing or changing the judgment. 25. Article 383 provides that the judgment shall be deemed unfair if the sentence imposed is inconsistent with the seriousness of the offence, the personality of the convicted person, or if that sentence, although within the limits of the relevant Article of the Criminal Code, is unfair in its chosen type or extent, being either disproportionately lenient or disproportionately severe. A judgment may be reversed in connection with the necessity to impose a more severe penalty due to the fact that the penalty imposed by the trial court is deemed unfair as being disproportionately lenient, but only in instances when there is either a prosecution request or an application (as a private prosecution) by the victim or his representative to that effect.", "26. Article 387 provides that where there has been a violation of the provisions of the Criminal Code, the appeal court may apply the law of a less serious offence and reduce the sentence, in accordance with legal reclassification of the acts committed. In doing so, the appeal court may not apply the law of a more serious offence or aggravate a sentence imposed. In cases where the trial court imposed a sentence more severe than that set forth by the relevant Article of the Criminal Code, the appeal court may reduce the sentence without changing the legal classification of the offence. B. Case-law of the Constitutional Court and of the Supreme Court of Russia 27.", "Examining the compatibility of Article 51 of the Code of Criminal Procedure with the Constitution, the Constitutional Court ruled as follows (decision no. 497-O of 18 December 2003): “Article 51 § 1 of the Code of Criminal Procedure, which describes the circumstances in which the participation of defence counsel is mandatory, does not contain any indication that its requirements are not applicable in appeal proceedings or that the convict’s right to legal assistance in such proceedings may be restricted.” 28. That position was subsequently confirmed and developed in seven decisions delivered by the Constitutional Court on 8 February 2007. It found that free legal assistance for the purpose of appellate proceedings should be provided in the same conditions as for earlier stages in the proceedings and that it was mandatory in the situations listed in Article 51. It further underlined the obligation of courts to secure the participation of defence counsel in appeal proceedings.", "29. On 18 December 2003 the Constitutional Court of Russia dismissed a constitutional complaint by Mr R. as inadmissible. In its ruling (определение) the Constitutional Court held, inter alia, that Article 51 of the Code of Criminal Procedure, which defined the situations where participation of a defence lawyer in criminal proceedings was mandatory, also applied to proceedings before a court of appeal. 30. In a number of cases (decisions of 13 October 2004 and 26 January, 9 February, 6 April, 15 June and 21 December 2005, 24 May and 18 October 2006, 17 January 2007, 3 September and 15 October 2008) the Presidium of the Supreme Court of the Russian Federation quashed judgments of appeal courts and remitted cases for fresh consideration on the grounds that the courts had failed to secure the presence of defence counsel in the appeal proceedings, although it was obligatory for the accused to be legally represented.", "That approach was also confirmed by the Presidium of the Supreme Court in its report concerning cases adopted in the third quarter of 2005 (Decree of 23 November 2005) and by the Decree of the Plenary of the Supreme Court of 23 December 2008, as amended on 30 June 2009. In the latter document, the Supreme Court emphasised that an accused could only waive his right to a lawyer in writing, and that the court was not bound by that waiver. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 31. The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that the Supreme Court had failed to ensure his and his counsel’s presence at the appeal hearing, while the prosecutor had attended and had made oral submissions.", "The relevant parts of Article 6 provide as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require...” A. Submissions by the parties 32. The Government built their argument along two lines. They firstly submitted that neither the applicant nor his lawyer had petitioned the appeal court for their personal attendance at the appeal hearing.", "Relying on Article 376 of the Russian Code of Criminal Procedure, the Government stressed that in the absence of such a request the Supreme Court had correctly held the appeal hearing in the applicant’s and his counsel’s absence. The Government reminded the Court that Article 6 of the Convention did not imperatively require the personal attendance of a defendant at appeal hearings. They further argued that the Russian courts could not be held responsible for counsel’s failure to attend. The applicant’s counsel had been retained by him and it was in the applicant’s best interests to ensure that his lawyer took his responsibilities seriously. 33.", "The applicant maintained his complaint. B. The Court’s assessment 1. Admissibility 34. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. 2. Merits (a) General principles 35. The requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1, and therefore the applicant’s complaint under paragraphs 1 and 3 of Article 6 should be examined under the two provisions taken together (see Vacher v. France, 17 December 1996, § 22, Reports of Judgments and Decisions 1996-VI). 36.", "The Court reiterates that while Article 6 § 3 (c) confers on everyone charged with a criminal offence the right to “defend himself in person or through legal assistance”, it does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court’s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial (see Quaranta v. Switzerland, 24 May 1991, § 30, Series A no. 205). In that connection it must be borne in mind that the Convention is intended to “guarantee not rights that are theoretical or illusory but rights that are practical and effective” and that assigning counsel does not in itself ensure the effectiveness of the assistance he or she may afford an accused (see Artico v. Italy, 13 May 1980, § 33, Series A no. 37, and Imbrioscia v. Switzerland, 24 November 1993, § 38, Series A no.", "275). 37. A person charged with a criminal offence should, as a general principle based on the notion of a fair trial, be entitled to be present at the first-instance trial hearing. However, the attendance of the defendant in person does not necessarily take on the same significance for an appeal hearing. Indeed, even where an appellate court has full jurisdiction to review the case on questions of both fact and law, Article 6 does not always entail a right to be present in person.", "Regard must be had in assessing this question to, inter alia, the special features of the proceedings involved and the manner in which the defence’s interests are presented and protected before the appellate court, particularly in the light of the issues to be decided by it and their importance for the appellant (see Helmers v. Sweden, 29 October 1991, §§ 31-32, Series A no. 212-A; Belziuk v. Poland, 25 March 1998, § 37, Reports 1998-II; Pobornikoff v. Austria, no. 28501/95, § 24, 3 October 2000; and Kucera v. Austria, no. 40072/98, § 25, 3 October 2002). 38.", "Leave-to-appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6, although the appellant was not given the opportunity of being heard in person by the appeal or cassation court, provided that he had been heard by a first-instance court (see, among other authorities, Monnell and Morris v. the United Kingdom, 2 March 1987, § 58, Series A no. 115, as regards the issue of leave to appeal, and Sutter v. Switzerland, 22 February 1984, § 30, Series A no. 74, as regards courts of cassation). However, where an appeal court has to make a full assessment of the issue of guilt or innocence, it cannot determine the issue without a direct assessment of the evidence given in person by the accused for the purpose of proving that he did not commit the act allegedly constituting a criminal offence (see Dondarini v. San Marino, no. 50545/99, § 27, 6 July 2004).", "39. The Court further reiterates that the principle of equality of arms is another feature of the wider concept of a fair trial, which also includes the fundamental right that criminal proceedings should be adversarial. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations made and the evidence adduced by the other party (see Brandstetter v. Austria, 28 August 1991, §§ 66-67, Series A no. 211). 40.", "Lastly, the Court reiterates that a waiver of a right guaranteed by the Convention – in so far as it is permissible – must not run counter to any important public interest, must be established in an unequivocal manner and must be attended by minimum safeguards commensurate to the waiver’s importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006-II, and Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006‑XII). Moreover, before an accused can be said to have by implication, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (see Talat Tunç v. Turkey, no. 32432/96, § 59, 27 March 2007, and Jones v. the United Kingdom (dec.), no.", "30900/02, 9 September 2003). (b) Application of the above principles to the instant case 41. The Court would note at the outset that it does not consider it necessary to decide whether the absence of the applicant and his counsel, taken separately, would render the proceedings before the appeal court unfair. Neither of them was present before the Supreme Court of the Russian Federation, and it is against this background that the Court will determine the complaint in issue (see Sinichkin v. Russia, no. 20508/03, § 37, 8 April 2010, with further references).", "42. Having regard to paragraphs 18. Article 52 of the Code provides that an accused can waive his right to legal assistance, but such waiver must be established in the written form. The waiver can be revoked at any moment. 19-26 above, the Court notes that the jurisdiction of appeal courts in the Russian legal system extends to both issues of facts and law (see Sakhnovskiy v. Russia [GC], no.", "21272/03, § 100, 2 November 2010; Sidorova (Adukevich) v. Russia, no. 4537/04, § 25, 14 February 2008, and Shulepov v. Russia, no. 15435/03, § 34, 26 June 2008) and that the Supreme Court had the power to fully review the case and consider additional arguments which had not been examined at the trial. In his appeal statement the applicant contested his conviction on both factual and legal grounds, his account of events differing from those of his co-accused in important aspects (see paragraph 14 above and compare with Metelitsa v. Russia, no. 33132/02, § 31, 22 June 2006 and Sinichkin, cited above, § 38).", "The appeal court was thus called upon to make a full assessment of the applicant’s guilt or innocence regarding the charges against him. In the Court’s view, the issues raised by the applicant in his appeal statement can reasonably be considered to have presented a certain degree of factual and legal complexity. It also cannot disregard that the prosecutor was present at the appeal hearing and made submissions to the appeal court. Taking further into account what was at stake for the applicant, who had been sentenced to four-and-a-half years of imprisonment, the Court does not consider that the Supreme Court could have properly determined the issues before it without a direct assessment of the evidence given by the applicant – either in person or through some form of legal representation. Neither could it have ensured the equality of arms between the parties without giving the applicant the opportunity to reply to the observations made by the prosecutor at the appeal hearing.", "43. In so far as the Government may be understood to argue that by failing to indicate in his appeal statement his wish to participate in the appeal hearing and to ensure attendance by his lawyer at the hearing (see paragraph 32 above) the applicant had waived those rights, the Court considers it necessary to note the following. 44. As regards the right to take part in the appeal hearing, the Court observes that the applicant’s failure to ask to attend did not constitute an explicit and unequivocal waiver of that right. If analysed in terms of an implicit waiver, the Court reiterates its recent finding in another case against Russia raising a similar issue of a defendant appearing before an appeal court in the criminal case against him (see Kononov v. Russia, no.", "41938/04, 27 January 2011). In that case, having been confronted with a possible waiver by the applicant of his right to participate in the appeal hearing, the Court held that, even assuming that it was a part of the lawyer’s duty to inform the applicant about the peculiarities of appeal procedure, the presiding judge, being the ultimate guardian of the fairness of the proceedings, cannot be absolved of his or her responsibility to explain to a defendant his procedural rights and obligations and secure their effective exercise. In the absence of clear and comprehensible instructions from the trial judge as to the manner in which a defendant’s appearance before the appeal court could be secured, that defendant cannot have been expected to appreciate that the failure to make a special request to ensure his participation in the appeal hearing would result in his appeal being examined in his absence (see §§ 40-44). Turning to the circumstances of the present case, the Court has serious doubts that the applicant, in fact, received such clear and comprehensible instructions from the trial court (see paragraph 13 above) and that, accordingly, the necessary safeguards were in place to make the proceedings satisfy the Convention requirements (see, among other authorities, Talat Tunç v. Turkey, cited above, § 60). Nonetheless, the Court need not resolve that issue, because it considers that the proceedings before the Supreme Court, in any event, fell short of the requirements of fairness for the following reasons.", "45. It follows from the parties’ submissions and the documents at the Court’s disposal that at trial the applicant was represented by counsel of his choice. The same counsel joined the applicant in his appeal against conviction. There is no indication that the applicant waived, explicitly or implicitly and in accordance with the above-mentioned requirements (see paragraph 40 above), his right to be represented by counsel on appeal. This conclusion is supported by the fact that the Supreme Court had accepted counsel’s appeal statement and allegedly sent summonses to his Bar Association to inform him of the appeal hearing.", "46. For the reasons stated in paragraph 42 and given the wording of Article 51 of the Russian Code of Criminal Procedure (see paragraph 17 above), as well as the Russian Constitutional Court’s interpretation of that legal provision (see paragraphs 27-28 above), the Court observes that the applicant’s representation on appeal was mandatory under domestic law. In so far as the Government argued that it had been for the applicant to seek leave for his counsel to appear before the appeal court, the Court notes that, apart from the fact that the Government did not point to any legal provision which supported their reading of the applicant’s obligation, it has already held on a number of occasions that the effectiveness of the guarantee of legal representation by default contained in Article 51 of the CCP would be undermined without a corresponding obligation on the part of the courts to verify in each individual case whether it is lawful to proceed with a hearing in the absence of legal counsel for the accused (see Grigoryevskikh v. Russia, no. 22/03, § 90, 9 April 2009). This obligation is strengthened in a situation where a prosecutor is present at the appeal hearing and makes oral submissions to the court, while the applicant has allegedly waived his right to participate (see Metelitsa, cited above, § 32).", "47. The Government claimed that summonses had been sent to the applicant’s lawyer’s Bar Association in advance and they submitted a typed version of those summonses. The Court notes that none of the summonses produced by the Government was post-marked and the Government adduced no other evidence that they had actually been sent. There is no indication that the appeal court verified that the summonses had indeed been served on the applicant’s lawyer and, if they had not, adjourned the examination of the appeal. The Court also entertains doubts that the Supreme Court could rely on the applicant to inform his lawyer about the appeal hearing.", "While having sent a telegram to the applicant’s detention facility on 18 June 2004 with notification of the appeal hearing, the Supreme Court did not receive any confirmation that the notification had, in fact, been delivered. The Government has also failed to produce any evidence showing that that notification was given to the applicant or that the applicant had maintained contact with his lawyer in the course of the appeal proceedings. 48. Having regard to its findings above, the Court therefore concludes that the proceedings in question fell short of the requirements of fairness. There has thus been a violation of Article 6 § 1 in conjunction with Article 6 § 3 (c) of the Convention.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 49. The Court has examined the other complaints submitted by the applicant. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 50. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 51. The applicant claimed 1,080,000 Russian roubles (RUB) in respect of pecuniary damage, representing his outstanding salary and expenses that he and his family had borne during his pre-trial detention and his serving the sentence.", "He also claimed RUB 10,000,000 in respect of non-pecuniary damage. 52. The Government stressed that the applicant’s claim for compensation for pecuniary damage had no causal link to the violations of the Convention alleged by him. They further submitted that the claim in respect of non-pecuniary damage was unsubstantiated and unreasonable. 53.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 4,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 54. The applicant did not make any claims for costs and expenses.", "55. Accordingly, the Court does not award anything under this head. C. Default interest 56. 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 concerning the applicant’s and his counsel’s absence from the appeal hearing admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3 (c) of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,000 (four thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable on the date of the 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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 13 March 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenNina Vajić RegistrarPresident" ]
[ "SECOND SECTION CASE OF TAYLAN AND OTHERS v. TURKEY (Applications nos. 9209/04, 40056/04 and 22412/05) JUDGMENT STRASBOURG 14 September 2010 FINAL 21/02/2011 This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of Taylan and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Danutė Jočienė,Dragoljub Popović,Nona Tsotsoria,Işıl Karakaş,Kristina Pardalos, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 24 August 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in three applications (nos.", "9209/04, 40056/04 and 22412/05) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by twenty-one Turkish nationals, the names and birth years of whom are listed in the annex. The cases were introduced on 13 February 2004, 10 September 2004 and 15 June 2005 respectively. Ms Zehra Özkan, Ms Yasemin Özkan and Mr Mehmet Özkan in application no. 40056/04 are the heirs of Mr Naci Özkan who passed away on 7 December 2007, after the introduction of the present application before the Court. They subsequently expressed their wish to continue the application before the Court.", "For practical reasons, Mr Naci Özkan will continue to be referred to as an applicant in this judgment, although his family is now to be regarded as such (see Ahmet Sadık v. Greece, 15 November 1996, § 3, Reports of Judgments and Decisions 1996‑V). 2. The applicant in application no. 9209/04 was not represented by a lawyer before the Court whereas the applicants in application no. 40056/04 were represented by Mr E. Eraslan and Ms G. Gedikoğlu, lawyers practising in Istanbul, and the applicant in application no.", "22412/05 was represented by Mr S. Kuş, Mr A. Şahin and Mr H. Eğri, lawyers practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent. 3. On 17 March 2009 the President of the Second Section decided to give notice of the application no. 9209/04 to the Government.", "On 16 December 2008 and 26 May 2009 the Court declared the applications nos. 40056/04 and 22412/05 partly inadmissible and decided to communicate to the Government the complaints concerning the length of the civil and criminal proceedings. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 3). THE FACTS THE CIRCUMSTANCES OF THE CASES A. Taylan v. Turkey (9209/04) 4. The applicant worked for a Turkish company in Libya between 1992 and 1994.", "Following the termination of his contract by the company the applicant brought civil proceedings before the Libyan courts and requested compensation. On 3 October 1995 the Libyan courts partially awarded the applicant's claims. Upon his return to Turkey the applicant brought the following proceedings before the Turkish courts. 1. Proceedings regarding the recognition of the Libyan court order and damages (a) Proceedings before an unspecified court 5.", "Without specifying before which court, the applicant stated that he instituted domestic proceedings on 29 April 1998 for the recognition of the Libyan court order. According to the applicant, these proceedings had later been abrogated. The applicant did not present any document regarding these proceedings. (b) Proceedings before the Üsküdar 3rd Civil Court 6. On 20 October 1998 the applicant instituted proceedings before the Üsküdar 3rd Civil Court requesting the recognition of the Libyan court order.", "On 24 March 1999 the Üsküdar 3rd Civil Court rejected the applicant's request. The applicant appealed and on 4 October 1999 the Court of Cassation quashed the decision on the ground that the first instance court did not have jurisdiction. On 29 February 2000 the Court of Cassation further rejected the rectification request. On 29 March 2001 the Üsküdar 3rd Civil Court issued a decision of non-jurisdiction. (c) Proceedings before the Istanbul 5th Labour Court 7.", "On 9 April 2001 the applicant requested the proceedings to be referred to the competent labour court. On 10 October 2002 the Istanbul 5th Labour Court held that the case before it concerned the recognition of the Libyan court order, the contents of which were the subject matter of the proceedings pending before the Istanbul 4th Labour Court that the applicant had introduced separately on 20 December 2000. Therefore there was no need to continue the proceedings. The applicant appealed. On 18 September 2003 the Court of Cassation upheld the judgment.", "(d) Proceedings before the Istanbul 4th Labour Court 8. On 20 December 2000 the applicant initiated proceedings before the Istanbul 4th Labour Court and requested compensation for the same period that had been examined and concluded by the Libyan court as well as a number of other damages. After holding 24 hearings the Istanbul 4th Labour Court partially awarded the applicant on 31 May 2007. The applicant appealed. The Court of Cassation upheld the judgment on 17 February 2009.", "2. Proceedings regarding the payment of five months' salary 9. The applicant also instituted proceedings before the İstanbul 6th Labour Court against the Libyan company and requested the payment of five months' salary. These proceedings which started on 22 April 1999 ended on 5 April 2001 when the court partially upheld the applicant's request. The applicant appealed and the Court of Cassation upheld the judgment on 16 October 2001.", "The sum awarded was paid to the applicant. B. Yücel and Others v. Turkey (40056/04) 10. In 1986 the applicants brought proceedings before the Çatalca Civil Court and requested additional compensation for their property that had been expropriated. Claiming that the additional compensation amount to be awarded by the court would not have met their actual loss, the applicants later stopped pursuing their case and on 11 August 1994 the court decided not to continue the proceedings. On 9 December 1997 the applicants initiated proceedings before the Büyükçekmece Civil Court and requested determination of the value of the expropriated property and their damages due to the expropriation.", "The court issued a decision of non-jurisdiction on the ground that the proceedings should have been instituted before the competent administrative court. The applicants' appeal was further dismissed by the Court of Cassation on 12 April 1999. 11. Consequently, the applicants instituted damage proceedings on 21 July 1999 before the Istanbul Administrative Court. On 14 February 2002 the Istanbul Administrative Court dismissed the applicants' claims.", "Referring to the previous proceedings before the Çatalca Civil Court which the applicants had stopped pursuing, the court declared that the State could not be held liable for the applicants' omission in not following the judicial procedure in due time. The applicants' appeal and rectification requests were rejected by the Council of State on 17 February 2004 and 28 March 2005 respectively. C. Nazsız v. Turkey (22412/05) 12. On 11 December 2002 criminal proceedings were initiated against the applicant and six others who were allegedly involved in a bribery and forgery incident. On 22 October 2003, 12 May 2006 and 24 June 2008 the Çankırı Assize Court convicted the applicant as charged.", "The Court of Cassation quashed these judgments on 22 February 2005, 16 May 2007 and 16 July 2009. According to the information submitted by the applicant, the proceedings are still pending before domestic courts. THE LAW I. JOINDER 13. Given the similarity of the applications as regards the complaints, the Court deems it appropriate to join them. II.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF PROCEEDINGS 14. The applicants alleged that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention. The Government contested that argument. A. Admissibility 15. In respect of the applications nos.", "9209/04 and 22412/05 the Government argued that the applicants had not exhausted all domestic remedies. As for the application no. 40056/04 the Government maintained that the proceedings before the Büyükçekmece Civil Court which ended on 12 April 1999 must be declared inadmissible for failure to comply with the six-month rule. The applicants contested these arguments. 1.", "Exhaustion of domestic remedies 16. The Court notes that it has already examined and rejected this objection raised by the Government in similar cases (see, among others, Pekinel v. Turkey, no. 9939/02, §§ 41-43, 18 March 2008). It finds no particular circumstances in the instant case which would require it to depart from this jurisprudence. Consequently, the Court rejects the Government's objection.", "2. Compliance with the six-month time-limit (a) Proceedings before the unspecified court and the Istanbul 6th Labour Court in application no. 9209/04 17. The Court observes that there were two main sets of proceedings in application no. 9209/04; the proceedings before the Istanbul 6th Labour Court concerned the applicant's request for the payment of five months' salary which had not been covered by the Libyan court order whereas the remaining proceedings before the other courts mainly concerned the recognition of the Libyan court order and the damages awarded thereby.", "The proceedings before the İstanbul 6th Labour Court ended on 16 October 2001 with the final decision of the Court of Cassation. As the present application was lodged on 13 February 2004, the Court notes that this part of the applicant's complaints is lodged outside the six-month time-limit and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. (b) Proceedings introduced before non-competent courts in applications nos. 9209/04 and 40056/04 18. The Court observes that, initially having lodged their claim for damages before non-competent civil courts, the applicants then initiated proceedings before the competent labour and administrative courts in compliance with the domestic law.", "According to Section 193 of the Code of Civil Procedure, non-competent civil courts in Turkish law do not ex officio refer the case to competent administrative courts. The complainant may appeal against the decision of the civil court, as was the situation in the present applications, and subsequently choose to initiate new proceedings before the competent courts. Given that the initiative to introduce new proceedings rested with the applicants, the Court considers that the time taken during the proceedings lodged before the non-competent Üsküdar 3rd Civil Court and the Büyükçekmece Civil Court cannot interrupt the running of the six-month time limit in the calculation of the length of proceedings for the applicants' claims (see, Çakmak and Others v. Turkey, no. 53672/00, 25 January 2005; mutatis mutandis, Rezgui v. France (dec.), no. 49859/99, 7 November 2000).", "19. The Court observes for application no. 9209/04 that the proceedings before the non-competent Üsküdar 3rd Civil Court ended on 29 March 2001. The present application was introduced on 13 February 2004. As for application no.", "40056/04 the proceedings before the Büyükçekmece Civil Court ended on 12 April 1999 with the final decision of the Court of Cassation. As the present application was lodged on 10 September 2004, the Court notes that this part of the applicants' complaints is lodged outside the six-month time-limit and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. 3. Admissible complaints 20. The Court concludes that the complaints concerning the length of proceedings as to the recognition of the Libyan court order and the damages awarded thereby in application no.", "9209/04 as well as the proceedings before the Istanbul Administrative Court in application no. 40056/04 and before the Çankırı Assize Court in application no. 22412/05, are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they areis not inadmissible on any other groundsIt and must therefore be declared admissible. B.", "Merits 21. The applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement. The Government contested that argument. 22. Given that the applicant in application no.", "9209/04 failed to submit any document regarding the proceedings he allegedly started on 29 April 1998 and that he then initiated proceedings before a non-competent court on 20 October 1998, the Court will take 20 December 2000 as the beginning date of the proceedings with regard to the applicant's request for the recognition of the Libyan court order and the damages awarded thereby. 23. The periods to be taken into consideration therefore began on 20 December 1998 for application no. 9209/04, on 21 July 1999 for application no. 40056/04 and on 11 December 2002 for application no.", "22412/05. They ended on 17 February 2009 and 28 March 2005 respectively for the first two applications and have not yet ended for the third application. The proceedings thus lasted ten years and two months for application no. 9209/04, five years and eight months for application no. 40056/04 and have already lasted seven years and four months for application no.", "22412/05, at two levels of jurisdiction for each application. 24. 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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 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 cases (see Frydlender, 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 cases. Having regard to its case-law on the subject, the Court considers that in the instant cases the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 27. In his observations on the admissibility and merits, the applicant in application no. 9209/04 further complained under Article 6 of the Convention that the İstanbul 6th Labour Court had erred in the establishment of facts and interpretation of law in its judgment. 28.", "Even assuming that this complaint was duly raised, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols in the light of all the material in its possession, and in so far as the matters complained of are within its competence. It observes that the applicant's claims had been examined at two levels of jurisdiction. The proceedings were adversarial in nature and the applicant was provided with ample opportunity to state his arguments, to challenge the submissions made by his opponent and to submit whatever he found relevant for the outcome. Therefore, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4. IV.", "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 in application no. 9209/04 claimed 99,743 US Dollars (USD) in respect of pecuniary damage.", "This amount covered his contractual claims in Libya such as his and his family's return expenses to Turkey and various indemnities, as well as the amounts awarded by the Libyan courts and their interests. He further claimed USD 13,480 for non-pecuniary damage and maintained that USD 6,740 of this sum corresponds to the non-pecuniary damage amount awarded by the Libyan courts whereas the remaining USD 6,740 was the amount of non-pecuniary damage he had requested before the domestic courts. 31. The applicants in application no. 40056/04 claimed USD 3,119,965.60 in respect of pecuniary damage.", "They maintained that this amount corresponds to the value of immovable property on their expropriated land. In the alternative they claimed USD 3,117,283.60 in respect of the expropriation and additional compensation amounts. The applicants further claimed USD 50,000 in respect of non-pecuniary damage. 32. The applicant in application no.", "22412/05 claimed 964,860 euros (EUR) in respect of pecuniary damage and EUR 9,035,140 for non-pecuniary damage. EUR 810,110 of the former amount represented the reductions from the applicant's wages and the income as well as his retirement pension he had been deprived of due to removal from his office. The remaining EUR 154,750 represented the costs and expenses which will be examined separately below. 33. The Government contested these claims.", "34. The Court does not discern any causal link between the violation found and the pecuniary damages alleged; it therefore rejects these claims. On the other hand the Court considers that the applicants must have sustained non-pecuniary damage. 35. In the light of the Court's jurisprudence and ruling on an equitable basis, it awards the applicant in application no.", "9209/04 EUR 6,100 and the applicant in application no. 22412/05 EUR 4,100 for their non-pecuniary damage. As for application no. 40056/04 the Court awards EUR 2,000 each to the first eighteen applicants in the attached list (see Arvanitaki-Roboti and Others v. Greece [GC], cited above, § 29, and Kakamoukas and Others v. Greece [GC]). As for Ms Zehra Özkan, Ms Yasemin Özkan and Mr Mehmet Özkan, the heirs of Mr Naci Özkan who passed away on 7 December 2007, the Court awards them jointly EUR 2,000 (see Serçinoğlu v. Turkey, no.", "7755/05, § 22, 20 October 2009). 36. Furthermore, having regard to the fact that the proceedings in question in application no. 22412/05 are apparently still pending before the domestic courts, the Court considers that the most appropriate form of redress would be to bring them to a conclusion as soon as possible, whilst respecting the requirements of Article 6 § 1 of the Convention (see Ali Kemal Uğur and Others v. Turkey, no. 8782/02, § 45, 3 March 2009).", "B. Costs and expenses 37. The applicant in application no. 9209/04 claimed EUR 22,168.50 for the costs and expenses incurred mainly before the domestic courts. He stated that, not having been represented by a lawyer, his expenses for the proceedings before the Court had been related to postal costs, a sum of approximately EUR 100.", "In support of his claim the applicant submitted, inter alia, various receipts concerning domestic proceedings, notification forms of several judgments and a number of postal receipts. 38. The applicants in application no. 40056/04 claimed USD 71,952.86 for their costs and expenses. They maintained that USD 50,000 of this amount corresponded to the period before they were represented by their current lawyers and could not be documented.", "The remaining USD 21,952.86 was the costs and expenses mainly incurred before the domestic courts and before the Court including transportation, photocopy and postal costs. The applicants submitted a number of receipts and documents in support of the latter claim. 39. The applicant in application no. 22412/05 claimed EUR 154,750 for costs and expenses incurred before the domestic courts and before the Court.", "In this respect he presented a legal fee agreement of EUR 150,000 but failed to submit any invoice regarding the expenses. 40. The Government contested these claims. 41. 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 were 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 1,000 to the applicant in application no. 9209/04, EUR 2,000 to the applicant in application no. 22412/05 who presented a legal fee agreement, and EUR 1,000 jointly to the applicants in application no. 40056/04. These amounts cover costs under all heads.", "C. Default interest 42. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join the applications; 2. Declares the complaints concerning the excessive length of the proceedings as to the recognition of the Libyan court order and the damages awarded thereby in application no.", "9209/04, the proceedings before the Istanbul Administrative Court in application no. 40056/04, and the proceedings before the Çankırı Assize Court in application no. 22412/05 admissible and the remainder of the applications inadmissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds (a) that the respondent State is to pay within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into Turkish liras at the rate applicable on the date of settlement: (i) EUR 6,100 (six thousand one hundred euros) to the applicant in application no.", "9209/04, EUR 2,000 (two thousand euros) to each of the applicants in application no. 40056/04 except the three heirs of Naci Özkan, EUR 2,000 (two thousand euros) jointly to the heirs of Naci Özkan (namely Zehra Özkan, Yasemin Özkan and Mehmet Özkan), and EUR 4,100 (four thousand one hundred euros) to the applicant in application no. 22412/05 in respect of non‑pecuniary damage, plus any tax that may be chargeable; (ii) EUR 1,000 (one thousand euros) to the applicant in application no. 9209/04, EUR 2,000 (two thousand euros) to the applicant in application no. 22412/05, and EUR 1,000 (one thousand euros) jointly to the applicants in application no.", "40056/04, in respect of costs and expenses, plus any tax that may be chargeable to any of them; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 14 September 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithFrançoise TulkensRegistrarPresident ANNEX Applicants' List Vesim Taylan v. Turkey (9209/04) Vesim Taylan, 1957 Yücel and others v. Turkey (40056/04) Abdullah Yücel, 1937, Zarife Çahan, 1939 Cemil Koşar, 1920 Cemal Koşar, 1959 Mehmet Koşar, 1952 Remziye Yönel, 1954 Sakine Bingöl, 1946 Namık Kemal Özkan, Macide Cediz, 1958 Fatma Müjgan Gündüz, 1951 Esra Coşkun, 1956, Faruk Ömer Özkan, 1967 Fikriye Özkan, 1954 Funda Özkan Turanlı, 1953 Fatih Özkan, 1978 Uğur Özkan, 1979 Onur Özkan, 1980, Nazmiye Biten, 1983 Heirs of Naci Özkan Zehra Özkan, 1939 Yasemin Özkan, 1949 Mehmet Özkan, 1973 Nazsız v. Turkey (22412/05) Hakkı Nazsız, 1966" ]
[ "FOURTH SECTION CASE OF RYLSKI v. POLAND (Application no. 24706/02) JUDGMENT This version was rectified on 7 November 2006 under Rule 81 of the Rules of Court STRASBOURG 4 July 2006 FINAL 11/12/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Rylski v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG.", "Bonello,MrM. Pellonpää,MrK. Traja,MrL. Garlicki,MsL. Mijović, judges,and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 13 June 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 24706/02) against the Republic of Poland 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, Mr Bernard Rylski (”the applicant”) on 24 September 2001. 2. The applicant alleged, in particular, that the divorce proceedings in his case exceeded a reasonable time.", "3. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 4. On 22 September 2005 the Court decided to communicate the complaint concerning the length of the proceedings. 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 5. The applicant was born in 1960 and lives in Warszawa. 6. The facts of the case, as submitted by the parties, may be summarised as follows.", "1. The facts prior to 1 May 1993 7. In 1991 the applicant's wife filed with the Warsaw Regional Court (Sąd Wojewódzki) a petition for divorce, asking to be granted custody rights over her daughter and child maintenance from the applicant. On 12 July 1991 a mediation hearing was held, but the parties did not reach an agreement. 8.", "On 29 October 1991 and 13 December 1991 hearings were held. The court heard witnesses and ordered the applicant to file a declaration of means. In addition, it requested an opinion of an expert psychologist and a social inquiry report to be prepared. 9. On 3 February 1992 the court secured the claim and ordered the applicant to pay 500,000 old zlotys (PLZ) in monthly maintenance for his daughter.", "On 5 February 1992 the court dismissed the applicant's motion for exemption from court fees. On 19 February 1992 the applicant appealed against the decisions of 3 and 5 February 1992. His appeal was dismissed. On 20 February 1992 the applicant challenged the impartiality of the judge. His motion was dismissed.", "10. On 5 October 1992 the court ordered another social inquiry report. On 28 October 1992 a psychologist's opinion concerning relations between the parents and the daughter was issued. On 16 March 1993 the court held a hearing. It heard an expert in psychology and one witness.", "The court regulated the frequency of the applicant's contacts with his daughter pending the divorce proceedings. 11. On 16 March 1993 the court imposed a fine on the applicant for offending the court. 12. On 26 April 1993 the plaintiff asked the court to increase the amount of child maintenance.", "2. The facts after I May 1993 13. On 14 May 1993 the plaintiff submitted her pleadings. 14. On 26 May and 7 June 1993 the court yet again summoned the applicant to submit, within seven days, information regarding his financial situation.", "He complied with the summons on 11 and 22 June 1993. 15. On 11 June 1993 the applicant appealed against the decision of 15 April 1993 by which his previous appeal against the fine imposed on him had been rejected. On 22 June 1993 his appeal was rejected as having been lodged outside the prescribed time-limit. 16.", "On 27 July 1993 the court amended its decision concerning maintenance, increasing it to PLZ 900,000. It considered that as a construction engineer the applicant was able to earn approximately PLZ 3,000,000 per month. The applicant appealed. 17. On 2 September 1993 the applicant appealed against the decision imposing a fine on him.", "On 9 September 1993 his appeal was rejected as having been lodged after the prescribed time-limit. The applicant appealed against this decision and his appeal was rejected on 29 November 1993. 18. On 22 October 1993 the court ordered him to comply with the formal requirements in respect of his appeal against the decision of 27 July 1993. On 12 November 1993 the case file was sent to the Warsaw Court of Appeal (Sąd Apelacyjny).", "On 29 November 1993 that court dismissed the applicant's appeal against the decision of 27 July 1993. 19. On 30 November 1993 the applicant complained that the plaintiff had impeded his contacts with the child. On 16 May 1994 the plaintiff asked the court not to schedule hearings in July. 20.", "On 8 June 1994 the applicant was charged with having forced a witness in his divorce proceedings to withdraw her testimony. On 12 July 1994 the Warsaw District Prosecutor (Prokurator Rejonowy) submitted to the Warsaw District Court a bill of indictment concerning that charge. On 20 June 1994 the prosecutor submitted to the District Court another bill of indictment against the applicant. The applicant was charged with domestic violence against his wife. On 15 September 1994 the Warsaw District Court joined those two cases.", "On 27 November 1995 the Warsaw District Prosecutor submitted to the court another bill of indictment in which he charged the applicant with evading the payment of maintenance for his daughter. Apparently the case was joined to the earlier proceedings. On 30 September 2003 the District Court convicted him of the first two charges and acquitted him of the third charge and sentenced him to two years' imprisonment. Upon his appeal, on 6 May 2004 the Warsaw Regional Court stayed the execution of the sentence for a probationary period of five years. 21.", "On 7 July 1994 the court ordered the parties to submit their pleadings within one month. On 22 August 1994 it urged them to comply with its summons. They submitted their pleadings on 21 September 1994. 22. On 12 October 1994 the case-file of the divorce proceedings was sent to the District Prosecutor upon his request.", "It was returned on 16 November 1994. 23. On 27 December 1994 the court scheduled a hearing for 24 February 1995. On 24 February and 19 May 1995 two hearings were held. The applicant did not appear and in consequence they were adjourned.", "On 15 September 1995 a hearing was heard. The applicant did not agree to a divorce. 24. On 13 and 27 September 1995 the applicant submitted pleadings in which he inter alia asked the court to order the plaintiff to pay him alimony. 25.", "On 24 November 1995 a hearing was held at which the court heard both parties. The Warsaw Regional Court dismissed the applicant's claim for alimony from his wife and refused his request to reduce the amount of the maintenance payable to his daughter. He appealed, but on 18 July 1996 the Warsaw Court of Appeal dismissed his appeal. 26. On 24 November 1995 the Warsaw Regional Court amended its decision of 16 March 1993 in that it increased the frequency of the applicant's meetings with his daughter.", "He and his wife appealed and on 18 July 1996 the Warsaw Court of Appeal quashed that decision. It considered that the contested decision was not supported by an opinion of psychologists. 27. The hearing scheduled for 23 February 1996 had to be adjourned until the appeals were examined. The hearing held on 13 December 1996 was adjourned.", "The court ordered a supplementary expert opinion of psychologists. 28. On 29 January 1997 the institution which was to prepare an expert opinion informed the court that it had started mediation between the parties and that the opinion would be submitted after 12 March 1997. The opinion was submitted on 30 March 1997. On 23 December 1997 a hearing was held at which the court heard the expert and the plaintiff.", "It decided to summon another witness – a Mr J.M. 29. On 23 December 1997 the Warsaw Regional Court issued an order concerning the applicant's contacts with his daughter pending the divorce proceedings. It decided that the meetings should take place on the first, second and third Saturdays of every month between 11 a.m. and 4 p.m. without the mother's presence. The court also ordered a guardian (kurator sądowy) to supervise those meetings.", "Having regard to the opinion of the psychologists, it considered that in the ongoing conflict between the parents, the daughter, who was emotionally attached to her mother, had become more and more unfriendly towards her father, which called for more frequent contacts with the father. 30. On 29 December 1997 the applicant requested the written grounds for the decision. They were sent to him on 5 February 1998. On 18 February 1998 he appealed against the decision.", "On 25 February 1998 he was summoned to pay a court fee. On 3 April 1998 a hearing was held but it was adjourned pending the examination of the applicant's appeal. On 18 June 1998 the Warsaw Court of Appeal dismissed the applicant's appeal against the decision of 23 December 1997. 31. On 30 September 1998 the applicant requested the court to increase the frequency of his contacts with the child.", "32. On 15 January 1999 the court held a hearing and dismissed the motion to call the witness J.M. The court heard the parties. The applicant asked the court to hear another witness as well as all the witnesses who had already been heard. He also requested a stay of the proceedings pending the outcome of the criminal proceedings.", "The court dismissed those motions. 33. On 29 January 1999 the Warsaw Regional Court gave judgment, granting a divorce based on the applicant's fault, and deciding on the daughter's custody and child maintenance. On 19 March 1999 the court served the written grounds of the judgment on the applicant. He appealed and requested an exemption from the appeal fee on 7 April 1999.", "34. On 5 May 1999 the court dismissed the applicant's motion for an exemption from court fees. The applicant appealed on 18 May 1999. On 17 June 1999 his appeal was dismissed. The court based its decision on the fact that the applicant had not submitted the necessary documents to confirm his financial situation.", "35. On 2 August 1999 the applicant was summoned to pay the appeal fee. On 20 August 1999 he asked the court to exempt him from that fee. On 7 September 1999 the court dismissed his motion. The applicant appealed on 30 September 1999.", "On 18 November 1999 the Court of Appeal rejected the applicant's appeal. 36. On 4 January 2000 the applicant requested the court to exempt him from the court fee. On 18 January 2000 his motion was dismissed. The applicant appealed on 1 March 2000.", "On 14 April 2000 his appeal was dismissed by the Court of Appeal. The courts emphasised that the applicant had persistently repeated his request without providing any new circumstances to justify a new motion and without submitting relevant documents. 37. On 28 April 2000 the applicant again requested to be exempted from the court fee. 38.", "On 2 June 2000 the court again ordered the applicant to pay the court fee for his appeal, amounting to 400 PLN. 39. On 16 June 2000 the applicant asked for exemption from the court fee. This motion was dismissed on 28 June 2000 for the same reasons as given previously. On 19 July 2000 the applicant appealed against this decision.", "It was dismissed by the Court of Appeal on 27 October 2000. 40. On 28 June 2000 the applicant's appeal against the judgment of 29 January 1999 was rejected on formal grounds for non payment of the appeal fee. The Regional Court noted that the applicant's repeated and unsubstantiated motions for exemption had been dismissed several times and he had failed to pay the fee despite two summonses. The court emphasised that the applicant's only intention was to delay the proceedings, to the detriment of the plaintiff.", "The applicant appealed on 19 July 2000. 41. On 27 December 2000 the applicant asked to be exempted from all court fees, in particular from the appeal fee. On 8 January 2001 his motion was sent to the Regional Court. 42.", "On 12 March 2001 the court called on the applicant to pay the court fee of 80 PLN for his appeal against the decision of 28 June 2000 (see paragraph 40 above). 43. On 27 March 2001 the court refused to exempt the applicant from the court fees. It underlined that the applicant had requested to be exempted from the court fees on several occasions but had once again not indicated any new circumstances justifying his request. On 24 April 2001 the applicant appealed.", "On 28 May 2001 his appeal was dismissed. 44. On 28 June 2001 the Regional Court ordered the applicant to pay the court fee due for his appeal against the decision rejecting his appeal against the judgment (see paragraph 42 above). 45. On 12 July 2001 the defendant informed the court that he had paid the court fee for the appeal against the judgment (amounting to 400 zlotys) and requested the court to reinstate the time-limit for paying the fee.", "46. On 19 July 2001 the Warsaw Regional Court issued two decisions, in which it rejected the applicant's appeal against the decision of 28 June 2000 and rejected the applicant's motion to be granted retrospective leave to pay the appeal fee. 47. The judgment of 29 January 1999 became final on 8 August 2001. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. State's liability for a tort committed by its official 1. Provisions applicable before 1 September 2004 48. Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State's liability in tort.", "In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows: “1. The State Treasury shall be liable for damage caused by a State official in the course of carrying out the duties entrusted to him.” 49. Article 418 of the Civil Code, as applicable until 18 December 2001, provided for the following exception in cases where damage resulted from the issue of a decision or order: “1. If, in consequence of the issue of a decision or order, a State official has caused damage, the State Treasury shall be liable only if a breach of the law has been involved in the issue of the decision or order and if that breach is the subject of prosecution under the criminal law or of a disciplinary investigation, and the guilt of the person who caused the damage in question has been established by a final conviction or has been admitted by the superior of that person. 2.", "The inability to establish guilt by way of a criminal conviction or in a decision given in disciplinary proceedings shall not exclude the State Treasury's liability for damage if such proceedings cannot be instituted in view of a [statutory] exception to prosecution or disciplinary action.” 2. Provisions applicable as from 1 September 2004 50. On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw) (“the 2004 Amendment”) entered into force. While the relevant amendments have in essence been aimed at enlarging the scope of the State Treasury's liability for tort under Article 417 of the Civil Code – including the addition of a new Article 4171 and the imposition on the State of tortious liability for its omission to enact legislation (the so-called “legislative omission”; “zaniedbanie legislacyjne”) – they are also to be seen in the context of the operation of a new statute introducing remedies for the unreasonable length of judicial proceedings. Following the 2004 Amendment, Article 4171, in so far as relevant, reads as follows: “3.", "If damage has been caused by failure to give a ruling (orzeczenie) or decision (decyzja) where there is a statutory duty to give them, reparation for [the damage] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law, unless otherwise provided for by other specific provisions.” 51. However, under the transitional provisions of Article 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 shall apply to all events and legal situations that subsisted before that date. B. Constitutional Court's judgment of 4 December 2001 52. On 4 December 2001 the Constitutional Court (Trybunał Konstytucyjny) dealt with two constitutional complaints in which the applicants challenged the constitutionality of Article 417 and 418 of the Civil Code.", "They alleged, in particular, that those provisions were incompatible with Articles 64 and 77 § 1 of the Constitution. On the same day the Constitutional Court gave judgment (no. SK 18/00) and held that Article 417 of the Civil Code was compatible with Article 77 § 1 of the Constitution in so far as it provided that the State Treasury was liable for damage caused by the unlawful action of a State official carried out in the course of performing his duties. It further held that even though Article 418 of the Civil Code was compatible with Article 64 of the Constitution, it was contrary to Article 77 § 1 since it linked the award of compensation for such damage with the personal culpability of the State official concerned, established in criminal or disciplinary proceedings. 53.", "On 18 December 2001, the date on which the Constitutional Court's judgment took effect, Article 418 was repealed. The Constitutional Court's opinion on the consequences of the repeal read, in so far as relevant: “The elimination of Article 418 of the Civil Code from the legal system ... means that the State Treasury's liability for the actions of a public authority consisting in the issue of unlawful decisions or orders will flow from the general principles of the State liability laid down in Article 417 of the Civil Code. This, however, does not rule out the application in the present legal system of other principles of State liability laid down in specific statutes and not necessarily only those listed in the Civil Code.” C. The Law of 17 June 2004 54. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.", "A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under Article 2 read in conjunction with Article 5(1) of the 2004 Act. Article 2, in so far as relevant, reads as follows: “1. Parties to proceedings may lodge a complaint that their right to a trial within a reasonable time has been breached [in the proceedings] if the proceedings in the case last longer than is necessary to examine the factual and legal circumstances of the case ... or longer than is necessary to conclude enforcement proceedings or other proceedings concerning the execution of a court decision (unreasonable length of proceedings).” Article 5 provides, in so far as relevant: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” 55.", "Article 16 refers to proceedings that have been terminated and that do not fall under the transitional provision of Article 18 in the following terms: “A party which has not lodged a complaint about the unreasonable length of the proceedings under Article 5 (1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended.” 56. Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads: “1. A claim for compensation for damage caused by a tort shall lapse 3 years following the date on which the claimant learned of the damage and the persons liable for it.", "However, the claim shall in any case lapse 10 years following the date on which the event causing the damage occurred.” 57. Article 18 of the 2004 Act lays down the following transitional rules in relation to the applications already pending before the Court: “1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case. 2. A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court.", "3. The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 58. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided 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...” 59. The Government contested that argument.", "60. The period to be taken into consideration began only on 1 May 1993, when the recognition by Poland of the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The proceedings in question ended on 8 August 2001, the date on which the Warsaw Regional Court decision became final. The period under the Court's scrutiny is therefore 8 years and 3 months for two levels of jurisdiction.", "A. Admissibility 61. The Government submitted that the applicant had not exhausted remedies available under Polish law. They maintained that from 17 September 2004 when the 2004 Act came into force, the applicant had a possibility of lodging with the Polish civil courts a claim for compensation for damage suffered due to the excessive length of proceedings under Article 417 of the Civil Code read together with Article 16 of the 2004 Act. They argued that the three-year prescription period for the purposes of a compensation claim in tort based on the excessive length of proceedings could run from a date later than the date on which a final decision in these proceedings had been given. The Government further submitted that such a possibility had existed in Polish law even before the entry into force of the 2004 Act since the judgment of the Constitutional Court of 4 December 2001, which entered into force on 18 December 2001.", "62. The applicant contested the Government's arguments. 63. The Court observes that in the present case the proceedings at issue terminated on 8 August 2001 at the latest, which is more than three years before the relevant provisions of the 2004 Act read together with the Civil Code became effective. It follows that the limitation period for the State's liability for tort set out in Article 442 of the Code Civil had expired before 17 September 2004.", "The Court notes that the arguments raised by the Government are the same as those already examined by the Court in previous case against Poland (see Malasiewicz v. Poland, no. 22072/02, §§ 32-34, 14 October 2003; Ratajczyk v. Poland; (dec), 11215/02, 31 May 2005; Barszcz v. Poland, no. 71152/01, 30 May 2006) and the Government have not submitted any new circumstances which would lead the Court to depart from its previous findings. For these reasons, the Government's plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed. 64.", "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 parties' submissions 65. The applicant complained about the length of the divorce proceedings. 66. The Government submitted that the case had been very complex. The court had to rule not only on the divorce petition, but also on the amount of maintenance for the applicant's daughter and alimony for the plaintiff as well as on the parental rights and contacts with the child.", "Examination of the case had required the obtaining of expert opinions. 67. The Government further argued that the parties had contributed significantly to the length and complexity of the proceedings, in particular by lodging numerous requests, motions and appeals. In addition, the court had encountered difficulties in hearing one of the witnesses who resided abroad and whose address was unknown. Moreover, the case file had to be sent to the prosecutor in connection with the criminal proceedings against the applicant.", "68. As regards the conduct of the public authorities, the Government were of the view that the courts had conducted comprehensive proceedings to obtain evidence in order to clarify the factual and legal circumstances of the case. The Government submitted that a number of hearings had to be adjourned due to circumstances beyond the control of the court such as the requirement to examine the applicant's appeals. Moreover, the domestic court had taken disciplinary measures to proceed with the case more efficiently, e.g. it had fixed time-limits for the parties to submit documents and pleadings and had urged them to comply with its summonses.", "It had also taken measures to establish the reasons for the absence of a witness. 69. The Government emphasised that in the course of the first-instance proceedings, the courts had issued at least ten decisions concerning motions and appeals of the parties and after adoption of the first-instance judgment the courts had issued thirteen decisions concerning the applicant's requests for exemption from court fees and his appeals. 70. The Government were of the opinion that the applicant had contributed decisively to the protracted length of the proceedings at issue.", "Firstly, two hearings had been adjourned given that his appeals had to be examined. Secondly, he had lodged numerous motions, some of which had been of a clearly dilatory nature, such as numerous repetitive motions for exemption from court fees, a motion for alimony for him from the plaintiff, and motions to have all witnesses heard again or to stay the proceedings pending the criminal proceedings. On several occasions he had delayed his replies to the court's summonses. The fact that the applicant aimed to prolong the proceedings had been on some occasions emphasised by the courts (for example in the Warsaw Regional Court decision of 28 June 2000). After 30 April 1993 the applicant lodged ten appeals which were dismissed as unfounded or inadmissible.", "The Government agreed that in the above situations the applicant had made use of his procedural rights. However, they recalled that while the applicant is entitled to make use of his/her procedural right, he/she must bear the consequences when it leads to delays (Malicka-Wąsowska v. Poland (dec.), no. 41413/98, 5 April 2001). In this respect the Government assessed that the applicant had been responsible for at least three and a half years of the length of the proceedings (see paragraphs 11-14; 16-17; 25-27; 29-30; 33-34; 35-46). 71.", "The Government concluded, relying on the Court's case-law (among other authorities, Wróblewski v. Poland, no. 52077/99, 1 December 2005) that there had been no violation of the applicant's right to a hearing within a reasonable time. 72. The applicant submitted that the length of the proceedings was excessive. 2.", "The Court's assessment 73. 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; Malinowska v. Poland, no. 35843/97, 14 December 2000). 74.", "The Court firstly observes that the case should be considered complex, regard being had to the fact that several accompanying issues had to be determined apart from the divorce petition, in particular the amount of maintenance for the applicant's daughter, the contacts with the child, and the question of alimony for both parties. The Court is aware that these issues are normally to be dealt with by the divorce court. However, in the present case some of the interlocutory proceedings in which these issues were decided lasted several years themselves, as the parties could not reach an agreement on any matter. Furthermore, sensitive matters such as child custody required to be considered with particular diligence and required expert opinions to be prepared. The Court does not overlook the fact that, concurrently with the proceedings at issue, criminal proceedings against the applicant were being conducted on several charges: domestic violence against his wife, evasion of payment of child maintenance, and forcing a witness in divorce proceedings to withdraw testimony (see paragraph 20).", "These proceedings were closely linked to the divorce proceedings, which required the exchange of files between the courts. 75. The Court notes that the domestic courts attempted to discipline the parties and to proceed with the case (see paragraphs 12, 14, 21). 76. Furthermore, the Court considers that the conduct of the applicant significantly contributed to the length of the proceedings.", "In addition to the arguments submitted by the Government (see paragraphs 68-70 above) it is noted that the applicant refused to cooperate on almost every aspect of the case and, inter alia, did not agree to the divorce (see paragraph 23). He repeatedly failed to comply in time with the court's summonses. He also failed to appear in court on two occasions (see paragraph 23) and in consequence the hearing had to be adjourned for seven months, while on other occasions the hearing had to be adjourned pending examination of the applicant's appeals (see paragraphs 27, 30). The applicant reiterated his request for exemption from the court fee for an appeal six times. The court examined his request on the merits, and on the other occasions it referred the applicant to its first decision, reiterating that new circumstances should have been submitted to support his fresh request.", "This prolonged the proceedings for almost two years. 77. With respect to the conduct of the authorities, the Court considers that although the Government have not explained some of the delays (see paragraphs 18-19), on the whole and regard being had to the applicant's conduct they did not exceed a reasonable time within the meaning of Article 6 § 1. Therefore, the Court agrees with the Government that the primary responsibility for the delays in the proceedings lies with the applicant. 78.", "The Court therefore finds that there has been no violation of Article 6 § 1 of the Convention on account of the length of the proceedings. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 79. The applicant complains under Article 8 of the Convention about a failure of the domestic court to enforce the decisions concerning his contacts with the child, namely the decision of 23 December 1997 and the judgment of 29 January 1999, in that it did not appoint a guardian to assist at the meetings (§ 29 and § 33). The Court first notes that the applicant's complaint concerning the decision of 23 December 1997 is essentially the same as the complaint already considered by the Court in his previous application which was declared inadmissible.", "Further, the Court notes that the present application was lodged on 24 September 2001 and finds that this part of the application has therefore been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. III ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS 80. The applicant complains under Article 6 § 1 of the Convention that the divorce proceedings were unfair and the courts were not impartial. The Court recalls that it is not called upon to deal with errors of fact and law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, ECHR 1999-I, § 28).", "With regard to the alleged bias on the part of the courts, the Court notes that the applicant failed to submit any evidence or explanation to support this allegation. The only indication that he ever attempted to challenge the impartiality of the judge is his motion of 20 February 1992, which was dismissed on 28 May 1992 (§ 9). This decision falls outside the Court's jurisdiction ratione temporis, and, in any event, the allegation is entirely unsubstantiated. It follows that this complaint is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4. IV.", "OTHER COMPLAINTS UNDER ARTICLE 6 OF THE CONVENTION 81. The applicant complains under Article 6 § 1 of the Convention that he was deprived of his right of access to a court by not being exempted from the appeal fee. 82. The Court recalls that Article 6 § 1 embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect. However, this right is not absolute, but may be subject to limitations.", "The Court has ruled that, guaranteeing to litigants an effective right of access to courts for the determination of their “civil rights and obligations”, Article 6 § 1 leaves to the State a free choice of the means to be used towards this end but, while the Contracting States enjoy a certain margin of appreciation in that respect, the final decision as to the observance of the Convention's requirements rests with the Court (see, Kreuz v. Poland, no. 28249/95, § 53, ECHR 2001‑VI; Podbielski and PPU Polpure v. Poland, no. 39199/98, 26 July 2005). The Court must be satisfied that the limitations applied do not restrict or reduce the access afforded to the individual in such a way or to such an extent that the very essence of that right is impaired (see, Kreuz v. Poland, cited above, § 58). 83.", "The Court reiterates that the amount of the fees assessed in the light of the particular circumstances of a given case, including the applicants' ability to pay them, and the phase of the proceedings at which that restriction has been imposed, are factors which are material in determining whether or not a person enjoyed his right of access and had “a ... hearing by [a] tribunal” (Jedamski and Jedamska v. Poland, no. 73547/01, § 60, 26 July 2005). 84. The Court notes that the amount of the fee (400 PLN) cannot be regarded as a total bar on the applicant's access to a court, the more so since he finally paid the fee (two years later), though after the prescribed time-limit had elapsed. The Court further observes that the applicant lodged several motions and appeals concerning exemption from the court fees, all of them being examined by the courts and their decisions being sufficiently reasoned (see paragraphs 35-46).", "The domestic courts emphasised that in repeatedly lodging his complaints, the applicant had not submitted relevant documents concerning his financial situation that would allow for examination of his motions on the merits, nor had he invoked any new circumstances each time he renewed his motions. The examinations of his repeated motions (at least six concerning the same request for exemption from the court fee) took almost two years (§ 80). The domestic court cannot be said to have acted arbitrarily in refusing to allow his requests (see paragraph 40). Consequently, the Court is of the view that the applicant did not effectively avail himself of the possibility of obtaining exemption from the court fee guaranteed by the relevant legal provisions. 85.", "It follows that this complaint is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the excessive length of the divorce proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been no violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 4 July 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "T.L. EarlyNicolas BratzaRegistrarPresident" ]
[ "FIFTH SECTION CASE OF YALANSKYY AND GALUNKA v. UKRAINE (Applications nos. 15131/17 and 36543/17) JUDGMENT STRASBOURG 3 May 2018 This judgment is final but it may be subject to editorial revision. In the case of Yalanskyy and Galunka v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: André Potocki, President,Síofra O’Leary,Mārtiņš Mits, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 12 April 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Ukrainian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law.", "In application no. 36543/17, the applicant also raised another complaint under Article 2 of Protocol No. 4 to the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION 6. The applicants complained principally that the length of the criminal proceedings in question had been incompatible with the “reasonable time” requirement and that they had no effective remedy in this connection. They relied on Article 6 § 1 and Article 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.” 7. 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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Pélissier and Sassi v. France [GC], no.", "25444/94, § 67, ECHR 1999‑II, and Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII). 8. In the leading case of Merit v. Ukraine (no. 66561/01, 30 March 2004), the Court already found a violation in respect of issues similar to those in the present case.", "9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the admissibility and merits of these complaints. 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. 10. The Court further notes that the applicants did not have at their disposal an effective remedy in respect of these complaints.", "11. These complaints are therefore admissible and disclose a breach of Article 6 § 1 and of Article 13 of the Convention. III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 12. The applicant in application no.", "36543/17 submitted another complaint under Article 2 of Protocol No. 4 to the Convention which also raised issues, given the relevant well-established case-law of the Court (see appended table). This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it also discloses a violation of the Convention in the light of its findings in Ivanov v. Ukraine (no.", "15007/02, §§ 85-97, 7 December 2006). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 13. 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.” 14. Regard being had to the documents in its possession and to its case‑law (see, in particular, Bevz v. Ukraine, no.", "7307/05, § 52, 18 June 2009), the Court finds it reasonable to award the sums indicated in the appended table. 15. 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. Decides to join the applications; 2.", "Declares the applications admissible; 3. Holds that these applications disclose a breach of Article 6 § 1 and Article 13 of the Convention concerning the excessive length of criminal proceedings; 4. Holds that there has been a violation of Article 2 of Protocol No. 4 to the Convention as regards the other complaint raised under well-established case-law of the Court (see appended table); 5. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, 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.", "Done in English, and notified in writing on 3 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtAndré Potocki Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 6 § 1 and Article 13 of the Convention (excessive length of criminal proceedings and lack of any effective remedy in domestic law) No. Application no. Date of introduction Applicant name Date of birth Representative name and location Start of proceedings End of proceedings Total length Levels of jurisdiction Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 15131/17 08/02/2017 Yaroslav Igorovych Yalanskyy 17/01/1975 Olena Viktorivna Shapoval Kyiv 22/09/2008 pending More than 9 years and 5 months 3 levels of jurisdiction 1,800 36543/17 12/05/2017 Nadiya Mykhaylivna Galunka 27/10/1959 Mykhaylo Yosypovych Bordyuk Chervonograd 15/02/2010 pending More than 8 years and 1 month 1 level of jurisdiction Prot. 4 Art.", "2 (1) - excessive length of obligation not to abscond –imposed from 16/02/2010 until 14/07/2017 3,900 [1] Plus any tax that may be chargeable to the applicants." ]
[ "FIRST SECTION CASE OF ABU ZUBAYDAH v. LITHUANIA (Application no. 46454/11) JUDGMENT STRASBOURG 31 May 2018 FINAL 08/10/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. PROCEDURE THE FACTS I. PRELIMINARY CONSIDERATIONS REGARDING THE ESTABLISHMENT OF THE FACTS II.", "EVIDENCE BEFORE THE COURT III. BACKGROUND TO THE CASE A. The so-called “High-Value Detainee Programme” 1. The establishment of the HVD Programme (a) The US President’s memoranda (i) Memorandum of 17 September 2001 (ii) Memorandum of 7 February 2002 (b) Abu Zubaydah’s capture and transfer to a CIA covert detention facility in March 2002 (c) Setting up the CIA programme “to detain and interrogate terrorists at sites abroad” 2. Enhanced Interrogation Techniques (a) Description of legally sanctioned standard and enhanced interrogation techniques (b) Expanding the use of the EITs beyond Abu Zubaydah’s interrogations 3.", "Standard procedures and treatment of “high value detainees” in CIA custody (combined use of interrogation techniques) 4. Conditions of detention at CIA “Black Sites” 5. The scale of the HVD Programme 6. Closure of the HVD Programme B. The United States Supreme Court’s judgment in Rasul v. Bush C. Role of Jeppesen Dataplan, Richmor Aviation and other air companies in the CIA rendition operations 1.", "Jeppesen Dataplan Inc. 2. Richmor Aviation 3. Other companies D. Review of the CIA’s activities involved in the HVD Programme in 2001-2009 by the US Senate 1. Course of the review 2. Findings and conclusions IV.", "THE PARTICULAR CIRCUMSTANCES OF THE CASE A. Restrictions on information about the applicant’s secret detention and his communication with the outside world B. The applicant’s capture, transfer to CIA custody, secret detention and transfers from 27 March 2002 to 22 September 2003, as established by the Court in Husayn (Abu Zubaydah) v. Poland and supplemented by the 2014 US Senate Committee Report C. The applicant’s transfers and detention between his rendition from Poland on 22 September 2003 and his alleged rendition to Lithuania on 17 February or 18 February 2005 as established by the Court in Husayn (Abu Zubaydah) v. Poland, reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court D. The applicant’s alleged secret detention at a CIA “Black Site” in Lithuania from 17 February or 18 February 2005 to 25 March 2006 as described by the applicant, reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court 1. The applicant’s alleged rendition to Lithuania on 17 February or 18 February 2005 and his rendition from Lithuania on the plane N733MA on 25 March 2006 (a) The applicant’s submissions (i) Rendition to Lithuania (17 or 18 February 2005) (ii) Rendition from Lithuania (25 March 2006) (b) Evidence before the Court (i) The 2015 Reprieve Briefing (α) As regards the colour-coded names of the CIA detention facilities and periods of their operation (β) As regards the CIA prisoners’ transfers into Lithuania – February 2005 transfers – October 2005 transfer – March 2006 transfer (ii) Expert evidence (iii) “Detention Site Violet” in the 2014 US Senate Committee Report 2. Detention and treatment to which the applicant was subjected E. The applicant’s further transfers during CIA custody (until 5 September 2006) as reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court F. The applicant’s detention at the US Guantánamo Bay facility since 5 September 2006 to present G. Psychological and physical effects of the HVD Programme on the applicant H. Identification of locations of the colour code-named CIA detention sites in the 2014 US Senate Committee Report by experts I.", "Parliamentary inquiry in Lithuania 1. The Seimas investigation and findings 2. Extracts from transcripts of the Seimas’ debates on the CNSD Findings J. Criminal investigation in Lithuania 1. Investigation conducted in 2010-2011 2.", "Reopening of the investigation on 22 January 2015 and further proceedings V. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution of the Republic of Lithuania B. Criminal Code C. Code of Criminal Procedure D. Civil Code E. The Law on Intelligence F. The Statute of the Seimas G. The Law on the Seimas Ad Hoc Investigation Commissions H. The Constitutional Court’s case-law VI. RELEVANT INTERNATIONAL LAW A. Vienna Convention on the Law of Treaties B. International Covenant on Civil and Political Rights C. The United Nations Torture Convention D. UN Geneva Conventions 1.", "Geneva (III) Convention 2. Geneva (IV) Convention E. International Law Commission, 2001 Articles on Responsibility of States for Internationally Wrongful Acts F. UN General Assembly Resolution 60/147 VII. SELECTED PUBLIC SOURCES CONCERNING GENERAL KNOWLEDGE OF THE HVD PROGRAMME AND HIGHLIGHTING CONCERNS AS TO HUMAN RIGHTS VIOLATIONS ALLEGEDLY OCCURRING IN US-RUN DETENTION FACILITIES IN THE AFTERMATH OF 11 SEPTEMBER 2001 A. United Nations Organisation 1. Statement of the UN High Commissioner for Human Rights on detention of Taliban and Al-Qaeda prisoners at the US Base in Guantánamo Bay, Cuba, 16 January 2002 2.", "Statement of the International Rehabilitation Council for Torture 3. UN Working Group on Arbitrary Detention, Opinion No. 29/2006, Mr Ibn al-Shaykh al-Libi and 25 other persons v. United States of America, UN Doc. A/HRC/4/40/Add.1 at 103 (2006) B. Parliamentary Assembly of the Council of Europe Resolution no.", "1340 (2003) on rights of persons held in the custody of the United States in Afghanistan or Guantánamo Bay, 26 June 2003 C. International non-governmental organisations 1. Amnesty International, Memorandum to the US Government on the rights of people in US custody in Afghanistan and Guantánamo Bay, April 2002 2. Human Rights Watch, “United States, Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees”, Vol. 14, No. 4 (G), August 2002 3.", "Human Rights Watch, “United States: Reports of Torture of Al‑Qaeda Suspects”, 26 December 2002 4. International Helsinki Federation for Human Rights, “Anti‑terrorism Measures, Security and Human Rights: Developments in Europe, Central Asia and North America in the Aftermath of September 11”, Report, April 2003 5. Amnesty International Report 2003 – United States of America, 28 May 2003 6. Amnesty International, “Unlawful detention of six men from Bosnia-Herzegovina in Guantánamo Bay”, 29 May 2003 7. Amnesty International, “United States of America, The threat of a bad example: Undermining international standards as ‘war on terror’ detentions continue”, 18 August 2003 8. Amnesty International, “Incommunicado detention/Fear of ill‑treatment”, 20 August 2003 9. International Committee of the Red Cross, United States: ICRC President urges progress on detention-related issues, news release 04/03, 16 January 2004 10.", "Human Rights Watch - Statement on US Secret Detention Facilities of 6 November 2005 11. Human Rights Watch – List of “Ghost Prisoners” Possibly in CIA Custody of 30 November 2005 VIII. SELECTED MEDIA REPORTS AND ARTICLES A. International media 1. Reports published in 2002 2.", "Reports published in 2005 3. ABC News reports of 2009 4. Other Reports (2009- 2011) B. Lithuanian media IX. INTERNATIONAL INQUIRIES RELATING TO THE CIA SECRET DETENTION AND RENDITION OF SUSPECTED TERRORISTS IN EUROPE, INCLUDING LITHUANIA A. Council of Europe 1.", "Procedure under Article 52 of the Convention 2. Parliamentary Assembly’s inquiry - the Marty Inquiry (a) The 2006 Marty Report (b) The 2007 Marty Report (c) The 2011 Marty Report B. European Parliament 1. The Fava Inquiry 2. The 2007 European Parliament Resolution 3. The Flautre Report and the 2012 European Parliament Resolution 4.", "The 2013 European Parliament Resolution 5. The 2015 European Parliament Resolution 6. The October 2015 hearing before the LIBE 7. The 2016 European Parliament Resolution C. The 2007 ICRC Report D. The 2010 UN Joint Study X. SUMMARY OF WITNESS TESTIMONY PRODUCED BY THE GOVERNMENT Witness A Witness A1 Witness A2 Witness A3 Witness A4 Witness B Witness B1 Witness B2 Witness B3 Witness B4 (also referred to as “person B” by the Government) Witness C Witness C1 Witness C2 (also referred to as “person C” by the Government) Witness D Witness D1 Witness E Witness E1 Witness F Witness F1 Witness G Witness G1 Witness G2 Witness H Witness H1 Witness K Witness L Witness M Witness N 1.", "Questioning on 9 March 2010 2. Questioning on 16 March 2010 Witness O 1. Questioning on 9 March 2010 2. Questioning on 10 March 2010 Witness P Witness Q Witness R Witness S Witness T 1. Questioning on 2 March 2010 2.", "Questioning on 16 March 2010 Witness U Witness U1 Witness V Witness X Witness Y Witness Z XI. OTHER DOCUMENTS AND EVIDENCE BEFORE THE COURT A. The 2011 CPT Report B. The Lithuanian Government’s Response to the 2011 CPT Report C. Mr Fava’s testimony regarding the “informal transatlantic meeting” given in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland D. Documents concerning the on-site inspection of Project No. 1 and Project No.", "2 carried out by the investigating prosecutor 1. Record of on-site inspection of Project No. 1 of 17 March 2010. 2. Record of the on-site inspection of Project No.", "2 of 4 June 2010 E. Resolution and Operational Action Plan of 25 July 2002 F. Report on the incident of 6 October 2005 in Vilnius airport G. Letter from former President of Lithuania Mr Adamkus to the CNSD of 26 November 2009 H. Letter from the Ministry of the Interior of 9 December 2009 I. Letter from Palanga airport of 15 March 2010 J. The Customs Department letter of 12 April 2010 K. The SBGS letter of 27 April 2010 XII. EXTRACTS FROM TESTIMONY OF EXPERTS HEARD BY THE COURT A. Presentation by Senator Marty and Mr J.G.S.", "“Distillation of available evidence, including flight data, in respect of Lithuania and the case of Abu Zubaydah” B. Senator Marty C. Mr J.G.S. D. Mr Black THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS TO THE ADMISSIBILITY OF THE APPLICATION A. Lithuania’s lack of jurisdiction and responsibility under the Convention in respect of the applicant’s alleged rendition to Lithuania, detention and ill-treatment in a CIA detention facility in Lithuania and transfer out of Lithuania and the applicant’s lack of victim status 1. The Government 2.", "The applicant 3. The Court’s assessment B. Non-compliance with the rule of exhaustion of domestic remedies and the six-month rule 1. The Government (a) Non-exhaustion of domestic remedies (b) Non-compliance with the six-month rule 2. The applicant (a) Non-exhaustion of domestic remedies (b) Non-compliance with the six-month rule 3. The Court’s assessment II.", "THE COURT’S ESTABLISHMENT OF THE FACTS AND ASSESSMENT OF EVIDENCE A. The parties’ positions on the facts and evidence 1. The Government (a) Lack of credibility of evidence adduced by the applicant (b) Lack of evidence demonstrating that certain CIA-linked planes landing in Lithuania between 17 February 2005 and 25 March 2006 carried out extraordinary rendition missions (c) Lack of evidence demonstrating that a CIA secret detention facility operated in Lithuania and that the applicant was detained in that facility (i) As regards the alleged existence of a CIA secret detention facility (ii) As regards the applicant’s alleged secret detention in Lithuania (d) Lack of evidence demonstrating that the Lithuanian authorities agreed to the running of a secret detention facility by the CIA on Lithuanian territory or cooperated in the execution of the HVD Programme (e) Lack of evidence of Lithuania’s knowledge of the CIA HVD Programme at the material time 2. The applicant (a) As regards the Government’s allegation of a lack of credibility of sources of information and evidence before the Court (b) As regards the CIA-linked planes landing in Lithuania between 17 February 2005 and 25 March 2006 (c) As regards the existence of a CIA secret detention facility in Lithuania and the applicant’s secret detention in Lithuania (d) As regards the Lithuanian authorities’ agreement to the running of a secret detention facility by the CIA on Lithuanian territory and their complicity in the execution of the HVD Programme (e) As regards Lithuania’s knowledge of the CIA HVD Programme at the material time B. Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on public knowledge of US practices in respect of captured terrorist suspects C. HFHR submissions D. The parties’ positions on the standard and burden of proof 1.", "The Government 2. The applicant E. The Court’s assessment of the facts and evidence 1. Applicable principles deriving from the Court’s case-law 2. Preliminary considerations concerning the assessment of the facts and evidence in the present case 3. As regards the establishment of the facts and assessment of evidence relevant to the applicant’s allegations concerning his transfers and secret detention by the CIA before his rendition to Lithuania (27 March 2002 to 17 or 18 February 2005) (a) Period from 27 March 2002 to 22 September 2003 (b) Whether the applicant’s allegations concerning his secret detention and transfers in CIA custody from 22 September 2003 (transfer out of Poland) to 17 or 18 February 2005 (transfer out of Morocco) were proved before the Court 4.", "As regards the establishment of the facts and assessment of evidence relevant to the applicant’s allegations concerning his rendition by the CIA to Lithuania, secret detention in Lithuania and transfer by the CIA out of Lithuania (17 or 18 February 2005 to 25 March 2006) (a) Whether a CIA secret detention facility existed in Lithuania at the time alleged by the applicant (17 or 18 February 2005 to 25 March 2006) (b) Whether the applicant’s allegations concerning his rendition to Lithuania, secret detention at the CIA Detention Site Violet in Lithuania and transfer from Lithuania to another CIA detention facility elsewhere were proved before the Court (i) Preliminary considerations (ii) Transfers and secret detention (iii) The applicant’s treatment in CIA custody in Lithuania 5. As regards the establishment of the facts and assessment of evidence relevant to the applicant’s allegations concerning Lithuania’s knowledge of and complicity in the CIA HVD Programme (a) Relations of cooperation between the Lithuanian authorities and the CIA, including an agreement to host a CIA detention facility, acceptance of a financial reward for supporting the HVD Programme and assistance in the acquisition and adaptation of the premises for the CIA’s activities (Project No. 1 and Project No. 2) (i) Agreement to host a CIA detention facility and acceptance of a financial reward for supporting the HVD Programme (ii) Assistance in the acquisition and adaptation of the premises for the CIA’s activities (Project No. 1 and Project No.", "2) (b) Assistance in disguising the CIA rendition aircraft routes through Lithuania by means of the so-called “dummy” flight planning (c) Special procedure for CIA flights (d) Circumstances routinely surrounding HVDs transfers and reception at the CIA “black site” (e) Public knowledge of treatment to which captured terrorist suspects were subjected in US custody in 2002-2005 (f) Informal transatlantic meeting 6. The Court’s conclusion as to the Lithuanian authorities’ knowledge of and complicity in the CIA HVD Programme III. LITHUANIA’S JURISDICTION AND RESPONSIBILITY UNDER THE CONVENTION AND THE APPLICANT’S VICTIM STATUS A. The parties’ submissions B. The Court’s assessment 1.", "As regards jurisdiction 2. As regards the State’s responsibility for an applicant’s treatment and detention by foreign officials on its territory 3. As regards the State’s responsibility for an applicant’s removal from its territory 4. Conclusion as to the Lithuanian Government’s preliminary objections that Lithuania lacks jurisdiction and responsibility under the Convention and as to the applicant’s victim status IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION A.", "Procedural aspect of Article 3 1. The parties’ submissions (a) The Government (b) The applicant 2. Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on “effective investigation” 3. The Court’s assessment (a) Admissibility (b) Merits (i) Applicable general principles deriving from the Court’s case-law (ii) Application of the above principles to the present case B. Substantive aspect of Article 3 1.", "The parties’ submissions (a) The Government (b) The applicant 2. The Court’s assessment (a) Admissibility (b) Merits (i) Applicable general principles deriving from the Court’s case-law (ii) Application of the above principles to the present case (α) Treatment to which the applicant was subjected at the relevant time (β) Court’s conclusion as to Lithuania’s responsibility V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION A. The parties’ submissions 1. The Government 2. The applicant B.", "The Court’s assessment 1. Admissibility 2. Merits (a) Applicable general principles deriving from the Court’s case-law (b) Application of the above principles to the present case VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION A. The parties’ submissions 1.", "The Government 2. The applicant B. The Court’s assessment 1. Admissibility 2. Merits VII.", "ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION A. The parties’ submissions B. The Court’s assessment 1. Admissibility 2. Merits (a) Applicable general principles deriving from the Court’s case-law (b) Application of the above principles to the present case VIII.", "APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION A. Article 46 of the Convention B. Article 41 of the Convention 1. Damage 2. Costs and expenses 3.", "Default interest ANNEX I: List of abbreviations used in the Court’s judgment ANNEX II: List of references to the Court’s case-law In the case of Abu Zubaydah v. Lithuania, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Linos-Alexandre Sicilianos, President,Kristina Pardalos,Robert Spano,Aleš Pejchal,Egidijus Kūris,Mirjana Lazarova Trajkovska,Paul Mahoney, judges,and Abel Campos, Section Registrar, Having deliberated in private on 28 and 29 June 2016 and 10 April 2018, Delivers the following judgment, which was adopted on the last of these dates: PROCEDURE 1. The case originated in an application (no. 46454/11) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a stateless Palestinian, Mr Zayn Al-Abidin Muhammad Husayn, also known as Abu Zubaydah (“the applicant”), on 14 July 2011. 2. The applicant was represented before the Court by Ms H. Duffy, a lawyer practising in The Hague, Mr G.B.", "Mickum IV, member of the District of Columbia and Virginia Bars, and Mr J. Margulies, member of the Illinois Bar. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė. 3. The applicant alleged, in particular: (i) a breach of Articles 3, 5 and 8 of the Convention on account of the fact that Lithuania had enabled the Central Intelligence Agency of the United States (“the CIA”) to detain him secretly on its territory, thereby allowing the CIA to subject him to treatment that amounted to torture, incommunicado detention, various forms of mental and physical abuse and deprivation of any access to, or contact with, his family or the outside world; (ii) a breach of Articles 3, 5 and 8 of the Convention on account of the fact that Lithuania had enabled the CIA to transfer him from its territory, thereby exposing him to years of further torture, ill-treatment, secret and arbitrary detention and physical abuse in the hands of the US authorities, as well as lack of any contact with his family; (iii) a breach of Article 13 taken separately and in conjunction with Article 3 on account of Lithuania’s failure to conduct an effective investigation into his allegations of serious violations of Article 3 of the Convention. 4.", "The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). 5. On 14 December 2012 the President of the Second Section accorded priority to the application, in accordance with Rule 41 and gave notice of the application to the Government, in accordance with Rule 54 § 2 (b). 6. The Government and the applicant each filed written observations on the admissibility and merits of the case.", "In addition, third-party comments were received from the Helsinki Foundation for Human Rights (“HFHR”), Amnesty International (hereinafter also referred to as “AI”) and the International Commission of Jurists (hereinafter also referred to as “ICJ”). 7. On 17 March 2015 the Chamber that had been constituted to consider the case (Rule 26 § 1) decided to ask the Government to submit documentary evidence, including declassified parts of the material from the criminal investigation into the applicant’s allegations that was conducted in Lithuania and flight data concerning the alleged landings of CIA rendition aircraft in Lithuania. The parties were also invited to produce any further evidence on which they wished to rely before the Court and make comments on the case in the light of the Court’s judgments in El-Masri (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, ECHR 2012), Al Nashiri v. Poland (see Al Nashiri v. Poland, no.", "28761/11, 24 July 2014), and Husayn (Abu Zubaydah) v. Poland (see Husayn (Abu Zubaydah) v. Poland, no. 7511/13, 24 July 2014). 8. Following the re-composition of the Court’s Sections, the application was assigned to the First Section of the Court, pursuant to Rule 52 § 2. 9.", "Subsequently, the Chamber of the First Section that had been constituted to consider the case, having consulted the parties, decided that a public hearing on the admissibility and merits of the case be held on 29 June 2016. The Chamber also decided, of its own motion, to hear evidence from experts (Rule A1 of the Annex to the Rules of Court). The date for a fact‑finding hearing was set for 28 June 2016. In this connection, the President of the Chamber directed that verbatim records of both hearings be made, pursuant to Rule 70 of the Rules of Court and Rule A8 of the Annex to the Rules of Court, and instructed the Registrar accordingly. 10.", "On 28 June 2016 the Chamber held a fact-finding hearing and took evidence from experts, in accordance with Rule A1 §§ 1 and 5 of the Annex. 11. In the course of the fact-finding hearing the parties were also invited to state their position on the confidentiality of certain documents produced by the Lithuanian Government (Rule 33 § 2), in particular those relating to the criminal investigation, including a summary of witness evidence and some other material collected in the context of that investigation (see also paragraphs 178-199, 301-346, 357, 362, 365 and 367-368 below). The applicant was in favour of full disclosure, whereas the Government considered that the confidentiality of all documents submitted by them should be maintained. The Court decided to invite the Government to prepare a redacted version of the confidential documents after the hearing and instructed the parties that at the public hearing confidentiality was to be respected in a manner which would not lead to disclosure of sources of evidence obtained in the criminal investigation or the identities of witnesses or third parties involved.", "12. A public hearing took place in public in the Human Rights Building, Strasbourg, on 29 June 2016 (Rule 59 § 3). There appeared before the Court: (a) for the Government Ms K. Bubnytė, Agent of the Government of the Republic of Lithuania to the European Court of Human Rights,Mr P. Griciūnas, the Vice Minister of Justice of the Republic of Lithuania, Mr E. Pašilis, the Prosecutor General of the Republic of Lithuania; (b) for the applicant Ms H. Duffy, Counsel, Ms A. Jacobsen, Counsel. The Court heard addresses by Mr Griciūnas, Mr Pašilis and Ms Duffy. 13.", "The Government, in their oral submissions, stated that they wished to withdraw their request to apply Rule 33 § 2 in respect of all documents submitted by them, except to the extent necessary to ensure the protection of personal data. 14. The fact-finding hearing and the public hearing were presided over by Mirjana Lazarova Trajkovska, former President of the First Section of the Court. Following the end of her term of office and elections of Section Presidents, Linos-Alexandre Sicilianos, President of the First Section, became the President of the Chamber (Rules 8 § 1, 12 and 26 § 3). Judges Lazarova-Trajkovska and Mahoney continued to deal with the case after the end of their terms of office (Rule 26 § 3).", "THE FACTS 15. The applicant was born in 1971 and is currently detained in the Internment Facility at the US Guantánamo Bay Naval Base in Cuba. I. PRELIMINARY CONSIDERATIONS REGARDING THE ESTABLISHMENT OF THE FACTS 16. It is to be noted that in the present case involving, as the applicant’s previous application before the Court, complaints of secret detention and torture to which the applicant was allegedly subjected during the extraordinary rendition operations by the United States authorities (see paragraphs 19-88 below) the Court is deprived of the possibility of obtaining any form of direct account of the events complained of from the applicant (see Husayn (Abu Zubaydah) v. Poland, cited above, § 397; and Al Nashiri v. Poland, cited above, § 397; see also paragraph 90 below).", "As in Husayn (Abu Zubaydah) v. Poland and Al Nashiri v. Poland (both cited above), in the present case the facts as adduced by the applicant were to a considerable extent a reconstruction of dates and other elements relevant to his rendition, detention and treatment in the US authorities’ custody, based on various publicly available sources of information. The applicant’s version of the facts as stated in his initial application of 14 July 2011 evolved and partly changed during the proceedings before the Court (see paragraphs 111-117 below). The respondent Government contested the applicant’s version of the facts on all accounts, maintaining that there was no evidence demonstrating that they had occurred in Lithuania (see paragraphs 398-405 and 423-446 below). 17. In consequence, the facts of the case as rendered below (see paragraphs 90-211 below) are based on the applicant’s account supplemented by various items of evidence in the Court’s possession.", "II. EVIDENCE BEFORE THE COURT 18. In order to establish the facts of the case the Court relied on its findings in Husayn (Abu Zubaydah) v. Poland and Al Nashiri v. Poland (both cited above), documentary evidence supplied by the applicant and the Government, including witness testimony obtained in the criminal investigation (see paragraphs 304-349 below), observations of the parties, material available in the public domain (see paragraphs 234-263 below), and testimony of experts who had given oral evidence before the Court at the fact-finding hearing held on 28 June 2016 (see paragraphs 372-395 below). In the course of that hearing the Court, with the participation of the parties, took evidence from the following persons: (1) Senator Dick Marty, in his capacity as Rapporteur of the Parliamentary Assembly of the Council of Europe (“PACE”) in the inquiry into allegations of CIA secret detention facilities in the Council of Europe’s member States (hereinafter “the Marty Inquiry” – see paragraphs 269‑280 below); (2) Mr J.G.S., in his capacity as advisor to Senator Marty in the Marty Inquiry and advisor to Mr Hammarberg, the former Commissioner for Human Rights of the Council of Europe, who had dealt with, among other things, compiling data on flights associated with the CIA extraordinary rendition (see paragraphs 266-274, 370-375 and 382-386 below), as well as an expert who had submitted a report on the applicant’s case in El-Masri (cited above, § 75) and who had given oral evidence before the Court in the cases of Husayn (Abu Zubaydah) v. Poland (cited above, §§ 42, 305-312 and 318-325) and Al Nashiri v. Poland (cited above, §§ 42, 311-318 and 324-331) and also in connection with his investigative activities concerning the CIA extraordinary rendition operations in general. In the course of giving evidence to the Court, Senator Marty and Mr J.G.S.", "also gave a PowerPoint presentation entitled “Distillation of available documentary evidence, including flight data, in respect of Lithuania and the case of Abu Zubaydah”; (3) Mr Crofton Black, in his capacity as an investigator at the Bureau of Investigative Journalism, an expert in the European Parliament Committee on Civil Liberties, Justice and Home Affairs’ (“LIBE Committee”) investigation of alleged transportation and illegal detention of prisoners in European countries by the CIA (see paragraphs 284-291 and 387 below) and also in connection with his involvement in research and various investigative tasks concerning the CIA extraordinary rendition operations in general, including tasks performed for the UK-based non-governmental organisation Reprieve. 19. The relevant passages from the experts’ testimony are reproduced below (see paragraphs 126-145 and 372-395 below). III. BACKGROUND TO THE CASE A.", "The so-called “High-Value Detainee Programme” 20. On an unspecified date following 11 September 2001 the CIA established a programme in the Counterterrorist Center (“CTC”) to detain and interrogate terrorists at sites abroad. In further documents the US authorities referred to it as “the CTC program” (see also paragraph 35 below) but, subsequently, it was also called “the High-Value Detainee Program” (“the HVD Programme”) or the Rendition Detention Interrogation Program (“the RDI Programme”). In the Council of Europe’s documents it is also described as “the CIA secret detention programme” or “the extraordinary rendition programme” (see also paragraphs 264-280 below). For the purposes of the present case, it is referred to as “the HVD Programme”.", "21. A detailed description of the HVD Programme made on the basis of materials that were available to the Court in the case of Husayn (Abu Zubaydah) v. Poland on the date of adoption of the judgment (8 July 2014) can be found in paragraphs 47-69 of that judgment. Those materials included the classified CIA documents released in redacted versions in 2009-2010 (see also paragraphs 34-56 below). 22. On 9 December 2014 the United States authorities released the Findings and Conclusions and, in a heavily redacted version, the Executive Summary of the US Senate Select Committee on Intelligence’s “Study of the Central Intelligence Agency’s Detention and Interrogation Program”.", "The full Committee Study – as stated therein, “the most comprehensive review ever conducted of the CIA Detention and Interrogation Program” – which is more than 6,700 pages long, remains classified. The declassified Executive Summary (hereinafter “the 2014 US Senate Committee Report”) comprises 499 pages (for further details concerning the US Senate’s review of the CIA’s activities involved in the HVD Programme see paragraphs 70‑89 below). 23. The 2014 US Senate Committee Report disclosed new facts and provided a significant amount of new information, mostly based on the CIA classified documents, about the CIA extraordinary rendition and secret detention operations, their foreign partners or co-operators, as well as the plight of certain detainees, including the applicant in the present case (see also paragraphs 76, 80-81 and 92-96 below). However, all names of the countries on whose territories the CIA carried out its extraordinary rendition and secret detention operations were redacted and all foreign detention facilities were colour code-named.", "The 2014 US Senate Committee Report explains that the CIA requested that the names of countries that hosted CIA detention sites, or with which the CIA negotiated hosting sites, as well as information directly or indirectly identifying countries be redacted. The countries were accordingly listed by a single letter of alphabet, a letter which was nevertheless blackened throughout the document. Furthermore, at the CIA’s request the original code names for CIA detention sites were replaced with new identifiers – the above-mentioned colour code-names. 24. The 2014 US Senate Committee Report refers to eight specifically colour code-named CIA detention sites located abroad: “Detention Site Green”, “Detention Site Cobalt”, “Detention Site Black”, “Detention Site Blue”, “Detention Site Gray”, “Detention Site Violet”, “Detention Site Orange” and “Detention Site Brown” (see also paragraph 166 below).", "25. The description of the HVD Programme given below is based on the CIA declassified documents that were available to the Court in Husayn (Abu Zubaydah) v. Poland and Al Nashiri v. Poland, supplemented by the 2014 US Senate Committee Report. 1. The establishment of the HVD Programme (a) The US President’s memoranda (i) Memorandum of 17 September 2001 26. The 2014 US Senate Committee Report states that on 17 September 2001 President George W. Bush signed a covert action Memorandum of Notification (“the MON”) to authorise the Director of the CIA to “undertake operations designed to capture and detain persons who pose a continuing, serious threat of violence or death to U.S. persons and interests or who are planning terrorist activities”.", "Although the CIA had previously been provided with certain limited authority to detain specific, named individuals pending the issuance of formal criminal charges, the MON provided unprecedented authority, granting the CIA significant discretion in determining whom to detain, the factual basis for the detention, and the length of their detention. The MON made no reference to interrogations or interrogation techniques. 27. Before the issuance of the MON, on 14 September 2001, the Chief of operations of the CIA, based on an urgent request from the Chief of the CTC, had sent an email to CIA Stations seeking input on appropriate locations for potential CIA detention facilities. 28.", "A CIA internal memorandum, entitled “Approval to Establish a Detention Facility for Terrorists”, drawn up on an unspecified date in November 2001, explained that detention at a US military base outside of the USA was “the best option”. In the context of risks associated with the CIA maintaining a detention facility, it warned that “as captured terrorists may be held days, months, or years, the likelihood of exposure will grow over time”. It anticipated that “in a foreign country, close cooperation with the host government will entail intensive negotiations” and warned that “any foreign country poses uncontrollable risks that could create incidents, vulnerability to the security of the facility, bilateral problems, and uncertainty over maintaining the facility”. The memorandum recommended the establishment of a “short-term” facility in which the CIA’s role would be limited to oversight, funding and responsibility”. It further stated that the CIA would “contract out all other requirements to other US Government organizations, commercial companies and, as appropriate, foreign governments”.", "(ii) Memorandum of 7 February 2002 29. On 7 February 2002 President Bush issued a memorandum stating that neither al-Qaeda nor Taliban detainees qualified as prisoners of war under the Geneva Conventions and that Common Article 3 of the Geneva Conventions (see paragraphs 226-231 below), requiring humane treatment of individuals in a conflict, did not apply to them. The text of the order read, in so far as relevant, as follows: “... 2. Pursuant to my authority as commander in chief and chief executive of the United States, and relying on the opinion of the Department of Justice dated January 22, 2002, and on the legal opinion rendered by the attorney general in his letter of February 1, 2002, I hereby determine as follows: a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan or elsewhere throughout the world because, among other reasons, al-Qaida is not a High Contracting Party to Geneva. ... c. I also accept the legal conclusion of the Department of Justice and determine that common Article 3 of Geneva does not apply to either al-Qaida or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to armed conflict not of an international character.’ d. Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva.", "I note that, because Geneva does not apply to our conflict with al-Qaida, al-Qaida detainees also do not qualify as prisoners of war. 3. Of course, our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our nation has been and will continue to be a strong supporter of Geneva and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.", "... 6. I hereby direct the secretary of state to communicate my determinations in an appropriate manner to our allies, and other countries and international organizations cooperating in the war against terrorism of global reach.” 30. On the same day, at the press conference, the White House Press Secretary announced the President’s decision. The President’s memorandum was subsequently widely commented in the US and international media. (b) Abu Zubaydah’s capture and transfer to a CIA covert detention facility in March 2002 31.", "On 27 March 2002 the Pakistani authorities working with the CIA captured Abu Zubaydah, the applicant in the present case and the first so‑called “high-value detainee” (“HVD”) in Faisalabad, Pakistan. Abu Zubaydah’s capture accelerated the development of the HVD Programme (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 82-84). 32. According to the 2014 US Senate Committee Report, in late March 2002, anticipating its eventual custody of Abu Zubaydah, the CIA began considering options for his transfer to CIA custody and detention under the MON. The CIA rejected the option of US military custody, mostly relying on the lack of security and the fact that in such a case Abu Zubaydah would have to be declared to the International Committee of the Red Cross (ICRC).", "33. On 29 March 2002 President Bush approved moving forward with the plan to transfer Abu Zubaydah to a covert detention facility, codenamed “Detention Site Green” in a country whose name was blackened in the 2014 US Senate Committee Report (see also paragraphs 92-96 below). The report further states: “Shortly thereafter, Abu Zubaydah was rendered from Pakistan to Country [name redacted] where he was held at the first CIA detention site, referred to in this summary as ‘DETENTION SITE GREEN’.” (c) Setting up the CIA programme “to detain and interrogate terrorists at sites abroad” 34. On 24 August 2009 the US authorities released a report prepared by John Helgerson, the CIA Inspector General, in 2004 (“the 2004 CIA Report”). The document, dated 7 May 2004 and entitled “Special Review Counterterrorism Detention and Interrogation Activities September 2001‑October 2003”, with appendices A-F, had previously been classified as “top secret”.", "It was considerably redacted; overall, more than one-third of the 109-page document was blackened out. 35. The report, which covers the period from September 2001 to mid‑October 2003, begins with a statement that in November 2002 the CIA Deputy Director for Operations (“the DDO”) informed the Office of Inspector General (“OIG”) that the Agency had established a programme in the CTC “to detain and interrogate terrorists at sites abroad”. 36. The background of the HVD Programme was explained in paragraphs 4-5 as follows: “4.", "[REDACTED] the Agency began to detain and interrogate directly a number of suspected terrorists. The capture and initial Agency interrogation of the first high‑value detainee, Abu Zubaydah, in March 2002, presented the Agency with a significant dilemma. The Agency was under pressure to do everything possible to prevent additional terrorist attacks. Senior Agency officials believed Abu Zubaydah was withholding information that could not be obtained through then-authorized interrogation techniques. Agency officials believed that a more robust approach was necessary to elicit threat information from Abu Zubaydah and possibly from other senior Al’Qaeda high value detainees.", "5. [REDACTED] The conduct of detention and interrogation activities presented new challenges for CIA. These included determining where detention and interrogation facilities could be securely located and operated, and identifying and preparing qualified personnel to manage and carry out detention and interrogation activities. With the knowledge that Al’Qaeda personnel had been trained in the use of resistance techniques, another challenge was to identify interrogation techniques that Agency personnel could lawfully use to overcome the resistance. In this context, CTC, with the assistance of the Office of Technical Service (OTS), proposed certain more coercive physical techniques to use on Abu Zubaydah.", "All of these considerations took place against the backdrop of pre-September 11, 2001 CIA avoidance of interrogations and repeated US policy statements condemning torture and advocating the humane treatment of political prisoners and detainees in the international community.” 37. As further explained in the 2004 CIA Report, “terrorist targets” and detainees referred to therein were generally categorised as “high value” or “medium value”. This distinction was based on the quality of intelligence that they were believed likely to be able to provide about current terrorist threats against the United States. “Medium-value detainees” were individuals believed to have lesser direct knowledge of terrorist threats but to have information of intelligence value. “High-value detainees” (also called “HVDs”) were given the highest priority for capture, detention and interrogation.", "In some CIA documents they are also referred to as “high‑value targets” (“HVTs”). 2. Enhanced Interrogation Techniques (a) Description of legally sanctioned standard and enhanced interrogation techniques 38. According to the 2004 CIA Report, in August 2002 the US Department of Justice had provided the CIA with a legal opinion determining that 10 specific “Enhanced Interrogation Techniques” (“EITs”), to be applied to suspected terrorists, would not violate the prohibition of torture. 39.", "The EITs are described in paragraph 36 of the 2004 CIA Report as follows: “[1.] The attention grasp consists of grasping the detainee with both hands, with one hand on each side of the collar opening, in a controlled and quick motion. In the same motion as the grasp, the detainee is drawn toward the interrogator. [2.] During the walling technique, the detainee is pulled forward and then quickly and firmly pushed into a flexible false wall so that his shoulder blades hit the wall.", "His head and neck are supported with a rolled towel to prevent whiplash. [3.] The facial hold is used to hold the detainee’s head immobile. The interrogator places an open palm on either side of the detainee’s face and the interrogator’s fingertips are kept well away from the detainee’s eyes. [4.]", "With the facial or insult slap, the fingers are slightly spread apart. The interrogator’s hand makes contact with the area between the tip of the detainee’s chin and the bottom of the corresponding earlobe. [5.] In cramped confinement, the detainee is placed in a confined space, typically a small or large box, which is usually dark. Confinement in the smaller space lasts no more than two hours and in the larger space it can last up to 18 hours.", "[6.] Insects placed in a confinement box involve placing a harmless insect in the box with the detainee. [7.] During wall standing, the detainee may stand about 4 to 5 feet from a wall with his feet spread approximately to his shoulder width. His arms are stretched out in front of him and his fingers rest on the wall to support all of his body weight.", "The detainee is not allowed to reposition his hands or feet. [8.] The application of stress positions may include having the detainee sit on the floor with his legs extended straight out in front of him with his arms raised above his head or kneeling on the floor while leaning back at a 45 degree angle. [9.] Sleep deprivation will not exceed 11 days at a time.", "[10.] The application of the waterboard technique involves binding the detainee to a bench with his feet elevated above his head. The detainee’s head is immobilized and an interrogator places a cloth over the detainee’s mouth and nose while pouring water onto the cloth in a controlled manner. Airflow is restricted for 20 to 40 seconds and the technique produces the sensation of drowning and suffocation.” 40. Appendix F to the 2004 CIA Report (Draft OMS Guidelines on Medical and Psychological Support to Detainee Interrogations, of 4 September 2003) refers to “legally sanctioned interrogation techniques”.", "It states, among other things, that “captured terrorists turned over to the CIA for interrogation may be subjected to a wide range of legally sanctioned techniques. ... These are designed to psychologically ‘dislocate’ the detainee, maximize his feeling of vulnerability and helplessness, and reduce or eliminate his will to resist ... efforts to obtain critical intelligence”. The techniques included, in ascending degree of intensity: (1) Standard measures (that is, without physical or substantial psychological pressure): shaving; stripping; diapering (generally for periods not greater than 72 hours); hooding; isolation; white noise or loud music (at a decibel level that will not damage hearing); continuous light or darkness; uncomfortably cool environment; restricted diet, including reduced caloric intake (sufficient to maintain general health); shackling in upright, sitting, or horizontal position; water dousing; sleep deprivation (up to 72 hours). (2) Enhanced measures (with physical or psychological pressure beyond the above): attention grasp; facial hold; insult (facial) slap; abdominal slap; prolonged diapering; sleep deprivation (over 72 hours); stress positions: on knees body slanted forward or backward or leaning with forehead on wall; walling; cramped confinement (confinement boxes) and waterboarding.", "41. Appendix C to the 2004 CIA Report (Memorandum for John Rizzo Acting General Counsel of the Central Intelligence Agency of 1 August 2002) was prepared by Jay S. Baybee, Assistant Attorney General in connection with the application of the EITs to Abu Zubaydah, the first high‑ranking al-Qaeda prisoner who was to be subjected to those interrogation methods. This document, a classified analysis of specific interrogation techniques proposed for use in the interrogation of Abu Zubaydah, was declassified in 2009. It concludes that, given that “there is no specific intent to inflict severe mental pain or suffering ...” the application “of these methods separately or a course of conduct” would not violate the prohibition of torture as defined in section 2340 of title 18 of the United States Code. 42.", "The US Department of Justice Office of Professional Responsibility Report: “Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Agency’s Use of ‘Enhanced Interrogation Techniques’ on Suspected Terrorists” (“the 2009 DOJ Report”) was released by the US authorities in a considerably redacted form in 2010. The report is 260 pages long but all the parts that seem to refer to locations of CIA “black sites” or names of interrogators are redacted. It states, among other things, as follows: “The issue how to approach interrogations reportedly came to a head after the capture of a senior al’Qaeda leader, Abu Zubaydah, during a raid in Faisalabad, Pakistan, in late March 2002. Abu Zubaydah was transported to a ‘black site’, a secret CIA prison facility [REDACTED] where he was treated for gunshot wounds he suffered during his capture. ...” 43.", "According to the 2009 DOJ Report, the CIA psychologists eventually proposed twelve EITs to be used in the interrogation of Mr Abu Zubaydah: attention grasp, walling, facial hold, facial or insult slap, cramped confinement, insects, wall-standing, stress positions, sleep deprivation, use of diapers, waterboarding – the name of the twelfth EIT was redacted. (b) Expanding the use of the EITs beyond Abu Zubaydah’s interrogations 44. The 2004 CIA Report states that, subsequently, the CIA Office of General Counsel (“OGC”) continued to consult with the US Department of Justice in order to expand the use of EITs beyond the interrogation of Abu Zubaydah. According to the report, “this resulted in the production of an undated and unsigned document entitled Legal principles Applicable to CIA Detention and Interrogation of Captured Al’Qaeda Personnel’”. Certain parts of that document are rendered in the 2004 CIA report.", "In particular, the report cites the following passages: “the [Torture] Convention permits the use of [cruel, inhuman, or degrading treatment] in exigent circumstances, such as a national emergency or war. ... The interrogation of Al’Qaeda members does not violate the Fifth and Fourteenth Amendments because those provisions do not apply extraterritorially, nor does it violate the Eighth Amendment because it only applies to persons upon whom criminal sanctions have been imposed. ... The use of the following techniques and of comparable, approved techniques does not violate any Federal statute or other law, where the CIA interrogators do not specifically intend to cause the detainee to undergo severe physical or mental pain or suffering (i.e., they act with the good faith belief that their conduct will not cause such pain or suffering): isolation, reduced caloric intake (so long as the amount is calculated to maintain the general health of the detainees), deprivation of reading material, loud music or white noise (at a decibel level calculated to avoid damage to the detainees’ hearing), the attention grasp, walling, the facial hold, the facial slap (insult slap), the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation, the use of diapers, the use of harmless insects, and the water board.” The report, in paragraph 44, states that according to OGC this analysis embodied the US Department of Justice’s agreement that the reasoning of the classified OLC opinion of 1 August 2002 extended beyond the interrogation of Abu Zubaydah and the conditions specified in that opinion.", "45. The application of the EITs to other terrorist suspects in CIA custody began in November 2002. 3. Standard procedures and treatment of “high value detainees” in CIA custody (combined use of interrogation techniques) 46. On 30 December 2004 the CIA prepared a background paper on the CIA’s combined interrogation techniques (“the 2004 CIA Background Paper”), addressed to D. Levin, the US Acting Assistant Attorney General.", "The document, originally classified as “top secret” was released on 24 August 2009 in a heavily redacted version. It explains standard authorised procedures and treatment to which high-value detainees – the HVDs – in CIA custody were routinely subjected from their capture, through their rendition and reception at a CIA “black site”, to their interrogation. It “focuses on the topic of combined use of interrogation techniques, [the purpose of which] is to persuade high-value detainees to provide threat information and terrorist intelligence in a timely manner. ... Effective interrogation is based on the concept of using both physical and psychological pressures in a comprehensive, systematic and cumulative manner to influence HVD behaviour, to overcome a detainee’s resistance posture.", "The goal of interrogation is to create a state of learned helplessness and dependence ... The interrogation process could be broken into three separate phases: Initial conditions, transition to interrogation and interrogation” (see also El-Masri, cited above, § 124). 47. The first section of the 2004 CIA Background Paper, entitled “Initial Capture”, was devoted to the process of capture, rendition and reception at the “black site”. It states that “regardless of their previous environment and experiences, once a HVD is turned over to CIA a predictable set of events occur”.", "The capture is designed to “contribute to the physical and psychological condition of the HVD prior to the start of interrogation”. 48. The said “predictable set of events” following the capture started with the rendition, which was described as follows: “a. The HVD is flown to a Black Site. A medical examination is conducted prior to the flight.", "During the flight, the detainee is securely shackled and is deprived of sight and sound through the use of blindfolds, earmuffs, and hoods. [REDACTED] There is no interaction with the HVD during this rendition movement except for periodic, discreet assessments by the on-board medical officer. b. Upon arrival at the destination airfield, the HVD is moved to the Black Site under the same conditions and using appropriate security procedures.” 49. The description of the next “event” – the reception at the “black site” – reads as follows: “The HVD is subjected to administrative procedures and medical assessment upon arrival at the Black Site.", "[REDACTED] the HVD finds himself in the complete control of Americans; [REDACTED] the procedures he is subjected to are precise, quiet, and almost clinical; and no one is mistreating him. While each HVD is different, the rendition and reception process generally creates significant apprehension in the HVD because of the enormity and suddenness of the change in environment, the uncertainty about what will happen next, and the potential dread an HVD might have of US custody. Reception procedures include: a. The HVD’s head and face are shaved. b.", "A series of photographs are taken of the HVD while nude to document the physical condition of the HVD upon arrival. c. A Medical Officer interviews the HVD and a medical evaluation is conducted to assess the physical condition of the HVD. The medical officer also determines if there are any contra indications to the use of interrogation techniques. d. A psychologist interviews the HVD to assess his mental state. The psychologist also determines if there are any contra indications to the use of interrogation techniques.” 50.", "The second section, entitled “Transitioning to Interrogation - The Initial Interview”, deals with the stage before the application of EITs. It reads: “Interrogators use the Initial Interview to assess the initial resistance posture of the HVD and to determine – in a relatively benign environment – if the HVD intends to willingly participate with CIA interrogators. The standard on participation is set very high during the Initial Interview. The HVD would have to willingly provide information on actionable threats and location information on High-Value Targets at large not lower level information for interrogators to continue with the neutral approach. [REDACTED] to HQS.", "Once approved, the interrogation process begins provided the required medical and psychological assessments contain no contra indications to interrogation.” 51. The third section, “Interrogation”, which is largely redacted, describes the standard combined application of interrogation techniques defined as (1) “existing detention conditions”, (2) “conditioning techniques”, (3) “corrective techniques” and (4) “coercive techniques”. (1) The part dealing with the “existing detention conditions” reads: “Detention conditions are not interrogation techniques, but they have an impact on the detainee undergoing interrogation. Specifically, the HVD will be exposed to white noise/loud sounds (not to exceed 79 decibels) and constant light during portions of the interrogation process. These conditions provide additional operational security: white noise/loud sounds mask conversations of staff members and deny the HVD any auditory clues about his surroundings and deter and disrupt the HVD’s potential efforts to communicate with other detainees.", "Constant light provides an improved environment for Black Site security, medical, psychological, and interrogator staff to monitor the HVD.” (2) The “conditioning techniques” are related as follows: “The HVD is typically reduced to a baseline, dependent state using the three interrogation techniques discussed below in combination. Establishing this baseline state is important to demonstrate to the HVD that he has no control over basic human needs. The baseline state also creates in the detainee a mindset in which he learns to perceive and value his personal welfare, comfort, and immediate needs more than the information he is protecting. The use of these conditioning techniques do not generally bring immediate results; rather, it is the cumulative effect of these techniques, used over time and in combination with other interrogation techniques and intelligence exploitation methods, which achieve interrogation objectives. These conditioning techniques require little to no physical interaction between the detainee and the interrogator.", "The specific conditioning interrogation techniques are a. Nudity. The HVD’s clothes are taken and he remains nude until the interrogators provide clothes to him. b. Sleep Deprivation. The HVD is placed in the vertical shackling position to begin sleep deprivation.", "Other shackling procedures may be used during interrogations. The detainee is diapered for sanitary purposes; although the diaper is not used at all times. c. Dietary manipulation. The HVD is fed Ensure Plus or other food at regular intervals. The HVD receives a target of 1500 calories per day per OMS guidelines.” (3) The “corrective techniques”, which were applied in combination with the “conditioning techniques”, are defined as those requiring “physical interaction between the interrogator and detainee” and “used principally to correct, startle, or to achieve another enabling objective with the detainee”.", "They are described as follows: “These techniques – the insult slap, abdominal slap, facial hold, and attention grasp – are not used simultaneously but are often used interchangeably during an individual interrogation session. These techniques generally are used while the detainee is subjected to the conditioning techniques outlined above (nudity, sleep deprivation, and dietary manipulation). Examples of application include: a. The insult slap often is the first physical technique used with an HVD once an interrogation begins. As noted, the HVD may already be nude, in sleep deprivation, and subject to dietary manipulation, even though the detainee will likely feel little effect from these techniques early in the interrogation.", "The insult slap is used sparingly but periodically throughout the interrogation process when the interrogator needs to immediately correct the detainee or provide a consequence to a detainee’s response or non-response. The interrogator will continually assess the effectiveness of the insult slap and continue to employ it so long as it has the desired effect on the detainee. Because of the physical dynamics of the various techniques, the insult slap can be used in combination with water dousing or kneeling stress positions. Other combinations are possible but may not be practical. b. Abdominal Slap.", "The abdominal slap is similar to the insult slap in application and desired result. It provides the variation necessary to keep a high level of unpredictability in the interrogation process. The abdominal slap will be used sparingly and periodically throughout the interrogation process when the interrogator wants to immediately correct the detainee [REDACTED], and the interrogator will continually assess its effectiveness. Because of the physical dynamics of the various techniques, the abdominal slap can be used in combination with water dousing, stress positions, and wall standing. Other combinations are possible but may not be practical.", "c. Facial Hold. The facial hold is a corrective technique and is used sparingly throughout interrogation. The facial hold is not painful and is used to correct the detainee in a way that demonstrates the interrogator’s control over the HVD [REDACTED]. Because of the physical, dynamics of the various techniques, the facial hold can be used in combination with water dousing, stress positions, and wall standing. Other combinations are possible but may not be practical.", "d. Attention Grasp. It may be used several times in the same interrogation. This technique is usually applied [REDACTED] grasp the HVD and pull him into close proximity of the interrogator (face to face). Because of the physical dynamics of the various techniques, the attention grasp can be used in combination with water dousing or kneeling stress positions. Other combinations are possible but may not be practical.” (4) The “coercive techniques”, defined as those placing a detainee “in more physical and psychological stress and therefore considered more effective tools in persuading a resistant HVD to participate with CIA interrogators”, are described as follows: “These techniques – walling, water dousing, stress positions, wall standing, and cramped confinement – are typically not used in combination, although some combined use is possible.", "For example, an HVD in stress positions or wall standing can be water doused at the same time. Other combinations of these techniques may be used while the detainee is being subjected to the conditioning techniques discussed above (nudity, sleep deprivation, and dietary manipulation). Examples of coercive techniques include: a. Walling. Walling is one of the most effective interrogation techniques because it wears down the HVD physically, heightens uncertainty in the detainee about what the interrogator may do to him, and creates a sense of dread when the HVD knows he is about to be walled again. [REDACTED] interrogator [REDACTED].", "An HVD may be walled one time (one impact with the wall) to make a point or twenty to thirty times consecutively when the interrogator requires a more significant response to a question. During an interrogation session that is designed to be intense, an HVD will be walled multiple times in the session. Because of the physical dynamics of walling, it is impractical to use it simultaneously with other corrective or coercive techniques. b. Water Dousing.", "The frequency and duration of water dousing applications are based on water temperature and other safety considerations as established by OMS guidelines. It is an effective interrogation technique and may be used frequently within those guidelines. The physical dynamics of water dousing are such that it can be used in combination with other corrective and coercive techniques. As noted above, an HVD in stress positions or wall standing can be water doused. Likewise, it is possible to use the insult slap or abdominal slap with an HVD during water dousing.", "c. Stress Positions. The frequency and duration of use of the stress positions are based on the interrogator’s assessment of their continued effectiveness during interrogation. These techniques are usually self-limiting in that temporary muscle fatigue usually leads to the HVD being unable to maintain the stress position after a period of time. Stress positions requiring the HVD to be in contact with the wall can be used in combination with water dousing and abdominal slap. Stress positions requiring the HVD to kneel can be used in combination with water dousing, insult slap, abdominal slap, facial hold, and attention grasp.", "d. Wall Standing. The frequency and duration of wall standing are based on the interrogator’s assessment of its continued effectiveness during interrogation. Wall standing is usually self-limiting in that temporary muscle fatigue usually leads to the HVD being unable to maintain the position after a period of time. Because of the physical dynamics of the various techniques, wall standing can be used in combination with water dousing and abdominal slap. While other combinations are possible, they may not be practical.", "e. Cramped Confinement. Current OMS guidance on the duration of cramped confinement limits confinement in the large box to no more than 8 hours at a time for no more than 18 hours a day, and confinement in the small box to 2 hours. [REDACTED] Because of the unique aspects of cramped confinement, it cannot be used in combination with other corrective or coercive techniques.” 52. The subsequent section of the 2004 CIA Background Paper, entitled “Interrogation – A Day-to-Day Look” sets out a – considerably redacted – “prototypical interrogation” practised routinely at the CIA “black site”, “with an emphasis on the application of interrogation techniques, in combination and separately”. A detailed description of such “prototypical interrogation” can be found in Husayn (Abu Zubaydah) v. Poland (cited above, § 66) and in Al Nashiri v. Poland (cited above, § 68).", "53. From the end of January 2003 to September 2006 the rules for CIA interrogations were set out in the Guidelines on Interrogations Conducted Pursuant to the Presidential Memorandum of Notification of 17 September 2001 (“the DCI Interrogation Guidelines”), signed by the CIA Director, George Tenet on 28 January 2003. The 2014 US Senate Committee Report states that, although the above guidelines were prepared as a reaction to the death of one of the HVDs, Gul Rahman, at Detention Site Cobalt and the use of unauthorised interrogation techniques on Mr Al Nashiri at Detention Site Blue (see Al Nashiri v. Poland, cited above, §§ 99-100), they did not reference all interrogation practices that had been employed at CIA detention sites. For instance, they did not address whether techniques such as the “rough take down”, the use of cold water showers and prolonged light deprivation were prohibited. According to the 2014 US Senate Committee Report, the CIA officers had a “significant amount of discretion” in the application of the interrogation measures.", "The relevant part of the 2014 US Senate Committee Report reads: “[B]y requiring advance approval of ‘standard techniques’ ‘whenever feasible, the guidelines allowed CIA officers a significant amount of discretion to determine who could be subjected to the CIA’s ‘standard’ interrogation techniques, when those techniques could be applied, and when it was not ‘feasible’ to request advance approval from CIA Headquarters. Thus, consistent with the interrogation guidelines, throughout much of 2003, CIA officers (including personnel not trained in interrogation) could, at their discretion, strip a detainee naked, shackle him in the standing position for up to 72 hours, and douse the detainee repeatedly with cold water without approval from CIA Headquarters if those officers judged CIA Headquarters approval was not ‘feasible’. In practice, CIA personnel routinely applied these types of interrogation techniques without obtaining prior approval.” 4. Conditions of detention at CIA “Black Sites” 54. From the end of January 2003 to September 2006 the conditions of detention at CIA detention facilities abroad were governed by the Guidelines on Confinement Conditions for CIA Detainees (“the DCI Confinement Guidelines”), signed by the CIA Director, George Tenet, on 28 January 2003.", "This document, together with the DCI Interrogation Guidelines (see paragraph 53 above), set out the first formal interrogation and confinement guidelines for the HVD Programme. The 2014 US Senate Committee Report relates that, in contrast to earlier proposals of late 2001, when the CIA expected that any detention facility would have to meet US prison standards, the guidelines set forth minimal standards and required only that the facility be sufficient to meet “basic health needs”. According to the report, that meant that even a facility comparable to the “Detention Site Cobalt” in which detainees were kept shackled in complete darkness and isolation, with a bucket for human waste, and without heat during the winter months, met the standard. 55. According to the guidelines, at least the following “six standard conditions of confinement” were in use during that period: (i) blindfolds or hooding designed to disorient the detainee and keep him from learning his location or the layout of the detention facility; (ii) removal of hair upon arrival at the detention facility such that the head and facial hair of each detainee is shaved with an electric shaver, while the detainee is shackled to a chair; (iii) incommunicado, solitary confinement; (iv) continuous noise up to 79dB, played at all times, and maintained in the range of 56-58 dB in detainees’ cells and 68-72 dB in the walkways; (v) continuous light such that each cell was lit by two 17-watt T-8 fluorescent tube light bulbs, which illuminated the cell to about the same brightness as an office; (vi) use of leg shackles in all aspects of detainee management and movement.", "56. The Memorandum for John A. Rizzo, Acting General Counsel at the CIA, entitled “Application of the Detainee Treatment Act to Conditions of Confinement at Central Intelligence Agency Facilities”, dated 31 August 2006, which was released on 24 August 2009 in a heavily redacted form, referred to conditions in which High-Value Detainees were held as follows: “... the CIA detainees are in constantly illuminated cells, substantially cut off from human contact, and under 24-hour-a-day surveillance. We also recognize that many of the detainees have been in the program for several years and thus that we cannot evaluate these conditions as if they have occurred only for a passing moment ... . Nevertheless, we recognize that the isolation experienced by the CIA detainees may impose a psychological toll. In some cases, solitary confinement may continue for years and may alter the detainee’s ability to interact with others.", "...” 5. The scale of the HVD Programme 57. According to the 2014 US Senate Committee Report, the CIA held detainees from 2002 to 2008. Early 2003 was the most active period of the programme. Of the 119 detainees identified by the Senate Intelligence Committee as held by the CIA, fifty-three were brought into custody in 2003.", "Of thirty-nine detainees who, as found by the Committee, were subjected to the EITs, seventeen were subjected to such methods of interrogation between January 2003 and August 2003. During that time the EITs were primarily used at the Detention Site Cobalt and the Detention Site Blue. 58. The report states that by the end of 2004 the overwhelming majority of CIA detainees – 113 of the 119 identified in the report – had already entered CIA custody. Most of the detainees remaining in custody were no longer undergoing active interrogations; rather, they were infrequently questioned and awaiting a “final disposition”.", "The CIA took custody of only six new detainees between 2005 and January 2009: four detainees in 2005, one in 2006, and one in 2007. 6. Closure of the HVD Programme 59. On 6 September 2006 President Bush delivered a speech announcing the closure of the HVD Programme. According to information disseminated publicly by the US authorities, no persons were held by the CIA as of October 2006 and the detainees concerned were transferred to the custody of the US military authorities in the US Naval Base in Guantánamo Bay.", "60. In January 2009 President Obama signed Executive Order 13491 that prohibited the CIA from holding detainees other than on a “short-term, transitory basis” and limited interrogation techniques to those included in the Army Field Manual. B. The United States Supreme Court’s judgment in Rasul v. Bush 61. On 28 June 2004 the Supreme Court gave judgment in Rasul v. Bush, 542 U.S. 466 (2004).", "It held that foreign nationals detained in the Guantánamo Bay detention camp could petition federal courts for writs of habeas corpus to review the legality of their detention. The relevant part of the syllabus reads as follows: “United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantánamo Bay. “(a) The District Court has jurisdiction to hear petitioners’ habeas challenges under 28 U.S.C. § 2241, which authorizes district courts, within their respective jurisdictions, to entertain habeas applications by persons claiming to be held “in custody in violation of the ... laws ... of the United States,” §§ 2241(a), (c)(3). Such jurisdiction extends to aliens held in a territory over which the United States exercises plenary and exclusive jurisdiction, but not ultimate sovereignty.", "...” C. Role of Jeppesen Dataplan, Richmor Aviation and other air companies in the CIA rendition operations 62. According to various reports available in the public domain and material collected during international inquiries concerning the CIA’s HDV Programme (see paragraphs 269-277 and 281-283 below), the CIA used a network of at least twenty-six private planes for their rendition operations. The planes were leased through front companies. The CIA contracts remain classified but parts of the contracts between front companies (such as, for example, Richmor Aviation) and their contractors are publicly available. 1.", "Jeppesen Dataplan Inc. 63. Jeppesen Dataplan. Inc. is a subsidiary of Boeing based in San Jose, California. According to the company’s website, it is an international flight operations service provider that coordinates everything from landing fees to hotel reservations for commercial and military clients. 64.", "In the light of reports on rendition flights, a unit of the company Jeppesen International Trip Planning Service (JITPS) provided logistical support to the CIA for the renditions of persons suspected of terrorism. 65. In 2007 the American Civil Liberties Union (“ACLU”) filed a federal lawsuit against Jeppesen Dataplan, Inc., on behalf of three extraordinary rendition victims, with the District Court for the Northern District of California. Later, two other persons joined the lawsuit as plaintiffs. The suit charged that Jeppesen knowingly participated in these renditions by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to torture, detention and interrogation.", "In February 2008 the District Court dismissed the case on the basis of “state secret privilege”. In April 2009 the 9th Circuit Court of Appeals reversed the first-instance decision and remitted the case. In September 2010, on the US Government’s appeal, an 11-judge panel of the 9th Circuit Court of Appeals reversed the decision of April 2009. In May 2011 the US Supreme Court refused the ACLU’s request to hear the lawsuit. 2.", "Richmor Aviation 66. Richmor Aviation is an aircraft company based in Hudson, New York. 67. According to Reprieve, documents detailing Richmor Aviation’s involvement in CIA rendition missions were made public by it in 2011. These documents included litigation material concerning a dispute for a breach of contract between Richmor Aviation and Sportsflight, a contractor organising flights.", "They show that Richmor Aviation was involved in the rendition operations in particular through a Gulfstream jet under their management, N85VM, which was later redesignated as N227SV (see also paragraphs 123-125 below). Other planes operated by Richmor Aviation were also involved in the programme. Richmor Aviation became a part of this programme as early as June 2002, when the US government’s initial prime contractor DynCorp entered into a single entity charter contract with broker Capital Aviation to supply Richmor Aviation’s Gulfstream jet N85VM. Under that contract, Richmor Aviation was subcontracted to perform numerous missions. For instance, Hassan Mustafa Osama Nasr aka Abu Omar’s rendition flight from Germany to Egypt on 17 February 2003 was operated by Richmor Aviation on behalf of DynCorp (see also Nasr and Ghali v. Italy, no.", "44883/09, §§ 39, 112 and 231, 23 February 2016). It is also reported that the CIA, acting through Computer Sciences Corporation (“CSC”), arranged for Richmor Aviation jet N982RK to transfer Mr El‑Masri from a CIA “black site” in Afghanistan to Albania (see El‑Masri, cited above, § 46). 3. Other companies 68. An inquiry into the alleged existence of CIA secret prisons in Europe launched by the European Parliament (“the Fava Inquiry”; see paragraphs 281-284 below) examined, among other things, the use by the CIA of private companies and charter services to carry out the rendition operations.", "The relevant parts of working document no. 4 produced in the course of the inquiry read as follows: “Within the context of the extraordinary renditions, the CIA had often used private companies and charter services for aircraft rentals. Through the civil aviation it is possible to reach places where the military aircraft would be seen suspiciously. Thanks to the civil aviation, the CIA avoids the duty to provide the information required by States concerning government or military flights. Most of these companies are the so-called shell companies: they only exist on papers (post offices boxes, for instance) or they have a sole employee (normally a lawyer).", "These shell companies appear the owners of some aircrafts which are systematically object of buy-and-sell operations. After each transaction, planes are re‑registered in order to [lose] their tracks. ... Sometimes shell companies used by CIA rely on other real companies endowed with premises and employees (so called: operating companies). These companies are entrusted to stand behind the shell companies; they provide the CIA aircrafts with all necessary logistics (pilots, catering, technical assistance).", "In some cases the operating companies are directly linked to the CIA. One example is Aero Contractor, a company described by the New York Times as the ‘major domestic hub of the Central Intelligence Agency’s secret air service. The system is well described by the New York Times: ‘An analysis of thousands of flight records, aircraft registrations and corporate documents, as well as interviews with former C.I.A. officers and pilots, show that the agency owns at least 26 planes, 10 of them purchased since 2001. The agency has concealed its ownership behind a web of seven shell corporations that appear to have no employees and no function apart from owning the aircraft.", "The planes, regularly supplemented by private charters, are operated by real companies controlled by or tied to the agency, including Aero Contractors and two Florida companies, Pegasus Technologies and Tepper Aviation.’ Finally, in other cases, the CIA leases airplanes from normal charter agents, as it is the case for Richmor Aviation. Richmor Aviation is one of the oldest charter and flight management companies. The Gulfstream IV, N85VM belongs to Richmor Aviation (plane involved in the abduction of Abu Omar). Ultimately, in this inextricable net, there is also the possibility that single aircrafts change their registration numbers (as for the Gulfstrean V, from Richmor Aviation, registered as N379P, then, N8068V and then N44982). There are indeed 51 airplanes alleged to be used in the extraordinary renditions, but, according the Federal Aviation Administration records, there would be 57 registration numbers.", "It comes out that some of them are registered more than once. Among the 51 airplanes alleged to be used by CIA: 26 planes are registered to shell companies and sometimes supported by operating companies. 10 are designed as ‘CIA frequent flyers, they belong to Blackwater USA, an important CIA and US Army ‘classified contractor’. It provides staff, training and aviation logistic. In this case there is no intermediation of shell companies.", "The other 15 planes are from occasional rental from private companies working with CIA as well as with other customers.” 69. The document listed the following operating companies involved in the rendition operations: Aero Contractors, Ltd; Tepper Aviation; Richmor Aviation; and subsidiaries of Blackwater USA. Aero Contractors was the operating company for the following shell companies: Steven Express Leasing Inc., Premier Executive Transport Service, Aviation Specialties Inc. and Devon Holding and Leasing Inc. D. Review of the CIA’s activities involved in the HVD Programme in 2001-2009 by the US Senate 1. Course of the review 70. In March 2009 the US Senate Intelligence Committee initiated a review of the CIA’s activities involved in the HVD Programme, in particular the secret detention at foreign “black sites” and the use of the EITs.", "That review originated in an investigation that had begun in 2007 and concerned the CIA’s destruction of videotapes documenting interrogations of Abu Zubaydah and Al Nashiri at Detention Site Green (see also paragraphs 24 above and 94-96 and 166 below).. The destruction was carried out in November 2005. 71. The Committee’s “Study of the Central Intelligence Agency’s Detention and Interrogation” was finished towards the end of 2012. The document describes the CIA’s HVD Programme between September 2001 and January 2009.", "It examined operations at overseas CIA clandestine detention facilities, the use of the EITs and conditions of 119 known individuals detained by CIA during that period (see also paragraphs 22-24 above). The US Senate Committee on Intelligence, together with their staff, reviewed thousands of CIA cables describing the interrogations of Abu Zubaydah, Al Nashiri and other CIA prisoners, and more that than six million pages of CIA material, including operational cables, intelligence reports, internal memoranda and emails, briefing materials, interview transcripts, contracts and other records. 72. On 3 April 2014 the Intelligence Committee decided to declassify the report’s executive summary and twenty findings and conclusions. In this connection, Senator Dianne Feinstein issued a statement which read, in so far as relevant, as follows: “The Senate Intelligence Committee this afternoon voted to declassify the 480-page executive summary as well as 20 findings and conclusions of the majority’s five-year study of the CIA Detention and Interrogation Program, which involved more than 100 detainees.", "The purpose of this review was to uncover the facts behind this secret program, and the results were shocking. The report exposes brutality that stands in stark contrast to our values as a nation. It chronicles a stain on our history that must never again be allowed to happen. ... The report also points to major problems with CIA’s management of this program and its interactions with the White House, other parts of the executive branch and Congress.", "This is also deeply troubling and shows why oversight of intelligence agencies in a democratic nation is so important. ... The full 6,200-page full report has been updated and will be held for declassification at a later time.” The executive summary with findings and conclusions was released on 9 December 2014 (see also paragraph 22 above). 73. The passages of the 2014 US Senate Committee Report relating to Mr Abu Zubaydah’s secret detention relevant for the present case are rendered below (see paragraphs 76, 80-81 and 92-96 below).", "2. Findings and conclusions 74. The Committee made twenty findings and conclusions. They can be summarised, in so far as relevant, as follows. 75.", "Conclusion 2 states that “the CIA’s justification for the use of its enhanced interrogation techniques rested on inaccurate claims of their effectiveness”. 76. Conclusion 3 states that “[t]he interrogations of the CIA were brutal and far worse than the CIA represented to policymakers and others”. In that regard several references are made to Mr Abu Zubaydah’s treatment and interrogations: “Beginning with the CIA’s first detainee, Abu Zubaydah, and continuing with numerous others, the CIA applied its enhanced interrogation techniques with significant repetition for days or weeks at a time. Interrogation techniques such as slaps and ‘wallings’ (slamming detainees against a wall) were used in combination, frequently concurrent with sleep deprivation and nudity.", "Records do not support CIA representations that the CIA initially used an ‘an open, nonthreatening approach’, or that interrogations began with the ‘least coercive technique possible’ and escalated to more coercive techniques only as necessary. The waterboarding technique was physically harmful, inducing convulsions and vomiting. Abu Zubaydah, for example, became ‘completely unresponsive, with bubbles rising through his open, full mouth’. Internal CIA records describe the waterboarding of Khaled Shaykh Mohammad as evolving into a ‘series of near drownings’. Sleep deprivation involved keeping detainees awake for up to 180 hours, usually standing or in stress positions, at times with their hands shackled above their heads.", "At least five detainees experienced disturbing hallucinations during prolonged sleep deprivation and, in at least two of those cases, the CIA nonetheless continued the sleep deprivation. Contrary to CIA representations to the Department of Justice, the CIA instructed personnel that the interrogation of Abu Zubaydah would take ‘precedence’ over his medical care, resulting in the deterioration of a bullet wound Abu Zubaydah incurred during his capture. ...” 77. Conclusion 4 states that “the conditions of confinement for CIA detainees were harsher than the CIA had represented to the policymakers and others” and that “conditions at CIA detention sites were poor, and were especially bleak early in the programme”. As regards conditions at later stages, the following findings were made: “Even after the conditions of confinement improved with the construction of new detention facilities, detainees were held in total isolation except when being interrogated or debriefed by CIA personnel.", "Throughout the program, multiple CIA detainees who were subjected to the CIA’s enhanced interrogation techniques and extended isolation exhibited psychological and behavioral issues, including hallucinations, paranoia, insomnia, and attempts at self-harm and self-mutilation. Multiple psychologists identified the lack of human contact experienced by detainees as a cause of psychiatric problems.” 78. Conclusion 8 states that “the CIA operation and management of the program complicated, and in some cases impeded, the national security missions of other Executive Branch Agencies”, including the Federal Bureau of Investigation (“the FBI”), the State Department and the Office of the Director of National Intelligence (“the ODNI”). In particular, the CIA withheld or restricted information relevant to these agencies’ missions and responsibilities, denied access to detainees, and provided inaccurate information on the HVD Programme to them. 79.", "The findings under Conclusion 8 also state that, while the US authorities’ access to information about “black sites” was restricted or blocked, the local authorities in countries hosting CIA secret detention facilities were generally informed of their existence. In that respect, it is stated: “The CIA blocked State Department leadership from access to information crucial to foreign policy decision-making and diplomatic activities. The CIA did not inform two secretaries of state of locations of CIA detention facilities, despite the significant foreign policy implications related to the hosting of clandestine CIA detention sites and the fact that the political leaders of host countries were generally informed of their existence. Moreover, CIA officers told U.S. ambassadors not to discuss the CIA program with State Department officials, preventing the ambassadors from seeking guidance on the policy implications of establishing CIA detention facilities in the countries in which they served. In two countries, U.S. ambassadors were informed of plans to establish a CIA detention site in the countries where they were serving after the CIA had already entered into agreements with the countries to host the detention sites.", "In two other countries where negotiations on hosting new CIA detention facilities were taking place, the CIA told local government officials not to inform the U.S. ambassadors.” 80. Conclusion 11 states that “the CIA was unprepared as it began operating its Detention and Interrogation Program more than six months after being granted detention authorities”. In that regard, references are made to the applicant, stating that “the CIA was not prepared to take custody of its first detainee”, Abu Zubaydah, and lacked a plan for the eventual disposition of its detainees. After taking custody of Abu Zubaydah, CIA officers concluded that he “should remain incommunicado for the remainder of his life”, which “may preclude [his] being turned over to another country”. Also, as interrogations started, the CIA deployed persons who lacked relevant training and experience.", "81. According to Conclusion 13, “two contract psychologists devised the CIA enhanced interrogation techniques and played a central role in the operation, assessment and management of the [programme]”. It was confirmed that “neither psychologist had any experience as an interrogator. Nor did either have specialised knowledge of Al-Qa’ida, a background in counter-terrorism, or any relevant or cultural or linguistic expertise”. The contract psychologists developed theories of interrogation based on “learned helplessness” and developed the list of EITs approved for use against Abu Zubaydah and other detainees.", "82. Conclusion 14 states that “CIA detainees were subjected to coercive interrogation techniques that had not been approved by the Department of Justice or had not been authorised by the CIA Headquarters”. It was confirmed that prior to mid-2004 the CIA routinely subjected detainees to nudity and dietary manipulation. The CIA also used abdominal slaps and cold water dousing on several detainees during that period. None of these techniques had been approved by the Department of Justice.", "At least seventeen detainees were subjected to the EITs without authorisation from CIA Headquarters. 83. Conclusion 15 states that “the CIA did not conduct a comprehensive or accurate accounting of the number of individuals it detained, and held individuals who did not meet the legal standard for detention”. It was established that the CIA had never conducted a comprehensive audit or developed a complete and accurate list of the persons it had detained or subjected to the EITs. The CIA statements to the Committee and later to the public that the CIA detained fewer than 100 individuals, and that less than a third of those 100 detainees were subjected to the CIA’s EITs, were inaccurate.", "The Committee’s review of CIA records determined that the CIA detained at least 119 individuals, of whom at least thirty-nine were subjected to the CIA’s enhanced interrogation techniques. Of the 119 known detainees, at least twenty-six were wrongfully held and did not meet the detention standard in the MON (see paragraph 26 above). 84. Conclusion 19 states that “the CIA’s Detention and Interrogation Program was inherently unsustainable and had effectively ended by 2006 due to unauthorized press disclosures, reduced cooperation from other nations, and legal and oversight concerns”. 85.", "It was established that the CIA required secrecy and cooperation from other nations in order to operate clandestine detention facilities. According to the 2014 US Senate Committee Report, both had eroded significantly before President Bush publicly disclosed the programme on 6 September 2006 (see also paragraph 59 above). From the beginning of the programme, the CIA faced significant challenges in finding nations willing to host CIA clandestine detention sites. These challenges became increasingly difficult over time. With the exception of one country (whose name was redacted) the CIA was forced to relocate detainees out of every country in which it established a detention facility because of pressure from the host government or public revelations about the program.", "Moreover, lack of access to adequate medical care for detainees in countries hosting the CIA’s detention facilities caused recurring problems. The refusal of one host country to admit a severely ill detainee into a local hospital due to security concerns contributed to the closing of the CIA’s detention facility in that country. 86. In early 2004, the anticipation of the US Supreme Court’s decision to grant certiorari in the case of Rasul v. Bush (see also paragraph 61 above) prompted the CIA to move detainees out of a CIA detention facility at Guantánamo Bay, Cuba. In mid-2004 the CIA temporarily suspended the use of the EITs after the CIA Inspector General recommended that the CIA seek an updated legal opinion from the Office of Legal Counsel.", "In late 2005 and in 2006, the Detainee Treatment Act and then the US Supreme Court decision in Hamdan v. Rumsfeld (548 U.S. 557,635 (2006)) caused the CIA to again temporarily suspend the use of the EITs. In Hamdan v. Rumsfeld the US Supreme Court ruled that the Guantánamo military commission set up to try terrorist-suspects captured during the “war on terror” “lack[ed] the power to proceed because its structure and procedures violate[d] both the UCMJ [Uniform Code of military Justice] and the four Geneva Conventions signed in 1949” (for further details see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 73-75). 87. According to the report, by 2006, press disclosures, the unwillingness of other countries to host existing or new detention sites, and legal and oversight concerns had largely ended the CIA’s ability to operate clandestine detention facilities. By March 2006 the program was operating in only one country.", "The CIA last used its EITs on 8 November 2007. The CIA did not hold any detainees after April 2008. 88. Finally, Conclusion 20 states that “the CIA’s Detention and Interrogation Program damaged the United States’ standing in the world, and resulted in other significant monetary and non-monetary costs”. It was confirmed that, as the CIA records indicated, the HVD Programme costed well over USD 300 million in non-personnel costs.", "This included funding for the CIA to construct and maintain detention facilities, including two facilities costing nearly [number redacted] million that were never used, in part due to the host country’s political concerns. 89. According to the 2014 US Senate Committee Report: “to encourage governments to clandestinely host CIA detention sites, or to increase support for existing sites, the CIA provided millions of dollars in cash payments to foreign government officials. The CIA Headquarters encouraged CIA Stations to construct ‘wish lists’ of proposed financial assistance to [phrase REDACTED] [entities of foreign governments] and to ‘think big’ in terms of that assistance”. IV.", "THE PARTICULAR CIRCUMSTANCES OF THE CASE A. Restrictions on information about the applicant’s secret detention and his communication with the outside world 90. In the application and further written pleadings, the applicant’s lawyers stressed that restrictions on information regarding the entirety of Abu Zubaydah’s detention necessarily meant that the case presented a range of complex, unusual and at times unique characteristics that the Court should be aware of in its consideration. In their view, several factors heightened the already significant challenges related to uncovering and presenting evidence in the case. First, the clandestine nature of the rendition operations coupled with a concerted cover-up intended to withhold or destroy any evidence relating to the rendition programme inherently limited the applicant’s ability to produce evidence in his case.", "Second, the lack of any meaningful investigation by the Lithuanian authorities, in whose hands much of the necessary information rested, impeded access to evidence and information. Third, they referred to what they called “the unprecedented restrictions on communication” between Mr Abu Zubaydah, his counsel and the Court, which “precluded the presentation of information or evidence directly from or in relation to the client”. Only the applicant’s US counsel with top-secret security clearance could meet with the applicant and all information obtained from him was presumptively classified. In consequence, counsel could not disclose to other members of the legal team or to the Court any information obtained from the applicant or other classified sources without obtaining the declassification of that information by the US authorities. According to the applicant’s lawyers, “Abu Zubaydah [was] a man deprived of his voice, barred from communicating with the outside world or with this Court and from presenting evidence in support of his case”.", "For that reason, his story was therefore to be told and the case was presented on his behalf by reference principally to publicly available documentation (see also Husayn (Abu Zubaydah) v. Poland, cited above, § 80). B. The applicant’s capture, transfer to CIA custody, secret detention and transfers from 27 March 2002 to 22 September 2003, as established by the Court in Husayn (Abu Zubaydah) v. Poland and supplemented by the 2014 US Senate Committee Report 91. As regards the events preceding the applicant’s secret detention in Poland, i.e. his capture in Faisalabad, Pakistan on 27 March 2002 and his initial detention from that date to 4 December 2002, in Husayn (Abu Zubaydah) v. Poland the Court held as follows: “404.", "In the light of the above first-hand CIA documentary evidence and clear and convincing expert evidence, the Court finds established beyond reasonable doubt that the applicant, following his capture on 27 March 2002, was detained in the CIA detention facility in Bangkok from an unknown date following his capture to 4 December 2002, that Mr Al Nashiri was also held in the same facility from 15 November 2002 to 4 December 2002 and that they were both moved together to ‘another CIA black site’ on 4 December 2002 (see also Al Nashiri, cited above, § 404).” The experts, Senator Marty and Mr J.G.S., heard by the Court at the fact‑finding hearing in Husayn (Abu Zubaydah) v. Poland and Al Nashiri v. Poland identified the detention facility in Bangkok, Thailand as the one referred to in CIA declassified documents under the codename “Cat’s Eye” or “Catseye” (see Husayn (Abu Zubaydah) v. Poland, cited above, § 403; and Al Nashiri v. Poland, cited above, § 403). In the 2014 US Senate Committee Report that facility is referred to as “Detention Site Green”. 92. The 2014 US Senate Committee Report relates the events concerning the applicant’s capture and initial detention as follows: “In late March 2002, Pakistani government authorities, working with the CIA, captured Qa’ida facilitator Abu Zubaydah in a raid during which Abu Zubaydah suffered bullet wounds. At that time, Abu Zubaydah was assessed by CIA officers in ALEC Station, the office within the CIA with specific responsibility for al-Qa’ida, to possess detailed knowledge of al-Qa’ida terrorist attack plans.", "However, as is described in greater detail in the full Committee Study, this assessment significantly overstated Abu Zubaydah’s role in al-Qa’ida and the information he was likely to possess. ... In late March 2002, anticipating its eventual custody of Abu Zubaydah, the CIA began considering options for his transfer to CIA custody and detention under the MON. The CIA rejected U.S. military custody [REDACTED] in large part because of the lack of security and the fact that Abu Zubaydah would have to be declared to the International Committee of the Red Cross (ICRC). The CIA’s concerns about custody at Guantánamo Bay, Cuba, included the general lack of secrecy and the ‘possible loss of control to US military and/or FBI’.", "... Over the course of four days, the CIA settled on a detention site in Country [REDACTED] because of that country’s [REDACTED] and the lack of U.S. court jurisdiction. The only disadvantages identified by the CIA with detention in Country [REDACTED] were that it would not be a ‘USG-controlled facility’ and that ‘diplomatic/policy decisions’ would be required. As a[t] March 28, 2002, CIA document acknowledged, the proposal to render Abu Zubaydah to Country [name REDACTED] had not yet been broached with that country’s officials. ... The decision to detain Abu Zubaydah at a covert detention facility in Country [REDACTED] did not involve the input of the National Security Council Principals Committee, the Department of State, the U.S. ambassador, or the CIA chief of Station in Country.", "On March 29, 2002, an email from the Office of the Deputy DCI stated that ‘[w]e will have to acknowledge certain gaps in our planning/preparations, but this is the option the DDCI will lead with for POTUS consideration’. That morning, the president approved moving forward with the plan to transfer Abu Zubaydah to Country [REDACTED]. During the same Presidential Daily Brief (PDB) session, Secretary of Defense Rumsfeld suggested exploring the option of putting Abu Zubaydah on a ship; however, CIA records do not indicate any further input from the principals. That day, the CIA Station in Country obtained the approval of Country’s [REDACTED] officials for the CIA detention site. ...", "Shortly thereafter, Abu Zubaydah was rendered from Pakistan to Country [REDACTED] where he was held at the first CIA detention site, referred to in this summary as ‘DETENTION SITE GREEN’.” 93. The report cited a CIA cable dated April 2002 relating the applicant’s physical conditions of detention as follows: “[REDACTED] a cable described Abu Zubaydah’s cell as white with no natural lighting or windows, but with four halogen lights pointed into the cell. An air conditioner was also in the room. A white curtain separated the interrogation room from the cell. The interrogation cell had three padlocks.", "Abu Zubaydah was also provided with one of two chairs that were rotated based on his level of cooperation (one described as more comfortable than the other). Security officers wore all black uniforms, including boots, gloves, balaclavas, and goggles to keep Abu Zubaydah from identifying the officers, as well as to prevent Abu Zubaydah ‘from seeing the security guards as individuals who he may attempt to establish a relationship or dialogue with’. The security officers communicated by hand signals when they were with Abu Zubaydah and used hand-cuffs and leg shackles to maintain control. In addition, either loud rock music was played or noise generators were used to enhance Abu Zubaydah’s ‘sense of hopelessness’. Abu Zubaydah was typically kept naked and sleep deprived.” 94.", "The report states that on 3 August 2002 the CIA Headquarters informed the interrogation team at Detention Site Green that it had formal approval to apply the EITs, including waterboarding, against Abu Zubaydah. After Abu Zubaydah had been held in complete isolation for forty-seven days, the most aggressive interrogation phase began “at approximately 11:50 a.m. on August 4, 2002”. The report gives the following description of that particular interrogation session: “Security personnel entered the cell, shackled and hooded Abu Zubaydah, and removed his towel (Abu Zubaydah was then naked). Without asking any questions, the interrogators placed a rolled towel around his neck as a collar, and backed him up into the cell wall (an interrogator later acknowledged the collar was used to slam Abu Zubaydah against a concrete wall). The interrogators then removed the hood, performed an attention grab, and had Abu Zubaydah watch while a large confinement box was brought into the cell and laid on the floor.", "A cable states Abu Zubaydah ‘was unhooded and the large confinement box was carried into the interrogation room and paced [sic] on the floor so as to appear as a coffin’. The interrogators then demanded detailed and verifiable information on terrorist operations planned against the United States, including the names, phone numbers, email addresses, weapon caches, and safe houses of anyone involved. CIA records describe Abu Zubaydah as appearing apprehensive. Each time Abu Zubaydah denied having additional information, the interrogators would perform a facial slap or face grab. At approximately 6:20 PM, Abu Zubaydah was waterboarded for the first time.", "Over a two-and-a half-hour period, Abu Zubaydah coughed, vomited, and had ‘involuntary spasms of the torso and extremities’ during waterboarding. Detention site personnel noted that ‘throughout the process [Abu Zubaydah] was asked and given the opportunity to respond to questions about threats’ to the United States, but Abu Zubaydah continued to maintain that he did not have any additional information to provide.” 95. From 4 August to 23 August 2002 the CIA interrogators subjected Abu Zubaydah to EITs on a near 24-hour-per-day basis. The report relates the following facts: “The use of the CIA’s enhanced interrogation techniques – including ‘walling, attention grasps, slapping, facial hold, stress positions, cramped confinement, white noise and sleep deprivation’ – continued in ‘varying combinations, 24 hours a day’ for 17 straight days, through August 20, 2002. When Abu Zubaydah was left alone during this period, he was placed in a stress position, left on the waterboard with a cloth over his face, or locked in one of two confinement boxes.", "According to the cables, Abu Zubaydah was also subjected to the waterboard ‘2-4 times a day ... with multiple iterations of the watering cycle during each application’. The ‘aggressive phase of interrogation’ continued until August 23, 2002. Over the course of the entire 20 day ‘aggressive phase of interrogation’, Abu Zubaydah spent a total of 266 hours (11 days, 2 hours) in the large (coffin size) confinement box and 29 hours in a small confinement box, which had a width of 21 inches, a depth of 2.5 feet, and a height of 2.5 feet. The CIA interrogators told Abu Zubaydah that the only way he would leave the facility was in the coffin-shaped confinement box. According to the daily cables from DETENTION SITE GREEN, Abu Zubaydah frequently ‘cried’, ‘begged’, ‘pleaded’, and ‘whimpered’, but continued to deny that he had any additional information on current threats to, or operatives in, the United States.", "By August 9, 2002, the sixth day of the interrogation period, the interrogation team informed CIA Headquarters that they had come to the ‘collective preliminary assessment’ that it was unlikely Abu Zubaydah ‘had actionable new information about current threats to the United States’. On August 10, 2002, the interrogation team stated that it was ‘highly unlikely’ that Abu Zubaydah possessed the information they were seeking. ... [REDACTED] DETENTION SITE GREEN cables describe Abu Zubaydah as ‘compliant’, informing CIA Headquarters that when the interrogator ‘raised his eyebrow, without instructions’, Abu Zubaydah ‘slowly walked on his own to the water table and sat down’. When the interrogator ‘snapped his fingers twice’, Abu Zubaydah would lie flat on the waterboard. Despite the assessment of personnel at the detention site that Abu Zubaydah was compliant, CIA Headquarters stated that they continued to believe that Abu Zubaydah was withholding threat information and instructed the CIA interrogators to continue using the CIA’s enhanced interrogation techniques.", "[REDACTED] At times Abu Zubaydah was described as ‘hysterical’ and ‘distressed to the level that he was unable to effectively communicate’. Waterboarding sessions ‘resulted in immediate fluid intake and involuntary leg, chest and arm spasms’ and ‘hysterical pleas’. In at least one waterboarding session, Abu Zubaydah ‘became completely unresponsive, with bubbles rising through his open, full mouth’. According to CIA records, Abu Zubaydah remained unresponsive until medical intervention, when he regained consciousness and expelled ‘copious amounts of liquid’.” According to the report, “CIA records indicate that Abu Zubaydah never provided the information for which the CIA’s enhanced interrogation techniques were justified and approved”. Furthermore, “as compared to the period prior to August 2002, the quantity and type of intelligence produced by Abu Zubaydah remained largely unchanged during and after the August 2002 use of the CIA enhanced interrogation techniques”.", "96. The report also confirms that Abu Zubaydah and Al Nashiri were held at Detention Site Green until its closure in December 2002 and that they were then moved together to another CIA detention facility, Detention Site Blue. The relevant part of the report reads as follows: “In December 2002, when DETENTION SITE GREEN was closed, Al Nashiri and Abu Zubaydah were rendered to DETENTION SITE BLUE.” 97. As regards the events after 4 December 2002, in Husayn (Abu Zubaydah) v. Poland (§ 419) the Court held: “419. Assessing all the above facts and evidence as a whole, the Court finds it established beyond reasonable doubt that: (1) on 5 December 2002 the applicant, together with Mr Al Nashiri arrived in Szymany on board the CIA rendition aircraft N63MU; (2) from 5 December 2002 to 22 September 2003 the applicant was detained in the CIA detention facility in Poland identified as having the codename ‘Quartz’ and located in Stare Kiejkuty; (3) during his detention in Poland under the HVD Programme he was ‘debriefed’ by the CIA interrogation team and subjected to the standard procedures and treatment routinely applied to High-Value Detainees in the CIA custody, as defined in the relevant CIA documents; (4) on 22 September 2003 the applicant was transferred by the CIA from Poland to another CIA secret detention facility elsewhere on board the rendition aircraft N313P.” 98.", "The events that took place between 5 December 2002 and 22 September 2003 at the CIA detention facility code-named “Quartz” and located in Poland correspond to the events that the 2014 US Senate Committee Report relates as occurring at “Detention Site Blue” (see paragraphs 24 above and 166 below; see also Al Nashiri v. Romania, cited above, § 101). C. The applicant’s transfers and detention between his rendition from Poland on 22 September 2003 and his alleged rendition to Lithuania on 17 February or 18 February 2005 as established by the Court in Husayn (Abu Zubaydah) v. Poland, reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court 99. The applicant submitted that on 22 September 2003 he had been transferred from Poland to a CIA detention facility at Guantánamo Bay. In Spring 2004, in anticipation of the US Supreme Court’s ruling in Rasul v. Bush granting Guantánamo detainees the right to legal counsel and habeas corpus review of their detention in a US federal court (see also paragraph 61 above), he had again been secretly transferred, this time to a facility in Morocco, where he had been detained incommunicado for almost a year. 100.", "In that regard, he relied on a July 2011 report by the Associated Press stating that “according to two former US intelligence officials” Abu Zubaydah had been held in “a secret prison in Lithuania”. Another press report indicated that his detention in Lithuania had followed his detention in Morocco. 101. On the basis of their investigations, research and various material in the public domain, the experts heard by the Court at the fact-finding hearing reconstructed the chronology of the applicant’s transfers and identified the countries of his secret detention in the period from 22 September 2003 to 17-18 February 2005. 102.", "In the light of the material in the Court’s possession the chronology of the applicant’s detention can be described as follows. 103. In Husayn (Abu Zubaydah) the Court, in its findings as to the applicant’s transfer out of Poland considered, among other things, the collation of data from multiple sources, including flight plan messages concerning the N313P flight circuit executed through Poland on 22 September 2003 (see Husayn (Abu Zubaydah) v. Poland, cited above, § 109). Those data showed that N313P had travelled the following routes: Take-offDestination Date of flight Washington, DC (KIAD) Prague, Czech Republic (LKPR)21 Sept 2003 Prague, Czech Republic (LKPR)Tashkent, Uzbekistan (UTTT) 22 Sept 2003 Tashkent, Uzbekistan (UTTT) Kabul, Afghanistan (OAKB) 21 Sept 2003 Kabul, Afghanistan (OAKB) Szymany, Poland (EPSY) 22 Sept 2003 Szymany, Poland (EPSY) Constanţa, Romania (LRCK) 22 Sept 2003 Constanţa, Romania (LRCK) Rabat, Morocco (GMME) 23 Sept 2003 Rabat, Morocco (GMME) Guantánamo Bay, Cuba (MUGM) 24 Sept 2003 104. Mr J.G.S., at the fact-finding hearing in the above case testified as follows (ibid.", "§ 312): “One flight circuit however is of particular significance and this is the final part of our presentation in which we would like to discuss how the detention operations in Poland were brought to an end. In September 2003 the CIA rendition and detention programme underwent another overhaul analogous to the one which had taken place in December 2002 when Mr Nashiri and Mr Zubaydah were transferred from Thailand to Poland. On this occasion, the CIA executed a rendition circuit which entailed visiting no fewer than five secret detention sites at which CIA detainees were held. These included, in sequence, Szymany in Poland, Bucharest in Romania, Rabat in Morocco and Guantánamo Bay, a secret CIA compartment of Guantánamo Bay, having initially commenced in Kabul, Afghanistan. On this particular flight route, it has been found that all of the detainees who remained in Poland at that date were transferred out of Poland and deposited into the successive detention facilities at the onward destinations: Bucharest, Rabat and Guantánamo.", "Among those persons was one of the applicants today, Mr Zubaydah, who was taken on that date from Poland to Guantánamo Bay. This particular flight circuit was again disguised by dummy flight planning although significantly not in respect of Poland. It was the sole official declaration of Szymany as a destination in the course of all the CIA’s flights into Poland. The reason therefor being that no detainee was being dropped off in Szymany on the night of 22 September and the methodology of disguising flight planning pertained primarily to those renditions which dropped a detainee off at the destination. Since this visit to Szymany was comprised solely of a pick-up of the remaining detainees, the CIA declared Szymany as a destination, openly, and instead disguised its onward destinations of Bucharest and Rabat, hence demonstrating that the methodology of disguised flight planning continued for the second European site in Bucharest, Romania and indeed for other detention sites situated elsewhere in the world.” 105.", "At the fact-finding hearing in the present case, in the course of the PowerPoint presentation, Mr J.G.S. testified as follows: “Abu Zubaydah was the first high value detainee, he was arrested in late March 2002 in an operation in Faisalabad, Pakistan and was initially held in Thailand. We have established before this Court the mode of his transfer to Europe. First to Poland on 5 December 2002 and he was detained in that site for 292 days. ... We know that when he departed Poland on 22 September 2003 upon the closure of the site, that he did not go to Romania directly, he was rather held in both Guantánamo Bay, at the CIA facility there, and in Rabat – Morocco, for a period of over one year after his departure from Poland.", "Unlike Mr Nashiri whom we refer to in earlier proceedings [Al Nashiri v. Romania], when Zubaydah left Guantánamo he was taken back to the same site in Morocco at which he had previously been detained, Rabat – Morocco, the site which had been the subject of some acrimonious relations between the CIA and its Moroccan counterparts. It was in this site that Mr Zubaydah found himself in early 2005, specifically February 2005, when the aforementioned clear-out of Morocco took place and, as I stated, and connected with specific flight paths, the destination of his transfer out of Morocco was Lithuania.” 106. Mr J.G.S. further explained that the applicant was transferred from Guantánamo to Rabat on board rendition plane N85VM on 27 March 2004 and provided details of the flight circuit executed by that plane. In Mr J.G.S.’ description, “the CIA facility at Guantánamo was cleared in March-April 2004 as the CIA sought to evade justice”; in this respect he referred to the passage in the 2014 US Senate Report speaking of moving the CIA detainees from Guantánamo in anticipation of the US Supreme Court’s ruling in Rasul v. Bush (see also paragraph 61 above and paragraph 110 below).", "107. The N85VM flight on 27 March 2004 was the first part of the CIA double rendition circuit performed by that plane between 27 March and 13 April 2004. On the first circuit some prisoners, including the applicant, were transferred from Guantánamo to Rabat directly. The plane then returned to Washington on 29 March 2004. The second part of the circuit took place between 12 and 13 April 2004 and N85VM brought the remaining prisoners from Guantánamo via Tenerife, Spain to the CIA secret prison in Bucharest, Romania, returning to Washington via Rabat on 13 April 2004 (see also Al Nashiri v. Romania, no.", "33234/12, §§ 119-120, 31 May 2018). 108. Mr Black, at the fact-finding hearing, testified as follows: “We know that Abu Zubaydah was in Poland and that he was transferred out of Poland in September 2003. The transfer that took him out of Poland in September 2003 had two possible destinations, one of which was Romania and one of which was Guantánamo Bay. Prima facie it is possible that he could have gone to either.", "In 2011 I received an off-the-record briefing and my take-away from this briefing, which I believe to be accurate, was that in the Summer of 2005 or before that Abu Zubaydah had not been held in Romania. It follows from this that Abu Zubaydah must therefore have been taken to Guantánamo on that flight in September 2003. We know that everyone who was taken there had to be moved out in March or April 2004. They were taken to Morocco. We also know that after a certain time in Morocco, the CIA had too many disagreements with the Moroccan Intelligence Agencies with regard to the treatment of prisoners in Morocco.", "This is dealt with at some length in the Senate Report. And so everyone who was in Morocco was moved out at the latest in February 2005.” 109. The 2014 US Senate Committee Report’s section entitled “Country [name REDACTED] Detains Individuals on the CIA’s Behalf” reads, in so far as relevant, as follows: “Consideration of a detention facility in Country [REDACTED] began in [month REDACTED] 2003, when the CIA sought to transfer Ramzi bin al-Shibh from the custody of a foreign government to CIA custody [REDACTED] which had not yet informed the country’ political leadership of the CIA’s request to establish a clandestine detention facility in Country [REDACTED], surveyed potential sites for the facility, while the CIA set aside [USD] [number REDACTED] million for its construction. In 2003, the CIA arranged for a ‘temporary patch’ involving placing two CIA detainees (Ramzi bin al-Shibh and Abd al-Rahim al-Nashiri) within an already existing Country [REDACTED] detention facility, until the CIA’s own facility could be built. ... By [day/month REDACTED] 2003, after an extension of five months beyond the originally agreed upon timeframe for concluding CIA detention activities in Country [REDACTED], both bin al-Shibh and al-Nashiri had been transferred out of Country [REDACTED] to the CIA detention facility at Guantánamo Bay, Cuba.” 110.", "The report, in the section entitled “US Supreme Court Action in the case of Rasul v. Bush Forces Transfer of CIA Detainees from Guantánamo to Bay to Country [name REDACTED]” (see also paragraph 61 above),states: “Beginning in September 2003, the CIA held a number of detainees at CIA facilities on the grounds of, but separate from, the U.S. military detention facilities at Guantánamo Bay, Cuba. In early January 2004, the CIA and the Department of Justice began discussing the possibility that a pending U.S. Supreme Court case Rasul v. Bush, might grant habeas corpus rights to the five CIA detainees then being held at a CIA detention facility at Guantánamo Bay. Shortly after these discussions, CIA officers approached the [REDACTED] in Country [REDACTED] to determine if it would again be willing to host these CIA detainees, who would remain in CIA custody within an already existing Country [REDACTED] facility. By January [day REDACTED] 2004, the [REDACTED] in Country [REDACTED] had agreed to this arrangement for a limited period of time. Meanwhile, CIA General Counsel Scott Muller asked the Department of Justice, the National Security Council, and the White House Counsel for advice on whether the five CIA detainees being held at Guantánamo Bay should remain in Guantánamo Bay or be moved pending the Supreme Court’s decision.", "After consultation with the U.S. solicitor general in February 2004, the Department of Justice recommended that the CIA move four detainees out of a CIA detention facility at Guantánamo Bay pending the Supreme Court’s resolution of the case. The Department of Justice concluded that a fifth detainee, Ibn Shaykh al-Libi, did not need to be transferred because he had originally been detained under military authority and had been declared to the ICRC. Nonetheless, by April [REDACTED two-digit number] 2004, all five CIA detainees were transferred from Guantánamo Bay to other CIA detention facilities. [REDACTED] Shortly after placing CIA detainees within already existing Country [REDACTED] facility for a second time, tensions arose between the CIA and [REDACTED] Country [REDACTED]. In [month REDACTED] 2004, CIA detainees in a Country [REDACTED] facility claimed to hear cries of pain from other detainees presumed to be in the [REDACTED] facility.", "When the CIA chief of Station approached the [REDACTED] about the accounts of the CIA detainees, the [REDACTED] stated with ‘bitter dismay’ that the bilateral relationship was being ‘tested’. There were also counterintelligence concerns relating to CIA detainee Ramzi bin al-Shibh, who had attempted to influence a Country [REDACTED] officer. These concerns contributed to a request from [REDACTED] in [month REDACTED] 2004 for the CIA to remove all CIA detainees from Country [REDACTED]. [REDACTED] In [month REDACTED] 2004 the chief of Station in Country [REDACTED] again approached the [REDACTED] with allegations from CIA detainees about the mistreatment of Country [REDACTED] detainees [REDACTED] in the facility, the chief of Station received an angry response that, as he reported to CIA Headquarters, ‘starkly illustrated the inherent challenges [of] [REDACTED]’. According to the chief of Station, Country [REDACTED] saw the CIA as ‘querulous and unappreciative recipients of their [REDACTED] cooperation’.", "By the end of 2004, relations between the CIA and Country [REDACTED] deteriorated, particularly with regard to intelligence cooperation. The CIA detainees were transferred out of Country [REDACTED] in [name of month REDACTED; appears to have comprised eight characters] 2005.” D. The applicant’s alleged secret detention at a CIA “Black Site” in Lithuania from 17 February or 18 February 2005 to 25 March 2006 as described by the applicant, reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court 1. The applicant’s alleged rendition to Lithuania on 17 February or 18 February 2005 and his rendition from Lithuania on the plane N733MA on 25 March 2006 (a) The applicant’s submissions (i) Rendition to Lithuania (17 or 18 February 2005) 111. In his initial submissions of 14 July 2011 and 27 October 2011 the applicant maintained that the existence of a CIA secret prison in Lithuania had first been disclosed in August 2009, when ABC News had reported that according to “former CIA officials directly involved or briefed” on the CIA HVD Programme, the Lithuanian authorities had provided the CIA with a building on the outskirts of Vilnius where terrorist suspects had been held for “more than a year” (see also paragraph 257 below). 112.", "He further submitted that after his rendition from Poland to Guantánamo on 22 September 2003 and from Guantánamo to Rabat in Spring 2004, he had been transferred from Rabat to Lithuania “in early 2005”. Relying on flight information supplied by the Lithuanian Civil Aviation Administration (Civilinės Aviacijos Administracija – “CAA”), Reprieve and Interights, he indicated two possible dates – 17 February 2005 and 18 February 2005 – and two CIA rendition aircraft – N724CL and N787WH – on which he could have been transferred to Lithuania. 113. On 10 September 2012 the applicant filed with the Court’s Registry a pleading entitled “Additional Submission” in which he rectified and supplemented information of his alleged rendition to and from Lithuania in the light of newly emerging materials in the public domain. 114.", "As regards the alleged rendition to Lithuania on 17 February 2005 or 18 February 2005, the information produced by the applicant could be summarised as follows: (a) Between 15-19 February 2005, N787WH and N724CL, arranged by CSC, travelled from the USA to Lithuania via Morocco and back to the USA. No other flights of CIA-related aircraft have so far come to light connecting the three countries during or around this period; (b) Data from the Federal Aviation Authority and EuroControl showed that N787WH, a Boeing 737 operated by Victory Aviation Florida, executed the following flight circuit on 15-19 February 2005: Baltimore (KBWI) - Santa Maria, Azores (LPAZ) - Salzburg (LOWS) - Malaga (LEMG) - Rabat (GMME) - Constanţa /Bucharest (LRCK / LRBS) - Palanga (EYPA) - Copenhagen (EKCH) - Gander (CYQX) - Baltimore (KBWI). (c) Data from the Federal Aviation Authority and EuroControl showed that another Boeing 727, registered as N724CL, followed a similar route to N787WH on its flight circuit executed on 15-18 February 2005: Van Nuys (KVNY) - Baltimore (KBWI) - Santa Maria, Azores (LPAZ) - Gran Canaria (GCLP) - Rabat (GMME) - Amman (OJAM) - Vilnius (EYVI) - Keflavik (BIKF) - Goose Bay (CYYR) - Baltimore (KBWI) - Van Nuys (KVNY). (d) Both planes travelled from the USA to Morocco; their paths then diverged, as N787WH went on to Romania and N724CL to Amman, Jordan. Both planes then re-converged on Lithuania, arriving within twenty‑four hours of each other, before returning to the USA.", "(ii) Rendition from Lithuania (25 March 2006) 115. In his initial submissions the applicant did not indicate any specific date of his rendition from Lithuania. 116. In his Additional Submission of 10 September 2012 (see also paragraph 112 above), he stated that, according to public sources, the CIA “black site” in Lithuania had been closed “in the first half of 2006 and its occupants transferred to Afghanistan or other countries”. The applicant indicated 25 March 2006 as the date of his rendition from Lithuania, which he linked with the flight circuit executed through Palanga Airport in Lithuania by the CIA rendition plane registered as N733MA on 23-27 March 2006.", "It was alleged that he had been transferred to Afghanistan by the so-called “double-plane switch”. This operation was executed by using two planes, each one of which completed only half the route so that the CIA prisoners could be transferred from one plane to another in an airport in which they converged. It involved N733MA and another CIA rendition aircraft registered as N740EH, which both made a connection in Cairo on the night of 26 March 2006. 117. It was submitted that N733MA’s landing in Palanga on 25 March 2006 had been mentioned in the Lithuanian Parliamentary inquiry.", "No further information about it was provided by the Parliamentary investigators, other than that “no customs inspection was carried out” and the border guard provided “no records of the landing and inspection of this aircraft” (see also paragraph 173 below). While an entry in the records of the Palanga Airport indicated that N733MA departed from Palanga to Porto, Portugal on 25 March 2006, the analysis of flight plan data released by PANSA and EuroControl showed that N733MA did not fly to Porto but proceeded to Cairo, Egypt. On 26 March 2006 in Cairo the plane converged with another Boeing 737 rendition aircraft registered as N740EH. Afterwards, N733MA travelled from Cairo to Heraklion, Greece. It had left Heraklion for Keflavik, Iceland in the morning of 27 March 2006.", "On 26 March 2006 N740EH, shortly after the arrival of N733MA in Cairo, took off from there for Kabul, Afghanistan. It then stopped briefly in Amman, Jordan and travelled to Heraklion, Greece. On 28 March 2006 it left Heraklion for Keflavik, Iceland. Both planes were chartered by CSC and operated by Miami Air International, Florida. (b) Evidence before the Court 118.", "The applicant produced flight and other data from multiple sources, including extracts from EuroControl and Lithuanian aviation authorities’ flight records, flight messages regarding circuits executed by N787WH on 15-19 February 2005, N724CL on 15-18 February 2005 and the landing of N7333MA at Palanga Airport on 25 March 2006, as well as aircraft charter contracts concluded in respect of those flights. He also produced, among other things, flight data concerning the “double-switch” flight circuits executed by planes N308AB and N787WH between 4 and 7 October 2005 and by N733MA and N740EH on 23‑28 March 2006, the Report to the Lithuanian Government on the visit to Lithuania carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) from 14 to 18 June 2010 (“2011 CPT Report”) and the Briefing and Dossier for the Lithuanian Prosecutor General: CIA Detention in Lithuania and the Senate Intelligence Committee Report dated 11 January 2015 and prepared by Reprieve (“2015 Reprieve Briefing”). 119. Other evidence before the Court comprised the 2014 US Senate Committee Report, publicly available flight data, testimony of the experts heard at the fact-finding hearing and the material of the PowerPoint presentation given by Senator Marty and Mr J.G.S. (i) The 2015 Reprieve Briefing 120.", "The 2015 Reprieve Briefing states that the partially released 2014 US Senate Committee Report confirmed previous accounts of CIA secret detention in Lithuania and existing public source data on transfer dates of prisoners into and out of Lithuania and referred to prisoners held in Lithuania. The conclusions were as follows: (a) it was established beyond reasonable doubt that one of the facilities adapted by the CIA in Lithuania was used to hold prisoners; (b) prisoners were transferred into this facility in February and October 2005; (c) prisoners were transferred out of this facility in March 2006; (d) the transfers were carried out on planes contracted to Computer Sciences Corporation, all operating within a linked group of contracts. 121. The document summarises key statements in the 2014 US Senate Committee Report relating to three CIA detention facilities referred to therein – Detention Site Black, Detention Site Violet and Detention Site Brown and, using also other public source data, concludes that Detention Site Violet was located in Lithuania. Also, on the basis of the number of the characters blackened in the redacted passages of the report, it attempts to decipher certain dates.", "The 2015 Reprieve Briefing’s findings as to the operation of the CIA secret detention site in Lithuania and the flights indicated by the applicant as those on which he could have been transferred from Morocco to Lithuania and out of Lithuania can be summarised as follows. (α) As regards the colour-coded names of the CIA detention facilities and periods of their operation 122. The Reprieve document provides the following information: (a) According to the 2014 US Senate Committee Report, CIA detainees were transferred to Detention Site Black in “the fall of 2003”. The closure of that site was precipitated by revelations in the Washington Post, published on 2 November 2005 (see also paragraphs 149 and 256 below; see also Al Nashiri v. Romania, cited above, §§ 133 and 161). At this point the host country demanded “within [two characters/digits redacted] hours” the site’s closure and the remaining detainees were transferred out of that country “shortly thereafter”; (b) Detention Site Violet, in a different country from “Black”, opened “in early 2005”.", "The CIA conducted discussions with officials from “Violet’s” host country; these discussions left one such official “shocked” but host country approval was nonetheless given for the facility. Evidently the CIA had originally constructed a “holding cell” in the same country as Detention Site Violet, which was not used. They then decided to “build a new, expanded detention facility” in the same country. Approval was provided by an official from that country. Money, in the amount of several million dollars, was also provided to that country, although this required the development of “complex mechanisms” to effect the transfer.", "(c) The first detainees were transferred to the expanded site “Violet” [fourteen lower-case characters redacted for the date]. This information corresponds to the flight data analysed by Reprieve, which indicates flights by two planes N787WH and N724CL, contracted by Computer Sciences Corporation, into Lithuania on 17 February and 18 February 2005 respectively. They came via Morocco, Romania and Jordan and were operating under the same renditions-specific contract. (d) Detention Site Violet was closed as a result of a lack of available medical care “in [five lower-case characters redacted for the month] 2006.” The CIA then transferred its remaining detainees to Detention Site Brown. At that point, all CIA detainees were located in Country [name redacted]; (e) Detention Site Brown was in the same country as Detention Sites Cobalt, Gray and Orange.", "It first received detainees in “[five lower-case characters redacted for the month] 2006”. The 2014 US Senate Committee Report states that Khalid Sheikh Mohammed was transferred into Detention Site Brown on “[two characters redacted for the date] March 2006”. Prior to this he was held in a different site, to which he had been transferred after being held at Detention Site Black. He was transferred from that site to site [six upper-case character redacted] in 2005, on a redacted date [eight lower- case characters redacted]. Detention Site Cobalt, on the basis of extensive reporting, can be firmly placed in Afghanistan.", "Detention Site Brown must therefore be in the same country. (f) A transfer of prisoners into Kabul, organised by the CSC within their rendition contracting network took place on 25-26 March 2006. The transfer came from Lithuania and used two planes – N733MA and N740EH ‑ travelling via Cairo. The former carried out the leg of the trip from Lithuania to Cairo, the latter from Cairo to Kabul. (g) The above March 2006 transfer matches the closure of Detention Site Violet which, according to the 2014 US Senate Committee Report, was closed as a result of lack of available medical care in [five characters for the month redacted] 2006.", "The five-character redacted month could only be “March” or “April” on account of the length of the redaction. Of these two possibilities, March fits the data given in the report for Khalid Sheikh Mohammed’s transfer to Detention Site Brown. (h) The lack of medical care which caused the closure of Detention Site Violet seems to have affected Mustafa al-Hawsawi and “four other CIA detainees”. (i) On 1 January 2006 the CIA were holding twenty-eight prisoners, divided between Detention Site Orange and Detention Site Violet. (j) Despite the redactions in the above citations, careful reading of the 2014 US Senate Committee Report alongside other public source documents supports the conclusions that: – Detention Site Black was in Romania; – Detention Site Violet was in Lithuania; – Detention Site Brown was in Afghanistan; – CIA detainees were first transferred into Detention Site Violet in February 2005; – Detainees were transferred out of Detention Site Violet into Detention Site Brown in March 2006.", "(β) As regards the CIA prisoners’ transfers into Lithuania – February 2005 transfers 123. The Reprieve document states that the first transfer occurred in early 2005. The transfer could have been carried out on either or both of two planes (N787WH and N724CL), one from Morocco and Amman, one from Morocco and Bucharest, arriving in Lithuania on 17 and 18 February 2005 respectively. (a) N787WH and N724CL were operating under subcontract S1007312 to CSC. Their trips in February 2005 were task orders 20 and 21 of this subcontract.", "(b) Data from EuroControl shows N787WH’s progress from the USA to Morocco, Romania, Lithuania and back. On 15 February 2005 it flew from Baltimore Washington International (KBWI) to Santa Maria, Azores (LPAZ). It then filed a flight plan to Munich (EDDM) but was impeded by snow and went instead to Salzburg (LOWS). On 17 February it left Salzburg in the afternoon and headed to Malaga (LEMG), where it paused until the middle of the night. It then left Malaga in the early hours of 18 February 2005, arriving in Rabat (GMME) around 02:40.", "After just over two hours in Rabat it proceeded to Romania, filing a flight plan into Constanţa (LRCK) – although its flight plan for the next leg of the trip was filed not out of Constanţa but out of Bucharest Băneasa Airport (LRBS). It left Bucharest in the afternoon of 18 February 2005 and filed a false flight plan into Gothenburg, Sweden. Its true destination was Palanga where it arrived, according to an invoice for “State Charge for Air and Terminal Navigations Services – Palanga”, at 18:09. EuroControl and Palanga airport records both indicate that it left Palanga shortly afterwards, at 19:30, bound for Copenhagen. The plane paused overnight in Copenhagen, then continued to Gander, Canada (CYQX).", "Information released by the Federal Aviation Authority shows that it then returned to Baltimore International (KBWI/ BWI) and finally to its home base in Florida (FLL). (c) Although the Lithuanian Parliamentary Committee on National Security and Defence inquiry cited N787WH’s flight from Bucharest to Palanga on 18 February 2005, the Committee was not aware of the plane’s complete route, its contractual basis, or the identification of its contractual basis with rendition operations (see also paragraph 173 below). (d) N724CL’s flight under the same subcontract occurred at the same time (16-17 February 2005) as the flight of N787WH and took a similar route: Rabat (GMME) – Amman (OJAM) – Vilnius (EYVI) – Keflavik (BIKF). – October 2005 transfer 124. The 2015 Reprieve Briefing states that prisoners were again transferred into Lithuania from Romania in October 2005.", "The document refers to the flight circuits executed by N308AB and N787WH on 1‑7 October 2005. (a) Data from EuroControl shows that N308AB flew from Teterboro, New Jersey, to Slovakia on 4 October 2005. After an overnight stop it proceeded to Romania, filing a flight plan to Constanţa on the evening of 5 October 2005. It left Romania soon afterwards (this time filing a flight plan out of Bucharest) and headed to Tirana, Albania. (b) An email and a “preliminary requirements” document corresponding to this flight give further information, namely that on arrival in Romania the plane was to pick up two people (“PU 2 PAX”) in addition to the five people it had set off with.", "In Albania it was to “Drop All PAX”. The document instructs: “Must have 3 pilots, NO Flight Attendants. At least a G-IV performance with 10 PAX capability. No customs help”. (c) Flight data shows that on its drop-off in Albania N308AB was met by N787WH, which proceeded just over an hour later to Lithuania.", "N787WH disguised its route into Lithuania by filing a flight plan to Tallinn (EETN). The Vilnius Airport “State Charge” document incorrectly asserts that N787WH arrived from Tallinn, while another airport log shows that it did in fact arrive from Tirana. (d) On its arrival in Vilnius, as recorded by the Lithuanian Parliamentary Committee on National Security and Defence (see also paragraph 173 below), a border guard was prevented from carrying out his duties and checking the plane; he observed a vehicle drive away from it and exit the perimeter of the airport. – March 2006 transfer 125. The 2015 Reprieve Briefing states that the CIA prisoners were transferred out of Lithuania to Afghanistan in March 2006.", "(a) Two trips contracted by Computer Sciences Corporation on 25‑26 March 2006, involving planes N333MA and N740EH, connect Lithuania to Afghanistan and correspond to the closure of Detention Site Violet and the transfer of its prisoners to Detention Site Brown. (b) The Lithuanian parliamentary inquiry noted that N733MA had arrived in Palanga on 25 March 2006, coming from Porto, and that it had returned to Porto; no further information about it was provided, other than the facts that “no customs inspection was carried out” and the border guard provided “no records of the landing and inspection of this aircraft”. Investigation by Reprieve has established that, far from returning to Porto as recorded by officials at Palanga Airport, N733MA continued to Cairo, where it made a connection with N740EH. N740EH then proceeded to Kabul. Both planes were chartered by Computer Sciences Corporation and operated by Miami Air International, Florida.", "(c) Data provided by EuroControl shows that N740EH flew from New Castle, Delaware (KILG) to Marrakesh (GMMX) on 23 March 2006. There is no record of its subsequent movements until 26 March 2006. In the meantime, N733MA, having left Philadelphia International (KPHL), passed through Porto (LPPR), then filed a flight plan to Helsinki (EFHK) on the afternoon of 25 March. Instead of going to Helsinki, however, N733MA went to Palanga (EYPA), touching down at 22:25 local time (in close proximity to its scheduled arrival time of 20:38 GMT). It paused for 90 minutes in Palanga.", "Records from EuroControl and the Polish Air Navigation Authority both show that on leaving Palanga it went not to Porto, as the Lithuanian parliamentary inquiry was informed (see also paragraph 173 below), but to Cairo (HECA). Its scheduled arrival time in Cairo was 02:19 GMT on 26 March. (d) While N733MA was making its way to Palanga, N740EH was on its way to Cairo. Although records do not show when it arrived in Cairo, or from where, they do indicate that it left Cairo shortly after N733MA arrived there – at 02:45 GMT on 26 March 2006 – and that it went from Cairo to Kabul (OAKB), with an arrival time in Kabul of 08:32. N740EH then returned westwards from Kabul, pausing briefly in Amman (OJAI) before making a longer stop in Heraklion (LGIR).", "It arrived in Heraklion around 23:07 on 26 March 2006. N733MA had also flown to Heraklion direct from Cairo and was waiting there, having arrived at 04:59 the same day. Both planes left Heraklion for Keflavik (BIKF) – N733MA on the morning of 27 March 2006, and N740EH on the morning of 28 March 2006. (e) Documents relating to the planning of these two trips show complex attempts to disguise the fact that the purpose of the trips was to provide a connection between Lithuania and Afghanistan. Both trips were included in one invoice.", "Consistent with the other trips mentioned in the briefing, the invoice relates the task back to the original rendition subcontract. (f) The flight schedule accompanying the charter contract shows that both planes’ destinations were kept secret up to the last minute. (ii) Expert evidence 126. At the fact-finding hearing the experts, Mr J.G.S. and Mr Black, gave evidence on the alleged operation of the CIA secret detention facility in Lithuania, code-named “Detention Site Violet” in the 2014 US Senate Committee Report, the applicant’s alleged rendition to Lithuania, his secret detention and his transfer out of the country.", "They replied to various questions from the judges and the parties. They testified as follows. 127. In the course of the PowerPoint presentation Mr J.G.S., when explaining in general the rendition scheme operated by the CIA, characterised Lithuania as a “drop-off” point for CIA detainees, which had served the purpose of hosting a detention facility. In particular, he stated: “I wish to begin by setting out in the form of a graphic illustration the system in which such detention sites were situated.", "This is a system that spanned the entire globe but it had at its heart several hubs of operation here on the European continent. I am using a map of the world to show those present several categories of places at which aircraft landed in the course of the so-called ‘war on terror’. We categorised these landing points according to a set of criteria developed in 2006 whereby each landing point exhibited certain characteristics which allowed us to discern the purpose for which an aircraft landed there. The four categories as denoted are first stopover points where aircraft tended to stop shortly, primarily to refuel, staging points where often two or more aircraft would converge in their planning or preparation of specific detainee transfer operations, pick up points at which individual suspects, persons captured by the CIA, were taken on board rendition aircraft by CIA rendition crews in order to be flown to secret detention, in places of the last category detainee transfer or drop-off points. The original graphic on display here dates to 2006.", "We are in a position today to add one further detainee transfer drop-off point in Vilnius on the territory of the Republic of Lithuania. Having subsequently uncovered records of flights into and out of that territory and been able to devote an equal amount of rigour and attention to the underlying documents, we have found that Vilnius together with Szymany and Bucharest bore the character of a detainee drop-off point in the CIA’s system of renditions. I will explain how that occurs by developing some of the analysis further. ... Vilnius has been added here for the specific purpose of today’s proceedings albeit that at the time in 2006 and 2007 we did not have sufficient information to place it on the original map. What we can say today about the CIA’s operations of a ‘black site’ in Lithuania has increased considerably in scope and volume thanks to various declassifications, also various records obtained through court proceedings in the United States of America, and indeed through the diligent efforts of various Lithuanian partners who have investigated this issue since its first exposure in 2009 and 2010.", "... [F]or example ... this is a document on record before the court which attests to the landings of CIA rendition aircraft in Vilnius in the months of February and October 2005. This is significant and this was furnished in 2011 by the Lithuanian authorities themselves. It is significant because the aircraft denoted in these disclosures are not the same aircraft that carried out the bulk of the rendition operations in respect of Poland and Romania earlier in the life of the program.” 128. According to Mr J.G.S., the first CIA detainees were transferred to Lithuania in February 2005. He stated that 17-18 February 2005 had been the critical juncture at which CIA detention operations overseas had once again been dramatically overhauled and that the removal of CIA detainees from Morocco had led to the opening of their new “black site” in Lithuania.", "Mr Zubaydah was transferred to Lithuania in February 2005. Other detainees were transferred to the country in October 2005. The closure of the site had been marked by the transfer of the CIA detainees, including the applicant, out of Lithuania on 25 March 2006. He referred to the following elements in support of his conclusions. 129.", "He first referred to the “cyclical nature” of CIA secret detention sites and explained its relevance for the opening and closure of the CIA secret prison in Lithuania as follows: “The Court will recall my reference to the CIA’s in-house aviation service providers. There was a shell company known as Aero Contractors that administered two aircraft N313P and N379P in the early years of the rendition programme and much of the planning for the flights was done by one provider Jeppesen Dataplan. In those early years therefore there is quite a consistent pattern to the execution of rendition operations and that certainly encompasses the timeframe of the Polish site –from December 2002 until September 2003 – and it encompasses much of the operations at the Romanian site from September 2003 until November 2005. But in Lithuania we do not have any record of a single landing of either of those aircraft, the typical rendition aircraft: neither the Boeing Business Jet, nor the Gulfstream express plane which were used customarily in the early years. However, through these disclosures the Lithuanian records allow us to find out how the CIA developed its methodology, expanded its fleet and in some cases replaced its original operator with new contractors, new aircraft and new modus operandi.", "Among the routes flown by these new aircraft was the putative transfer of the applicant in today’s proceedings into Lithuania in February of 2005. For reasons I have addressed in [Al Nashiri v. Romania] proceedings, Madam President, it stands to reason that February 2005 was another important juncture in the evolution of the CIA secret detention program. As I will demonstrate in my presentation the programme was cyclical in character: detention sites did not exist in perpetuity for the entire lifespan of the war on terror, rather the CIA tended to innovate and improvise to situations as it found them. Its earliest sites, in theatre, in a country like Afghanistan, they were able to last somewhat longer because of the context and often also because of the military support that they were able to draw upon, but in the cases of Thailand and Poland and Morocco and even Guantánamo Bay, extenuating circumstances caused by external factors, whether political, legal or reputational, led to the abrupt closure of detention sites at moments when the CIA had not necessarily planned for them to close. So the story of the secret detention programme includes several of these junctures at which one detention site closes abruptly and another opens in its place.", "However, that February 2005 fits into this pattern for the specific reason that in February 2005 the cooperation with the Moroccan authorities in the administering of a secret detention site in Rabat, Morocco finally ran aground. All the CIA’s remaining detainees in Morocco had to be moved out. In February 2005 the flight data tells us that there were two principal destinations for detainees being taken out of Morocco. Those were the two European sites. Firstly Romania, which we have addressed in the [Al Nashiri v. Romania] proceedings, and secondly, for the first time, Lithuania.” He added: “Detention sites did not endure for periods of several years, rather at particular junctures in the programme they were abruptly closed and all classified information housed in those facilities destroyed.", "Here we have the example of when Thailand was closed, December 2002. And by collating material from the reporting the cabling at the base with flight data, including that from our own investigations we identified this juncture of ... December 4th-5th, 2002 as the first of several on which CIA detention and interrogation operations were dramatically overhauled. That meant that one base closed - CATESEYE in Thailand and immediately afterwards a new base opened ‑ QUARTZ base in Poland. And just as the detainees from one site moved to another so the operational focus shifted with them. QUARTZ became the facility from 5 December 2002, to which the CIA brought its highest value detainees for HVD interrogation.", "Likewise, if we move forward nine months, the same report reveals that QUARTZ itself only existed until 22 September 2003, whereupon QUARTZ base in Poland was closed and a successor site BRIGHTLIGHT base in Romania was opened, 22 September 2003. This cyclical nature evidenced in the documents and supported by analysis of the flight data persisted all the way till the end of Europe’s participation in the rendition programme. Specifically the last juncture of interest to the Court is that on 25 March 2006. Detention Site Violet, the Lithuanian site itself, would close and would lead to a wholesale transfer of detainees from that site to the final site in the programme back in Afghanistan. So, rather than having multiple sites existing simultaneously and in perpetuity, the story of this programme is of a shifting operational focus whereby each site at one time is the hub of operations where the key interrogations are taking place, where enhanced interrogation techniques are being routinely authorised and instrumentalised, and where new detainees captured are sent by rendition aircraft in order to enable this honing of resources.” 130.", "In this connection, in the course of the PowerPoint presentation, Mr J.G.S. demonstrated two rendition circuits executed through Lithuania, the first executed by aircraft N724CL in February 2005, the second by aircraft N787WH on 5-6 October 2005. (a) As regards N724CL’s circuit in February 2005: “This circuit in February 2005 encompasses the period from the 15th to 20th February 2005 in which two rendition aircraft deployed to Morocco simultaneously. I shall demonstrate the circuit of the aircraft N724CL which embarked here from Gran Canaria to the pickup of the remaining detainees in Rabat - Morocco. It flew the path to Amman - Jordan before flying onward to Vilnius - Lithuania.", "This is the first of the landings which the Lithuanian authorities themselves evidenced in their documentary submissions of 2011. The aircraft landed in Vilnius on 17 February 2005, the date on which the applicant of ours, the beginning of his secret detention in Lithuania. It departed via Keflavík before returning to its base in the United States. This simple illustration is backed up by a large trench of documentation and in particular it is in respect of these contractor operations that we are able to draw upon the docket of litigation in the United States between two contractors, both of them servicing the CIA’s rendition programme. The name of the case in question which is in the records before the Court is Sportsflight Air Inc. [sic] versus Richmor Aviation.” (b) As regards the N787WH circuit in October 2005, Mr J.G.S.", "testified that it had involved the transfer of detainees between the CIA “black sites” in Romania and Lithuania, which had been disguised by using both the so‑called “dummy” flight planning and the CIA methodology of “switching” aircraft. The CIA, under its aviation services contract with Computer Sciences Corporation, tasked two rendition aircraft – N308AB and N787WH – with flights to Europe simultaneously. N308AB arrived in Bratislava, Slovakia from Teterboro, USA, while N787WH landed in Tirana, Albania. A “dummy” flight plan from Bratislava to Constanţa, Romania was filed in respect of N308AB but when the plane entered Romanian airspace, the Romanian aviation authorities navigated it to an undeclared landing in Bucharest. The plane collected CIA detainees from Romania.", "Subsequently, N308AB flew from Bucharest to Tirana on the night of 5 October 2005. The CIA detainees “switched” aircraft in Tirana; they were transferred onto N787WH for the rendition flight. A “dummy” flight plan from Tirana to Tallinn, Estonia was filed in respect of N787WH. Instead, the plane flew to Lithuania and the Lithuanian aviation authorities navigated it to an undeclared landing at Vilnius in the early hours of 6 October 2005. The plane dropped off the CIA detainees for ground transportation to the CIA “black site” in Lithuania.", "Then the planes departed; N787WH flew to Oslo, Norway and onwards, N308AB made a stopover in Shannon, Ireland and returned to its base in the USA (see also Al Nashiri v. Romania, cited above, § 135). Mr J.G.S. stated, in particular: “In respect of Lithuania I would like to draw attention in particular to the records around the October 2005 flights. On this occasion two aircraft are implicated in the transfer of a single group of detainees. There are records pertaining to N308AB and there are also records pertaining to N787WH.", "N787WH is a Boeing business Jet, a 737, and as I mentioned it took the place of the earlier N313P aircraft in performing large scale transfers of detainees simultaneously. Among the documents there are emails and other items of correspondence which give an extraordinary insight into the CIA’s planning of these operations. If asked how do we know that the deceit was deliberate, how do we know that the disguise was a tactic rather than a facet of in-flight changes, I would point to the documents in this docket which refer explicitly to sleight of hand. They deliberately purport to file flight plans to destinations of which the aircraft has no intention of flying and they include such statements as ‘no customs help’ or on occasion ‘drop all passengers’ or on occasion ‘hard arrival’, which are not legal terms in the planning of international flights; they are rather efforts to circumvent the system of controls and regulations put in place by among others the international civil aviation organisation. This particular circuit, which I will demonstrate, is of great relevance to our proceedings today because it links the detention site in Bucharest - Romania with the detention site in Vilnius - Lithuania and demonstrates how the CIA’s tactics to evade accountability had evolved over the course of the programme.", "Herein we will see not only instances of dummy flight planning, the customary filing of false flight plans but also the use of a new methodology switching aircraft mid operation to avoid the eventuality that the same aircraft appeared in the site of two different places of detention. On this map we have two aircraft which arrived in Europe simultaneously on 5 October 2005. The first N308AB arrived from its base in Teterboro – New Jersey, the second N787WH arrived from Keflavík and landed at Tirana – Albania. Tirana Albania was to be the point at which these two aircraft would converge hence it is marked here as a staging point. Before arriving there, however, the first aircraft N308AB filed a dummy flight plan to the false destination of Constanţa, Romania and then flew to its real destination Bucharest Băneasa airport, where it collected detainees from the Romanian detention site.", "After its collection it flew to Tirana from Bucharest directly with the prior instruction to drop all packs. This in jargon means the passengers on the plane, explicitly here the crew, the rendition personnel who are responsible for removing, securing and transporting the detainees. In Tirana the crew transferred onto the waiting second aircraft N787WH together with the detainees. The dummy flight plan was then filed for this second aircraft furthering the layers of deceit. Tallinn, Estonia was used as a false destination to enable the flight to enter Lithuanian airspace and land at Vilnius airport in Lithuania.", "This is the point at which the detainees on board were dropped off, hence the direct link between the ‘black site’ in Bucharest and the ‘black site’ in Vilnius. Both aircraft thereafter returned towards the United States, N787WH flying via Oslo and northward, N308AB flying via stopover in Shannon back to New Jersey. Again Lithuanian records attest to the landing of N787WH in Vilnius, notwithstanding its false or ‘dummy’ flight planning and this document, which also forms part of the records before the court from the Litcargus provider at Vilnius, is the completion of the switching aircraft operation, a typical and short time on the ground in Vilnius in the early hours of the morning in which the detainees were transported by ground to the detention facility in Lithuania.” 131. Replying to the judges’ question about the relation between the above circuit and the applicant’s case, Mr J.G.S. testified as follows: “You asked also why did I focus my attention on this pattern of switching aircraft in October 2005 and it is because that operation links two detention sites in European territories, namely the detention site in Romania and the detention site in Lithuania, and illustrates adequately to the Court that there were complex, deliberately deceitful, tactics at play that make it very difficult to follow a particular detainee’s path for the transfers that the CIA undertook in moving its detainees from one site to another.", "That particular joint operation, involving N308AB and N787WH, is an operation to which I have devoted considerable time in documenting, in correlating, collating different information sources and I am confident in pronouncing that as a rendition operation in which persons from Romania were transported via a switching of aircraft in Tirana to the site in Lithuania. At this present time that operation stands as the only other confirmed inward rendition to Lithuania that I have been able to document from material in the public domain. And it is for that reason that I presented it to the Court because it enhances the certainty with which we can see a detention site existed in Lithuania.” 132. In reply to the judges’ question as to whether it could be established that the CIA detention facility in Lithuania was code-named “Violet” in the 2014 US Senate Committee Report and, if so, on what basis, Mr J.G.S. testified: “The Detention Site Violet is the colour code name used to denote Lithuania in the [2014 US Senate Committee] Report.", "I have reached this conclusion by collating information around specific dates, specific detainees, and specific junctures in the broader CIA programme that are explicitly mentioned and unredacted in the report. I refer in particular to the nexus between different detention sites and the cyclical nature of the programme, such that when one site closed another opened, when one site was demoted in importance another site was promoted, and establishing the identity of Detention Site Violet as Lithuania derives from a deep understanding of both Romania’s role under the code name ‘Black’, and in particular the role played by Morocco, an authority that is only referred to by a country letter rather than a colour, because it did not act as a detention site or ‘black site’ within the CIA structure. But I would direct the Court in particular to pages 139 to 142 of the [2014 US Senate Committee Report], in which the role of Morocco is described extensively as a country which ‘detains individuals on the CIA’s behalf’ and through a close reading of these passages linked with the evidence I have presented in these and earlier [Al Nashiri v. Romania] proceedings, one reaches the incontrovertible conclusion that when the facility in Morocco was finally closed the only possibility is that Detention Site Violet, namely Lithuania, then took the detainees from that country in conjunction with ‘Detention Site Black’. In particular a paragraph on page 142, which describes the end of relations between the CIA and Morocco, concludes with the passage that the CIA detainees were transferred out of this country in February 2005 and corresponds precisely with the flight movements, the planning documentation and the detailed insights afforded by the American litigation proceedings, to lead us from Rabat - Morocco to Vilnius - Lithuania.” 133. As regards other elements justifying the conclusion that Detention Site Violet was located in Lithuania Mr J.G.S.", "testified as follows: “I would like now to move on to some of the references in the declassified American documents that might help the Court to place the Lithuanian site in the context of the broader rendition detention and interrogation programme. In respect of Lithuania the most important document at hand is the declassified [2014 US Senate Committee Report], the Feinstein Report as it is sometimes known. Whilst incomplete and whilst heavily redacted, the document nonetheless plays into the aforementioned collation or distillation of multiple documentary sources and it is possible to link the colour coded references to specific detention sites in the report to known and recognisable host countries of ‘black sites’ including that of Lithuania. As has been widely reported since this document was declassified the Lithuanian site is associated with the colour code Violet. References in the [2014 US Senate Committee Report] to Detention Site Violet accord completely with the timings, with the character and with the chronological progression of detention operations in respect of Lithuania.", "Notably I would point the Court to two sections of the report, pages 96 to 98 and pages 154 to 156. In these two sections the Committee engages in an analysis of the reasons behind both the opening and the closing of Detention Site Violet in Lithuania and it delivers several pertinent observations regarding the question of relations with the host national authorities. It is important first in order to establish this relation to the coding to recognise that Detention Site Violet was created in a separate country to any of the other detention sites mentioned in the report. So, where there is a raft of evidence connecting Detention Site Cobalt to Afghanistan correlating with many of the detentions we know took place there and indeed many of the techniques practised there; Detention Site Green we know to have been Thailand, the place in which Al Nashiri and today’s applicant Abu Zubaydah were waterboarded and the only site at which videotaping took place; Detention Site Blue, the first European site at Szymany in Poland to which both today’s applicant Mr Zubaydah and Mr Nashiri were transferred upon the closing of the Thai site in December 2002, and as mentioned in earlier [Al Nashiri v. Romania] proceedings Detention Site Black, the site situated in Romania at which Mr Al Nashiri and others were detained between 2003 September and 2005 November. The reference to a separate country here opens a new territory to the programme.", "Here we see discussion of political approval of the site which indicates that the same processes were aptly as pertained in Poland and Romania and as were described in the Marty Reports. The same conceptual framework where authorisation was required to situate a detention site in a European country from the highest levels of government. Here we have references in descriptive narrative to how Lithuanian counterpart officials may have been ‘shocked’ by the presence of detainees on their territory but ‘nonetheless’ approved. We know from both the [US] Senate inquiry and the inquiry undertaken by the Lithuanian Parliament, the Seimas, that there were in fact two projects in Lithuania aimed at providing support for the CIA detention operations. These are referred to in the Lithuanian reports as Project No.", "1 and Project No. 2. In the [2014 US Senate Committee Report] these projects are referred to somewhat more obtusely but notably it states that by mid-2003 the CIA had concluded that its completed but still unused holding cell in this country, by which is meant Project No. 1, was insufficient, given the growing number of CIA detainees in the programme and the CIA’s interest in interrogating multiple detainees at the same detention site. This sentence is very important in respect of Lithuania because it corresponds precisely with the description of the provenance of Project No.", "2 furnished by the Lithuanian Parliament. It states the CIA thus sought to build a new expanded detention facility in the country. The Committee report provides insight into both the opening and the closing of the site referred to in Romania and this is important because it will also help to situate the Lithuanian site in the timeline. Here, as mentioned in earlier proceedings, we learned that Detention Site Black opened in the fall of 2003, the specific date 22 September 2003. We also learn that it closed within a period of only a few days after the publication of the exposé in the Washington Post; namely on 5 November 2005.", "The Detention Site Black closed. Therefore, the reference to a separate country means a site that endured beyond Detention Site Black in Romania and in fact endured beyond the period at which the secret detention system in Europe was known about, hence my earlier reference. The Lithuanian Detention Site Violet became the longest or latest standing European detention site. ...” He added: “I want to share the few further insights into operations in Lithuania which come by looking at specific CIA detainee case studies. We have been able definitively to associate three of the CIA’s high-value detainees with the site in Lithuania.", "However, we know that at least five persons were detained there because in the Senate Committee Inquiry Report it refers to one of these men, Mustafa al-Hawsawi, and four others simultaneously being in country. So today I am only in a position to provide references to these three individuals here: the applicant in today’s proceedings, the applicant Abu Zubaydah, Khalid Sheikh Mohammed, at the bottom left, who was detained at one time in each of the European sites - in Poland, then in Romania and finally in Lithuania, and the aforementioned Mustafa al-Hawsawi, who became one of the reasons for which the site was closed, as I will illustrate.” 134. In reply to the judges’ question whether the applicant’s allegations that he had been transferred to Lithuania on 17 or 18 February 2005 and transferred out of the country on 25 March 2006 could be confirmed, Mr J.G.S. testified: “With regard to inward transfer, I can attest that an operation was mandated by the CIA through the air branch of its rendition group to its principal air services/division services contractor to carry out a movement of detainees held in Morocco towards other active ‘black sites’/detention sites, namely those in Romania and Lithuania. I can further attest by analysis of the documents that this operation was executed by using two aircraft.", "The two aircraft you mentioned, N724CL and N787WH. In my presentation I illustrated the flight of N724CL for the express reason that that aircraft flew, and can be demonstrated to have flown, to Vilnius. And Vilnius is unambiguously the airfield associated with the detention site in Lithuania, the physical location of which, as I have suggested, is undisputed. In my experience each detention site is inexorably connected with one destination airfield, hence the Polish site with Szymany airport, hence the Romanian site with Bucharest Băneasa and in my understanding the Lithuanian site is principally primarily associated with the airfield Vilnius airport, denoted by its code EYVI. That is the reason I chose that flight to illustrate to the Court.", "However, I cannot rule out the possibility that another airfield may have been used in conjunction with Vilnius in operating in Lithuania, and at the present time there is insufficient evidence in the public domain to make a categorical determination, for example as to the use of Palanga airfield. By way of explanation, the tactical methodologies of the CIA did evolve over time as I have presented to the Court today. This switching aircraft methodology was something which was not used in the early years of the programme, it was rather a later resort. So it is eminently possible that in pursuit of the same objectives absolute secrecy, security of transfer, evasion of accountability, the CIA innovated new methods of transfer which entailed using other airports inside the territory of Lithuania. I cannot rule that out nor can I make a categorical pronouncement as to which of those two aircraft brought Mr Zubaydah to Lithuania.", "I can, however, state that he was detained there in that last year of Europe’s participation in the ‘black sites’ programme, and that at this moment the only known and evidenced outward flight from Lithuania was the N733MA flight on 25 March 2006, which engaged in an analogous switching aircraft operation, and carried ultimately the detainees who were left at Detention Site Violet to Detention Site Brown, the newly opened site in Afghanistan, thereby closing the chapter on the Lithuanian site. On that front and again, notwithstanding my recognition that other evidence may yet be revealed, I would feel confident in associating this aircraft with the outward rendition of Mr Zubaydah.” In that context, he also added: “I cannot rule out that there was another form of deceit or sleight of hand at play that led to the appearance of two Lithuanian airports in some of these flight routes. Palanga does not immediately strike me as being an airfield associated with the site because of its geographical distance from Antaviliai, but I cannot rule out that perhaps flights landed there and detainees were then transported onwards by some other means. I do not have categorical information on that question. What I can say is that the flights mentioned in the statement of facts, as I have read it, include two flights in this period in February, between 15 and 20 February 2005, one of which is confirmed to have landed at Vilnius, N724CL on 17 February, the other of which N787WH is recorded as having landed at Palanga.", "On one of these aircraft the applicant was brought to Lithuania but beyond that categorical certainty is not yet achievable.” As regards the applicant’s transfer out of Lithuania, he further stated: “You asked about the destination of his outward flight and it is fairly clear that that was Afghanistan. I would say beyond a reasonable doubt he was taken to Afghanistan when he left Lithuania, because he was one of the fourteen high-value detainees who were transported from Afghanistan to Guantánamo Bay and declared by President George W. Bush to have been held in the CIA programme in September 2006, when he revealed its existence for the first time to the world. So there were no further renditions between March 2006 and September 2006. So I would be confident in concluding that he was taken from Lithuania to Afghanistan and thereafter to Guantánamo, and I believe the records that are before the Court state as to how and when those transfers took place.” 135. As regards the applicant’s alleged detention at the CIA detention site in Lithuania and the closure of that site, Mr J.G.S.", "also stated: “Mr Zubaydah does not have a mention by name in [the 2014 US Senate Committee Report] in connection with the Site Violet but the other two detainees cited here, both do. In the case of Khalid Sheikh Mohammed, there is a lengthy description of his detention in multiple different sites, notably in this passage the reference to his being transferred to Detention Site Violet on that earlier switching aircraft circuit in October 2005. He was also held in Lithuania up until the point of the site’s closure. Hence his final transfer to Detention Site Brown which was in Afghanistan on March 25, 2006. The passage around Khalid Sheikh Mohammed also talks about how reporting around him accounted for up to 15% of all CIA detainee intelligence reporting, which demonstrates his enduring importance to the purported intelligence gathering objectives of the programme.", "I find that pertinent because Khalid Sheikh Mohammed was detained in Poland, he was detained in Romania, he was detained in Lithuania, and he stands as a symbol of the centrality of these detention sites in Europe to the overall objectives of the CIA’s programme. The third detainee, Mustafa al-Hawsawi is mentioned in the report in relation to his need for medical care. In this passage here which comes from the later section, pages 154 -156, it states that the CIA was forced to seek assistance from three third‑party countries in providing medical care to Mustafa al-Hawsawi because the local authorities in Lithuania had been unable to guarantee provision of emergency medical care. And as is stated explicitly in the Senate Committee’s Report, based upon cables sent from the base at Detention Site Violet, these medical issues resulted in the closing of the site in this country in the date March 2006. It was at that point that the CIA transferred its remaining detainees to Detention Site Brown.", "In my view these passages, when read in conjunction with the other documents, constitute a fairly comprehensive record of the reasoning and indeed the methodology behind the closure of the Lithuanian site. Furthermore, subsequent packet passage refers to the overall number of persons in the programme at 1 January 2006 as having been twenty-eight. It states that these twenty-eight persons were divided between only two active operational facilities at that time. One was Detention Site Orange in Afghanistan but importantly the other was Detention Site Violet, the Lithuanian site. The date references here, corresponding with the different flights we have had coming in and later going out, place Detention Site Violet in that time period as the hub of detention operations.” 136.", "In response to the Government’s question as to whether he could attribute a colour code to each CIA “black site” mentioned in the 2014 US Senate Committee Report and whether there had been any locations with no colour codes, Mr J.G.S. stated: “Yes, I can attribute colour codes as mentioned in the Senate Committee Report to each of the detention locations that had the character of a CIA ‘black site’. In order to be clear, there were some places used by the CIA that did not meet the precise criteria of a ‘black site’, a customised high-value detainee facility. Those criteria were set out in the Inspector General’s Report. I indicated it in my presentation, and among the criteria were the exclusive operation by CIA agents and contractors without the participation of foreign counterparts.", "The criteria for a ‘black site’ are in fact enumerated in several of the CIA documents and those sites in the Senate Committee Report were all accorded a colour code. So, for example, whilst Lithuania is associated with Violet, Romania is associated with Black, Poland is associated with Blue, Thailand is associated with Green, in Afghanistan there are several sites, notably Cobalt, Orange and Brown. At Guantánamo also there are multiple sites, notably Maroon and Indigo in the report. But Morocco, a country in which CIA detainees were housed at several points in the programme, does not have its own colour code because it did not meet the criteria as a customised high-value detainee facility. Specifically, Moroccans participated in the detention of CIA HVDs on their territory and they housed those persons within existing detention operations in Morocco, as is described in the report.", "So I can attribute colour codes to every one of the ‘black sites’ and I can also further identify countries that did not have a colour code, but which bore characteristics unique to one country and through the collation of other data sources allow me to categorically pronounce where they were situated. I am not alone in this endeavour, I can say that, having met with several of those involved in the Senate inquiry process, I believe that most reasonably informed observers would be able to associate now the publicly available information with at least one or more of those colour codes. I am not alone, this is not at a simple personal conclusion. It is one which is widely shared, not contradicted across the community of investigators who have occupied themselves with these matters.” 137. Replying to the judges’ questions as to whether it could be established that Abu Zubaydah had been secretly detained at Detention Site Violet and what was the physical location of that site on Lithuanian territory, Mr J.G.S testified: “The report does not mention the applicant Mr Zubaydah explicitly by name in connection with the Detention Site Violet.", "However, through an intimate familiarity with the chronology of his detention, much of which I have presented in evidence in these proceedings and the prior proceedings, I have reached the conclusion that there is only one place he could have been in the early part of 2005 and that that place was indeed Morocco. Furthermore, having closely analysed the text regarding Morocco in the report, some of which derives from cables declassified correspondence and other sources which I have also engaged with, I know that the transfers out of Morocco in 2005 went to other active ‘black sites’, that one of these was ‘Detention Site Black’ in Romania, but that there was also another one in a separate country, to use the terms of the report and based on the answer I gave to Your Honourable colleague Judge Sicilianos, this other country was Lithuania. Because the applicant Mr Zubaydah did not arrive in Romania, ‘Detention Site Black’, which I know based upon my years’ long investigations into the operations of that site much of which I have presented to the Court, the only other destination to which he could have been transferred was the active site in Lithuania and this transfer took place in accordance with the flights described in February 2005. Therefore, on the balance of probabilities, I believe it is established that Abu Zubaydah was secretly detained at Site Violet. As to the physical location of the facility in Lithuania it is my understanding that there is no dispute that there was a facility purpose-built, that this was the converted site of the horseback riding academy at Antaviliai, that the CIA oversaw the construction afresh, that this place was referred to as Project No.", "2 in the Seimas parliamentary inquiry in Lithuania, and that the evidence gathered both through the Senate Inquiry and through the Lithuanian authorities’ own inquiries is in fact perfectly convergent on this point. I should also note that esteemed colleagues in the Committee for Prevention of Torture have visited the site and chronicled many aspects of it, which accord perfectly with the description of secret detention facilities I am familiar with from the American documentation. So as to the physical location, I think it is established beyond a reasonable doubt that this place was the ‘black site’ on the territory of Lithuania.” 138. In response to the judges’ question as to what extent, in comparison to Mr Abu Zubaydah’s case against Poland, or to Al Nashiri v. Poland and Al Nashiri v. Romania, he considered his conclusions in the present case to be based on the same elements of certainty, Mr J.G.S. stated: “Thank you, Your Honour, and I appreciate very much the focus on my choice of words because I have attempted, wherever possible, to be quite precise and circumspect in the pronouncements I make with regards to issues of fact.", "You are quite correct that in respect of this same applicant in his application against Poland I was able to make categorical pronouncements against a burden of proof beyond a reasonable doubt, that he was transferred into Poland on a specific date, that he was subjected to specific forms of treatment, that he was held together with Mr Nashiri and various other aspects, because they were described chapter and verse in documents declassified and made public by the CIA itself, notably the Inspector General’s Report. In respect of Romania, again by virtue of its earlier start date of operations, it was included by reference in the Inspector General’s inquiry and furthermore features prominently in the [US] Senate’s inquiry. 2003, according to the Senate, is the year in which the most high-value detainees persons involved in this programme were captured and interrogated, so understandably, since the Romanian site was the hub of operations, the most important ‘black site’ at that time, it is possible to glean a higher quality and volume of evidence from the declassified documents in respect of Romania, hence being able to associate more high-value detainees, more types of treatment as practised on the territory, and indeed a greater degree of certainty when pronouncing on questions of fact in respect of Romania. As I mentioned in the presentation, Lithuania was the latest of the European sites to be opened and therefore received detainees at a later phase of their detention cycles or, alternatively, received fewer detainees whose cases were subjected to the scrutiny of the oversight bodies I have mentioned. There is no Inspector General reference to Lithuania because at the moment when he published his special review in May 2004, the site in Lithuania had not yet been opened.", "In the Senate Report there are extensive references to Detention Site Violet, but naturally because the preponderance of detainees and their interrogations had taken place in the earlier years of the programme, it is not possible to find as many specific or explicit date references or references to specific renditions as is the case for the other two countries.” 139. Lastly, in reply to the applicant’s counsel question as to whether, based on his years as investigator, he was satisfied or was in doubt as to Abu Zubaydah’s presence in Morocco, Afghanistan and Lithuania at times referred to by him, Mr J.G.S. testified: “Yes, I am satisfied as to the presence of Mr Zubaydah, respectively in early 2005 in Morocco up to the point where the CIA detention site in Morocco was cleared, thereafter on the territory of Lithuania in the detention site coded as ‘Violet’ and thereafter on the territory of Afghanistan in the detention site coded as ‘Brown’.” 140. Mr Black, in reply to the judges’ question regarding the alleged existence of the CIA detention facility in Lithuania, in particular whether it could be established beyond reasonable doubt that it had operated in Lithuania and, if so, whether its location could be established, stated: “The answer to both parts of that question is unequivocally yes. It is certainly the case beyond reasonable doubt that the CIA established a detention centre in Lithuania.", "It is certainly the case beyond reasonable doubt that that facility – the facility that they established was in fact used for the purpose of holding prisoners – was in the warehouse outside the village of Antaviliai, a little bit to the north-east of Vilnius. So the issue of the evidence that allows me to make these statements and to say that they are beyond reasonable doubt is necessarily fairly lengthy and it rests on a number of key points which I shall do my best to summarise as concisely as possible. The Senate Report clearly indicated the times of operation of a site which it called Violet, which operated from February 2005 until March 2006. The site was in a country where there had previously been another site established that was in fact never used. This is discussed in the Senate Report.", "This detail of there having been two sites, one never used and one which was used between February 2005 and March 2006, corresponds accurately with the details given in the Lithuanian Parliamentary Committee’s investigation published in 2009, where they state very clearly that their partners, by which they mean the CIA, equipped two sites: one that was not used and one that was used for a purpose which the Parliamentary Committee does not reach a firm conclusion on, at least in its printed document. Now, it is further the case that my research has established flights going into and out of Lithuania precisely at the times that prisoners are said to have been moved into and out of the facility in Violet and that this corresponds with flights into and out of Lithuania in, firstly, February 2005, then in October 2005 and lastly in March 2006. And it is further the case that all these flights are contractually related, that is they are related by their contract numbers, their task order numbers, their invoice numbers and other details to an overall contract, that – we have been able to establish beyond reasonable doubt – was used by the CIA, by the US Government, for the purpose of outsourcing the movement of prisoners. I think that covers the essentials of how we can identify the Violet, the country that site Violet was in, with Lithuania. In terms of the precise circumstances of the building in Antaviliai, it is clear from documents that were gathered by the Parliamentary Committee in Lithuania, as well as from my own field researches – around that area I made several trips to that place in 2011-2012 to interview people around there – it is clear from those interviews and those documents that that building was essentially bought by a company and that Americans were in it, were fitting it out, were then guarding it, that vehicles were coming and going with tinted windows, there was one person living in the vicinity who called this ‘certain emptiness’, was the phrase he used that settled over the site at the time.", "The Parliamentary Report is quite clear that the CIA were occupying the building and it is also quite clear that Lithuanian officers did not necessarily have access to the entire building or if they did have access to it they did not necessarily take advantage of that access. It is also clear that the planes which were arriving in Lithuania, pursuant to the contracts that I mentioned, were being met by a very special regime of, there is a witness statement, that was made by an employee of the border guards and transmitted by his boss – whose name I believe is Kasperavičius, although probably I am pronouncing that wrong – in which he describes the landing of a plane on 6 October 2005 in Vilnius, and he describes how he was told by State security officials that he was not allowed to carry out his normal inspections of the plane and that, although he was kept away from the plane by a security coordinator, he was able to see in the distance a vehicle driving away from the plane. Now new documents which have been released very recently, earlier this month by the CIA pursuant to information requests by the American civil liberties union, allow us to clarify today that that plane was transporting Khalid Sheikh Mohammed into Lithuania. Previously in the dossier that I submitted to the prosecutor in January 2015, I said that it was not clear whether he came on the February flight or the October flight. It is now clear that he came on the October flight.", "I am sorry that it is a rather long-winded answer to your question, but I think that it has covered most of the main points that I think are necessary and sufficient to show that there was a prison in Lithuania and that it was in the site in Antaviliai.” 141. In reply to the judges’ question whether it could be established beyond reasonable doubt that Mr Abu Zubaydah had been secretly detained in Lithuania, Mr Black testified: “I have no doubt that Site Violet was in Lithuania and I have no doubt that prisoners were held in it, including, as I said before, Khalid Sheikh Mohammed, also including others who I believe, on the basis of my professional opinion, include Abu Zubaydah. To explain why I believe Abu Zubaydah was held in Lithuania, we need to retrace our steps in a way so that I can explain to you the logical sequence of events that leads me to this conclusion. ... We ... know that after a certain time in Morocco, the CIA had too many disagreements with the Moroccan Intelligence Agencies with regard to the treatment of prisoners in Morocco. This is dealt with at some length in the Senate Report.", "And so everyone who was in Morocco was moved out at the latest in February 2005. Now again, prima facie, it is possible that Abu Zubaydah, being in Morocco in February 2005, was moved either to Romania or to Lithuania. But again, the statement which I take to be accurate, that he was not in Romania in or prior to the Summer 2005, means that logically he must have gone to Lithuania on that flight on 18 February 2005. I can explain momentarily why I believe he was on N787WH and not on N724CL but if you do not mind I will come back to that. There is a further indicator of his presence in Lithuania, specifically soon after February 2005 – which is new research that has been done by my colleague, Sam Raphael, at the rendition project which has not yet been published, I have seen his work product and I have worked with it and I believe it will be published later this year – this research indicates that a cable relating to Abu Zubaydah was sent in March 2005, although the provenance of the cable is redacted, the length of the redaction is consistent with it coming from Lithuania and inconsistent with the coming from either of the two possible sites at the time which are in Romania or in Afghanistan.", "Cumulatively I take the total effect of all these bits of evidence to my satisfaction to say that beyond reasonable doubt Abu Zubaydah was held in Lithuania, starting in February 2005.” 142. As regards the date and the flight on which the applicant had been transferred from Morocco to Lithuania, Mr Black testified: “The reason I believe that he was flown in on the plane on 18 February rather than that on 17 February is simply that when you analyse the logs that we published for the 17 February flights, what appears is that everyone on that plane actually got off it in Jordan prior to its landing in Lithuania. So I do not think that the N724CL plane, that went via Jordan to Vilnius, transported prisoners into Lithuania. What it did in Jordan I do not know. I think it is also clear, it follows subsequently, that everybody who was held in Lithuania was moved out in March 2006, on 25 March 2006.", "I think perhaps it was previously unclear, a couple of years ago, where their destination was, but it is now clear – and it has been corroborated by the Senate Report – that the country to which they were moved was Afghanistan.” 143. In his reply to the judges’ further question about the flight of N787WH on 18 February 2005, identified as being the one on which the applicant had been transferred to Lithuania, Mr Black confirmed that, in his view, on the basis of evidence this had been established beyond reasonable doubt, adding that “to provide an alternative narrative one ha[d] to enter a kind of world of absurdity”. When a similar question regarding the dates on which the applicant had been transferred into and out of Lithuania was put by the Government –whose representatives also asked how relevant the N787WH October 2005 flight was in the context of the applicant’s alleged rendition – Mr Black stated: “So to clarify, I believe that Abu Zubaydah was flown into Lithuania on N787WH on 18 February 2005. I believe that he was flown out of Lithuania on N733MA and N740EH on 25 March 2006. The reason I mention the October 2005 flight is because it is to that flight that we can firmly correlate, again in my opinion beyond reasonable doubt, the arrival of Khalid Sheikh Mohammed in Lithuania and I mention it because (a) it provides more evidence of the pattern of conduct that was engaged by and in Lithuania and (b) because it is specifically for that flight that we have the data relating to the very special, as it were, welcoming procedures that the flight had.", "Although it has been clarified I believe by the Lithuanian Parliamentary Committee that these same procedures were also in effect for other flights, but I mention that one because the document exists that describes very clearly what these procedures were. So I believe it is important holistically taking into account all the evidence that is available to us – I believe that flight is another important part of the puzzle.” 144. In response to the Government’s further question whether the 2014 US Senate Committee Report – on which his conclusions were based –indicated the years and exact months of the opening and closure of Detention Site Violet, Mr Black stated: “If I remember rightly, the Senate Report indicates the year and the months are generally redacted. Because of the way in which they are redacted it is possible to deduce the number of letters, so in a sense it is easy to say which is a long month and which is a short month. One can tell that, let’s say, it might be February but not June or so on.", "Now, the weights of these redactions has to be calculated in accordance when they correlate other public information. So, for example, the new document released of Khalid Sheikh Mohammed’s Combatant Status Review Tribunal, is consistent with the redacted Senate Report but it also adds new unredacted information, to the extent that it gives the months of October and March, which are what our reconstruction initially was. And the same can be said of the redacted February. In one place there is a word that is the same length as February that has been redacted and in another place it says ‘in early 2005’. We have the flights that are the only flights at that point that correspond to it.", "Taking the whole weight of those and other indicators, to me, that is the only solution that makes any sense is the solution that indeed the site in Lithuania operated at the times that we have stated and was serviced by the flights that we have stated.” 145. In reply to the Government’s question as to whether the 2014 US Senate Committee Report did state that the national institutions had refused high‑value detainees access to medical institutions, Mr Black stated: “Yes, that was specifically stated of Site Violet in the Senate Report and it was also discussed in the new release of the, I think it is called, the facility audit, which is one of the documents released in the last few weeks by the CIA. That document describes the problems that the CIA had in 2005 and 2006 getting medical attention in host countries. Now the new document, the facility audit, does not specifically mention which countries it refers to, although the only countries that were operating at the time that it covers were Lithuania and Afghanistan. The Senate Report on the other hand, contextually, in that paragraph it is clear, I believe, that it references to Lithuania and what it says is that they did not have the right type of medical facilities on their site to deal with medical problems and that they initially had an agreement with the host country that the host country would provide medical facilities in such eventualities.", "The host country had decided that it was not going to do that. The word that is used in the facility audit is that it ‘reneged’. I do not think that word is used in the Senate Report.” (iii) “Detention Site Violet” in the 2014 US Senate Committee Report 146. The 2014 US Senate Committee Report refers to “Detention Site Violet” in several sections concerning various events. 147.", "In the chapter entitled “The CIA establishes DETENTION SITE BLACK in COUNTRY [REDACTED] and DETENTION SITE VIOLET in Country [REDACTED]” the section referring to Detention Site Violet reads as follows: “[REDACTED] In a separate [from country hosting Detention Site Black], Country [name blackened], the CIA obtained the approval of the [REDACTED] and the political leadership to establish a detention facility before informing the U.S. ambassador. As the CIA chief of Station stated in his request to CIA Headquarters to brief the ambassador, Country [REDACTED]’s [REDACTED] and the [REDACTED] probably would ask the ambassador about the CIA detention facility. After [REDACTED] delayed briefing the [REDACTED] for [number blackened] months, to the consternation of the CIA Station, which wanted political approval prior to the arrival of CIA detainees. The [REDACTED] Country [REDACTED] official outside of the [REDACTED] aware of the facility, was described as ‘shocked’, but nonetheless approved. [REDACTED] By mid-2003 the CIA had concluded that its completed, but still unused ‘holding cell’ in Country [REDACTED] was insufficient, given the growing number of CIA detainees in the program and the CIA’s interest in interrogating multiple detainees at the same detention site.", "The CIA thus sought to build a new, expanded detention facility in the country. The CIA also offered $ [one digit number blackened] million to the [REDACTED] to ‘show appreciation’ for the [REDACTED] support for the program. According to a CIA cable however [long passage blackened]. While the plan to construct the expanded facility was approved by the [REDACTED] of Country [REDACTED], the CIA and [passage redacted] developed complex mechanisms to [long passage REDACTED] in order to provide the $ [one digit number blackened] million to the [REDACTED]. [REDACTED] in Country [REDACTED] complicated the arrangements.", "[long passage REDACTED] when the Country [REDACTED] requested an update on planning for the CIA detention site, he was told [REDACTED] – inaccurately – that the planning had been discontinued. In [date REDACTED], when the facility received its first detainees, [REDACTED] informed the CIA [REDACTED] that the [REDACTED] of Country [REDACTED] ‘probably has an incomplete notion [regarding the facility’s] actual function, i.e., he probably believes that it is some sort of [REDACTED] center.” 148. In the chapter entitled “The Pace of CIA Operations Slows; Chief of Base Concerned About ‘Inexperienced, Marginal, Underperforming’ CIA Personnel; Inspector General Describes Lack of Debriefers As ‘Ongoing Problem’”, the section referring to Detention Site Violet reads as follows: “[REDACTED] In 2004, CIA detainees were being held in three countries: at DETENTION SITE BLACK in Country [REDACTED], at the [redacted] facility [REDACTED] in Country [REDACTED], as well as at detention facilities in Country [REDACTED]. DETENTION SITE VIOLET in Country [REDACTED] opened in early 2005.” 149. In the chapter entitled “Press Stories and the CIA’s Inability to Provide Emergency Medical Care to Detainees Result in the Closing of CIA Detention Facilities in Countries [REDACTED] and [REDACTED]”, the section referring to the disclosure regarding CIA secret prisons in Europe published in the Washington Post and the closure of Detention Site Black and Detention Site Violet reads as follows: “In October 2005, the CIA learned that the Washington Post reporter Dana Priest had information about the CIA’s Detention and Interrogation Program, [REDACTED].", "The CIA then conducted a series of negotiations with The Washington Post in which it sought to prevent the newspaper from publishing information on the CIA’s Detention and Interrogation Program. ... After publication of the Washington Post article, [REDACTED] Country [REDACTED] demanded the closure of DETENTION SITE BLACK within [REDACTED two-digit number]. The CIA transferred the [REDACTED]| remaining CIA detainees out of the facility shortly thereafter. ... [long passage REDACTED] In [REDACTED] Country [REDACTED] officers refused to admit CIA detainee Mustafa Ahmad al-Hawsawi to a local hospital despite earlier discussions with country representatives about how a detainee’s medical emergency would be handled. While the CIA understood the [REDACTED] officers’ reluctance to place a CIA detainee in a local hospital given media reports, CIA Headquarters also questioned the ‘willingness of [REDACTED] to participate as originally agreed/planned with regard to provision of emergency medical care’.", "After failing to gain assistance from the Department of Defense, the CIA was forced to seek assistance from three third-party countries in providing medical care to al-Hawsawi and four other CIA detainees with acute ailments. Ultimately, the CIA paid the [REDACTED] more than $ [two-digit number redacted] million for the treatment of [name REDACTED] and [name REDACTED], and made arrangements for [name REDACTED] and [name REDACTED] be treated in [REDACTED]. The medical issues resulted in the closing of DETENTION SITE VIOLET in Country [REDACTED] in [five characters for the month REDACTED] 2006. The CIA then transferred its remaining detainees to DETENTION SITE BROWN. At that point, all CIA detainees were located in Country [REDACTED].", "... The lack of emergency medical care for detainees, the issue that had forced the closing of DETENTION SITE VIOLET in Country [REDACTED] was raised repeatedly in the context of the construction of the CIA detention facility in Country [REDACTED]. ... In early January 2006, officials at the Department of Defense informed CIA officers that Secretary of Defense Rumsfeld had made a formal decision not to accept any CIA detainees at the U.S. military base at Guantánamo Bay, Cuba. At the time, the CIA was holding 28 detainees in its two remaining facilities, DETENTION SITE VIOLET, in Country [REDACTED], and DETENTION SITE ORANGE, in Country [REDACTED].", "In preparation for a meeting with Secretary of Defense Rumsfeld on January 6, 2006, CIA Director Goss was provided a document indicating that the Department of Defense’s position not to allow the transfer of CIA detainees to U.S. military custody at Guantánamo Bay ‘would cripple legitimate end game planning’ for the CIA.” 2. Detention and treatment to which the applicant was subjected 150. The applicant submitted that throughout his detention by the CIA he had been subjected to torture and other forms of ill-treatment prohibited by Article 3 of the Convention. In that regard he relied, among other things, on his own description of his experience in CIA custody and conditions of detention, as related in the 2007 ICRC Report. The report was based on interviews with the applicant and thirteen other high-value detainees, including Mr Al Nashiri, after they had been transferred to military custody in Guantánamo (for more details, see paragraphs 296-299 below).", "151. Annex I to the 2007 ICRC Report contains examples of excerpts from some of the interviews conducted with the fourteen prisoners. These excerpts are reproduced verbatim. The verbatim record of the interview with the applicant gives details of his ill-treatment in the CIA custody “regarding his detention in Afghanistan where he was held for approximately nine months from May 2002 to February 2003”. The applicant’s account of the abuse that he endured in CIA custody as rendered in the 2007 ICRC Report reads, in so far as relevant, as follows: “I was then dragged from the small box, unable to walk properly, and put on what looked like a hospital bed, and strapped down very tightly with belts.", "A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited. The bed was then again lowered to a horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle.", "On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress.", "I was then placed in the tall box again. While I was inside the box loud music was played again and somebody kept banging repeatedly on the box from the outside. I tried to sit down on the floor, but because of the small space the bucket of urine tipped over and spilt over me. ... I was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before.", "I was then made to sit on the floor with a black hood over my head until the next session of torture began. The room was always kept very cold. This went on for approximately one week. During this time the whole procedure was repeated five times. On each occasion, apart from one, I was suffocated once or twice and was put in the vertical position on the bed in between.", "On one occasion the suffocation was repeated three times. I vomited each time I was put in the vertical position between the suffocations. During that week I was not given any solid food. I was only given Ensure to drink. My head and beard were shaved every day.", "I collapsed and lost consciousness on several occasions. Eventually the torture was stopped by the intervention of the doctor.” 152. A more detailed description of various methods of ill-treatment inflicted on the applicant as related in the 2007 ICRC Report and the 2004 CIA Report can be found in Husayn (Abu Zubaydah) v. Poland, cited above, §§ 102-107). 153. In connection with the fact-finding hearing, the applicant also produced an extract from partly declassified transcripts of hearings before the Combatant Status Review Tribunal in Guantánamo, held on 27 March 2007, during which he had related his treatment in CIA custody.", "That document was released on 13 June 2016. It reads, in so far as relevant, as follows: “In the name of God the Merciful. Mr. President and Members of the Tribunal, I would have liked to have spoken to you today on my own, but I have been having seizures lately which have temporarily affected my ability to speak and write without difficulty. Therefore, I asked my Personal Representative to speak on my behalf. I hope from you justice, and I know that is what you seek.", "Do not make the mistake the CIA has made when they first arrested me on 28 March 2002. After months of suffering and torture, physically and mentally, they did not care about my injuries that they inflicted to my eye, to my stomach, to my bladder, and my left thigh and my reproductive organs. They didn’t care that I almost died from these injuries. Doctors told me that I nearly died four times. Then they transferred me to a secret location.", "They transferred me in a way that a normal, ordinary person would be embarrassed to be treated. They even prevented me from going to the bathroom at least five times, and sometimes I was deprived from being able to go to the bathroom for 24 to 36 hours when we travelled. ... They did this to me because they thought I was the number three leader in al Qaida and a partner to USAMA BIN LADEN, as is mentioned in the unclassified Summary of Evidence against me. ... First thing, during I’m still – I was in – still in the hospital.", "They would ask me and I would answer. From the hospital, after, I don’t know how many months, how many times. They take me to their secret place. From that lime I was naked. And I think you know how much it is the bad for us as the Muslims, and I think it is problem for you as Christian or Jew.", "I don’t know but at least for us, it was very bad thing. I was too weak; they make me sleep in a metal bed, [via Language Analyst] a medical metal bed. It look like this. Naked and feel cold and this still bleeding [pointing to the inside of left thigh urea] from this area. ...", "So it take days and days, too cold place, naked and position sleeping. After this, they put me in the chair – same circumstance – naked, too much cold, no food, only Ensure [Language Analyst clarifies Ensure –Force feeding Ensure]. ... And they not give me chance, all this, maybe one-two week, I don’t know the time. No food, no sleep, not allowed to sleep. When I feel sleep, they shake me like this [shaking chair] or make me stand.", "But all that time I am sitting twenty-four hours, only sorry again, when I use the toilet, bucket, not real toilet, bucket near of me and in front of them, and from that time I feel shy ... So all that time they ask me, they talk. One person talk and they leave another two, another two another two, no sleeping, no food, nothing, and cold, cold. ... After time, I don’t know how many, it’s weeks and weeks, they give me chance to sleep once. Maybe once in the two months, two weeks.", "I don’t know exactly, once a month. I again make me sit on the floor. Also cold, naked, try to cover my private part, because the shackles even I can’t because kind of chair like this but it have [via President and Language Analyst arm rest]. So I tried to cover nothing and start makes me stand hours and hours. ...", "I request, I tell him, ‘do as you like; tell me the time I want to pray. No chance to pray. Give me the time and not need water. I need pray without cleaning. I should make some cleaning before I pray’.", "I make request number of time. Nothing. After this put me in the big box same my tall but it’s not and they put the bucket with me. Toilet bucket. I had no chance to sit, only in the bucket and because the bucket its not have cover or sometime they put cover I found myself inside the bucket like this [trying to move and show while in chair].", "And the place too close; I take hours and hours ‘til he came and save me from the bucket, again and again sorry it full of urine. And start from that time-time and time put me in this and put me in small box. I can’t do anything. I can’t sit stay do anything and hours and hours. Start beat me in the wall ...", "Beat me badly in the back, in my back, in my head. Last thing, of course same thing use again and again, different time, plus they put me in the same [via Language Analyst] a medical bed. They shackle me completely, even my head; I can’t do anything. Like this and they put one cloth in my mouth and they put water, water, water. ... Last thing they do they – I am still shackled.", "I was naked; I am naked; they bring the [via Language Analyst] interrogator, female interrogator in front. I was naked, like this. ... But the truth after this after the second – or second – after one complete year, two year, they start tell me the time for the pray and slowly, slowly, circumstance became good. They told me sorry we discover that you are not number three, not a partner even not a fighter.", "...” 154. At the fact-finding hearing Mr J.G.S. made the following statements concerning the treatment to which the applicant could be subjected during his alleged detention in Lithuania: “The bulk of the enhanced interrogation to which Mr Zubaydah was subjected is clearly documented as having taken place in Thailand. There he was waterboarded and there he was subjected to a grotesque form of experimentation whereby unauthorised and sometimes barely authorised techniques were practised upon him as the CIA developed its early rules and regulations as to how detainees could lawfully be interrogated. By the time he reached Poland, however, he had been declared compliant.", "So it is not possible to state with certainty which additional techniques were used on him in Europe.” In reply to the judges’ further question regarding that matter, he stated: “It is not possible to pronounce categorically on specific interrogation techniques or other forms of treatment or ill-treatment practised on Mr Zubaydah in Lithuania, because, again, they are not explicitly described in any of the reports available to us in the public domain. However, I would be prepared to state that the conditions of confinement in the ‘black site’ in Lithuania alone pass a threshold that in our human rights protection culture, signified by the European Convention on Human Rights, amounts to a violation of Article 3. There are, by routine and described in documents, practices such as sensory deprivation, sleep deprivation, denial of religious rights, incommunicado detention, indefinite detention on a prolonged basis, as well as a variety of conditioning techniques, as the CIA calls them, which in any other case would themselves be considered forms of ill-treatment. Here they do not even warrant mention in the reporting, because they had become commonplace, but I would not wish for the absence of explicit descriptions of waterboarding or other EITs to be taken as a sign that he was not ill-treated during his time in Lithuania. And I should also point out that, having been detained at that point for more than three years and even up to four years in the totality of his transfer through the sites, there must have been a cumulative effect to the ill-treatment which he underwent at the hands of his captors.” 155.", "Mr Black testified as follows: “... [I]t is true that relatively there is less information about treatment of prisoners in the CIA detention programme in 2005-2006 than there is in the previous years. There are a few exceptions to this. The recently declassified Memorandum from the CIA’s Office of Medical Services, which is part of the batch of the records declassified earlier this month, is dated December 2004. It comes into force directly prior to the time that – I take - Abu Zubaydah to have been rendered into Lithuania. This document describes basically the full range of enhanced interrogation techniques, in other words it makes clear that as of December 2004 and thus into 2005, that this full range of techniques is available, it is on the menu.", "In terms to what extent these techniques were used, we have relatively few indications but there are a couple that I think are worth mentioning. The Senate Report states that there are several occasions on which for example the CIA failed to adhere to his own guidelines in keeping naked prisoners in cold conditions. The guidelines are set out in the Memorandum that I just mentioned, the December 2004 Office of Medical Services Memorandum. The Senate Report says that after that Memorandum, going up until the last time it cites is December 2005, there were prisoners who were being held in colder conditions than what this Memorandum sanctioned. Likewise there were prisoners who were captured in 2005, including Abu Faraj al-Libbi, whom we know from the Senate Report was exposed to lengthy sleep deprivation.", "Beyond that I do not have any further information about precise conditions, although it is clear – it has been reiterated by the recent batch of declassified documents – that during this time 2005 – 2006, prisoners continued to be held in solitary confinement, that is clear. It is also clear that prior to their arrival in the last site in Afghanistan, which was in March 2006, they did not have any access to natural light. The first time they had access to natural light was following that arrival in March 2006. That is pretty much all I can say on the topic.” 156. The 2014 US Senate Committee Report states that “from Abu Zubaydah’s capture ... to his transfer to Department of Defense custody on September 5, 2006, information provided by Abu Zubaydah resulted in 766 disseminated intelligence reports”, of which ninety-five were produced during the initial phase of his detention in April and May 2002 (which included a period during which the applicant was on life support and unable to speak) and ninety-one during the months of August and September 2002.", "E. The applicant’s further transfers during CIA custody (until 5 September 2006) as reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court 157. In his initial submissions the applicant maintained that after he had been transferred by extraordinary rendition out of Lithuania, he had been detained in an undisclosed facility in a third country, from where he had later been transferred to US custody at Camp 7 at the US Naval Base at Guantánamo Bay, Cuba. 158. As stated above, according to the experts, on 25 March 2006 the applicant was transferred from Lithuania to Afghanistan via a double-plane switch in Cairo and was subsequently detained at the CIA’s only remaining detention facility – Detention Site Brown (see paragraphs 133-134, 138 and 140-144 above). 159.", "The 2014 US Senate Committee Report refers to Detention Site Brown in the context of rendition and secret detention of Khalid Sheikh Mohammed (referred to as “KSM”) as follows: “KSM was transferred to DETENTION SITE [REDACTED] on [day and month REDACTED] 2005, to DETENTION SITE BROWN on March [two-digit date REDACTED] 2006, and to U.S. military detention at Guantánamo Bay, Cuba, on September 5, 2006.” 160. The 2014 US Senate Committee Report states that the applicant “was transferred to U.S. military custody on September 5, 2006.” F. The applicant’s detention at the US Guantánamo Bay facility since 5 September 2006 to present 161. Since 5 September 2006 the applicant has been detained in the US Guantánamo Bay Naval Base in the highest security Camp 7 in – as described by his lawyers – “extreme conditions of detention”. Camp 7 was established in 2006 to hold the high-value detainees transferred from the CIA to military custody. Its location is classified.", "It currently holds fifteen prisoners, including the applicant and Mr Al Nashiri. Visitors other than lawyers are not allowed in that part of the Internment Facility. The inmates are required to wear hoods whenever they are transferred from the cell to meet with their lawyers or for other purposes. The applicant is subjected to a practical ban on his contact with the outside world, apart from mail contact with his family. 162.", "The Inter-American Commission on Human Rights’ Report “Towards the Closure of Guantánamo”, published on 3 June 2015, describes general conditions in Camp 7 as follows: “120. Although progress has been made to improve conditions of detention at Guantánamo, there are still many areas of concern. The Inter-American Commission notes in this regard that detainees at Camp 7 do not enjoy the same treatment accorded to other prisoners; that health care faces many challenges, in particular given the ageing population at Guantánamo; and that religion is still a sensitive issue. Further, the IACHR is especially concerned with the suffering, fear and anguish caused by the situation of ongoing indefinite detention, which has led to several hunger strikes as a form of protest and, in some extreme cases, to the drastic decision by prisoners to end their lives. ... 122.", "The Inter-American Commission has received troubling information regarding prison conditions at Camp 7, a single-cell facility currently used to house a small group of special detainees, known as ‘high-value detainees’. These detainees are reportedly held incommunicado and are not subject to the same treatment accorded to other prisoners. On May 20, 2013, a group of eighteen military and civilian defense counsel representing the ‘high-value detainees’ sent a joint request to Secretary of Defense Charles Hagel to improve the conditions of confinement in Guantánamo. They pointed out that these detainees are not permitted to contact their families by telephone or video; that their access to religious materials has been restricted (such as the sayings and descriptions of the life of the Prophet Mohammed); that they have limited recreational opportunities; and that they are not permitted to participate in group prayer, contrary to the entitlements of other detainees. ... 136.", "The Inter-American Commission considers that the conditions of confinement described above constitute a violation of the right to humane treatment. Further, in order to guarantee that prisoners’ rights are effectively protected in accordance with applicable international human rights standards, the State must ensure that all persons deprived of liberty have access to judicial remedies. The IACHR notes with deep concern that prisoners at Guantánamo have been prevented from litigating any aspect of the conditions of their detention before federal courts, which constitutes per se a violation of one of their most fundamental human rights. This point, as well as some recent developments regarding this issue, will be assessed in the chapter on access to justice. Further, as it will be addressed below, detainees’ lack of legal protection and the resulting anguish caused by the uncertainty regarding their future has led them to take the extreme step of hunger strikes to demand changes in their situation.” 163.", "The applicant has not been charged with any criminal offence. The only review of the basis of his detention was carried out by a panel of military officials as part of the US military Combatant Status Review Tribunal on 27 March 2007 (see also paragraph 153 above). The panel determined that he could be detained. 164. The applicant is not listed for trial by military commission.", "He is one of the high-value detainees who remain “in indefinite detention” (see also paragraph 80 above). G. Psychological and physical effects of the HVD Programme on the applicant 165. According to the applicant, as a result of torture and ill-treatment to which he was subjected when held in detention under the HVD Programme, he is suffering from serious mental and physical health problems. The applicant’s US counsel have been unable to provide many of the details of his physical and psychological injuries because all information obtained from him is presumed classified. The lawyers have stated that publicly available records described how prior injuries had been exacerbated by his ill-treatment and by his extended isolation, resulting in his permanent brain damage and physical impairment.", "The applicant is suffering from blinding headaches and has developed an excruciating sensitivity to sound. Between 2008 and 2011 alone he experienced more than 300 seizures. At some point during his captivity, he lost his left eye. His physical pain has been compounded by his awareness that his mind has been slipping away. He suffers from partial amnesia and has difficulty remembering his family.", "H. Identification of locations of the colour code-named CIA detention sites in the 2014 US Senate Committee Report by experts 166. The experts heard by the Court identified the locations of the eight colour code-named CIA detention sites (see paragraph 24 above) as follows: Detention Site Green was located in Thailand, Detention Site Cobalt in Afghanistan, Detention Site Blue in Poland, Detention Site Violet in Lithuania, Detention Site Orange in Afghanistan, Detention Site Brown in Afghanistan, Detention Site Gray in Afghanistan, and Detention Site Black was identified as having been located in Romania (see also paragraphs 122 and 132-145 above; see also Al Nashiri v. Romania, cited above, § 159). I. Parliamentary inquiry in Lithuania 167. The facts set out below are based on the Annex to the Seimas’ Resolution No.", "XI-659 of 19 January 2010 – “Findings of the parliamentary investigation by the Seimas Committee on National Security and Defence concerning the alleged transportation and confinement of persons detained by the Central Intelligence Agency of the United States of America on the territory of the Republic of Lithuania” (“CNSD Findings”; see paragraph 173 below), a document which contains a comprehensive description of a parliamentary investigation conducted in Lithuania in 2009‑2010 in the context of the alleged existence of a CIA secret detention facility in the country. 168. On 9 September 2009, in connection with various media reports and publicly expressed concerns regarding the alleged existence of a CIA secret detention facility in Lithuania, the Seimas Committee on National Security and Defence (“the CNSD” or “the Committee”) and the Seimas Committee on Foreign Affairs held a joint meeting at which they heard representatives of State institutions in relation to the media reports concerning the transportation and detention of CIA prisoners in the Republic of Lithuania. The committees did not receive any data confirming the existence of a CIA prison in Lithuania. Written replies submitted to them by State institutions denied that such a prison had ever existed.", "169. On 20 October 2009, during his visit to Lithuania, the Commissioner for Human Rights of the Council of Europe, Mr Thomas Hammarberg urged the authorities to carry out a thorough investigation concerning the suspicions that a secret CIA prison had operated in the country. 170. On 20 October 2009, at a press conference, the President of the Republic, Ms Dalia Grybauskaitė, in reply to questions regarding the alleged existence of a CIA prison in Lithuania, said that she had “indirect suspicions” that it could have been in Lithuania. 1.", "The Seimas investigation and findings 171. On 5 November 2009 the Seimas adopted Resolution No. XI-459, assigning the CNSD to conduct a parliamentary investigation into the allegations of transportation and confinement of individuals detained by the CIA on Lithuanian territory. The following questions were posed to the CNSD: (1) whether CIA detainees were subject to transportation and confinement on the territory of the Republic of Lithuania; (2) whether secret CIA detention centres had operated on the territory of the Republic of Lithuania; (3) whether State institutions of the Republic of Lithuania (politicians, officers, civil servants) considered issues relating to activities of secret CIA detention centres or transportation and confinement of detainees in the Republic of Lithuania. 172.", "While conducting the parliamentary investigation, the CNSD interviewed, either orally or in writing, fifty-five individuals who might have been aware of information or who declared that they were aware of information relating to the issues under investigation. The Committee interviewed politicians, civil servants and officers who had held office between 2002 and 2005 or at the time of the investigation, including, among others, the Presidents of the Republic, the Speakers of the Seimas, the Prime Ministers, the Members of the European Parliament, the Ministers of National Defence, Foreign Affairs and the Interior, the Vice Minister of the Interior, the Commanders of the Armed Forces, the Chairmen and members of the Seimas Committee on National Security and Defence and the Seimas Committee on Foreign Affairs, the Directors and the Deputy Directors of the State Security Department (“SSD”), the Director and the Deputy Directors of the Second Investigation Department under the Ministry of National Defence, the Commanders and the Deputy Commanders of the State Border Guard Service at the Ministry of the Interior (“SBGS”), advisers to the Presidents of the Republic, the Director of the Civil Aviation Administration, the Director of Vilnius International Airport and the Aviation Security Director of Vilnius International Airport. 173. In addition, requests for submission of information in writing were addressed to the various ministries, the civil aviation administration, the SBGS, Vilnius International Airport, the Customs Department and other authorities. Requests were also submitted to the international organisation Amnesty International, Senator Dick Marty and, with the assistance of the Ministry of Foreign Affairs, the relevant authorities in the United States.", "The authorised representatives of the latter replied orally. In the course of the parliamentary investigation, some facilities and premises were inspected. 174. On 19 January 2010 the Seimas adopted Resolution No. XI-659, whereby it endorsed the CNSD Findings, which, in so far as relevant, read as follows: “1.", "Were CIA detainees subject to transportation and confinement on the territory of the Republic of Lithuania? According to the data of the state enterprise Oro navigacija [Air Navigation], in 2002-2005 the US aircraft referred to in the media and official investigations of the European Parliament as aircraft used to transport CIA detainees, i.e. N85VM (GLF4), N2189M (C-130), N8183J (C-130), N8213G (C-130), 510MG (GLF4), N313P (Boeing 737), No N379P, (GLF5), N1HC (GLF5), crossed Lithuania’s airspace on 29 occasions. These data were presented on 28 April 2006 when preparing a reply to an inquiry by Dick Marty, Chairman of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe, regarding the numbers of 41 aircraft indicated therein. In the course of the investigation, the Committee established that three occasions of crossing of Lithuania’s airspace were omitted in the mentioned reply to ... D. Marty ... and in the data provided by the state enterprise Oro navigacija: (1) CASA C-212 N96IBW, landed in Palanga on 2 January 2005; (2) Boeing 737 N787WH, landed in Palanga on 18 February 2005; (3) Boeing 737 N787WH, landed in Vilnius on 6 October 2005.", "In the course of the investigation, with a view to verifying whether the CIA-related aircraft indicated in the material of the Temporary Committee of the European Parliament landed at Lithuania’s airports and whether the enterprises referred to in the material made financial settlements for servicing of these aircraft, the Civil Aviation Administration was addressed and provided the information on the flights of the US aircraft, based on the data and financial documents of the companies and aircraft service enterprises operating at Vilnius, Kaunas, Šiauliai and Palanga airports. When comparing the submitted data with the material of the Temporary Committee of the European Parliament, it was established that: Two CIA-related aircraft landed at Vilnius International Airport: (1) ’C-130’, registration No N8213G (4 February 2003, route Frankfurt-Vilnius-Warsaw, landed at 6.15 p.m., departed at 7.27 p.m.); 2) ’Boeing 737’, registration No N787WH (6 October 2005, route Antalya-Tallinn-Vilnius-Oslo. A letter from Vilnius International Airport dated 7 December 2009 states that this aircraft arrived from Tirana at 4.54 a.m. and departed at 5.59 a.m. According to the documents of the SBGS, this aircraft arrived from Antalya and departed for Oslo). Three CIA-related aircraft landed at Palanga International Airport: (1) ’CASA C-212’, registration No N961BW (2 January 2005, operator Presidential Airways, route Flesland (Norway)-Palanga-Simferopol (Ukraine), departed on 5 January 2005 at 9 a.m.); (2) ’Boeing 737’, registration No N787WH (18 February 2005, operator Victory Aviation, route Bucharest-Palanga-Copenhagen, arrived at 6.09 p.m., departed at 7.30 p.m.", "It was recorded that the aircraft arrived carrying five passengers and three crew members); (3) ’Boeing 737-800’, registration No N733MA (25 March 2006, route Porto (Portugal)-Palanga-Porto, arrived at 10.25 p.m. and departed at 11.55 p.m.). In the course of the investigation, the Committee did not establish any cases of CIA‑related aircraft landing at Kaunas and Šiauliai airports. Attention should be drawn to the fact that the Committee did not receive any data or documents from Vilnius International Airport or airport service companies confirming that on 20 September 2004 and in July 2005 (the exact date was not specified by the US television channel ABC News) presumable CIA-related aircraft landed at Vilnius International Airport. In the course of the parliamentary investigation, the SSD submitted information regarding its cooperation with the SBGS in 2002-2006. It is evident from the documents submitted to the Committee that there had been an intensive exchange of data (including data provided by partners regarding the search for persons suspected of terrorism) in the field of combating terrorism.", "A period of time from April 2004 until September 2005 during which the SSD did not provide any information on the suspected terrorists to the SBGS should be singled out. During the investigation, three occasions were established on which, according to the testimony of the SSD officers, they received the aircraft and escorted what was brought by them with the knowledge of the heads of the SSD: (1) ’Boeing 737’, registration No N787WH, which landed in Palanga on 18 February 2005. According to data submitted by the SBGS, five passengers arrived in that aircraft, none of whom was mentioned by the former Deputy Director General of the SSD Dainius Dabašinskas in the explanations he gave the Committee at the meeting. According to Customs data, no thorough customs inspection of the aircraft was carried out and no cargo was unloaded from it or onto it; (2) ’Boeing 737’, registration No N787WH, which landed in Vilnius on 6 October 2005. According to data submitted by the SBGS, its officers were prevented from inspecting the aircraft; therefore, it is impossible to establish whether any passengers were on board of the aircraft.", "No customs inspection of the aircraft was carried out; (3) ’Boeing 737-800’, registration No N733MA, which landed in Palanga on 25 March 2006. According to Customs data, no customs inspection was carried out. The documents of the SBGS contain no records of the landing and inspection of this aircraft. Persons providing explanations to the Committee indicated that in similar cases cooperation takes place in accordance with the provisions of the Law on Intelligence in relation to the provision of assistance to an intelligence service in getting unrestricted access to aircraft and access to/departure from the territory of the airport; however, as indicated by the information submitted by the SBGS, upon the landing of the unscheduled aircraft from Antalya at Vilnius International Airport at 5.15 am on 6 October 2005, civil aviation officers prevented the SBGS officer from approaching the aircraft. In his official report, the officer stated that a car drove away from the aircraft and left the territory of the airport border control point.", "Upon contacting the civil aviation officers, it was explained that the heads of the SBGS had been informed of the landing of the above mentioned aircraft and the actions taken by the civil aviation officers. The letter from the SSD marked as ‘CLASSIFIED’ regarding the mentioned event was received by the SBGS on 7 October 2005, i.e., post factum. It should to be noted that before the above mentioned event, the SSD had never issued any letters of similar content to other services. The explanations provided in the course of the investigation make it evident that oral arrangements had been made with representatives of the airport and aviation security. In the course of the investigation, another occasion was established on which the SSD applied to the SBGS with a similar letter (24 March 2006) in relation to the flight of an aircraft to Palanga airport on 25 March 2006.", "As explained by the heads of the SBGS, this is a common cooperation practice. According to Commander of the SBGS General S. Stripeika, had the SBGS received the letter from the SSD before 6 October 2005, the incident would have not occurred and officers of the SBGS would have not interfered with the activities of the SSD. In 2002-2005, the aircraft which official investigations link to the transportation of CIA detainees crossed the airspace of the Republic of Lithuania on repeated occasions. The data collected by the Committee indicate that CIA-related aircraft did land in Lithuania within the mentioned period of time. The Committee failed to establish whether CIA detainees were transported through the territory of the Republic of Lithuania or were brought into or out of the territory of the Republic of Lithuania; however, conditions for such transportation did exist.", "Deputy Director General of the SSD D. Dabašinskas, with the knowledge of Director General of the SSD A. Pocius, provided the US officers with opportunities to have unrestricted access to the aircraft on at least two occasions. In addition, at least on one occasion the opportunities for inspection of the aircraft by the SBGS officers were deliberately restricted. In all the above-mentioned cases, there was no customs inspection. Therefore, it was impossible to establish either the identity of the passengers or the purpose of the cargo. 2.", "Did secret CIA detention centres operate in the territory of the Republic of Lithuania? The cases of partnership cooperation which are of relevance to the parliamentary investigation, carried out by the SSD in 2002-2006 and involving the equipment of certain tailored facilities, may be referred to as Project No. 1 and Project No. 2. Based on the information received in the course of the parliamentary investigation, the implementation of partnership cooperation Project No.", "1 was commenced by the SSD in 2002. In the course of the project, facilities suitable for holding detainees were equipped, taking account of the requests and conditions set out by the partners. Director General of the SSD M. Laurinkus and his deputy D. Dabašinskas both had knowledge of the project. When instructing the contractors to equip the facilities, the latter mentioned that the project ‘had been blessed by the top officials of the State’; however, according to the testimony of the then political leadership, they had not been informed of it. According to the data available to the Committee, the facilities were not used for the purpose of holding detainees.", "At present, they are used for other purposes. The SSD submitted information that based on the documents held by the SSD, these facilities were equipped for the purpose other than holding detainees. The implementation of Project No. 2, which was also examined in the course of the parliamentary investigation, was commenced by the SSD in the beginning of 2004. The necessary acquisitions were made for the purpose of implementation of the project, construction works were carried out to equip the facility, with the progress of works ensured by the partners themselves.", "The building was reconstructed to meet certain security requirements. The SSD officers participated in the implementation of this project together with partners and, according to the officers, had unrestricted access to all the premises of the facility, however, when representatives of the partners were present in the facility, they did not visit some of the premises. The time of such meetings and adequate arrangements were communicated to the SSD officers by Deputy Director General of the SSD D. Dabašinskas. According to the SSD officers, representatives of the partners were never left alone in the facility. They were always accompanied by either D. Dabašinskas or one of the SSD officers.", "According to the information received in the course of the investigation, it is evident that the SSD did not seek to control the activities of the partners in Project No. 2. The SSD did not monitor and record cargoes brought in and out and did not control the arrival and departure of the partners; in addition, the SSD did not always have the possibility to observe every person arriving and departing. The procedure for accounting and using monetary funds and material valuables intended for financing of joint actions is approved by internal regulations of the SSD, however, based on the explanation provided in the course of the parliamentary investigation regarding one of the implemented joint projects and monetary funds used for its implementation, the accounting of these funds was inappropriate. Explanations provided by individual persons in relation to the sources of financing of joint actions, amounts of monetary funds used for separate actions or accounting thereof are not consistent and therefore require further investigation.", "The Committee established that the SSD had received a request from the partners to equip facilities in Lithuania suitable for holding detainees. While implementing Project No. 1 in 2002, conditions were created for holding detainees in Lithuania; however, according to the data available to the Committee, the premises were not used for that purpose. The persons who gave testimony to the Committee deny any preconditions for and possibilities of holding and interrogating detainees at the facilities of Project No. 2; however, the layout of the building, its enclosed nature and protection of the perimeter as well as fragmented presence of the SSD staff in the premises allowed for the performance of actions by officers of the partners without the control of the SSD and use of the infrastructure at their discretion.", "3. Did state institutions of the Republic of Lithuania (politicians, officers and civil servants) consider the issues relating to activities of secret CIA detention centres in the territory of the Republic of Lithuania, transportation and confinement of detainees in the territory of the Republic of Lithuania? The Committee received certain information about international cooperation of the SSD with partners and application of special measures provided for in the Law on Intelligence during joint operations. The legal basis of international cooperation of the SSD is laid down in the Law on Intelligence. ...", "When summarising [the relevant provisions of the Law on Intelligence], a conclusion should be drawn that legal acts do not directly require the directions (tasks) of international cooperation of the SSD to be approved at any specific political level (at the State Defence Council, the CNSD); such directions (tasks) used to arise from a general need for international cooperation and direct contacts of the SSD with secret services of other countries. However, in seeking to obtain recommendations of the State Defence Council concerning international cooperation, the SSD could submit to the State Defence Council (or the President of the Republic, who initiates sittings of the State Defence Council) the information necessary to draw up such recommendations. In 2002-2005, such issues were not considered at the State Defence Council and there were no recommendations. This is partially confirmed by the letter of the Secretary of the State Defence Council of 3 December 2009, stating that in 2001-2005 wide-scale direct cooperation between the SSD and CIA was mentioned only once - at a sitting of the State Defence Council (19 September 2001) when considering the issue on international terrorism and anti-terrorist actions and prevention, crisis management and the legal base. None of the country’s top officials, according to them, were informed about the purposes and content of partnership cooperation of the SSD in 2002.", "Only several officers of the SSD had knowledge of Project No. 1. According to the testimony of the former Director General of the SSD M. Laurinkus, in mid-2003 he informed the then President of the Republic R. Paksas about a possibility, after Lithuania’s accession to NATO, to receive a request to participate in the programme concerning the transportation of detainees. According to the testimony of R. Paksas, Lithuania was requested permission to bring into the country the persons suspected of terrorism. The information submitted to the President of the Republic did not contain any mention of a detention centre or a prison.", "In August of the same year, when President of the Republic R. Paksas enquired the then acting Director General D. Dabašinskas if there was any new information concerning Lithuania’s participation in the said programme, he was told that there was no new information. Although Director General of the SSD M. Laurinkus received a negative answer from President of the Republic R. Paksas regarding the bringing into the Republic of Lithuania of persons interrogated by the USA, neither the then President of the Republic R. Paksas nor acting President of the Republic A. Paulauskas was asked for political approval of activities under Project No. 2. M. Laurinkus had knowledge of launching the activities under Project No. 2 in March‑April 2004.", "According to President of the Republic V. Adamkus, he was informed about cooperation with the USA in general terms and no information was provided to him about running of Project No. 2 in 2004-2006. According to A. Pocius, President of the Republic V. Adamkus and his advisors were adequately informed of the project. Several SSD officers, including M. Laurinkus, A. Pocius, D. Dabašinskas, had the knowledge of Project No. 2 at the time of launching and running thereof.", "On 18 August 2009, Head of the SSD P. Malakauskas informed President of the Republic D. Grybauskaitė (as well as former Presidents of the Republic V. Adamkus and A. M. Brazauskas) that ABC News was preparing articles about the CIA detainees who had allegedly been confined in Lithuania and planning to name one of the facilities owned by the SSD as a prison. P. Malakauskas could not deny the possibility of confinement in Lithuania of the persons detained by the CIA. Likewise, while considering the reports of the SSD, the CNSD was provided information about international cooperation in a fragmentary manner. For instance, when considering the SSD’s activity report of 2003, it was mentioned that ‘cooperation with NATO member states is in progress. A wish for more active cooperation with the SSD can already be perceived on the side of the Allies, which will require additional staff, investments.’ Decisions of the CNSD on the SSD’s reports never contained any proposals concerning international cooperation.", "Information gathered by the Committee and the explanations received by it show that the State Defence Council, the Government and the Seimas have not considered issues relating to any activities of secret CIA detention centres in the territory of the Republic of Lithuania, or to the transportation and confinement of detainees in the territory of the Republic of Lithuania. According to the country’s top officials (Presidents of the Republic, Prime Ministers, and Speakers of the Seimas), the members of the CNSD of the Seimas were informed about the international cooperation between the SSD and the CIA in a general fashion, without discussing specific operations or their outcomes. The mention of wide-scale direct cooperation between the SSD and CIA was made only once, at a sitting of the State Defence Council (19 September 2001) when considering the issue of international terrorism and anti-terrorist actions and prevention, crisis management and the legal bases for all these. Transportation and detention of detainees were not discussed at the sitting of the State Defence Council of Lithuania. The CNSD of the Seimas was not informed of the nature of the cooperation taking place.", "On the basis of the information received, the Committee established that when carrying out the SSD partnership cooperation Project No. 1 and Project No. 2, the then heads of the SSD did not inform any of the country’s top officials of the purposes and content of the said Projects.” 175. The final proposal was formulated as follows: “to propose to the Prosecutor General’s Office to investigate whether the actions of M. Laurinkus, A. Pocius and D. Dabašinskas had elements of abuse of office or exceeding authority”. 176.", "The findings were accompanied by eight recommendations, including, among other things, “enhancing coordination and control of activities of intelligence services”, “improving the provision of information to the country’s top officials” and “improving provisions of the Law on Intelligence”. 2. Extracts from transcripts of the Seimas’ debates on the CNSD Findings 177. The applicant supplied a summary of the transcripts of the debates on the CNSD Findings held in the Lithuanian Parliament on 14 January 2010. 178.", "That documents reads, in so far as relevant, as follows: “MP A. Anušauskas, Chairman of the CNSD, is invited to present the draft Resolution on the Findings. ... During the investigation, the Committee obtained considerable amount of secret information, ranging from restricted to highly classified information marked as ‘Top Secret’. Because of the high amount of classified information, the preparation of the findings was not an easy task. The classified information was related to the activities of secret services and subtle options the services use in their work. Without these subtle options, neither intelligence nor cooperation with the special services of other states in such areas as fight with terrorism would be possible.", "Despite that, parliamentary control of secret services must nevertheless be exceptional and strong. Some of the data, gathered during the investigation, were not made public as it constitutes a state secret. To summarize the investigation, the Committee has established that CIA aircraft have landed in Lithuania. It has not established whether the persons detained by the CIA were transported to or transferred through the Lithuanian territory; the heads of the SSD at that time created conditions for the U.S. officers to access the planes unobstructed at least on two occasions. Moreover, at least once State Border Guard Service officers were prevented from performing border control checks.", "During all of the mentioned incidents, customs inspections were not carried out. The Committee has established that the SSD received a request from partners to install premises in Lithuania, suitable for keeping detainees. ... QUESTIONS (all replies are by MP Anušauskas, Conservative Party, ruling coalition) MP V. Mazuronis (Order and Justice Party, opposition) Question: I pity you that you had such an ungrateful task, similar to searching for life on Mars. I can only express my sympathy for you.", "But my question is that I have found in the text of the findings that President Adamkus was briefed of the cooperation with the U.S. in general terms only, but he was never informed of the Project No. 2. Mr Pocius claims in his testimony, however, that the President and his advisers were adequately informed. I can see a contradiction here and my question would be who of those two individuals have lied? The one saying he was not informed or the one saying he has informed properly?", "Or maybe there is a way, according to our laws, of informing without actually giving information? Reply: Yes, the question of the level of awareness by the heads of State was being actively discussed. I have to say that in this case we relied on oral testimonies. The thing is that there are no written documents, and no recommendations issued by the State Defence Council. That means, we had to rely on testimonies given by the highest state officials.", "On the other hand, the former SSD officer, who was named by you, introduced us to four methods of passing information onto the head of State. Only one of those methods seemed adequate. I will not name all of them, but one of them was ‘I have informed through President’s advisers, and I don’t know if they understood’. In this case [replying to your question - M.A. ], I think, we can select any of those two options which seems more acceptable to us.", "MP V. Andriukaitis (Social Democratic Party, opposition) Question: The Parliament has set very specific questions for the inquiry, and one of them was whether CIA detainees were transported to and detained in the territory of Lithuania. Your answer to that question is Solomon-like - that the Committee has not established but the preconditions for transportation existed. Preconditions for transportation exist in the whole world: trains, planes are flying, bicycles are being ridden. To the question whether secret detention centres were operating, you have also failed to answer. I want to ask you what exactly prevented you from answering those very specific questions - lack of data, lack of competence or maybe something else.", "Reply: First of all, the Committee is not talking of such general preconditions as existence of airports, but very specific preconditions. That is, preconditions created by the SSD officers to enter the territory of Lithuania unobstructed, without aircraft inspections and customs inspections. These are relatively specific preconditions. In this case, the findings are not based on assumptions, I will stress this, but on the testimonies of the witnesses and the documents obtained. Yes, we cannot show in the findings all of the details revealed by the testimonies and the contents of the documents obtained, because the detailed information on cooperation with foreign secret services, its proceedings, objects, contents and results constitute a state secret.", "In this case, this is not included in the text of the findings, but that does not mean that the Committee has not examined this data. Bearing this in mind, what might appear as assumptions at first, are based on facts and documents. ... MP J. Juozapaitis (Social Democratic Party, opposition) Question: Your committee writes in the findings that the preconditions were created for transportation and detention of persons. My question would be under whose orders and who has created those preconditions for transportation and detention of those prisoners in Lithuania? Reply: I have to mention one circumstance which is often ignored.", "The Council of Europe and the European Parliament have also conducted investigations and established aircraft, planes which were transporting the prisoners. Some of them have acquired very clear names, and their routes were always directed to Guantánamo, and then back to Afghanistan, transiting through European states. A list of the aircraft emerged during those investigations. The aircraft was linked with transportation of prisoners. Yes, it is not known what was being transported, but it is known that the prisoners were being transported through European states.", "The aircraft have crossed Lithuanian airspace too. Who gave [the orders ...] and who created preconditions? We named those individuals; three officers who were serving as deputies to the head of SSD, they are responsible for those actions and possible violations of the laws. ... MP J. Veselka (Order and Justice Party, opposition) Question: It is evident from your findings that a secret detention centre was built here for CIA money. Secondly, there were planes that were prevented by Dabašinskas from inspection.", "Further, George Bush has declared during his visit, that Lithuanian enemies are the US enemies. With no purpose, no one gives this kind of promises. Further, former SSD heads, as I see them, were great careerists and political cowards. Fifthly, former President Paksas testified to you that the SSD heads informed him about these matters. Hence, I draw the conclusion that the rest of the heads, who pretended they knew nothing, they, honestly speaking, lied to you, because those SSD officers, careerists and political cowards, could not have done this independently.", "Or do you think it’s possible? What needs to be done to make the heads of State to tell the truth in this kind of situation? Reply: There are amendments being prepared. First of all, it is necessary to make sure that document trail is left, because in this case a lot was being done by oral arrangements. I would not dare to claim the heads of State have lied.", "More likely they were not adequately informed, and their advisers testified that they were not being informed to an extent so that to get a clear picture of cooperation with partners. The provision of Intelligence Law, that some of the actions require recommendations from the State Defence Council, was ignored.” J. Criminal investigation in Lithuania 1. Investigation conducted in 2010-2011 179. On 22 January 2010, the Prosecutor General’s Office opened a pre-trial investigation in criminal case No.", "01-2-00016-10, in relation to abuse of office, as defined in Article 228 § 1 of the Criminal Code. The scope of the investigation was defined by the circumstances stated in the CNSD Findings: (1) the arrival of the United States CIA aircraft in Lithuania and departure therefrom, what access United States officials had to the aircraft, and the inspection of the goods and passengers on the aircraft; (2) the implementation of Project No. 1 and Project No. 2; (3) whether the leadership of the State Security Department kept the highest officials of the State informed on the objectives and the content of Project No. 1 and Project No.", "2. Accordingly, the pre-trial investigation had focussed on unrestricted landing and departure of aircraft at Vilnius International Airport and Palanga International Airport, equipment and use of Project No. 1 and equipment and use of Project No. 2; possible involvement of the highest officials of the State in activities related to the operation of detention centres, detainees transportation and detention in the territory of the Republic of Lithuania. 180.", "On 5 February 2010 the Speaker of the Seimas gave her permission to the prosecutors to consult the classified material from the parliamentary inquiry. 181. From 10 February to 14 June 2010 the prosecutor took evidence from fifty-five witnesses, including persons holding high-ranking posts in the SSD, the SBGS and employees of Vilnius and Palanga airports. The witness evidence is classified secret. The Government produced a publicly available summary of witness testimony, which is rendered below (see paragraphs 301-246 below).", "182. On 18 February 2010 the prosecutor asked the SBGS for information concerning an incident that had taken place on 6 October 2005 at 5.15 a.m. when the SBGS officer, a certain R.R. (see also paragraph 366 below) had been denied access to the aircraft whose landing had been unplanned and he could not inspect that aircraft. On the same day, the prosecutor also asked the authorities of Vilnius International Airport for information as to whether the SSD’s letter regarding actions performed by the SSD in the airport on the night of 6 October 2005 had been received before that date. 183.", "On 18 February 2010 the Administration of Civil Aviation informed the prosecutor that, as regards the arrival of aircraft in Vilnius airport on 6 October 2005, they could have confused the code of Antalya and Tirana due to their similarity. 184. On 3 March 2010 the prosecutor asked the Customs Department for certain documents and information whether a customs inspection had been carried out in respect of, among others, the plane N787WH that had landed in Vilnius airport from Antalya, including the cargo on board the plane or the luggage of the passengers. On 12 April 2010 the Customs Department replied that the flight from Antalya had not been inspected and that neither information about the passengers, nor their luggage nor the cargo had been recorded. It also stated that the plane N787WH that had landed on 18 February 2005 at 8.09 p.m. at Palanga airport had not been recorded.", "185. On 3 and 4 March 2010 the prosecutor made various requests for information and documents to the SBGS and Vilnius and Palanga airports. In particular, he asked for copies of any SSD’s requests for access to the aircraft, airport registration records, flight schedules and flight service invoices. He subsequently received the following replies: (a) the SBGS had received a classified letter from the SSD regarding access to the aircraft on 6 October 2005 after that date; (b) Vilnius airport had not received the SSD’s requests; (c) flight schedules supplied by Vilnius airport confirmed that on 6 October 2005 the plane N787WH had arrived from Tirana and not from Antalya; it had then departed for Oslo; (d) Palanga airport had received no requests from the SSD; (e) flight schedules supplied by Palanga airport confirmed that N787WH had been listed as the flight from Bucharest to Copenhagen. 186.", "On 17 March 2010 the prosecutor carried out an on-site inspection of Project No. 1. In that connection, a record of the inspection and plan of the site were drawn up, and photos of the site were made (see also paragraph 361 below). 187. On 2 April 2010 the prosecutor received information relating to the transfer of title to Project No.", "2 (land, buildings and other assets) to the State and the transfer of the property into the SSD’s trust. 188. On 12 and 13 April 2010 the prosecutor made further requests for information and documents to the Aviation Security authorities at Vilnius airport and to the Ministry for Transport and Communications. 189. On 27 May 2010 the SSD supplied copies of documents, including an operational action plan regarding the selection of premises for “the protection of secret intelligence collaborators” (see also paragraph 365 below).", "190. On 4 June 2010 the prosecutor carried out an on-site inspection of Project No. 2. In that connection, a record of the inspection and plan of the site were drawn up, and photos were made (see also paragraph 362 below). 191.", "On 20 September 2010, Reprieve made a “request for investigation” to the Prosecutor General, stating that they were providing legal assistance to the applicant and asking that the prosecutor “urgently investigate new and credible allegations” that Abu Zubaydah had been held by the US in Lithuania “sometime from 2004 to 2006”. They also asked the prosecutor to seek clarifications from the applicant and order an “urgent preservation and disclosure” of all relevant evidence in the possession of US and Lithuanian authorities. As regards the applicant’s clarifications, they submitted a list of questions to him, offering assistance in transmitting them to him and making a declassification request to the US authorities in respect of his future answers. In the alternative or in addition, they proposed that the Lithuanian authorities could ask the US authorities to be allowed to interview the applicant themselves, with counsel present. They provided the following factual information on the applicant’s secret detention: “Unclassified evidence now in the public domain confirms that after being held in Thailand for around eight months, on 4 December 2002, Mr Husayn was ‘rendered’ with another prisoner to a secret prison in Szymany, Poland.", "Mr Husayn was held in Szymany for almost ten months before being transferred along with four other prisoners to a then-secret CIA section of the US military base at Guantánamo Bay. According to recent media reports, Mr Husayn was then held near Rabat, Morocco. Mr Husayn arrived in Morocco in the spring of 2004. Between then and his second rendition to Guantánamo Bay in September 2006, recent information has come to us from a confidential and extremely reliable unclassified source, confirming that Mr Husayn was held in a secret CIA prison in Lithuania. This information come from the most credible sources inside the United States, and is not subject to doubt.", "We need hardly remind you of Lithuania’s duty to seriously investigate these allegations, and the importance of the preliminary work done by journalists and other fact-finders who protect their sources, in the exposure of US abuses on European soil.” 192. Mr Darius Raulušaitis, Deputy Prosecutor General, responded on 27 September 2010, explaining that the ongoing investigation already included the crimes allegedly committed against Abu Zubaydah: “[D]uring the pre-trial investigation not only were the circumstances related to abuse of official position with major legal significance (which was why the pre-trial investigation was initiated) investigated, but also the circumstances which define other criminal acts of which possible individual signs may be seen during the pre-trial investigation. Among such criminal acts are those you have pointed out should also be mentioned, namely illegal deprivation of liberty (Article 146 of the Criminal Code) as well as illegal transportation of people across national borders (Article 292 of the Criminal Code). Considering the fact that the pre-trial investigation in relation to the circumstances provided in your application is already being conducted, please be advised that the circumstances provided in your application will be considered when performing the said pre-trial investigation No. 01-2-00016-10.” 193.", "Mr Raulušaitis asked Reprieve to submit all written information in their possession, which would establish Abu Zubaydah’s presence in Lithuania in the context of the CIA detention, interrogation and rendition programme and to indicate the “confidential and extremely reliable unclassified source” of information relied on by them. 194. Reprieve replied on 18 November 2010. Their letter (referring to the applicant as “Mr Husayn” or “Mr Zubaydah”), in so far as relevant, read as follows. As regards the provision of information: “As you are likely aware, there are substantial obstacles to obtaining and providing this information to you.", "But we are working diligently to overcome them. Mr Husayn’s communications are subject to U.S. government imposed restrictions which require his U.S. counsel to submit all written communications from Mr Husayn to a government censor. We are in the process of attempting to obtain a statement from Mr Husayn that will provide evidence relevant to the questions submitted. We previously recommended that, in addition, the Lithuanian authorities also request from the US authorities that they be allowed to interview Mr Husayn themselves, with counsel present. I note that a bilateral treaty provides your office with an agreed mechanism to seek independently such information from Mr Zubaydah.", "I refer specifically to the Mutual Legal Assistance in Criminal Matters Treaty between the United States and Lithuania, which entered into force on 26 August 1999. In addition to the testimony of Mr Zubaydah, you can seek to obtain numerous additional sources of information relevant to your investigation, some of which are listed below.” As regards sources of evidence that the prosecutor should pursue as part of a thorough investigation, Reprieve proposed that the prosecutor: “1. Sought to obtain testimony of Abu Zubaydah, regarding the unlawful detention and subjection to torture and inhuman, degrading treatment as well as the circumstances connected with his transportation between other places of detention and circumstances allowing the identification of the place where he was detained in the Republic of Lithuania; 2. Sought to obtain testimony regarding the capture of Abu Zubaydah, place or places of his detention, conditions in which he was detained, methods of his interrogation used by CIA officers and other persons who had access to him, from George Tenet (General Director of the CIA between 11 July 1997 and 11 July 2004); John McLaughlin (acting General Director of the CIA between 11 July 2004 and 24 September 2004); Porter Goss (General Director of the CIA between 24 September 2004 and 30 May 2006); Michael Hayden (General Director of the CIA between 30 May 2006 and 12 February 2009) and Leon Panetta (current Director of the CIA) as well as from other persons cooperating with CIA officers within the territory of the Republic of Lithuania and persons possessing knowledge about their activities; 3. Sought to obtain evidence from national and international repositories of aviation and flight data, including Eurocontrol and SITA, regarding flights into and out of Lithuania during this period by the following planes mentioned in the public record: N787WH, N733MA, N8213G, N88ZL, N961BW, N1HC and N63MU.", "In particular, please inform me whether you have sought to obtain records regarding the flights of a. a plane registered as N961BW on or about 2 January 2005 b. a plane registered as N787WH on or about 18 February 2005 c. a plane registered as N733MA on or about 25 March 2006 d. a plane registered as N63MU on or about 28 July 2005, probably arriving at Vilnius Airport from Kabul; e. Any other suspicious flights during the relevant time period; 4. Sought to obtain evidence from the sites of the alleged prisons and their environs, including eyewitness testimony, forensic testimony and testimony of potential key witnesses including employees at those sites during the period in question; and to this end required the preservation of evidence on the two identified sites, including traces of blood, hair and other biological specimens that would enable the prosecutor to identify the victims and perpetrators; 5. Sought to obtain testimony from the companies involved in flights into and out of Lithuania during this period by the planes discussed in the Committee’s findings, including those who took part in trip planning, ground handling, refuelling, trash disposal and other services. 6. Sought to obtain testimony on flight routes and cargo, human and otherwise, from captain and crew flight into and out of Lithuania during this period by the planes mentioned above; 7.", "Sought to obtain testimony concerning conditions of confinement at CIA black sites from Geoff Loane and other authors of the International Committee of the Red Cross Report on the treatment of the fourteen high-value detainees in CIA custody dated 14 February 2007; 8. Sought to obtain testimony from key witnesses from Lithuanian state institutions, regarding cooperation with the USA in the ‘War on terror’ during the period in question, including former [Minister of National Defence] Gediminas Kirkilas, former President [of the Republic] Valdas Adamkus, former [Minister of the Interior] Virgilijus Bulovas, former [Minister of the Interior] Gintaras Furmanavičius, former [Minister of Foreign Affairs] Antanas Valionis, former [Minister of National Defence] Linas Linkevičius, former Deputy Director [of the] State Security Department Darius Jurgelevičius, former [Deputy Director] for Intelligence for State Security [Department] Dainius Dabašinskas, former [Minister of Foreign Affairs] Vygaudas Ušackas, President [of the Republic] Dalia Grybauskaitė, Prime Minister Andrius Kubilius; [Dainius] Žalimas, legal adviser to the Lithuanian [Ministry of National Defence].” Reprieve also requested information about the progress of the investigation. 195. On 13 January 2011 the prosecutor refused Reprieve’s request, on the basis that Reprieve was “not a party to the proceedings [with] the right to examine the material of the pre-trial investigation”. The prosecutor also noted that, in accordance with Article 177 § 1 of the Code of Criminal Procedure, the material of the pre-trial investigation was not public.", "196. On 14 January 2011 the prosecutor discontinued the pre-trial investigation No. 01-2-00016-10 on the ground that “no action/inaction had been committed which constituted evidence of a criminal offence or a criminal misdemeanour.” The decision was based on Articles 3 § 1 (1), 212 § 1, 214 and 216 of the Code of Criminal Procedure. 197. The decision stated that in the course of the pre-trial investigation the persons questioned had been those relevant to the subject matter of the investigation and possessing significant information for the resolution of the case.", "Documents essential for the pre-trial investigation were obtained, and information and premises inspected: these were referred to in the CNSD Findings as Project No. 1 and Project No. 2. For the prosecutor, the totality of the information obtained in the course of the pre-trial investigation was sufficient to reach a conclusion and to adopt a procedural decision. It was also noted that a large part of the information obtained in the course of the investigation was to be treated as classified, because it constituted State or official secrets.", "Accordingly, such information was not discussed in the report in detail, and the document was restricted to the presentation of the grounds on which the procedural decision was based. Lastly, the prosecutor observed that in the context of the pre-trial investigation he had examined not only material related to alleged abuse of office, but also whether there was evidence of any other criminal offences in connection with the matters investigated. 198. As regards the arrival of the United States CIA aircraft in Lithuania and departure therefrom, the access the United States officials had to the aircraft and the inspection of goods and passengers on the aircraft, the prosecutor found: “In the course of the pre-trial investigation it has been established that the aircraft linked with the United States Central Intelligence Agency did arrive in and depart from the Republic of Lithuania. It has also been established that on some occasions Customs and State Border Protection Service inspections ... were not carried out.", "However, on every occasion such actions were taken in accordance with the procedure stipulated by the Law on Intelligence [Article 9] and the appropriate airport and State Border Protection Service officials had been advised in advance in writing (or verbally) [that SSD officials would meet the aircraft and the goods]. This was confirmed by the documents in the case file which were provided by the SSD, and also by witnesses who have been questioned – airport staff and officials of the SBGS and the SSD. ... It should be noted that Article 16 of the Law on Intelligence stipulates that State institutions and officials are not allowed to interfere with or otherwise influence intelligence activities carried out by intelligence officers. Official vehicles of intelligence staff may not be inspected without the permission of the Prosecutor General.", "No data have been obtained in the course of the pre-trial investigation indicating that the aforementioned aircraft were used to illegally bring or remove any persons [to and from Lithuanian territory]. On the contrary, those questioned in the course of the investigation either categorically denied this or stated that they did not have any information in that regard. Obviously, given that no inspection of the aircraft or the motor vehicles used by the intelligence officers had been carried out, this possibility, which is exceptionally theoretical, does remain (and it was so stated in the Parliament’s CNSD Findings). However, there is no factual evidence to suggest that actions of such a nature (illegal transportation of persons) took place. Therefore, an assertion that the aircraft linked with the United States Central Intelligence Agency was used to transport or to bring to the territory of the Republic of Lithuania (or to remove from it) individuals detained by the CIA, from the point of view of criminal law is a hypothesis which is not supported by factual evidence.", "Such a hypothesis is of the same value as a hypothesis that any other persons or goods of restricted circulation were transported. In the absence of factual information to support this hypothesis, it is not possible to bring criminal charges or to continue criminal proceedings in this respect. To reach the opposite conclusion would require specific information, which could allow a finding that a criminal offence has been committed. ... As has been stated, no such information is available about any possibly criminal offences at the time of this procedural decision. Accordingly, it must be concluded that the SSD officers, who sought and obtained uninterrupted access to the airports’ territory where the [CIA] aircraft had landed, had acted in a lawful manner and had not abused their office or exceeded the limits of their authority and, consequently, did not commit the criminal offence stipulated in Article 228 of the Criminal Code [abuse of office].", "Having concluded that there is no information about illegal transportation of persons on board aircraft linked to the United States Central Intelligence Agency, it should also be stated that there are no grounds to bring criminal charges pursuant to Article 291 (unlawful crossing of a State border) or Article 292 (unlawful carrying of persons over a State border).” 199. Regarding the construction and operation of alleged secret prisons (Projects No. 1 and No. 2), the prosecutor stated that: “In the course of the pre-trial investigation it was established that the SSD of the Republic of Lithuania, together with the CIA of the United States of America, implemented, in 2002, Project No. 1, referred to in the CNSD Findings, and in 2004 implemented Project No.", "2, referred in the CNSD Findings. Both projects had been related to the reconstruction and outfitting of the buildings. ... The statute of limitations on any alleged abuse of office violations, which was the subject of the investigation, meant that no prosecution was possible for violations in relation to Project No. 1.", "Nevertheless, regardless of this procedural impediment to the pre-trial investigation, it should also be noted that in the course thereof no unequivocal information was obtained to the effect that when implementing Project No. 1 the premises were outfitted specifically for the purpose of incarcerating detained persons. Factual information received about specific aspects of the premises (which allows the hypothesis that it was possible to keep a detained person there), when appraised together with the evidence that supports other (different) designations of the premises, and taking into account the fact that there is no information available that [any] detained persons had in fact been taken to or kept in those premises, does not provide a sufficient basis to charge a person with abuse of office and to pursue criminal proceedings. As to Project No. 2, in the course of the pre-trial investigation no data was received to suggest that this project was used for keeping detained persons.", "To the contrary, the factual information and the testimony of all the witnesses support other purposes and use of the building, while the circumstances referred to in the [CNSD] Findings that ‘the layout of the building, its enclosed nature and protection of the perimeter as well as the sporadic presence of the SSD staff in the premises allowed for actions to be taken by officers of the partners without being monitored by the SSD, and also allowed them to use the infrastructure at their discretion’ do not create a basis for criminal charges and merely confirm that cooperation between the SSD and the CIA took place and that the building served other purposes. The real purpose of the building may not be revealed, as it constitutes a State secret. It should be concluded that by the joint implementation of Project No. 1 and Project No. 2 by the SSD and the CIA a criminal offence under Article 228 of the Criminal Code [abuse of office] has not been committed.", "[Moreover], even without restricting oneself merely to legal appraisal of the potentially criminal actions suggested at the beginning of the pre-trial investigation and its qualification in accordance with Article 288 of the Criminal Code, it should be noted that there are no grounds to bring criminal charges in accordance with Articles 100 (treatment of people prohibited by international law) or 146 (unlawful restriction of liberty), because, as has already been mentioned, during the pre-trial investigation no information was obtained about unlawful transportation of persons, their detention, arrest or other unlawful restriction of their liberty. ... This decision to terminate the pre-trial investigation also gives the answer to the statement by Reprieve, received by the Office of the Prosecutor General of the Republic of Lithuania on 20 September 2010. The statement presented a version of events according to which the officers of the United States Central Intelligence Agency between spring 2004 and September 2006 conveyed a detained person, [Abu Zubaydah], to the Republic of Lithuania, detained him in Lithuania and removed him from there. Reprieve did not provide any factual information to support this, no source of information has been provided or revealed, and in the course of the pre-trial investigation, as has been noted, no information was received about illegal transportation of anyone, including [Abu Zubaydah], into or out of the Republic of Lithuania by the United States Central Intelligence Agency.” 200.", "On the question whether the leadership of the SSD had kept the highest officials of the State informed about the objectives and the content of Project No. 1 and Project No. 2, the prosecutor found: “As has been correctly stated in the [CNSD] Findings, the legal basis for the international cooperation of the SSD is stipulated in the Law on Intelligence, and there is no requirement in law for the directions (or tasks) relating to international cooperation to ‘be cleared’ at any political level (at the State Defence Council or the National Security and Defence Committee [of the Seimas]). The directions to be followed or tasks to be undertaken emerged from a general need for international cooperation and from direct contacts between the SSD and the special services of other countries. In the joint implementation of Project No.", "1 and Project No. 2 by the SSD of the Republic of Lithuania together with the CIA of the United States of America, the leadership of the SSD at that time did not advise any high-level official of the State about the objectives and the content of these projects. Having concluded that the law does not stipulate a duty to supply this information, and also taking into account that this information, because of its scope, may be and should be shared on a ‘need to know’ basis, it follows that in this part [of the investigation] too there is no evidence of a criminal offence or abuse of office. ... When summing up the information gathered in the course of the pre-trial investigation, it has to be stated that all necessary and sufficient measures and possibilities had been exhausted to collect information on any criminal offences committed.", "However, in the course of the pre-trial investigation no objective data was gathered which would confirm that there had been abuse of office (or another criminal offence) and the totality of the factual information is not sufficient to find that criminal offences were committed. Therefore, at the present time it is not possible to conclude that criminal offences were committed. On the contrary, the hypothetical suppositions which were the basis for the pre-trial investigation [on the charges of abuse of office, Article 228 of the Criminal Code] have not been confirmed, and have been ruled out of evidence. Article 3 § 1 (1) of the Code of Criminal Procedure stipulates that criminal proceedings may not be started, and if they have been started they must be terminated, where there is no indication of a criminal offence or a criminal misdemeanour. Therefore, this pre-trial investigation No.", "01-2-00016-10 must be discontinued, because there is nothing to indicate that there has been a criminal offence or misdemeanour. It has already been concluded that, to summarise the factual information contained in the material of the pre-trial investigation about the cooperation between the SSD and the United States Central Intelligence Agency in Project No. 1 and Project No. 2, no criminal offence has been committed as regards provision of information to the highest officials of the State. However, there is sufficient evidence to find that actions of the former chief executives of the SSD who had coordinated the cooperation between the SSD and the United States Central Intelligence Agency and of those who took part in that cooperation, Mečys Laurinkus, Arvydas Pocius and Dainius Dabašinskas, as well as actions of the chief executives of the SSD and its other staff who were in charge of the reconstruction of the premises (Project No.", "1 and Project No. 2), who initiated this reconstruction and who carried out this reconstruction, may warrant action for disciplinary offences. However, the former chief executives of the SSD, Mečys Laurinkus, Arvydas Pocius and Dainius Dabašinskas, are no longer employed by the SSD and [thus] no disciplinary sanctions may be applied to them. In addition, in accordance with the Statute of the SSD ..., no disciplinary sanction may be applied where more than one year has elapsed from the date of the offence. Therefore, even in cases where there is information which may indicate that a disciplinary offence has been committed, no decision can be made; this is stipulated by the Code of Criminal Procedure, Article 214 § 6.", "The matter must be transferred to other authorities for examination of a disciplinary offence after the pre-trial investigation is complete. ... Taking into account the fact that the material of the pre-trial investigation includes both a State secret and an official secret, all the material of the investigation, after the pre-trial investigation is complete, shall be passed on to the Office of the Prosecutor General of the Republic of Lithuania, the Department of Information Security and the Inspectorate of Operational Activities.” 201. Following the prosecutor’s decision to discontinue the investigation, Reprieve twice wrote to the prosecutor seeking information on Abu Zubaydah’s behalf. On 22 June 2011 Reprieve requested a copy of the decision to discontinue the investigation, and also asked for information on the rights available to Abu Zubaydah as a victim of the crimes covered by the investigation.", "On 27 June 2011 Reprieve requested the Prosecutor General to provide the following: “(1) indicate with reference to provisions of the Criminal Code of the Republic of Lithuania which crimes were investigated within pre-trial investigation No. 01‑2‑00016-10; (2) indicate chronologically all the procedural actions taken during the pre-trial investigation; (3) state the findings of the investigation with respect to each crime; and (4) state on what basis the investigation was closed in respect of each of the crimes.” The Prosecutor General’s Office did not respond to either letter. 202. In the meantime, in May 2011, Amnesty International had also written to the Prosecutor General, stating that in its view the investigation had failed to investigate thoroughly the allegations of torture, ill-treatment and enforced disappearance, and that information already in the public domain constituted a strong prima facie case for continuation of the investigation: the secret sites had been identified; the SSD officials had acknowledged that the sites had been established in order for suspected terrorists to be detained there; both parliamentarians and the European Committee for the Prevention of Torture (“the CPT”) in a report on its visit to Lithuania on 14-18 June 2010 (“the 2011 CPT Report”; see also paragraphs 347-351 below) had stated that the physical layout of the sites and the operational dynamic (no inspections of aircraft had been conducted and the CIA had had ultimate control over the sites) had been easily adaptable to a detention regime; at least one aircraft had carried passengers in addition to the crew. 203.", "In June 2011, the Prosecutor General responded to Amnesty International’s letter, characterising it as a “complaint about the termination of the investigation” and stating that the organisation had no right to submit such a complaint, as it was not a party to the proceedings. He further stated that, as to the substance, he did not find a basis for reopening the investigation. 204. On 6 October 2011 Reprieve again wrote to the Prosecutor General, submitting that new evidence had emerged and asking him to take action in that respect. The letter, in so far as relevant, read as follows: “Compelling new information that has now come to light about the landings of CIA connected planes in Lithuania makes a rigorous and wide-ranging investigation all the more urgent.", "It has become obvious that previous efforts to chart the extent of the CIA,s rendition operations in Europe have only revealed the tip of the iceberg. As you will be aware, we have recently presented some new data, connecting Morocco and Lithuania, in Amnesty International’s report ‘Unlock the Truth in Lithuania: Investigate Secret Prisons Now’ (published 29 Sept. 2011). The data concerns a Boeing 727, N724CL, which flew from Morocco to Vilnius via Amman, Jordan, arriving in Vilnius International Airport on the evening of 17 February 2005. It stayed briefly in Vilnius before departing for Iceland, and then returned through Canada to the USA. The flight coincides with that of another plane, N787WH, which landed in Palanga on 18 February 2005, coming from Bucharest.", "We have adduced that the timing of these flights matches the timing associated, in public source accounts, with the transfer of Zayn al-Abidin Muhammad Husayn (Abu Zubaydah) from secret detention in Morocco to secret detention in Lithuania. With this letter we enclose, for your attention, two documents relating to the arrival of N724CL in Vilnius: a disclosure from the Lithuanian Civil Aviation Authority, dated 20 June 2011, and a disclosure from Vilnius Airport, received on 19 Sept. 2011. We note that there are some discrepancies in the times recorded on the documents, but that aside from these they are in agreement. We have prepared an additional dossier of confidential material with relation to this flight, which we will forward to you on receipt of an undertaking that you will maintain its strict confidentiality. ... We also note that the route of the other plane, N787WH between 14 and 19 February 2005, although partly disclosed in the course of the Seimas inquiry of 2009, is yet to be fully accounted for.", "In particular, it has not been disclosed where this plane stopped before Bucharest. ... We are continuing actively to investigate these and other flights, and we believe that further new information will come to light in the near future. It is clear, however, that the full truth concerning these flights will not properly emerge until all responsible bodies in all connected countries search diligently through the material available to them.” Reprieve asked the prosecutor to take specific additional investigative actions, in particular to obtain from Eurocontrol, relevant national bodies regulating air navigation, landing, servicing and customs data relating to the route planning and route costing of N787WH between 14 and 19 February 2005 and N724CL between 14 and 19 February 2005. 205. On 21 October 2011 the Prosecutor General announced that he would not reopen the terminated criminal investigation.", "This decision was taken on the basis that there was no evidence that anyone had been detained on Lithuanian territory. 206. On an unspecified date in January 2015 Reprieve filed with the Prosecutor General’s Office the 2015 Reprieve Briefing (see also paragraph 118 above and paragraph 395 below). 2. Reopening of the investigation on 22 January 2015 and further proceedings 207.", "On 22 January 2015, having regard to the declassified 2014 US Senate Committee Report, the prosecutor decided to quash the decision of 14 January 2011 and to re-open the investigation No. 01-2-00016-10 under Article 228 §1 (abuse of office) of the Criminal Code. The decision, in so far as relevant read as follows: “The decision of 14 January 2011 is annulled and the pre-trial investigation No. 01‑2-00016-10 is reopened. In accordance with Article 217 § 2 of the Code of Criminal Procedure (hereinafter referred to as CCP), a pre-trial investigation might be reopened where essential circumstances, which are relevant for a fair resolution of a case and which were not known at the moment of discontinuation of a pre-trial emerge.", "US Senate published a redacted report on activities of CIA prisons on 9 December 2014. Though the report does not refer to particular countries where secret CIA detention centres were present, it refers to the ‘Violet’ centre where the citizen of Saudi Arabia Mustafa al-Hawsawi was detained. In regard to the alleged illegal transportation of this person to Lithuania on 13 February 2014 the Prosecutor General’s Office opened the pre-trial investigation [under Article 292 the CC], which to date is still in progress. The data contained in the published Report of US Senate of 9 December 2014 to be considered as a ground to reopen the discontinued pre-trial investigation No. 01‑2‑00016-10 within the meaning of Article 217 § 2 of the CCP.", "Taking into consideration the content of the information, some coincidences of this information with the data provided in the conclusions of the parliamentary inquiry carried out by the CNSD on the alleged transportation and confinement of persons detained by CIA in the territory of the Republic of Lithuania and with the subject‑matter of the pre-trial investigation No. 01-2-200016-10, it is necessary to re-evaluate importance of the newly emerged data by procedural means in order achieve the purpose of the criminal process as it is indicated under Article 1 § 1 of CCP.” 208. On 6 February 2015 the investigation was joined with investigation No. 01-2-000-15-14 concerning Mr Mustafa Ahmed al‑Hawsawi and unlawful transportation of persons across the State border, an offence defined in Article 292 of the Criminal Code. 209.", "In the case of Mr al-Hawsawi, on 27 January 2015, the Prosecutor General’s Office had asked the Cracow Prosecutor of Appeal in Poland for legal assistance in relation to the alleged unlawful transportation of Mr Mustafa Ahmed al-Hawsawi or other persons across the Lithuanian State border. 210. On 29 May 2015 the Prosecutor General’s Office asked the Prosecutor’s Office attached to the Court of Cassation in Romania for legal assistance. Subsequently, requests for legal assistance were also sent to the US authorities, Morocco and Afghanistan. The US authorities, having been addressed twice, replied that they could not provide the information requested.", "Morocco refused the request. 211. The proceedings are still pending. V. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution of the Republic of Lithuania 212.", "The relevant provisions read as follows: Article 20 “Human liberty shall be inviolable. No one may be arbitrarily apprehended or detained. No one may be deprived of his liberty otherwise than on the grounds and according to the procedures established by law. No one may be arbitrarily detained or held arrested. No one may be deprived of his freedom otherwise than on the grounds and according to the procedures which have been established by law.", "...” Article 21 “The person of the human being shall be inviolable. The dignity of the human being shall be protected by law. It shall be prohibited to torture, injure a human being, degrade his dignity, subject him to cruel treatment as well as to establish such punishments. No one may be subjected to scientific or medical experimentation without his knowledge and free consent.” Article 22 “The private life shall be inviolable. Personal correspondence, telephone conversations, telegraph messages, and other communications shall be inviolable.", "Information concerning the private life of a person may be collected only upon a justified court decision and only according to the law. The law and the court shall protect everyone from arbitrary or unlawful interference in his private and family life, and from encroachment upon his honour and dignity.” Article 30 “A person whose constitutional rights or freedoms are violated shall have the right to apply to court. Compensation for material and moral damage inflicted upon a person shall be established by law.” Article 118 “A pre-trial investigation shall be organised and directed, and charges on behalf of the State in criminal cases shall be upheld, by a prosecutor. In cases established by law, the prosecutor shall defend the rights and legitimate interests of the person, society and the State. When performing his functions, the prosecutor shall be independent and shall obey only the law.", "...” B. Criminal Code 213. The Criminal Code, which was adopted in 2000 and, with certain amendments, came into force on 1 May 2003, has undergone numerous modifications. Its provisions at the relevant time read as follows: Article 95Statute of Limitations of Judgment of Conviction “... 5. The following crimes provided for in this Code shall have no statute of limitations[1]: 2) treatment of persons prohibited under international law (Article 100); ...” Article 100 (as in force until 30 March 2011) Treatment of Persons Prohibited under International Law “A person who intentionally, by carrying out or supporting the policy of the State or an organisation, attacks civilians on a large scale or in a systematic way and commits their killing or causes serious impairment to their health; inflicts on them such conditions of life as to bring about their death; engages in trafficking in human beings; commits deportation of the population; tortures, rapes, involves another in sexual slavery, forces someone to engage in prostitution, forcibly inseminates or sterilises a person; persecutes any group or community of persons for political, racial, national, ethnic, cultural, religious, sexual or other reasons prohibited under international law; detains, arrests or otherwise deprives a person of liberty, where such a deprivation of liberty is not recognised, or fails to report the fate or whereabouts of a person; or carries out the policy of apartheid; shall be punished by imprisonment for a term of five to twenty years or by life imprisonment.” Article 146Unlawful Deprivation of Liberty “1.", "A person who unlawfully deprives a person of his liberty, in the absence of characteristics of hostage taking, shall be punished by a fine or by arrest or by imprisonment for a term of up to three years. 2. A person who commits the act provided for in paragraph 1 of this Article by using violence or posing a threat to the victim’s life or health or by holding the victim in captivity for a period exceeding 48 hours shall be punished by arrest or by imprisonment for a term of up to four years. 3. A person who unlawfully deprives a person of his liberty by committing him to a psychiatric hospital for reasons other than an illness shall be punished by arrest or by imprisonment for a term of up to five years.” Article 228 (as in force until 20 July 2007)Abuse of Office “l.", "A civil servant or a person equivalent thereto who abuses his official position or exceeds his powers, where this incurs major damage to the State, an international public organisation, a legal or natural person, shall be punished by deprivation of the right to be employed in a certain position or to engage in a certain type of activities or by a fine or by arrest or by imprisonment for a term of up to four years. 2. A person who commits the act provided for in paragraph 1 of this Article seeking material or another personal gain, in the absence of characteristics of bribery, shall be punished by deprivation of the right to be employed in a certain position or to engage in a certain type of activities or by imprisonment for a term of up to six years.” Article 291Illegal Crossing of the State Border “1. A person who illegally crosses the State border of the Republic of Lithuania shall be punished by a fine or by arrest or by imprisonment for a term of up to two years. 2.", "An alien who unlawfully enters the Republic of Lithuania seeking to exercise the right of asylum shall be released from criminal liability under paragraph 1 of this Article. 3. An alien who commits the act provided for in paragraph 1 of this Article with the intent of illegally crossing into a third State from the Republic of Lithuania shall be released from criminal liability according to paragraph 1 of this Article where he is, in accordance with the established procedure, subject to deportation back to the State from the territory whereof he illegally crosses the State border of the Republic of Lithuania or to the State of which he is a citizen.” Article 292Unlawful Transportation of Persons across the State Border “1. A person who unlawfully transports across the State border of the Republic of Lithuania an alien not having a permanent place of residence in the Republic of Lithuania or transports or conceals in the territory of the Republic of Lithuania such an alien who has illegally crossed the State border of the Republic of Lithuania shall be punished by a fine or by arrest or by imprisonment for a term of up to six years. 2.", "A person who commits the acts provided for in paragraph 1 of this Article for mercenary reasons or where this poses a threat to human life, shall be punished by imprisonment for a term of up to eight years. 3. A person who organises the acts provided for in paragraph 1 of this Article shall be punished by imprisonment for a term of four up to ten years. 4. A legal entity shall also be held liable for the acts provided for in this Article.” C. Code of Criminal Procedure 214.", "The Code of Criminal Procedure, which was adopted in 2002 and came into force on 1 May 2003, underwent numerous modifications. Its provisions at the relevant time read as follows: Article 1The Purpose of the Criminal Procedure “The purpose of the criminal procedure is to quickly and comprehensively detect criminal acts and to apply the law correctly when protecting human rights and rights of citizens, so that the person who committed the criminal act is justly punished and an innocent person is not convicted.” Article 2Duty to Detect Criminal Acts “In every case where elements of a criminal offence are discovered, the prosecutor or the institutions of pre-trial investigation must, within the limits of their competence, take all measures provided by law to investigate and uncover the crime within the shortest time possible.” Article 3Circumstances when the criminal proceedings are not possible (as in force until 5 December 2017) “1. Criminal proceedings may not be instituted, and, if instituted, must be terminated in the following cases: 1) where no act containing elements of a serious or grave crime was committed; 2) where the period of limitation for criminal liability has expired; ...” Article 28 (as effective until 1 March 2016)Victim “1. The person who, as a result of a crime, sustained physical, pecuniary or non-pecuniary damage, shall be recognised as the victim. The person shall be recognised as the victim by an order of a prosecutor or a pre-trial investigation officer or by a court decision.", "2. The victim and his representative shall be entitled: to adduce evidence, make motions, make challenges, examine the case file in the course of the pre-trial investigation and at court, take part in the court hearing, appeal against the actions of a pre-trial investigation officer, a prosecutor, a pre-trial investigation judge and the court, to appeal against the court’s judgment or decision, and to present the closing statements. 3. The victim must testify. He shall take an oath and be held responsible for committing perjury in the same manner as a witness.” Article 47Defence counsel “1.", "Defence counsel must be an advocate. The same advocate may not act as a counsel for the defence for two or more persons where the interests of the defence of one such person are against the interests of defence of another person. 2. A trainee advocate may act as a counsel for the defence upon instructions of the advocate, provided there is no objection from the defended person. A trainee advocate may not take part in the trial involving a serious or grave criminal offence.", "3. One person may have several counsels for the defence. Where the suspect or the accused has several counsels for the defence and where at least one of them is present, proceedings may continue.” Article 55[2]Authorised representatives “1. The representative of a victim ... shall be a person who provides legal assistance to th[is] part[y] to the proceedings, protects [his] rights and lawful interests. 2.", "The representative of a victim ... shall be an advocate or a trainee advocate under the advocate’s instruction, and, subject to leave granted by the pre-trial investigation officer, the prosecutor or the judge, or any other person with a university degree in law, whom a party to the proceedings has instructed to represent his interests. ... 3. The representative of the victim ... shall be permitted to participate in the proceedings from the moment the pre-trial investigation officer or the prosecutor takes such a decision, or a court adopts such a ruling. The representative may participate in the proceedings together with the person he represents or on his behalf, except when representing a victim. The represented person may, at any moment, waive the right to have a representative or choose another representative.", "4. In cases set out in laws governing the provisions of the State-guaranteed legal aid, the victim ... is entitled to receive the State-guaranteed legal assistance.” Article 62Complaint against the procedural actions and decisions of the pre-trial investigation officer “1. Parties to the proceedings may lodge complaints against the procedural actions and decisions of the pre-trial investigation officer with the prosecutor supervising the activities of that officer. In the event that the complaint is dismissed by the prosecutor, his decision may be complained of to a higher prosecutor, pursuant to the rules set out in Article 63 of this Code. 2.", "The complaint shall be lodged directly with the prosecutor or through the pre-trial investigation officer against whose procedural actions or decisions a complaint is being lodged. Complaints may be made both orally and in writing. The pre-trial investigation officer or the prosecutor shall enter oral complaints in a record which shall be signed by the complainant and the pre-trial investigation officer or the prosecutor who receives the complaint. 3. The pre-trial investigation officer must, within one day, transmit the complaint together with his written explanations to the prosecutor.", "4. Lodging of a complaint pending its resolution shall not suspend the performance of the action or implementation of the decision against which a complaint is being lodged, save in the cases where the pre-trial investigation officer or the prosecutor recognises that such a suspension is necessary.” Article 63 (as effective until 2011)Complaint against the procedural actions and decisions of the prosecutor “1. The actions and decisions of the prosecutor in charge of the pre-trial investigation may be appealed against to a higher prosecutor. If a higher prosecutor dismisses the appeal, this decision may be appealed against to the pre-trial investigation judge. 2.", "The complaint shall be lodged directly with a higher prosecutor or through the prosecutor against whose procedural steps or decisions the complaint is lodged. The complaints may be made both orally and in writing. The prosecutor shall enter oral complaints in the protocol which shall be signed by the complainant and the prosecutor who receives the complaint. 3. The making of a complaint pending its resolution shall not suspend the performance of the act or implementation of the decision against which a complaint is being lodged, save in the cases where the prosecutor determines that such suspension is necessary.” Article 109Civil claim in a criminal case “A person who has sustained pecuniary or non-pecuniary damage due to a criminal offence shall be entitled to bring a civil claim in a criminal case against the suspect or the accused, or the persons who bear financial responsibility for the actions of the suspect or the accused.", "The civil claim shall be heard by the court together with the criminal case. When a civil claim has been brought at the stage of the pre-trial investigation, data regarding the basis and amount of civil claim must be gathered during the pre-trial investigation[3].” Article 110Civil claimant “1. A natural or a legal person who requests, in a criminal case, compensation for the pecuniary or non-pecuniary damage caused by the criminal offence committed by the suspect or the accused shall be recognised as a civil claimant. The person shall be recognised as a civil claimant by a decision of the pre-trial investigation officer, the prosecutor or the court. 2.", "The civil claimant shall be entitled: 1) to submit explanations on the substance of a civil claim; 2) to provide evidence; 3) to make motions and challenges; 4) to examine, in the course of the pre-trial investigation and at court, the material in the case file, to have extracts or copies of the documents he needs made following the established procedure; 5) to be present during the hearing at the court of the first instance; 6) to lodge complaints against the actions and to appeal against the decisions of the pre-trial investigation officer, the prosecutor, the judge or the court to the extent they are related to the civil action; 7) to be present when hearing of the case on appeal. 3. The civil claimant must: 1) when summoned, be present during the hearing of the case by the first instance court; 2) submit, at the court’s request, documents in his possession which are relevant for the claim brought; 3) observe the rules of procedure established by court.” Article 166Institution of pre-trial investigation “1. Pre-trial investigation shall be instituted: 1) upon receipt of a complaint, application or report about a criminal act; 2) where the prosecutor or the pre-trial investigation officer himself has established elements of a criminal act. 2.", "In cases established by this Code, pre-trial investigation shall be instituted only in case where there is a victim’s complaint. ...” Article 212 (effective as of 1 September 2011)Discontinuing a pre-trial investigation “A pre-trial investigation must be discontinued if: 1) it becomes evident that the circumstances provided for in Articl[e] 3 ... of this Code exist; ...” Article 214 (as in force until 1 March 2016)The procedure for discontinuing a pre-trial investigation “1. In cases established in Article 212 points 1 and 2 of this Code, a pre-trial investigation is discontinued by a decision of a prosecutor or a ruling of a pre-trial investigation judge. ... 3. The suspect, his or her representative, his or her lawyer, the victim, civil claimant and their representatives are informed about the decision to discontinue the pre-trial investigation or about the decision of the pre-trial investigation judge not to approve the prosecutor’s decision to discontinue the pre-trial investigation, by sending them a copy of the act.", "4. The decision specified in paragraph 1 of this Article may be appealed against to a higher prosecutor... If a higher prosecutor refuses to grant the appeal, such a decision may be appealed against to a pre-trial investigation judge. Such a decision of a pre-trial investigation judge ... ... 6. If the pre-trial investigation file contains information about an administrative law violation or about another breach of the law, a prosecutor takes the decision to transfer the material to be decided upon in administrative proceedings or according to another procedure specified by law.” Article 216 (as in force as of 11 December 2010)The content of the decision to discontinue the pre-trial investigation “1.", "The decision to discontinue the pre-trial investigation contains the description of the crime, and the grounds and reasons for discontinuing the investigation. ...” Article 217 (as in force as of 5 July 2011)Reopening a pre-trial investigation which has been discontinued “1. The prosecutor may re-open the pre-trial investigation upon complaints lodged by the parties to the proceedings or on his own initiative, where there are grounds for doing so. The pre-trial investigation shall be reopened by a decision of the prosecutor, having quashed the decision to discontinue criminal proceedings. 2.", "A pre-trial investigation can be reopened upon the discovery of essential circumstances which are relevant for the proper examination of the case and which had not been established at the time of adopting the decision to discontinue the investigation. ... 7. The suspect, his or her representative, his or her lawyer, the victim, civil claimant and civil defendant, and their representatives are informed about the decision to re‑open the pre-trial investigation. These persons have a right to appeal against the decision regarding the re-opening. The decision not to re-open criminal proceedings is notified to the party to the criminal proceedings which had submitted a complaint; that party may appeal against such a decision ...” D. Civil Code 215.", "The relevant provisions of the Civil Code read as follows: Article 6.246Unlawful actions “1. Civil liability shall arise from the non-performance of a duty established by law or a contract (unlawful failure to act), or from the performance of actions that are prohibited by law or by contract (unlawful action), or from the violation of the general duty to behave with care.” Article 6.263Obligation to compensate for damage caused “1. Every person shall have the duty to abide by the rules of conduct so as not to cause damage to another by his actions (active actions or refrainment from acting). 2. Pecuniary loss resulting from any bodily or property damage caused to another person and also, in cases established by the law, non-pecuniary damage must be fully compensated by the person liable.", "3. In cases established by law, a person shall also be liable to compensation for damage caused by the actions of another person or caused by things in his possession.” Article 6.271Liability to compensation for damage caused by the unlawful action of public authority institutions “1. Damage caused by the unlawful action of a public authority institution must be compensated by the State from the resources of the State budget, irrespective of any fault on the part of a particular public servant or other employee of the public authority institution. Damage caused by unlawful actions of municipal authority institutions must be redressed by the municipality from its own budget, irrespective of its employee’s fault. 2.", "For the purposes of this Article, the notion ‘public authority institution’ shall mean any subject of public law (State or municipal institution, official, public servant or any other employee of these institutions, etc. ), as well as a private person performing the functions of a public authority. 3. For the purposes of this Article, the notion ‘action’ shall mean any action (or inaction) by a public authority institution or its employees that directly affects the rights, liberties and interests of persons (legal acts or individual acts adopted by the institutions of State and municipal authorities, administrative acts, physical acts, etc., with the exception of court judgments, verdicts in criminal cases, decisions in civil and administrative cases and orders). 4.", "Civil liability of the State or municipality subject to this Article shall arise where employees of public authority institutions fail to act in the manner prescribed by law for these institutions and their employees.” Article 6.272 Liability for damage caused by the unlawful actions of preliminary investigation officials, prosecutors, judges and the courts “1. Damage resulting either from unlawful conviction, unlawful arrest, as a suppressive measure, application of unlawful procedural measures in enforcement proceedings, or unlawful imposition of an administrative penalty (arrest) shall give rise to full compensation by the State irrespective of the fault of the preliminary investigation officials, prosecution officials or courts. 2. The State shall be liable for full compensation in respect of the damage caused by the unlawful actions of a judge or a court trying a civil case, where the damage is caused through the fault of the judge himself or of any other court official. 3.", "In addition to pecuniary damage, the aggrieved person shall be entitled to non-pecuniary damage. 4. Where the damage arises from an intentional fault on the part of preliminary investigation, prosecution or court officials or judges, the State, after compensation has been provided, shall have the right to take action against the officials concerned for recovery, under the procedure established by law, of the sums in question in the amount provided for by the law.” E. The Law on Intelligence 216. The Law on Intelligence, as effective between 2002 and 2012, read as follows: Article 9Intelligence tasks “1. Intelligence tasks shall be set for subordinate intelligence institutions by the Minister of National Defence and the Director of the State Security Department whilst taking into account the main areas of the intelligence services’ activities, the recommendations of the State Defence Council and the needs of international cooperation.", "2. Ministries and Governmental or other State institutions shall provide the assistance necessary to pursue intelligence tasks.” Article 16Additional guarantees for intelligence officers “1. State institutions, officials and civil servants shall be prohibited from obstructing or otherwise influencing the intelligence activities pursued by intelligence officers. ... 3. The State shall show concern for any intelligence officer or family members thereof who become victims for reasons related to service in an intelligence institution and shall provide assistance thereto.", "4. The State shall compensate for the damage incurred to the intelligence officer or his family member for reasons related to service at the intelligence institution.” F. The Statute of the Seimas 217. The relevant provisions regarding the powers of the Seimas committees read as follows. Article 49 (as effective until 2013)Powers of the Seimas Committees “1. The Seimas committees shall have the following powers, within the scope of their competence: ... 9) when performing the parliamentary control, to hear information and reports from the Ministries and other State institutions concerning the execution of laws of the Republic of Lithuania and other legal acts adopted by the Seimas; to perform, on their own initiative or at the behest of the Seimas, parliamentary investigation into specific problems and to provide the Seimas with their conclusions; to consider, on their own initiative or at the behest of the Seimas, annual activity reports of State institutions that are accountable to the Seimas and to provide the Seimas with their conclusions; ...” Article 56 (as effective until 2013)Powers of the Seimas Committees when Performing Parliamentary Control “1.", "Committees are entitled, within their competence, to verify compliance with laws, Seimas resolutions, or committee recommendations and proposals; to perform, on their own initiative or at the behest of the Seimas, parliamentary investigations into specific problems; to consider, on their own initiative or at the behest of the Seimas, annual reports of State institutions that are accountable to the Seimas; ... 3. The committees shall have the right to demand from the State institutions, except courts, and from officials, any documents, written conclusions, reports and other necessary material. 4. Committees, when performing parliamentary investigation at the behest of the Seimas, shall act in compliance with the rules of procedure of Seimas control commission or ad hoc investigation commissions, as set forth in Articles 75-76 of this Statute, and shall have the same powers.” Article 75The Powers and Working Procedure of an Ad Hoc Control or Investigation Commission “1. If an issue is being examined which is relevant to a State secret, the meetings of an Ad Hoc Control or Investigation Commission shall be closed to all persons except those who have been invited thereto, of which a list shall be compiled in accordance with the commission members’ wishes.", "In other instances the Ad Hoc Control or Investigation Commission may hold closed meetings only upon receiving leave from the Seimas. 2. The data collected in the course of the work of an Ad Hoc Control or Investigation Commission, that is relevant to a State secret, shall not be published. 3. The law shall establish the powers of Ad Hoc Control and Investigation Commissions.” Article 76Decisions of the Ad Hoc Control or Investigation Commission “1.", "Having completed the assigned operation, the Ad Hoc Control or Investigation Commission shall submit to the Seimas the collected and summarised data, conclusions and prepared draft decision. 2. A resolution shall be passed at the Seimas sitting regarding the issue examined by the Ad Hoc Control or Investigation Commission. 3. A Seimas resolution may express no confidence in the Government, Minister or head of another State institution, who is appointed by the Seimas, or conclusions may be presented regarding the proposed impeachment process.", "4. In instances of no confidence, the requirements of Articles 218 or 222 of this Statute shall be applied in order to pass a resolution.” G. The Law on the Seimas Ad Hoc Investigation Commissions 218. Article 8 of the Law on the Seimas Ad Hoc Investigation Commissions (“the Law on the Ad Hoc Investigation Commissions”) regarding decisions of the Commission read, in so far as relevant, as follows: “1. The results of the Commission’s investigation shall be presented in a draft conclusion. It shall indicate the circumstances established in the course of the investigation, evidence gathered and provide the legal assessment of the situation.", "...” H. The Constitutional Court’s case-law 219. The Constitutional Court’s ruling of 13 May 2004, concerning the powers of the Seimas ad hoc investigation commissions and the nature of parliamentary inquiries carried out by them, reads, in so far as relevant, as follows: “6. ... [u]nder paragraph 1 of Article 8 (wording of 3 April 2003) of the Law [on the Seimas Ad Hoc Investigation Commissions], the draft conclusion of the Seimas ad hoc investigation commission shall contain, inter alia, a legal assessment of the situation. One must pay attention to the fact that the Seimas ad hoc investigation commission is neither an institution of pre-trial investigation, nor the prosecutor’s office, nor the court. The formula ‘legal assessment’ is a general notion; it does not mean that the Seimas ad hoc investigation commission must or may present the legal characterisation of the actions that it has investigated, of the decisions adopted by it on the issues that it was assigned to investigate, or of other circumstances that were elucidated by it, which are related to the investigated issue; that is to say, this formula does not mean that the Seimas ad hoc investigation commission has to, or may, indicate the compliance or non-compliance of the said actions, decisions or circumstances with legal acts, but it means that the said actions and decisions must be investigated, other circumstances related to the investigated question must be elucidated and that the results of the Seimas ad hoc investigation commission’s inquiry must be drawn up so that on their basis it might be possible to adopt legal decisions – either to adopt respective legal acts or not to adopt them.", "... 7. It needs to be emphasised that the conclusion (or some statements) of the Seimas ad hoc investigation commission in itself directly does not give rise to any legal effects for the persons indicated therein. Such effects could be caused to them only by the decisions of other institutions or their officers, which may be adopted, while taking into consideration the conclusion of the Seimas ad hoc investigation commission. ... 9. ...", "It is clear that the Seimas is neither an institution of pre-trial investigation, nor the prosecutor’s office, nor the court. Therefore, it needs to be underlined that the formulation of the opinion or point of view of the Seimas regarding the conclusion of the Seimas ad hoc investigation commission formed by it in a resolution of the Seimas may not be construed, under the Constitution, as a legal characterisation of the actions that the Seimas ad hoc investigation commission has investigated, of the decisions adopted by it on the issues that it was assigned to investigate, and of other circumstances that were elucidated by it. The Seimas, after it has decided either to approve or not to approve the conclusion of the Seimas ad hoc investigation commission, or to approve it in part (with reservations), does not adopt a decision on the compliance of the said actions, decisions, and circumstances with legal acts, as is mandatory for other State institutions (including institutions of the pre-trial investigation, the prosecutor’s office or courts), but it merely formulates its point of view as to the conclusion of the Seimas ad hoc investigation commission that was formed by it. The Seimas resolution in which the opinion and point of view of the Seimas are formulated as to the conclusion of the Seimas ad hoc investigation commission that was formed by it is not binding on institutions of pre-trial investigation, the prosecutor’s office or the court.” VI. RELEVANT INTERNATIONAL LAW A. Vienna Convention on the Law of Treaties 220.", "Articles 26 and 27 of the Vienna Convention on the Law of Treaties (23 May 1969), to which Lithuania is a party, provide as follows: Article 26“Pacta sunt servanda” “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” Article 27Internal law and observance of treaties “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. ...” B. International Covenant on Civil and Political Rights 221. Article 7 of the International Covenant on Civil and Political Rights (“ICCPR”), to which Lithuania is a party, reads as follows: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” 222.", "Article 10 § 1 of the ICCPR reads as follows: “1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” C. The United Nations Torture Convention 223. One hundred and forty-nine States are parties to the 1984 United Nations (“the UN”) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”), including all Member States of the Council of Europe. Article 1 of the Convention defines torture as: “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” 224.", "Article 1(2) provides that it is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. Article 2 requires States to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. Article 4 requires each State Party to ensure that all acts of torture are offences under its criminal law. Article 3 provides: “1. No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.", "2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.” 225. Article 12 provides that each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction. Article 15 requires that each State ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. D. UN Geneva Conventions 1.", "Geneva (III) Convention 226. Article 4 of the Geneva (III) Convention relative to the Treatment of Prisoners of War of 12 August 1949 (“the Third Geneva Convention”), which defines prisoners of war, reads, in so far as relevant, as follows: “Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: (1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces. (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war. (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. ...” 227.", "Article 5 states: “The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation. Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.” 228. Article 13 reads: “Art 13. Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention.", "In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest. Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. Measures of reprisal against prisoners of war are prohibited.” 229. Article 21 reads, in so far as relevant: “The Detaining Power may subject prisoners of war to internment. It may impose on them the obligation of not leaving, beyond certain limits, the camp where they are interned, or if the said camp is fenced in, of not going outside its perimeter.", "Subject to the provisions of the present Convention relative to penal and disciplinary sanctions, prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary.” 2. Geneva (IV) Convention 230. Article 3 of the Geneva (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (“the Fourth Geneva Convention”) reads, in so far as relevant, as follows: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” 231. Article 4 reads, in so far as relevant, as follows: “Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.", "Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. ...” E. International Law Commission, 2001 Articles on Responsibility of States for Internationally Wrongful Acts 232. The relevant parts of the Articles (“the ILC Articles”), adopted on 3 August 2001 (Yearbook of the International Law Commission, 2001, vol. II), read as follows: Article lResponsibility of a State for its internationally wrongful acts “Every internationally wrongful act of a State entails the international responsibility of that State.” Article 2Elements of an internationally wrongful act of a State “There is an internationally wrongful act of a State when conduct consisting of an action or omission: a.", "Is attributable to the State under international law; and b. Constitutes a breach of an international obligation of the State.” Article 7Excess of authority or contravention of instructions “The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions. ...” Article 14Extension in time of the breach of an international obligation “1. The breach of an international obligation by an act of a State not having a continuing character occurs at the moment when the act is performed, even if its effects continue. 2.", "The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation. 3. The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation.” Article 15Breach consisting of a composite act “1. The breach of an international obligation by a State through a series of actions or omissions defined in aggregate as wrongful occurs when the action or omission occurs which, taken with the other actions or omissions, is sufficient to constitute the wrongful act. 2.", "In such a case, the breach extends over the entire period starting with the first of the actions or omissions of the series and lasts for as long as these actions or omissions are repeated and remain not in conformity with the international obligation.” Article 16Aid or assistance in the commission of an internationally wrongful act “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.” F. UN General Assembly Resolution 60/147 233. The UN General Assembly’s Resolution 60/147 on Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted on 16 December 2005, reads, in so far as relevant, as follows: “24. ... victims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law and to learn the truth in regard to these violations”. VII. SELECTED PUBLIC SOURCES CONCERNING GENERAL KNOWLEDGE OF THE HVD PROGRAMME AND HIGHLIGHTING CONCERNS AS TO HUMAN RIGHTS VIOLATIONS ALLEGEDLY OCCURRING IN US-RUN DETENTION FACILITIES IN THE AFTERMATH OF 11 SEPTEMBER 2001 234.", "The applicant submitted a considerable number of reports and opinions of international governmental and non-governmental organisations, as well as articles and reports published in media, which raised concerns about alleged rendition, secret detentions and ill-treatment of Al-Qaeda and Taliban detainees in US-run detention facilities in Guantánamo and Afghanistan. A summary of most relevant sources is given below. A. United Nations Organisation 1. Statement of the UN High Commissioner for Human Rights on detention of Taliban and Al-Qaeda prisoners at the US Base in Guantánamo Bay, Cuba, 16 January 2002 235.", "The UN High Commissioner for Human Rights stated as follows: “All persons detained in this context are entitled to the protection of international human rights law and humanitarian law, in particular the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR) and the Geneva Conventions of 1949. The legal status of the detainees and their entitlement to prisoner-of-war (POW) status, if disputed, must be determined by a competent tribunal, in accordance with the provisions of Article 5 of the Third Geneva Convention. All detainees must at all times be treated humanely, consistent with the provisions of the ICCPR and the Third Geneva Convention.” 2. Statement of the International Rehabilitation Council for Torture 236. In February 2003 the UN Commission on Human Rights received reports from non-governmental organisations concerning ill-treatment of US detainees.", "The International Rehabilitation Council for Torture (“the IRCT”) submitted a statement in which it expressed its concern over the United States’ reported use of “stress and duress” methods of interrogation, as well as the contraventions of refoulement provisions in Article 3 of the Convention Against Torture. The IRCT report criticised the failure of governments to speak out clearly to condemn torture; and emphasised the importance of redress for victims. The Commission on Human Rights communicated this document to the United Nations General Assembly on 8 August 2003. 3. UN Working Group on Arbitrary Detention, Opinion No.", "29/2006, Mr Ibn al-Shaykh al-Libi and 25 other persons v. United States of America, UN Doc. A/HRC/4/40/Add.1 at 103 (2006) 237. The UN Working Group found that the detention of the persons concerned, held in facilities run by the United States secret services or transferred, often by secretly run flights, to detention centres in countries with which the United States authorities cooperated in their fight against international terrorism, fell outside all national and international legal regimes pertaining to the safeguards against arbitrary detention. In addition, it found that the secrecy surrounding the detention and inter-State transfer of suspected terrorists could expose the persons affected to torture, forced disappearance and extrajudicial killing. B.", "Parliamentary Assembly of the Council of Europe Resolution no. 1340 (2003) on rights of persons held in the custody of the United States in Afghanistan or Guantánamo Bay, 26 June 2003 238. The above resolution (“the 2003 PACE Resolution”) read, in so far as relevant, as follows: “1. The Parliamentary Assembly: 1.1. notes that some time after the cessation of international armed conflict in Afghanistan, more than 600 combatants and non-combatants, including citizens from member states of the Council of Europe, may still be held in United States’ military custody – some in the Afghan conflict area, others having been transported to the American facility in Guantánamo Bay (Cuba) and elsewhere, and that more individuals have been arrested in other jurisdictions and taken to these facilities; ... 2. The Assembly is deeply concerned at the conditions of detention of these persons, which it considers unacceptable as such, and it also believes that as their status is undefined, their detention is consequently unlawful.", "3. The United States refuses to treat captured persons as prisoners of war; instead it designates them as “unlawful combatants” – a definition that is not contemplated by international law. 4. The United States also refuses to authorise the status of individual prisoners to be determined by a competent tribunal as provided for in Geneva Convention (III) relative to the Treatment of Prisoners of War, which renders their continued detention arbitrary. 5.", "The United States has failed to exercise its responsibility with regard to international law to inform those prisoners of their right to contact their own consular representatives or to allow detainees the right to legal counsel. 6. Whatever protection may be offered by domestic law, the Assembly reminds the Government of the United States that it is responsible under international law for the well-being of prisoners in its custody. 7. The Assembly restates its constant opposition to the death penalty, a threat faced by those prisoners in or outside the United States.", "8. The Assembly expresses its disapproval that those held in detention may be subject to trial by a military commission, thus receiving a different standard of justice than United States nationals, which amounts to a serious violation of the right to receive a fair trial and to an act of discrimination contrary to the United Nations International Covenant on Civil and Political Rights. 9. In view of the above, the Assembly strongly urges the United States to: 9.1. bring conditions of detention into conformity with internationally recognised legal standards, for instance by giving access to the International Committee of the Red Cross (ICRC) and by following its recommendations; 9.2. recognise that under Article 4 of the Third Geneva Convention members of the armed forces of a party to an international conflict, as well as members of militias or volunteer corps forming part of such armed forces, are entitled to be granted prisoner of war status; 9.3. allow the status of individual detainees to be determined on a case-by-case basis, by a competent tribunal operating through due legal procedures, as envisaged under Article 5 of the Third Geneva Convention, and to release non-combatants who are not charged with crimes immediately. 10.", "The Assembly urges the United States to permit representatives of states which have nationals detained in Afghanistan and in Guantánamo Bay, accompanied by independent observers, to have access to sites of detention and unimpeded communication with detainees. ... 13. The Assembly further regrets that the United States is maintaining its contradictory position, claiming on the one hand that Guantánamo Bay is fully within US jurisdiction, but on the other, that it is outside the protection of the American Constitution. In the event of the United States’ failure to take remedial actions before the next part-session, or to ameliorate conditions of detention, the Assembly reserves the right to issue appropriate recommendations.” C. International non-governmental organisations 1. Amnesty International, Memorandum to the US Government on the rights of people in US custody in Afghanistan and Guantánamo Bay, April 2002 239.", "In this memorandum, Amnesty International expressed its concerns that the US Government had transferred and held people in conditions that might amount to cruel, inhuman or degrading treatment and that violated other minimum standards relating to detention, and had refused to grant people in its custody access to legal counsel and to the courts in order to challenge the lawfulness of their detention. 2. Human Rights Watch, “United States, Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees”, Vol. 14, No. 4 (G), August 2002 240.", "This report included the following passage: “... the fight against terrorism launched by the United States after September 11 did not include a vigorous affirmation of those freedoms. Instead, the country has witnessed a persistent, deliberate, and unwarranted erosion of basic rights ... Most of those directly affected have been non-U.S. citizens ... the Department of Justice has subjected them to arbitrary detention, violated due process in legal proceedings against them, and run roughshod over the presumption of innocence.” 3. Human Rights Watch, “United States: Reports of Torture of Al‑Qaeda Suspects”, 26 December 2002 241. This report referred to the Washington Post’s article: “U.S.", "Decries Abuse but Defends Interrogations” which described “how persons held in the CIA interrogation centre at Bagram air base in Afghanistan were being subject to ‘stress and duress’ techniques, including ‘standing or kneeling for hours’ and being ‘held in awkward, painful positions’. It further stated: “The Convention against Torture, which the United States has ratified, specifically prohibits torture and mistreatment, as well as sending detainees to countries where such practices are likely to occur.” 4. International Helsinki Federation for Human Rights, “Anti‑terrorism Measures, Security and Human Rights: Developments in Europe, Central Asia and North America in the Aftermath of September 11”, Report, April 2003 242. The relevant passage of this report read as follows: “Many ‘special interest’ detainees have been held in solitary confinement or housed with convicted prisoners, with restrictions on communications with family, friends and lawyers, and have had inadequate access to facilities for exercise and for religious observance, including facilities to comply with dietary requirements. Some told human rights groups they were denied medical treatment and beaten by guards and inmates.” 5. Amnesty International Report 2003 – United States of America, 28 May 2003 243.", "This report discussed the transfer of detainees to Guantánamo, Cuba in 2002, the conditions of their transfer (“prisoners were handcuffed, shackled, made to wear mittens, surgical masks and ear muffs, and were effectively blindfolded by the use of taped-over ski goggles”) and the conditions of detention (“they were held without charge or trial or access to courts, lawyers or relatives”). It further stated: “A number of suspected members of al-Qaeda reported to have been taken into US custody continued to be held in undisclosed locations. The US government failed to provide clarification on the whereabouts and legal status of those detained, or to provide them with their rights under international law, including the right to inform their families of their place of detention and the right of access to outside representatives. An unknown number of detainees originally in US custody were allegedly transferred to third countries, a situation which raised concern that the suspects might face torture during interrogation.” 6. Amnesty International, “Unlawful detention of six men from Bosnia-Herzegovina in Guantánamo Bay”, 29 May 2003 244.", "Amnesty International reported on the transfer of six Algerian men, by Bosnian Federation police, from Sarajevo Prison into US custody in Camp X-Ray, located in Guantánamo Bay, Cuba. It expressed its concerns that they had been arbitrarily detained in violation of their rights under the International Covenant on Civil and Political Rights. It also referred to the decision of the Human Rights Chamber of Bosnia and Herzegovina in which the latter had found that the transfer had been in violation of Article 5 of the Convention, Article 1 of Protocol No. 7 and Article 1 of Protocol No. 6.", "7. Amnesty International, “United States of America, The threat of a bad example: Undermining international standards as ‘war on terror’ detentions continue”, 18 August 2003 245. The relevant passage of this report read as follows: “Detainees have been held incommunicado in US bases in Afghanistan. Allegations of ill-treatment have emerged. Others have been held incommunicado in US custody in undisclosed locations elsewhere in the world, and the US has also instigated or involved itself in ‘irregular renditions’, US parlance for informal transfers of detainees between the USA and other countries which bypass extradition or other human rights protections.” 8.", "Amnesty International, “Incommunicado detention/Fear of ill‑treatment”, 20 August 2003 246. The relevant passage of this report read as follows: “Amnesty International is concerned that the detention of suspects in undisclosed locations without access to legal representation or to family members and the ‘rendering’ of suspects between countries without any formal human rights protections is in violation of the right to a fair trial, places them at risk of ill-treatment and undermines the rule of law.” 9. International Committee of the Red Cross, United States: ICRC President urges progress on detention-related issues, news release 04/03, 16 January 2004 247. The ICRC expressed its position as follows: “Beyond Guantánamo, the ICRC is increasingly concerned about the fate of an unknown number of people captured as part of the so-called global war on terror and held in undisclosed locations. Mr Kellenberger echoed previous official requests from the ICRC for information on these detainees and for eventual access to them, as an important humanitarian priority and as a logical continuation of the organization’s current detention work in Guantánamo and Afghanistan.” 10. Human Rights Watch - Statement on US Secret Detention Facilities of 6 November 2005 248.", "On 6 November 2005 Human Rights Watch issued a “Statement on US Secret Detention Facilities in Europe” (“the 2005 HRW Statement”), which indicated Romania’s and Poland’s complicity in the CIA rendition programme. It was given 2 days after the Washington Post had published Dana Priest’s article revealing information of secret detention facilities designated for suspected terrorists run by the CIA outside the US, including “Eastern European countries” (see also paragraph 253 below). 249. The statement read, in so far as relevant, as follows: “Human Rights Watch has conducted independent research on the existence of secret detention locations that corroborates the Washington Post’s allegations that there were detention facilities in Eastern Europe. Specifically, we have collected information that CIA airplanes travelling from Afghanistan in 2003 and 2004 made direct flights to remote airfields in Poland and Romania.", "Human Rights Watch has viewed flight records showing that a Boeing 737, registration number N313P – a plane that the CIA used to move several prisoners to and from Europe, Afghanistan, and the Middle East in 2003 and 2004 – landed in Poland and Romania on direct flights from Afghanistan on two occasions in 2003 and 2004. Human Rights Watch has independently confirmed several parts of the flight records, and supplemented the records with independent research. According to the records, the N313P plane flew from Kabul to northeastern Poland on September 22, 2003, specifically, to Szymany airport, near the Polish town of Szczytno, in Warmia-Mazuria province. Human Rights Watch has obtained information that several detainees who had been held secretly in Afghanistan in 2003 were transferred out of the country in September and October 2003. The Polish intelligence service maintains a large training facility and grounds near the Szymany airport.", "... On Friday, the Associated Press quoted Szymany airport officials in Poland confirming that a Boeing passenger plane landed at the airport at around midnight on the night of September 22, 2003. The officials stated that the plane spent an hour on the ground and took aboard five passengers with U.S. passports. ... Further investigation is needed to determine the possible involvement of Poland and Romania in the extremely serious activities described in The Washington Post article. Arbitrary incommunicado detention is illegal under international law. It often acts as a foundation for torture and mistreatment of detainees.", "U.S. government officials, speaking anonymously to journalists in the past, have admitted that some secretly held detainees have been subjected to torture and other mistreatment, including waterboarding (immersing or smothering a detainee with water until he believes he is about to drown). Countries that allow secret detention programs to operate on their territory are complicit in the human rights abuses committed against detainees. Human Rights Watch knows the names of 23 high-level suspects being held secretly by U.S. personnel at undisclosed locations. An unknown number of other detainees may be held at the request of the U.S. government in locations in the Middle East and Asia. U.S. intelligence officials, speaking anonymously to journalists, have stated that approximately 100 persons are being held in secret detention abroad by the United States.", "Human Rights Watch emphasizes that there is no doubt that secret detention facilities operated by the United States exist. The Bush Administration has cited, in speeches and in public documents, arrests of several terrorist suspects now held in unknown locations. Some of the detainees cited by the administration include: Abu Zubaydah, a Palestinian arrested in Pakistan in March 2002; ... Abd al-Rahim al‑Nashiri (also known as Abu Bilal al-Makki), arrested in United Arab Emirates in November 2002 ... . Human Rights Watch urges the United Nations and relevant European Union bodies to launch investigations to determine which countries have been or are being used by the United States for transiting and detaining incommunicado prisoners. The U.S. Congress should also convene hearings on the allegations and demand that the Bush administration account for secret detainees, explain the legal basis for their continued detention, and make arrangements to screen detainees to determine their legal status under domestic and international law.", "We welcome the decision by the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe to examine the existence of U.S.-run detention centers in Council of Europe member states. We also urge the European Union, including the EU Counter-Terrorism Coordinator, to further investigate allegations and publish its findings.” 11. Human Rights Watch – List of “Ghost Prisoners” Possibly in CIA Custody” of 30 November 2005 250. On 30 November 2005 Human Rights Watch published a “List of ‘Ghost Prisoners’ Possibly in CIA Custody” (“the 2005 HRW List”), which included the applicant. The document reads, in so far as relevant, as follows: “The following is a list of persons believed to be in U.S. custody as ‘ghost detainees’ – detainees who are not given any legal rights or access to counsel, and who are likely not reported to or seen by the International Committee of the Red Cross.", "The list is compiled from media reports, public statements by government officials, and from other information obtained by Human Rights Watch. Human Rights Watch does not consider this list to be complete: there are likely other “ghost detainees” held by the United States. Under international law, enforced disappearances occur when persons are deprived of their liberty, and the detaining authority refuses to disclose their fate or whereabouts, or refuses to acknowledge their detention, which places the detainees outside the protection of the law. International treaties ratified by the United States prohibit incommunicado detention of persons in secret locations. Many of the detainees listed below are suspected of involvement in serious crimes, including the September 11, 2001 attacks; the 1998 U.S. Embassy bombings in Kenya and Tanzania; and the 2002 bombing at two nightclubs in Bali, Indonesia.", "... Yet none on this list has been arraigned or criminally charged, and government officials, speaking anonymously to journalists, have suggested that some detainees have been tortured or seriously mistreated in custody. The current location of these prisoners is unknown. List, as of December 1, 2005: ... 4. Abu Zubaydah (also known as Zain al-Abidin Muhammad Husain).", "Reportedly arrested in March 2002, Faisalabad, Pakistan. Palestinian (born in Saudi Arabia), suspected senior al-Qaeda operational planner. Listed as captured in ‘George W. Bush: Record of Achievement. Waging and Winning the War on Terror’, available on the White House website. Previously listed as ‘disappeared’ by Human Rights Watch.", "... 9. Abd al-Rahim al-Nashiri (or Abdulrahim Mohammad Abda al-Nasheri, aka Abu Bilal al-Makki or Mullah Ahmad Belal). Reportedly arrested in November 2002, United Arab Emirates. Saudi or Yemeni, suspected al-Qaeda chief of operations in the Persian Gulf, and suspected planner of the USS Cole bombing, and attack on the French oil tanker, Limburg. Listed in ‘George W. Bush: Record of Achievement, Waging and Winning the War on Terror’, available on the White House website.", "Previously listed as ‘disappeared’ by Human Rights Watch. ... ... 11. Mustafa al-Hawsawi (aka al-Hisawi) Reportedly arrested on March 1, 2003 (together with Khaled Sheikh Mohammad), Pakistan. Saudi, suspected al-Qaeda financier. Previously listed as “disappeared” by Human Rights Watch.", "12. Khaled Sheikh Mohammed Reportedly arrested on March 1, 2003, Rawalpindi, Pakistan. Kuwaiti (Pakistani parents), suspected al-Qaeda, alleged to have “masterminded” Sept. 11 attacks, killing of Daniel Pearl, and USS Cole attack in 2000. Listed in “George W. Bush: Record of Achievement, Waging and Winning the War on Terror,” available on the White House website. Previously listed as “disappeared” by Human Rights Watch.", "...” VIII. SELECTED MEDIA REPORTS AND ARTICLES A. International media 1. Reports published in 2002 251. On 11 March 2002 The Washington Post published an article by R. Chandrasekaran and P. Finn entitled “US Behind Secret Transfer of Terror Suspects” which read, in so far as relevant, as follows: “Since Sept. 11, the U.S. government has secretly transported dozens of people suspected of links to terrorists to countries other than the United States, bypassing extradition procedures and legal formalities, according to Western diplomats and intelligence sources.", "The suspects have been taken to countries, including Egypt and Jordan, whose intelligence services have close ties to the CIA and where they can be subjected to interrogation tactics Including torture and threats to families - that are illegal in the United States, the sources said. In some cases, U.S. intelligence agents remain closely involved in the interrogation, the sources said. After September 11, these sorts of movements have been occurring all the time’, a US diplomat told the Washington Post. ‘It allows us to get information from terrorists in a way we can’t do on US soil’. ... U.S. involvement in seizing terrorism suspects in third countries and shipping them with few or no legal proceedings to the United States or other countries - known as ‘rendition’ - is not new.", "In recent years, U.S. agents, working with Egyptian intelligence and local authorities in Africa, Central Asia and the Balkans, have sent dozens of suspected Islamic extremists to Cairo or taken them to the United States, according to U.S. officials, Egyptian lawyers and human rights groups. ...” 252. On 12 March 2002 The Guardian published an article written by D. Campbell, entitled “US sends suspects to face torture” which was to an extent based on the above article in the Washington Post. It read, in so far as relevant, as follows: “The US has been secretly sending prisoners suspected of al-Qaida connections to countries where torture during interrogation is legal, according to US diplomatic and intelligence sources. Prisoners moved to such countries as Egypt and Jordan can be subjected to torture and threats to their families to extract information sought by the US in the wake of the September 11 attacks.", "The normal extradition procedures have been bypassed in the transportation of dozens of prisoners suspected of terrorist connections, according to a report in the Washington Post. The suspects have been taken to countries where the CIA has close ties with the local intelligence services and where torture is permitted. According to the report, US intelligence agents have been involved in a number of interrogations. A CIA spokesman yesterday said the agency had no comment on the allegations. A state department spokesman said the US had been ‘working very closely with other countries’ – it’s a global fight against terrorism’.", "... The seizing of suspects and taking them to a third country without due process of law is known as ‘rendition’. The reason for sending a suspect to a third country rather than to the US, according to the diplomats, is an attempt to avoid highly publicised cases that could lead to a further backlash from Islamist extremists. ... The US has been criticised by some of its European allies over the detention of prisoners at Camp X-Ray in Guantánamo Bay, Cuba.", "After the Pentagon released pictures of blindfolded prisoners kneeling on the ground, the defence secretary, Donald Rumsfeld, was forced to defend the conditions in which they were being held. Unsuccessful attempts have been made by civil rights lawyers based in Los Angeles to have the Camp X-Ray prisoners either charged in US courts or treated as prisoners of war. The US administration has resisted such moves, arguing that those detained, both Taliban fighters and members of al-Qaida, were not entitled to be regarded as prisoners of war because they were terrorists rather than soldiers and were not part of a recognised, uniformed army.” 253. On 2 April 2002 ABC News reported: “US officials have been discussing whether Zubaydah should be sent to countries, including Egypt or Jordan, where much more aggressive interrogation techniques are permitted. But such a move would directly raise a question of torture ... Officials have also discussed sending Zubaydah to Guantànamo Bay or to a military ship at sea.", "Sources say it’s imperative to keep him isolated from other detainees as part of psychological warfare, and even more aggressive tools may be used.” 254. Two Associated Press reports of 2 April 2002 stated: “Zubaydah is in US custody, but it’s unclear whether he remains in Pakistan, is among 20 al Qaeda suspects to be sent to the US naval station at Guantànamo Bay, Cuba, or will be transported to a separate location.” and: “US officials would not say where he was being held. But they did say he was not expected in the United States any time soon. He could eventually be held in Afghanistan, aboard a Navy ship, at the US base in Guantànamo Bay, Cuba, or transferred to a third country.” 255. On 26 December 2002 The Washington Post published a detailed article entitled “Stress and Duress Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities”.", "The article referred explicitly to the practice of rendition and summarised the situation as follows: “a brass-knuckled quest for information, often in concert with allies of dubious human rights reputation; in which the traditional lines between right and wrong, legal and inhumane, are evolving and blurred. ... ‘If you don’t violate someone’s human rights some of the time; you probably aren’t doing your job,’ said one official who has supervised the capture and transfer of accused terrorists.” The article also noted that “there were a number of secret detention centers overseas where US due process does not apply ... where the CIA undertakes or manages the interrogation of suspected terrorists ... off-limits to outsiders and often even to other government agencies. In addition to Bagram and Diego Garcia, the CIA has other detention centres overseas and often uses the facilities of foreign intelligence services”. The Washington Post also gave details on the rendition process: “The takedown teams often ‘package’ prisoners for transport, fitting them with hoods and gags, and binding them to stretchers with duct tape.” The article received worldwide exposure. In the first weeks of 2003 it was, among other things, the subject of an editorial in the Economist and a statement by the World Organisation against Torture.", "2. Reports published in 2005 256. On 2 November 2005 The Washington Post reported that the United States had used secret detention facilities in Eastern Europe and elsewhere to hold illegally persons suspected of terrorism. The article, entitled “CIA Holds Terror Suspects in Secret Prisons” cited sources from the US Government, notably the CIA, but no specific locations in Eastern Europe were identified. It was written by Dana Priest, an American journalist.", "She referred to the countries involved as “Eastern-European countries”. It read, in so far as relevant, as follows: “The CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe, according to U.S. and foreign officials familiar with the arrangement. The secret facility is part of a covert prison system set up by the CIA nearly four years ago that at various times has included sites in eight countries, including Thailand, Afghanistan and several democracies in Eastern Europe, as well as a small center at the Guantánamo Bay prison in Cuba, according to current and former intelligence officials and diplomats from three continents. The hidden global internment network is a central element in the CIA’s unconventional war on terrorism. It depends on the cooperation of foreign intelligence services, and on keeping even basic information about the system secret from the public, foreign officials and nearly all members of Congress charged with overseeing the CIA’s covert actions.", "The existence and locations of the facilities – referred to as ‘black sites’ in classified White House, CIA, Justice Department and congressional documents – are known to only a handful of officials in the United States and, usually, only to the president and a few top intelligence officers in each host country. ... Although the CIA will not acknowledge details of its system, intelligence officials defend the agency’s approach, arguing that the successful defense of the country requires that the agency be empowered to hold and interrogate suspected terrorists for as long as necessary and without restrictions imposed by the U.S. legal system or even by the military tribunals established for prisoners held at Guantánamo Bay. The Washington Post is not publishing the names of the Eastern European countries involved in the covert program, at the request of senior U.S. officials. They argued that the disclosure might disrupt counterterrorism efforts in those countries and elsewhere and could make them targets of possible terrorist retaliation.", "... It is illegal for the government to hold prisoners in such isolation in secret prisons in the United States, which is why the CIA placed them overseas, according to several former and current intelligence officials and other U.S. government officials. Legal experts and intelligence officials said that the CIA’s internment practices also would be considered illegal under the laws of several host countries, where detainees have rights to have a lawyer or to mount a defense against allegations of wrongdoing. Host countries have signed the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as has the United States. Yet CIA interrogators in the overseas sites are permitted to use the CIA’s approved “Enhanced Interrogation Techniques,” some of which are prohibited by the U.N. convention and by U.S. military law.", "They include tactics such as ‘waterboarding’, in which a prisoner is made to believe he or she is drowning. ... The contours of the CIA’s detention program have emerged in bits and pieces over the past two years. Parliaments in Canada, Italy, France, Sweden and the Netherlands have opened inquiries into alleged CIA operations that secretly captured their citizens or legal residents and transferred them to the agency’s prisons. More than 100 suspected terrorists have been sent by the CIA into the covert system, according to current and former U.S. intelligence officials and foreign sources.", "This figure, a rough estimate based on information from sources who said their knowledge of the numbers was incomplete, does not include prisoners picked up in Iraq. The detainees break down roughly into two classes, the sources said. About 30 are considered major terrorism suspects and have been held under the highest level of secrecy at black sites financed by the CIA and managed by agency personnel, including those in Eastern Europe and elsewhere, according to current and former intelligence officers and two other U.S. government officials. Two locations in this category – in Thailand and on the grounds of the military prison at Guantánamo Bay – were closed in 2003 and 2004, respectively. A second tier – which these sources believe includes more than 70 detainees – is a group considered less important, with less direct involvement in terrorism and having limited intelligence value.", "These prisoners, some of whom were originally taken to black sites, are delivered to intelligence services in Egypt, Jordan, Morocco, Afghanistan and other countries, a process sometimes known as “rendition.” While the first-tier black sites are run by CIA officers, the jails in these countries are operated by the host nations, with CIA financial assistance and, sometimes, direction. ... The top 30 al Qaeda prisoners exist in complete isolation from the outside world. Kept in dark, sometimes underground cells, they have no recognized legal rights, and no one outside the CIA is allowed to talk with or even see them, or to otherwise verify their well-being, said current and former and U.S. and foreign government and intelligence officials. ...", "The Eastern European countries that the CIA has persuaded to hide al Qaeda captives are democracies that have embraced the rule of law and individual rights after decades of Soviet domination. Each has been trying to cleanse its intelligence services of operatives who have worked on behalf of others – mainly Russia and organized crime. ... By mid-2002, the CIA had worked out secret black-site deals with two countries, including Thailand and one Eastern European nation, current and former officials said. An estimated $100 million was tucked inside the classified annex of the first supplemental Afghanistan appropriation. ...” 257.", "On 5 December 2005, ABC News published a report, by Brian Ross and Richard Esposito, entitled “Sources Tell ABC News Top Al Qaeda Figures Held in Secret CIA Prisons – 10 Out of 11 High-Value Terror Leaders Subjected to ‘Enhanced Interrogation Techniques’” and listing the names of top al-Qaeda terrorist suspects held in Poland and Romania, including the applicant. This report was available on the Internet for only a very short time; it was withdrawn from ABC News’ webpage shortly thereafter following the intervention of lawyers on behalf of the network’s owners. At present, the content is again publicly available and reads, in so far as relevant, as follows: “Two CIA secret prisons were operating in Eastern Europe until last month when they were shut down following Human Rights Watch reports of their existence in Poland and Romania. Current and former CIA officers speaking to ABC News on the condition of confidentiality say the United States scrambled to get all the suspects off European soil before Secretary of State Condoleezza Rice arrived there today. The officers say 11 top al Qaeda suspects have now been moved to a new CIA facility in the North African desert.", "CIA officials asked ABC News not to name the specific countries where the prisons were located, citing security concerns. The CIA declines to comment, but current and former intelligence officials tell ABC News that 11 top al Qaeda figures were all held at one point on a former Soviet air base in one Eastern European country. Several of them were later moved to a second Eastern European country. All but one of these 11 high-value al Qaeda prisoners were subjected to the harshest interrogation techniques in the CIA’s secret arsenal, the so-called ‘enhanced interrogation techniques’ authorized for use by about 14 CIA officers and first reported by ABC News on Nov. 18. Rice today avoided directly answering the question of secret prisons in remarks made on her departure for Europe, where the issue of secret prisons and secret flights has caused a furor.", "Without mentioning any country by name, Rice acknowledged special handling for certain terrorists. ‘The captured terrorists of the 21st century do not fit easily into traditional systems of criminal or military justice, which were designed for different needs. We have had to adapt’, Rice said. The CIA has used a small fleet of private jets to move top al Qaeda suspects from Afghanistan and the Middle East to Eastern Europe, where Human Rights Watch has identified Poland and Romania as the countries that housed secret sites. But Polish Defense Minister Radosław Sikorski told ABC Chief Investigative Correspondent Brian Ross today: ‘My president has said there is no truth in these reports.’ Ross asked: ‘Do you know otherwise, sir, are you aware of these sites being shut down in the last few weeks, operating on a base under your direct control?’ Sikorski answered, ‘I think this is as much as I can tell you about this’.", "In Romania, where the secret prison was possibly at a military base visited last year by Defense Secretary Donald Rumsfeld, the new Romanian prime minister said today there is no evidence of a CIA site but that he will investigate. Sources tell ABC that the CIA’s secret prisons have existed since March 2002 when one was established in Thailand to house the first important al Qaeda target captured. Sources tell ABC that the approval for another secret prison was granted last year by a North African nation. Sources tell ABC News that the CIA has a related system of secretly returning other prisoners to their home country when they have outlived their usefulness to the United States. These same sources also tell ABC News that U.S. intelligence also ships some ‘unlawful combatants’ to countries that use interrogation techniques harsher than any authorized for use by U.S. intelligence officers.", "They say that Jordan, Syria, Morocco and Egypt were among the nations used in order to extract confessions quickly using techniques harsher than those authorized for use by U.S. intelligence officers. These prisoners were not necessarily citizens of those nations. According to sources directly involved in setting up the CIA secret prison system, it began with the capture of Abu [Zubaydah] in Pakistan. After treatment there for gunshot wounds, he was whisked by the CIA to Thailand where he was housed in a small, disused warehouse on an active airbase. There, his cell was kept under 24-hour closed circuit TV surveillance and his life-threatening wounds were tended to by a CIA doctor specially sent from Langley headquarters to assure Abu Zubaydah was given proper care, sources said.", "Once healthy, he was slapped, grabbed, made to stand long hours in a cold cell, and finally handcuffed and strapped feet up to a water board until after 0.31 seconds he begged for mercy and began to cooperate. ...” 3. ABC News reports of 2009 258. On 20 August 2009 ABC News reported that up to the end of 2005 a secret CIA prison had been operating in Lithuania for the purposes of detention of high-value al-Qaeda terrorists. In particular, it was reported that according to “former CIA officials directly involved or briefed” on the CIA programme, “Lithuanian officials provided the CIA with a building on the outskirts of Vilnius, the country’s capital, where as many as eight suspects were held for more than a year.” The published report, by Matthew Cole, was entitled “Lithuania Hosted Secret CIA Prison To Get ‘Our Ear’” reads, in so far as relevant, as follows: “A third European country has been identified to ABC News as providing the CIA with facilities for a secret prison for high-value al Qaeda suspects: Lithuania, the former Soviet state.", "Former CIA officials directly involved or briefed on the highly classified program tell ABC News that Lithuanian officials provided the CIA with a building on the outskirts of Vilnius, the country’s capital, where as many as eight suspects were held for more than a year, until late 2005 when they were moved because of public disclosures about the program. Flight logs viewed by ABC News confirm that CIA planes made repeated flights into Lithuania during that period. The CIA told ABC News that reporting the location of the now-closed prison was ‘irresponsible’. ‘The CIA does not publicly discuss where facilities associated with its past detention program may or may not have been located’, said CIA spokesman Paul Gimigliano. ‘We simply do not comment on those types of claims, which have appeared in the press from time to time over the years.", "The dangers of airing such allegations are plain. These kinds of assertions could, at least potentially, expose millions of people to direct threat. That is irresponsible’. Former CIA officials tell ABC News that the prison in Lithuania was one of eight facilities the CIA set-up after 9/11 to detain and interrogate top al Qaeda operatives captured around the world. Thailand, Romania, Poland, Morocco, and Afghanistan have previously been identified as countries that housed secret prisons for the CIA.", "According to a former intelligence official involved in the program, the former Soviet Bloc country agreed to host a prison because it wanted better relations with the U.S. Asked whether the Bush administration or the CIA offered incentives in return for allowing the prison, the official said, ‘We didn’t have to’. The official said, ‘They were happy to have our ear’. Through their embassy in Washington, the Lithuanian government denied hosting a secret CIA facility. ‘The Lithuanian Government denies all rumors and interpretations about alleged secret prison that supposedly functioned on Lithuanian soil and possibly was used by [CIA]’, said Tomas Gulbinas, an embassy spokesman.", "CIA Secret Prisons According to two top government officials at the time, revelations about the existence of prisons in Eastern Europe in late 2005 by the Washington Post and ABC News led the CIA to close its facilities in Lithuania and Romania and move the al‑Qaeda prisoners out of Europe. The so-called High Value Detainees (HVD) were moved into ‘war zone’ facilities, according to one of the former CIA officials, meaning they were moved to Iraq and Afghanistan. Within nine months, President Bush announced the existence of the program and ordered the transfer of 14 of the detainees, including Khaled Sheikh Mohammed, Ramzi bin al Shihb and Abu Zubaydah, to Guantánamo, where they remain in CIA custody. The CIA high value detainee (HVD) program began after the March 2002 capture of Abu Zubaydah. Within days, the CIA arranged for Zubaydah to be flown to Thailand.", "Later, in mid-2003 after Thai government and intelligence officials became nervous about hosting a secret prison for Zubaydah and a second top al Qaeda detainee, according to a former CIA officer involved in the program. One was transferred to a facility housed on a Polish intelligence base in December 2002, said a former official involved with transferring detainees. The facility was known as Ruby Base, according to two former CIA officials familiar with the location. One of the former CIA officers involved in the secret prison program allowed ABC News to view flight logs that show aircraft used to move detainees to and from the secret prisons in Lithuania, Thailand, Afghanistan, Poland, Romania, Morocco and Guantánamo Bay. The purpose of the flights, said the officer, was to move terrorist suspects.", "The official told ABC News that the CIA arranged for false flight plans to be submitted to European aviation authorities. Planes flying into and out of Lithuania, for example, were ordered to submit paperwork that said they would be landing in nearby countries, despite actually landing in Vilnius, he said. ‘Finland and Poland were used most frequently’ as false destinations, the former CIA officer told ABC News. A similar system was used to land planes in Romania and Poland. Interrogation and Detention Program Lithuania, Poland, and Romania have all ratified the U.N. Convention Against Torture as well as the European Convention on Human Rights.", "All three countries’ legal systems prohibit torture and extrajudicial detention. Polish authorities are currently conducting an investigation into whether any Polish law was broken by government officials there in hosting one of the secret prisons, according to a published report in the German magazine Der Spiegel. ‘There are important legal issues at stake’, said human rights researcher John Sifton. ‘As with Poland and Romania, CIA personnel involved in any secret detentions and interrogations in Lithuania were not only committing violations of U.S. federal law and international law, they were also breaking Lithuanian laws relating to lawless detention, assault, torture, and possibly war crimes. Lithuanian officials who worked with the CIA were breaking applicable Lithuanian laws as well’.", "Washington has been sharply divided over whether investigations into the interrogation and detention program should be opened. The CIA has been ordered by a federal judge to declassify and release much of the agency’s inspector general report about the first years of the program by next week. Attorney General Eric Holder has said that he is weighing whether he should appoint a special prosecutor to investigate alleged abuses in the program after reading the IG report. At issue are instances of abuse that went beyond the guidelines set up by the Office of Legal Counsel (OLC), which included waterboarding and sleep deprivation of up to 11 days, according to people aware of Holder’s thinking. President Obama has called the practices ‘torture and abolished the program within a few days of taking office this year.", "But the president has also said that his administration intended to ‘look forward’ not backward at Bush-era policies of interrogation and detention. One current intelligence official involved in declassifying the IG report told ABC News that the unredacted portions will reveal how and when CIA interrogators used methods and tactics that were not permitted by the OLC. ‘The focus will be on the cases where rules were broken’, the official said. ‘But remember that all instances were referred to the Justice Department and only one resulted in a prosecution’, said the official, referring to the conviction of CIA contractor David Passaro, who beat an Afghan detainee to death in 2003.” 259. On 18 November 2009 ABC News published another report, by Matthew Cole and Brian Ross, entitled “CIA Secret “Torture” Prison Found at Fancy Horseback Riding Academy”.", "It reads, in so far as relevant, as follows: “The CIA built one of its secret European prisons inside an exclusive riding academy outside Vilnius, Lithuania, a current Lithuanian government official and a former U.S. intelligence official told ABC News this week. Where affluent Lithuanians once rode show horses and sipped coffee at a café, the CIA installed a concrete structure where it could use harsh tactics to interrogate up to eight suspected al-Qaeda terrorists at a time. ‘The activities in that prison were illegal’, said human rights researcher John Sifton. ‘They included various forms of torture, including sleep deprivation, forced standing, painful stress positions’. Lithuanian officials provided ABC News with the documents of what they called a CIA front company, Elite, LLC, which purchased the property and built the “black site” in 2004.", "Lithuania agreed to allow the CIA prison after President George W. Bush visited the country in 2002 and pledged support for Lithuania’s efforts to join NATO. ‘The new members of NATO were so grateful for the U.S. role in getting them into that organization that they would do anything the U.S. asked for during that period’, said former White House counterterrorism czar Richard Clarke, now an ABC News consultant. ‘They were eager to please and eager to be cooperative on security and on intelligence matters’. Lithuanian president Dalia Grybauskaitė declined ABC’s request for an interview. ABC News first reported that Lithuania was one of three eastern European countries, along with Poland and Romania, where the CIA secretly interrogated suspected high-value al-Qaeda terrorists, but until now the precise site had not been confirmed.", "Until March 2004, the site was a riding academy and café owned by a local family. The facility is in the town of Antaviliai, in the forest 20 kilometers northeast of the city center of Vilnius, near an exclusive suburb where many government officials live. A ‘Building Within A Building’ In March 2004, the family sold the property to Elite, LLC, a now-defunct company registered in Delaware and Panama and Washington, D.C. That same month, Lithuania marked its formal admission to NATO. The CIA constructed the prison over the next several months, apparently flying in prefabricated elements from outside Lithuania. The prison opened in Sept. 2004.", "According to sources who saw the facility, the riding academy originally consisted of an indoor riding area with a red metallic roof, a stable and a cafe. The CIA built a thick concrete wall inside the riding area. Behind the wall, it built what one Lithuanian source called a ‘building within a building’. On a series of thick concrete pads, it installed what a source called ‘prefabricated pods’ to house prisoners, each separated from the other by five or six feet. Each pod included a shower, a bed and a toilet.", "Separate cells were constructed for interrogations. The CIA converted much of the rest of the building into garage space. Intelligence officers working at the prison were housed next door in the converted stable, raising the roof to add space. Electrical power for both structures was provided by a 2003 Caterpillar autonomous generator. All the electrical outlets in the renovated structure were 110 volts, meaning they were designed for American appliances.", "European outlets and appliances typically use 220 volts. The prison pods inside the barn were not visible to locals. They describe seeing large amounts of earth being excavated during the summer of 2004. Locals who saw the activity at the prison and approached to ask for work were turned away by English-speaking guards. The guards were replaced by new guards every 90 days.", "Former CIA officials directly involved or briefed on the highly classified secret prison program tell ABC News that as many as eight suspects were held for more than a year in the Vilnius prison. Flight logs viewed by ABC News confirm that CIA planes made repeated flights into Lithuania during that period. In November 2005, after public disclosures about the program, the prison was closed, as was another ‘black site’ in Romania. Lithuanian Prison One of Many Around Europe, Officials Said The CIA moved the so-called High Value Detainees (HVD) out of Europe to ‘war zone’ facilities, according to one of the former CIA officials, meaning they were moved to the Middle East. Within nine months, President Bush announced the existence of the program and ordered the transfer of 14 of the detainees, including Khaled Sheikh Muhammad, Ramzi bin al Shihb and Abu Zubaydah, to Guantánamo.", "In August 2009, after ABC News reported the existence of the secret prison outside Vilnius, Lithuanian president Grybauskaitė called for an investigation. If this is true’, Grybauskaitė said, ‘Lithuania has to clean up, accept responsibility, apologize, and promise it will never happen again’. At the time, a Lithuanian government official denied that his country had hosted a secret CIA facility. The CIA told ABC News that reporting the existence of the Lithuanian prison was ‘irresponsible’ and declined to discuss the location of the prison. On Tuesday, the CIA again declined to talk about the prison.", "‘The CIA’s terrorist interrogation program is over’, said CIA spokesman Paul Gimigliano. ‘This agency does not discuss publicly where detention facilities may or may not have been’. Former CIA officials told ABC News that the prison in Lithuania was one of eight facilities the CIA set-up after 9/11 to detain and interrogate top al-Qaeda operatives captured around the world. Thailand, Romania, Poland, Morocco, and Afghanistan have also been identified as countries that housed secret prisons for the CIA. President Barack Obama ordered all the sites closed shortly after taking office in January.", "The Lithuanian prison was the last ‘black’ site opened in Europe, after the CIA’s secret prison in Poland was closed down in late 2003 or early 2004. ‘It obviously took a lot of effort to keep [the prison] secret’, said John Sifton, whose firm One World Research investigates human rights abuses. “There’s a reason this stuff gets kept secret’. ‘It’s an embarrassment, and a crime’.” 4. Other Reports (2009- 2011) 260.", "On 19 November 2009 The Washington Post published a report by Craig Whitlock, entitled “Lithuania investigates possible ‘black site’”. It read, is so far as relevant: “ANTAVILIAI, LITHUANIA -- Residents of this village were mystified five years ago when tight-lipped American construction workers suddenly appeared at a mothballed riding stable here and built a large, two-story building without windows, ringed by a metal fence and security cameras. Today, a Lithuanian parliamentary committee is investigating whether the CIA operated a secret prison for terrorism suspects on the plot of land at the edge of a thick forest for more than a year, from 2004 until late 2005. Lithuanian land registry documents reviewed by The Washington Post show the property was bought in March 2004 by Elite LLC, an unincorporated U.S. firm registered in the District. Records in Lithuania and Washington do not reveal the names of individual officers for Elite but identify its sole shareholder as Star Finance Group and Holdings Inc., a Panamanian corporation.", "There is no record of Elite owning other property in Lithuania. The company, which has since had its registration revoked by D.C. authorities, in turn sold the property to the Lithuanian government in 2007, two years after the existence of the CIA’s overseas network of secret prisons known as black sites -- including some in Eastern Europe -- was first revealed by The Washington Post. At the time, The Post withheld the names of Eastern European countries involved in the covert program at the request of White House officials, who argued that disclosure could subject those countries to retaliation from al-Qaeda. The Lithuanian government has not publicly confirmed whether the property was one of the CIA’s black sites. The site in Antaviliai, about 15 miles outside the capital, Vilnius, is now used by Lithuania’s State Security Department as a training center.", "Department officials have declined to comment on the circumstances under which it acquired the property or whether it was used by the CIA. A CIA spokesman also declined to comment. Domas Grigaliūnas, a former counterintelligence officer with the Lithuanian military, said it was widely known among the Lithuanian secret services that U.S. intelligence partners had built the site, although its original purpose was kept highly classified.’ ‘It just popped up out of nowhere’, he said in an interview. ‘Everybody knew this was handed to us by the Americans’. Grigaliūnas said he was asked in 2004 by the deputy director of Lithuanian military intelligence to develop plans to help a ‘foreign partner’ that was interested in bringing individuals to Lithuania and concealing their whereabouts as part of a covert operation.", "He said he made some recommendations but was never told the identity of the foreign partner or whether the operation was carried out. Since then, however, he said he has become convinced that the program involved the CIA’s detention centers for terrorism suspects. ‘I have no documents to prove it, and I never worked in any prisons, but I believe they existed here’, he said in an interview. Villagers who live in a crumbling apartment complex about 100 yards from the site recalled how English-speaking construction workers descended on a small, shuttered horse-riding academy there in 2004. They said the workers refused to answer questions about what they were doing but brought shipping containers filled with building materials.", "The workers also excavated large amounts of soil; with all the digging, residents said they assumed that part of the new facility was underground. ‘If you got close, they would tell us, in English, to go away’, said a retired man who lives nearby and spoke on the condition of anonymity, citing fears of retribution. ‘We were really wondering what they were up to. We even wondered if it was a Mafia drug operation or something’. Members of the Lithuanian Parliament’s National Security and Defense Committee visited the site recently as part of their investigation into whether the CIA detained terrorism suspects on Lithuanian territory.", "The probe was authorized last month by the Parliament after ABC News reported in August that two CIA-chartered flights had brought al-Qaeda prisoners from Afghanistan to Vilnius in 2004 and 2005. Lithuanian government officials denied the ABC News report at the time and said there was no documentation that the flights ever landed in their country. But the Parliament decided to take another look after Lithuania’s newly elected president, Dalia Grybauskaitė, said in October that she had ‘indirect suspicions’ that reports of the CIA prison were accurate and urged a more comprehensive investigation. Arvydas Anušauskas, chairman of the National Security and Defense Committee, declined to comment on its findings. In response to written questions submitted by The Post, he said the committee would interview ‘all the persons who might have known or could have known the information in question’.", "‘The committee has all rights and tools to ultimately clarify the situation and to either confirm or deny any allegations of the transportation of detainees by the Central Intelligence Agency of the United States and their detention on the territory of the Republic of Lithuania’, he said. Lithuanian officials have also been pressed to investigate by the Council of Europe, an official human rights watchdog, which has conducted its own probe of CIA operations on the continent. Council officials said they had received confidential records confirming that CIA-chartered planes had flown from Afghanistan to Vilnius in 2004 and 2005. Thomas Hammarberg, the council’s commissioner for human rights, said in a telephone interview that flight logs had been doctored to indicate that the planes had touched down in neighboring countries, including Finland and Poland. Hammarberg visited Vilnius last month and said he personally urged Lithuanian officials to take the issue more seriously.", "‘I told them it is quite likely that further information might leak from the United States, so they should hurry up and do their own investigation now’, he said.” 261. On 22 December 2009 Agence France Press published a report by Marielle Vitureau, entitled “Lithuania May Have Hosted Two US ‘War on Terror’ Jails”. It reads in so far as relevant, as follows: “Vilnius - Staunch US ally Lithuania may have hosted two ‘war on terror’ lock-ups used by American agents to interrogate suspected Al-Qaeda members, the head of an inquiry commission said Tuesday. “‘The sites existed’, Arvydas Anušauskas told reporters as he presented the findings of a probe launched last month by Lithuanian lawmakers. ‘And planes landed’.", "But Anušauskas noted it was not possible to say if any suspects were actually brought to the Baltic state. ‘Regarding the ‘cargo’, I can’t confirm anything, because Lithuanian authorities could not carry out the usual checks, so what was being transported was unknown’, he explained. Ex-president Valdas Adamkus, who was in power for much of the period that the sites are believed to have operated, rejected the findings. ‘I am certain this never happened and nobody proved me wrong’, Adamkus told the Baltic News Service. Lithuania’s parliament called for an investigation after the US television channel ABC alleged that the ex-Soviet republic had hosted a CIA ‘black site’, or secret facility, for a handful of captives.", "ABC cited unnamed former intelligence officials. The move, it was told, was a trade-off for Washington’s unbending support for Lithuania’s 2004 NATO admission. Ex-communist US allies Romania and Poland have faced similar claims in the past. ‘We have identified the sites. The first project was developed from 2002.", "In response to the wishes of our partners and the conditions that were imposed, the site was meant to host one person. The second site was created in 2004’, Anušauskas said. The second site is believed to have been a converted riding school in the hamlet of Antaviliai, some 20 kilometres (13 miles) from Vilnius. It was purchased in March 2004 by a US-registered firm Elite LLC - purportedly a CIA front. According to information obtained by AFP, the US embassy in Vilnius was involved in acquiring the site for two million litas (579,000 euros, 829,000 dollars).", "‘The lay-out of the buildings, their secret nature, the fence around the site, plus the only sporadic visits by VSD operatives [i.e. the SSD], enabled our partners to carry out activities without VSD control and to use the place however they liked’, said Anušauskas, using the acronym for Lithuanian intelligence. Lithuania’s land register shows that the Lithuanian state bought the property in January 2007. It reportedly has since served as a VSD training centre. Prime Minister Andrius Kubilius, in government since winning an election in October 2008, slammed the VSD.", "‘The biggest concern comes from the fact that a few agents, without consulting the head of state, took a decision that breached the law’, he told reporters, adding that ‘the VSD became a state within a state’. Defence Minister Rasa Juknevičienė said she had previously thought the claims were ‘nonsense’. ‘I could not say this today’, she told reporters. The probe found that five CIA-linked aircraft landed on Lithuanian soil from 2003 to 2006. Two touched down in Vilnius on February 3, 2003, and October 6, 2005.", "In the second case, border guards were barred from checking the plane, Anušauskas said. Three other aircraft landed at Palanga, on the Baltic coast, around 330 kilometres from Vilnius, on January 2 and February 18, 2005, and March 25, 2006. Anušauskas said the probe concluded that Lithuania’s heads of state were ‘not informed, or only informed superficially’ about the sites. Adamkus was in power from 1998 to 2003 and again from 2004 to 2009. In between, Rolandas Paksas served a year in office before being impeached in a graft case.", "Earlier this month, Paksas said that in 2003 he declined a VSD request to transfer suspects to Lithuania. The VSD boss at the time, Mečys Laurinkus, said this month that the request had been hypothetical.” 262. On 8 December 2011 The Independent published an article written by A. Goldman and M. Apuzzo, entitled “Inside Romania’s secret CIA prison”. While the article concerned the alleged CIA “black site” in Bucharest, it also referred in passing to a secret detention facility in Lithuania. The relevant parts read: “The Romanian prison was part of a network of so-called black sites that the CIA operated and controlled overseas in Thailand, Lithuania and Poland.", "All the prisons were closed by May 2006, and the CIA’s detention and interrogation programme ended in 2009. Unlike the CIA’s facility in Lithuania’s countryside or the one hidden in a Polish military installation, the CIA’s prison in Romania was not in a remote location. It was hidden in plain sight, a couple blocks off a major boulevard on a street lined with trees and homes, along busy train tracks. ... The Romanian and Lithuanian sites were eventually closed in the first half of 2006 before CIA Director Porter Goss left the job.", "Some of the detainees were taken to Kabul, where the CIA could legally hold them before they were sent to Guantánamo. Others were sent back to their native countries.” B. Lithuanian media 263. The applicant produced copies of a number of articles in the Lithuanian press published from 2003 onwards, referring to capture and transfer of detainees to Guantánamo and the conditions of their detention. The summary of the media coverage produced by the applicant in English reads as follows: “(i) On 18 June 2004, the Baltic News Service reported on secret CIA detention, noting that U.S. Secretary of Defence Donald Rumsfeld had acknowledged the secret detention of individuals by the CIA in order to avoid scrutiny by the ICRC. On 26 July 2004, Delfi.lt, the leading Lithuanian online news site, published a lengthy discussion of the “question of means” in the “war on terrorism.” The report described the dilemma facing European states supporting the U.S. fight against terrorism in the light of the abusive United States detention and interrogation policies in Afghanistan, Guantánamo and Iraq.", "In October 2004, a major daily, Lietuvos Rytas, described the ongoing scandal of prisoner torture by United States officials in Afghanistan. In March 2005, Lietuvos Rytas reported that United States allies were “irritated” by the detention and torture tactics used by the USA. (ii) On 17 December 2004, the Baltic News Service reported on the secret CIA prison established at Guantánamo Bay and the incommunicado detention of detainees there. (iii) On 7 March 2005, the major Lithuanian news agency ELTA reported on the classified Top Secret executive order issued by United States President George Bush in the first days after 11 September 2001 that gave broad authority for the CIA to conduct secret renditions, detention and interrogation. Referring to the “programme of prisoner rendition”, ELTA described some of the abusive conditions under which detainees were held and interrogated.", "(iv) The following week ELTA reported that European officials would investigate whether the CIA agents had violated the law while carrying out rendition operations in Europe involving transfer of persons to countries where they could face torture. According to ELTA, “the CIA usually organises these operations with the consent of local surveillance organisations; the governments of Italy, Germany and Sweden are investigating whether these actions infringe local laws and human rights.” This was followed on 25 October 2005 by the Baltic News Service reporting that the United States government was seeking to exempt CIA employees from the application of the prohibition of cruel and humiliating treatment. (v) On 2 November 2005 ELTA reported on allegations of secret detention facilities in neighbouring Poland and Romania, noting that both denied the existence of CIA secret prisons on their territory but that the Council of Europe was investigating the claims. (vi) In November 2005 reports began to emerge in Lithuania that aircraft associated with the CIA rendition programme, including N313P and N379P, had used Lithuanian airspace. Lithuanian newspapers published numerous reports in November 2005 detailing the nature of the allegations of a CIA network of secret prisons.” IX.", "INTERNATIONAL INQUIRIES RELATING TO THE CIA SECRET DETENTION AND RENDITION OF SUSPECTED TERRORISTS IN EUROPE, INCLUDING LITHUANIA A. Council of Europe 1. Procedure under Article 52 of the Convention 264. In November 2005, the Secretary General of the Council of Europe, Mr Terry Davis, acting under Article 52 of the Convention and in connection with reports of European collusion in secret rendition flights, sent a questionnaire to – at that time 45 – States Parties to the Convention, including Lithuania. The States were asked to explain how their internal law ensured the effective implementation of the Convention on four issues: 1) adequate controls over acts by foreign agents in their jurisdiction; 2) adequate safeguards to prevent, as regards any person in their jurisdiction, unacknowledged deprivation of liberty, including transport, with or without the involvement of foreign agents; 3) adequate responses (including effective investigations) to any alleged infringements of ECHR rights, notably in the context of deprivation of liberty, resulting from conduct of foreign agents; 4) whether since 1 January 2002 any public official had been involved, by action or omission, in such deprivation of liberty or transport of detainees; whether any official investigation was under way or had been completed.", "265. Lithuania’s reply was prepared by the Ministry of Foreign Affairs on the basis of information provided by the relevant State institutions. The reply was approved at a consultation meeting of the Lithuanian Government and was discussed at a meeting of the Seimas Foreign Affairs Committee when it considered the issue of the activities of the United States secret services in Europe allegedly carried out in violation of human rights. No competent State institution, either in the course of preparation of the replies by the Ministry of Foreign Affairs or during consideration of the issue by the Seimas Foreign Affairs Committee, provided evidence confirming that the CIA or other United States secret services had been engaged in the illegal confinement of suspected terrorists on Lithuanian territory. Nor was there any information confirming that Lithuania’s airports had been used for covert transportation of suspected terrorists.", "266. In February 2006 the Lithuanian Government provided the Secretary General with answers to the questions posed. The response was a brief summary of the legal framework governing the functioning of foreign agents in Lithuania and the theoretical possibility of claiming damages for unlawful actions by State officials. 267. In a letter of 7 March 2006 the Secretary General noted that the explanations provided by the Lithuanian Government did not address all the questions in a sufficiently detailed way.", "He asked for supplementary explanations on 1) control mechanisms regarding transiting aircraft which might be used for rendition purposes by foreign agencies, and to what extent the Lithuanian authorities could exercise jurisdiction over such aircraft; 2) whether since 1 January 2002 any Lithuanian officials had been involved in secret rendition, and whether any investigations had been conducted in that connection. Lithuania replied on 7 April 2006. 268. On 14 June 2006 the Secretary General issued the Supplementary report under Article 52 ECHR on the question of secret detention and transport of detainees suspected of terrorist acts, notably by or at the instigation of foreign agencies (SG/Inf92006)13). It contained the results of an analysis of the replies received in response to the second series of letters sent by the Secretary General.", "Lithuania’s replies as regards control mechanisms concerning transiting aircraft which might be used for rendition purposes by foreign agencies, and to what extent the Lithuanian authorities could exercise jurisdiction over such aircraft were included in the report. The relevant sections read as follows: “3. Control mechanisms regarding transiting aircraft ... 3.2. State aircraft 51. Several States explain in detail their national legislation stipulating clearance requirements for foreign State aircraft (Denmark, Croatia, Georgia, Latvia, Lithuania and Portugal).", "From the replies given, it appears that foreign governments are generally not required to provide information on the identity and status of persons on board. Once an authorisation is granted, the State aircraft benefits from immunity and is not subject to controls. ... No country mentions the use of specific procedures or clauses designed to ensure effective guarantees against serious human rights violations. 52. Latvia (in 2005) and Lithuania (in 2004) enacted comprehensive regulations prescribing the procedure of granting permits for foreign State aircraft.", "Requests for permission must be made in advance. They must indicate, among other things, the number of passengers (but not their identity, except for VIPs), the purpose of the flight, the flight route and the airports used. ... 53. Estonia, Georgia, Lithuania and Slovenia indicate that any transport of detained persons through their respective territories requires prior consent by the Ministry of Justice or the Prosecutor General’s Office. However, according to the replies of Lithuania and Slovenia, such consent would not be required for transportation by air without a scheduled landing.", "54. In contrast to the replies to my first letter (see paragraph 55 of SG/Inf(2006)5), several countries now refer to “general” or “blanket” overflight clearances or rights. Referring to NATO regulations, Latvia and Lithuania declare that NATO has the right to carry out the control and defence of their respective airspace. Military aircraft of NATO member States are accordingly exempt from existing control mechanisms. ...", "Such arrangements appear to be based on mutual trust. No information is provided about possible safeguards against abuse. 55. Lithuania indicates that it granted permanent permissions (valid each time for one year) to use its airspace to US State aircraft from 2001 to 2006. ...” As regards the question whether, since 1 January 2002 (or since the date of entry into force of the Convention if it had occurred later) any public official had been involved in any manner – by action or omission – in the unacknowledged deprivation of liberty of any individual or transport of any individual so deprived of their liberty, including where such deprivation of liberty may have occurred by or at the instigation of any foreign agency, Lithuania responded in the negative.", "2. Parliamentary Assembly’s inquiry - the Marty Inquiry 269. On 1 November 2005 the PACE launched an investigation into allegations of secret detention facilities being run by the CIA in many member states, for which Swiss Senator Dick Marty was appointed rapporteur. On 15 December 2005 the Parliamentary Assembly requested an opinion from the Venice Commission on the legality of secret detention in the light of the member states’ international legal obligations, particularly under the European Convention on Human Rights. (a) The 2006 Marty Report 270.", "On 7 June 2006 Senator Dick Marty presented to the PACE his first report prepared in the framework of the investigation launched on 1 November 2005 (see paragraph 266 above), revealing what he called a global “spider’s web” of CIA detentions and transfers and alleged collusion in this system by 14 Council of Europe member states. The document, as published by the PACE, was entitled “Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states” (Doc. 10957) and commonly referred to as “the 2006 Marty Report”. The report explained in detail the CIA methodology of the CIA extraordinary rendition operations and the so-called “global spider’s web” of routes taken by the CIA planes executing rendition missions. The report did not refer to Lithuania.", "271. Chapter 1.8, in paragraph 22 stated: “22. There is no formal evidence at this stage of the existence of secret CIA detention centres in Poland, Romania or other Council of Europe member states, even though serious indications continue to exist and grow stronger. Nevertheless, it is clear that an unspecified number of persons, deemed to be members or accomplices of terrorist movements, were arbitrarily and unlawfully arrested and/or detained and transported under the supervision of services acting in the name, or on behalf, of the American authorities. These incidents took place in airports and in European airspace, and were made possible either by seriously negligent monitoring or by the more or less active participation of one or more government departments of Council of Europe member states.” 272.", "Chapter 6, entitled “Attitude of governments”, stated, among other things, the following: “230. It has to be said that most governments did not seem particularly eager to establish the alleged facts. The body of information gathered makes it unlikely that European states were completely unaware of what, in the context of the fight against international terrorism, was happening at some of their airports, in their airspace or at American bases located on their territory. Insofar as they did not know, they did not want to know. It is inconceivable that certain operations conducted by American services could have taken place without the active participation, or at least the collusion, of national intelligence services.", "If this were the case, one would be justified in seriously questioning the effectiveness, and therefore the legitimacy, of such services. The main concern of some governments was clearly to avoid disturbing their relationships with the United States, a crucial partner and ally. Other governments apparently work on the assumption that any information learned via their intelligence services is not supposed to be known.” 273. Chapter 11 contained conclusions. It stated, inter alia, the following: “280.", "Our analysis of the CIA rendition’ programme has revealed a network that resembles a ‘spider’s web’ spun across the globe. The analysis is based on official information provided by national and international air traffic control authorities, as well as other information including from sources inside intelligence agencies, in particular the American. This ‘web’, shown in the graphic, is composed of several landing points, which we have subdivided into different categories, and which are linked up among themselves by civilian planes used by the CIA or military aircraft. ... 282. In two European countries only (Romania and Poland), there are two other landing points that remain to be explained.", "Whilst these do not fall into any of the categories described above, several indications lead us to believe that they are likely to form part of the ‘rendition circuits’. These landings therefore do not form part of the 98% of CIA flights that are used solely for logistical purposes, but rather belong to the 2% of flights that concern us the most. These corroborated facts strengthen the presumption – already based on other elements – that these landings are detainee drop-off points that are near to secret detention centres. ... 287. Whilst hard evidence, at least according to the strict meaning of the word, is still not forthcoming, a number of coherent and converging elements indicate that secret detention centres have indeed existed and unlawful inter-state transfers have taken place in Europe.", "I do not set myself up to act as a criminal court, because this would require evidence beyond reasonable doubt. My assessment rather reflects a conviction based upon careful examination of balance of probabilities, as well as upon logical deductions from clearly established facts. It is not intended to pronounce that the authorities of these countries are ‘guilty’ for having tolerated secret detention sites, but rather it is to hold them ‘responsible’ for failing to comply with the positive obligation to diligently investigate any serious allegation of fundamental rights violations. 288. In this sense, it must be stated that to date, the following member States could be held responsible, to varying degrees, which are not always settled definitively, for violations of the rights of specific persons identified below (respecting the chronological order as far as possible): - Sweden, in the cases of Ahmed Agiza and Mohamed Alzery; - Bosnia-Herzegovina, in the cases of Lakhdar Boumediene, Mohamed Nechle, Hadj Boudella, Belkacem Bensayah, Mustafa Ait Idir and Saber Lahmar (the ‘Algerian six’); - The United Kingdom in the cases of Bisher Al-Rawi, Jamil El-Banna and Binyam Mohamed; - Italy, in the cases of Abu Omar and Maher Arar; - “The former Yugoslav Republic of Macedonia”, in the case of Khaled El-Masri; - Germany, in the cases of Abu Omar, of the “Algerian six”, and Khaled El-Masri; - Turkey, in the case of the “Algerian six”.", "289. Some of these above mentioned states, and others, could be held responsible for collusion – active or passive (in the sense of having tolerated or having been negligent in fulfilling the duty to supervise) - involving secret detention and unlawful inter-state transfers of a non-specified number of persons whose identity so far remains unknown: - Poland and Romania, concerning the running of secret detention centres; - Germany, Turkey, Spain and Cyprus for being ‘staging points’ for flights involving the unlawful transfer of detainees.” (b) The 2007 Marty Report 274. On 11 June 2007 the PACE (Committee on Legal Affairs and Human Rights) adopted the second report prepared by Senator Marty (“the 2007 Marty Report”) (doc. 11302.rev. ), revealing that high-value detainees had been held in Romania and in Poland in secret CIA detention centres during the period from 2002 to 2005.", "The report did not rule out the possibility that the CIA secret detention facilities might also have existed in other Council of Europe member states. The report relied, inter alia, on the cross-referenced testimonies of over thirty serving and former members of intelligence services in the US and Europe, and on a new analysis of computer “data strings” from the international flight planning system. Lithuania was not mentioned in the document. However, the PACE urged the States to conduct national investigations of the alleged implementation of the covert CIA programme of detention and interrogation of suspected terrorists, and proposed that the democratic control and supervision of secret services be strengthened. 275.", "The introductory remarks referring to the establishment of facts and evidence gathered, read, in so far as relevant: “7. There is now enough evidence to state that secret detention facilities run by the CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania. These two countries were already named in connection with secret detentions by Human Rights Watch in November 2005. At the explicit request of the American government, The Washington Post simply referred generically to ‘eastern European democracies’, although it was aware of the countries actually concerned. It should be noted that ABC did also name Poland and Romania in an item on its website, but their names were removed very quickly in circumstances which were explained in our previous report.", "We have also had clear and detailed confirmation from our own sources, in both the American intelligence services and the countries concerned, that the two countries did host secret detention centres under a special CIA programme established by the American administration in the aftermath of 11 September 2001 to “kill, capture and detain” terrorist suspects deemed to be of ‘high value’. Our findings are further corroborated by flight data of which Poland, in particular, claims to be unaware and which we have been able to verify using various other documentary sources. 8. The secret detention facilities in Europe were run directly and exclusively by the CIA. To our knowledge, the local staff had no meaningful contact with the prisoners and performed purely logistical duties such as securing the outer perimeter.", "The local authorities were not supposed to be aware of the exact number or the identities of the prisoners who passed through the facilities – this was information they did not ‘need to know.’ While it is likely that very few people in the countries concerned, including in the governments themselves, knew of the existence of the centres, we have sufficient grounds to declare that the highest state authorities were aware of the CIA’s illegal activities on their territories. ... 10. In most cases, the acts took place with the requisite permissions, protections or active assistance of government agencies. We believe that the framework for such assistance was developed around NATO authorisations agreed on 4 October 2001, some of which are public and some of which remain secret. According to several concurring sources, these authorisations served as a platform for bilateral agreements, which – of course – also remain secret.", "11. In our view, the countries implicated in these programmes have failed in their duty to establish the truth: the evidence of the existence of violations of fundamental human rights is concrete, reliable and corroborative. At the very least, it is such as to require the authorities concerned at last to order proper independent and thorough inquiries and stop obstructing the efforts under way in judicial and parliamentary bodies to establish the truth. International organisations, in particular the Council of Europe, the European Union and NATO, must give serious consideration to ways of avoiding similar abuses in future and ensuring compliance with the formal and binding commitments which states have entered into in terms of the protection of human rights and human dignity. 12.", "Without investigative powers or the necessary resources, our investigations were based solely on astute use of existing materials – for instance, the analysis of thousands of international flight records – and a network of sources established in numerous countries. With very modest means, we had to do real “intelligence” work. We were able to establish contacts with people who had worked or still worked for the relevant authorities, in particular intelligence agencies. We have never based our conclusions on single statements and we have only used information that is confirmed by other, totally independent sources. Where possible we have cross-checked our information both in the European countries concerned and on the other side of the Atlantic or through objective documents or data.", "Clearly, our individual sources were only willing to talk to us on the condition of absolute anonymity. At the start of our investigations, the Committee on Legal Affairs and Human Rights authorised us to guarantee our contacts strict confidentiality where necessary. ... The individuals concerned are not prepared at present to testify in public, but some of them may be in the future if the circumstances were to change. ...” 276.", "In paragraph 30 of the report it is stressed that “the HVD programme ha[d] depended on extraordinary authorisations – unprecedented in nature and scope – at both national and international levels. In paragraphs 75 and 83 it was added that: “75. The need for unprecedented permissions, according to our sources, arose directly from the CIA’s resolve to lay greater emphasis on the paramilitary activities of its Counterterrorism Center in the pursuit of high-value targets, or HVTs. The US Government therefore had to seek means of forging intergovernmental partnerships with well-developed military components, rather than simply relying upon the existing liaison networks through which CIA agents had been working for decades. ... 83.", "Based upon my investigations, confirmed by multiple sources in the governmental and intelligence sectors of several countries, I consider that I can assert that the means to cater to the CIA’s key operational needs on a multilateral level were developed under the framework of the North Atlantic Treaty Organisation (NATO). ...” 277. In paragraphs 112-122 the 2007 Marty Report referred to bilateral agreements between the US and certain countries to host “black sites” for high value detainees. This part of the document read, in so far as relevant, as follows: “112. Despite the importance of the multilateral NATO framework in creating the broad authorisation for US counter-terrorism operations, it is important to emphasise that the key arrangements for CIA clandestine operations in Europe were secured on a bilateral level.", "... 115. The bilaterals at the top of this range are classified, highly guarded mandates for ‘deep’ forms of cooperation that afford – for example – ‘infrastructure’, ‘material support and / or ‘operational security’ to the CIA’s covert programmes. This high-end category has been described to us as the intelligence sector equivalent of ‘host nation’ defence agreements – whereby one country is conducting operations it perceives as being vital to its own national security on another country’s territory. 116. The classified ‘host nation’ arrangements made to accommodate CIA ‘black sites’ in Council of Europe member states fall into the last of these categories.", "117. The CIA brokered ‘operating agreements’ with the Governments of Poland and Romania to hold its High-Value Detainees (HVDs) in secret detention facilities on their respective territories. Poland and Romania agreed to provide the premises in which these facilities were established, the highest degrees of physical security and secrecy, and steadfast guarantees of non-interference. 118. We have not seen the text of any specific agreement that refers to the holding of High-Value Detainees in Poland or Romania.", "Indeed it is practically impossible to lay eyes on the classified documents in question or read the precise agreed language because of the rigours of the security-of-information regime, itself kept secret, by which these materials are protected. 119. However, we have spoken about the High-Value Detainee programme with multiple well-placed sources in the governments and intelligence services of several countries, including the United States, Poland and Romania. Several of these persons occupied positions of direct involvement in and/or influence over the negotiations that led to these bilateral arrangements being agreed upon. Several of them have knowledge at different levels of the operations of the HVD programme in Europe.", "120. These persons spoke to us upon strict assurances of confidentiality, extended to them under the terms of the special authorisation I received from my Committee last year. For this reason, in the interests of protecting my sources and preserving the integrity of my investigations, I will not divulge individual names. Yet I can state unambiguously that their testimonies - insofar as they corroborate and validate one another – count as credible, plausible and authoritative.” (c) The 2011 Marty Report 278. On 16 September 2011 the PACE (Committee on Legal Affairs and Human Rights) adopted the third report prepared by Senator Marty, entitled “Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations” (“the 2011 Marty Report”), which described the effects of, and progress in, national inquiries into CIA secret detention facilities in some of the Council of Europe’s member states.", "279. The summary of the report read: “Secret services and intelligence agencies must be held accountable for human rights violations such as torture, abduction or renditions and not shielded from scrutiny by unjustified resort to the doctrine of ‘state secrets’, according to the Committee on Legal Affairs and Human Rights. The committee evaluates judicial or parliamentary inquiries launched after two major Assembly reports five years ago named European governments which had hosted CIA secret prisons or colluded in rendition and torture (including Poland, Romania, Lithuania, Germany, Italy, the United Kingdom and the former Yugoslav Republic of Macedonia). Prosecutors in Lithuania, Poland, Portugal and Spain are urged to persevere in seeking to establish the truth and authorities in the United States are called on to co‑operate with them. The committee considers that it is possible to put in place judicial and parliamentary procedures which protect ‘legitimate’ state secrets, while still holding state agents accountable for murder, torture, abduction or other human rights violations.” 280.", "Paragraphs 14-15 and 37-39 related to Lithuania. They read as follows: “14. In Lithuania, the prosecuting authorities launched a criminal investigation following the revelations of the parliamentary inquiry concerning the existence of two ‘black sites’ in the country. The investigation drew in particular on information published in February 2010 in the United Nations joint study on secret detention, which was based on analysis of flight plans and ‘data strings’, analogous data to those already used by us to discover the existence of ‘black sites’ in Poland and Romania. The British NGO Reprieve also gave the Lithuanian [Prosecutor General] some important elements in its letter of 21 September 2010.", "Reprieve presented information according to which a “high-value detainee” known as Abu Zubaydah had been detained secretly in Lithuania between 2004 and 2006, in the course of a journey which had allegedly taken him from Thailand to Szymany in Poland, then to Guantánamo Bay and Morocco. After his spell in Lithuania between spring 2004 and September 2006, he was allegedly returned to Guantánamo Bay. But the Lithuanian prosecuting authorities eventually suspended their investigation without any result - despite protests by Amnesty International. Amnesty International considers that numerous ‘obvious’ leads had not been followed up by the prosecutors, who in their view also accepted too easily the limits imposed on their investigation by the invocation of state secrecy. The prosecutor’s office, for its part, justifies its decision to suspend the investigation by the statute of limitations for a possible abuse of authority and by the refusal of the American authorities to provide the information requested.", "We consider that the lack of co-operation of the American authorities, as noted before in relation to the German, Italian and Polish authorities, raises a serious problem indeed. This situation is also due to the attitude of those European governments, which abandoned all control over the use of their own infrastructures they unconditionally put at the disposal of the American administration, in the wake of the acceptation of the implementation of Article 5 of the NATO treaty and of the operative measures accepted by the members of the alliance. In this way, the European governments effectively placed themselves in a position of reliance or even dependence on the good will of the American authorities. 15. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), in its report on the visit to Lithuania from 14-18 June 2010, published with the agreement of the Lithuanian authorities on 19 May 2011, provided an initial evaluation of the criminal investigation concerning the secret prisons, raising critical questions as to the promptness of the investigation, the comprehensiveness of its scope and its thoroughness.", "Most importantly, for this report, the CPT pointed out that it “did not receive the specific information it requested, either during the above-mentioned meeting or from the Lithuanian authorities’ response of 10 September 2010. ... It is affirmed that more specific information cannot be provided as the major part of the data gathered during the investigation constitutes a state or service secret.” The CPT has an impeccable track record, over 20 years, of keeping the confidentiality of information received in the pursuit of its delicate mission. It publishes only the final report, and only upon the request of the national authorities. It is therefore unacceptable, in my view, that even the CPT did not get access to the information required in order to determine, in accordance with its mandate, whether the investigation by the Lithuanian prosecutor’s office into the serious torture allegations in question was performed with due diligence, as required both by the European Convention against Torture and Inhuman and Degrading Treatment and the European Convention on Human Rights.", "... 37. In Lithuania, the Seimas finally undertook a fairly serious inquiry, following some initial hesitations. Indeed, when ABC News caused an outcry by mentioning anonymous sources linked with the CIA which claimed that Lithuania had provided a site outside Vilnius where ‘high-value detainees’ were held up to the end of 2005, the chairperson of the parliamentary [Committee on National Security and Defence], Mr Arvydas Anušauskas, initiated a preliminary inquiry. The fairly swift conclusion presented at a joint meeting of that committee with the committee on external relations was that there was not enough evidence to justify the opening of a formal parliamentary inquiry. But on the occasion of the visit of the Council of Europe Commissioner for Human Rights, Thomas Hammarberg, in October 2009, the Commissioner and the President of Lithuania, Ms Grybauskaitė, publicly expressed scepticism about the preliminary inquiry.", "On 5 November 2009, the Lithuanian Parliament finally instructed the [Committee on National Security and Defence] to undertake a full parliamentary inquiry, which yielded its results as early as 22 December that year. Despite the short time allowed, the findings were quite substantial: Lithuanian agents had participated in the American programme of transfer of prisoners and secret prisons; it was possible to trace at least six landings of aircraft used in this programme. The CIA asked the Lithuanian secret service (SSD) for assistance in preparing places of detention for persons suspected of activities linked with terrorism, and two locations are said to have actually been prepared for this purpose: the first had apparently never been used while the investigation was unable to establish whether people had actually been held prisoner at the second (at Antaviliai on the outskirts of Vilnius). But it reportedly emerged that the CIA agents had been able to use it as they pleased without the slightest oversight by the SSD at certain periods. Finally the investigation was also unable to establish whether the state’s top leaders were informed of this co-operation.", "The investigation caused a spate of resignations including those of the SSD chief Povilas Malakauskas and Foreign Affairs Minister Vygaudas Ušackas. The main recommendation of the parliamentarians’ report was to open the judicial investigation mentioned above, currently impeded by complete lack of co-operation from the US authorities. 38. During the parliamentary inquiry, members of the commission were able to visit the two sites in question but the authorities did not allow access for media and civil society representatives. 39.", "However, the CPT was able to tour the two sites during a visit to Lithuania between 14 and 18 June 2010. The report on the visit was published with the consent of the Lithuanian authorities on 19 May 2011. The CPT concluded that “the premises did not contain anything that was highly suggestive of a context of detention; at the same time, both of the facilities could be adapted for detention purposes with relatively little effort.” B. European Parliament 1. The Fava Inquiry 281. On 18 January 2006 the European Parliament set up a Temporary Committee on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (“TDIP”) and appointed Mr Giovanni Claudio Fava as rapporteur with a mandate to investigate the alleged existence of CIA prisons in Europe.", "The Fava Inquiry held 130 meetings and sent delegations to the former Yugoslav Republic of Macedonia, the United States, Germany, the United Kingdom, Romania, Poland and Portugal. It identified at least 1,245 flights operated by the CIA in European airspace between the end of 2001 and 2005. 282. In the course of its work, the TDIP analysed specific cases of extraordinary rendition. According to the Fava Report, these cases “involved the illegal transport of a prisoner by the secret services, or other specialist services, of a third country (including, but not exclusively, the CIA and other American security services) to various locations, outside any judicial oversight, where the prisoners have neither fundamental rights nor those guaranteed by various international conventions, such as all habeas corpus procedures, the right of the defence to be assisted by a lawyer, the right to due process within a reasonable time, etc.” The TDIP studied in detail the following cases of extraordinary rendition: Abu Omar (Hassan Mustafa Osama Nasr); Khaled El-Masri; Maher Arar; Mohammed El-Zari; Ahmed Agiza; the ‘Six Algerians’ from Bosnia-Herzegovina; Murat Kurnaz; Mohammed Zammar; Abou Elkassim Britel; Binyam Mohammed; Bisher Al-Rawi; Jamil El-Banna; and Martin Mubanga.", "The TDIP met the victims themselves, their lawyers, the heads of national judicial or parliamentary bodies responsible for specific cases of extraordinary rendition, representatives of European and international organisations or institutions, journalists who followed these cases, representatives of non-governmental organisations, experts in this area either during committee meetings or during official delegation visits. 283. On 30 January 2007 the final report of the Fava Inquiry was published. As far as Lithuania was concerned, the report noted that: (1) Lithuania provided no written response to the committee’s invitation to cooperate; (2) official representatives of Lithuania did not receive any request for meetings with the investigators of the TDIP Committee; 3) Lithuania did not provide the investigators with anything useful. The Working Document No.", "8 on the companies linked to the CIA, aircraft used by the CIA and the European countries in which CIA aircraft have made stopovers prepared during the work of TDIP and attached to the Fava Report, contained an analysis of CIA flights having stopped over in the European Union countries. It stated that one CIA-operated aircraft, registered N8213G, made one stopover in Lithuania. It appears from the materials of the Seimas inquiry that the flight in question took place on 4 February 2003 made a stopover in Vilnius airport en route to Warsaw, Poland (see paragraph 173 above). The relevant section of the Working Document No. 8 read, in so far as relevant, as follows: “Total number of stopovers of CIA aircraft in Lithuanian airports: 1 Total number of Lithuanian airports involved 1 airport involved List of Lithuanian airports Vilnius (1).", "Total number of CIA aircraft having stopped over in Lithuania 1 different CIA aircraft. List of CIA aircraft (Registration Numbers) having stopped over in Lithuania: N8213G. Total number of stopovers in Lithuania for each CIA aircraft and relevant details of specific aircraft: N8213G: 1 stopover in Lithuania” 284. The Fava Report was approved by the European Parliament with 382 votes in favour, 256 against with 74 abstentions on 14 February 2007. 2.", "The 2007 European Parliament Resolution 285. On 14 February 2007, following the examination of the Fava Report, the European Parliament adopted the Resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/22009INI) (“the 2007 EP Resolution”). It did not refer to Lithuania. In its general part the resolution referred, among other things, to an “informal transatlantic meeting” that had taken place on 7 December 2005 and involved foreign ministers of the of European Union (“EU”) and North Atlantic Treaty Organisation (“NATO”) and US Secretary of State Condoleezza Rice. The relevant section read as follows: “The European Parliament, ... L. whereas the Temporary Committee has obtained, from a confidential source, records of the informal transatlantic meeting of European Union (EU) and North Atlantic Treaty Organisation (NATO) foreign ministers, including US Secretary of State Condoleezza Rice, of 7 December 2005, confirming that Member States had knowledge of the programme of extraordinary rendition, while all official interlocutors of the Temporary Committee provided inaccurate information on this matter,” 286.", "The passages regarding the EU member states read, in so far as relevant: “9. Deplores the fact that the governments of European countries did not feel the need to ask the US Government for clarifications regarding the existence of secret prisons outside US territory; ... 13. Denounces the lack of cooperation of many Member States, and of the Council of the European Union towards the Temporary Committee; stresses that the behaviour of Member States, and in particular the Council and its Presidencies, has fallen far below the standard that Parliament is entitled to expect; ... 39. Condemns extraordinary rendition as an illegal instrument used by the United States in the fight against terrorism; condemns, further, the condoning and concealing of the practice, on several occasions, by the secret services and governmental authorities of certain European countries; ... 43. Regrets that European countries have been relinquishing their control over their airspace and airports by turning a blind eye or admitting flights operated by the CIA which, on some occasions, were being used for extraordinary rendition or the illegal transportation of detainees, and recalls their positive obligations arising out of the case law of the European Court of Human Rights, as reiterated by the European Commission for Democracy through Law (Venice Commission); 44.", "Is concerned, in particular, that the blanket overflight and stopover clearances granted to CIA-operated aircraft may have been based, inter alia, on the NATO agreement on the implementation of Article 5 of the North Atlantic Treaty, adopted on 4 October 2001; ... 48. Confirms, in view of the additional information received during the second part of the proceedings of the Temporary Committee, that it is unlikely that certain European governments were unaware of the extraordinary rendition activities taking place in their territory; ...” 3. The Flautre Report and the 2012 European Parliament Resolution 287. On 11 September 2012 the European Parliament adopted a report prepared by Hélène Flautre within the Committee on Civil Liberties, Justice and Home Affairs (“LIBE Committee”) – “the Flautre Report”, highlighting new evidence of secret detention centres and extraordinary renditions by the CIA in European Union member states. The report, which came five years after the Fava Inquiry, highlighted new abuses – notably in Romania, Poland and Lithuania, but also in the United Kingdom and other countries – and made recommendations to ensure proper accountability.", "The report included the Committee on Foreign Affairs’ opinion and recommendations. 288. In the course of its work, on 27 March 2012, LIBE Committee held a hearing on “What is new on the alleged CIA illegal detention and transfers of prisoners in Europe”. At that hearing Mr Crofton Black from the Bureau of Investigative Journalism was heard as an expert. 289.", "In April 2012 the LIBE delegation visited Lithuania. The applicant submitted an extract from a publication (in French) authored by Helene Flautre and Bertrand Verfaille entitled “Le programme secret de la CIA et le Parlement Européen – histoire d’un forfait, histoire d’un sursaut” describing the visit of the LIBE delegation to Lithuania. The LIBE delegation visited the premises of Project No. 2, which were given the following description[4]: “[French – orginal] Hélène Flautre décrit une sorte de « bâtiment dans le bâtiment », selon un principe de double coque, des salles plus basses de plafond que d’autres, des marches qui pourraient correspondre à celle que d’anciens prisonniers de la CIA se souviennent d’avoir empruntées, alors que leurs yeux étaient bandés. Le bâtiment est équipé d’un énorme appareil de conditionnement d’air et d’un système de pompage d’eau, dont on ne comprend pas bien l’utilité.", "... [English translation] Hélène Flautre described a kind of ‘building within the building’, a double-shell structure, some rooms with lower ceilings than the others and steps which could correspond to those which former prisoners remember taking when blindfolded. The building has an enormous air-conditioning system and a water-pumping system, the purpose of which is not evident.” 290. Following the examination of the Report the European Parliament adopted, on 11 September 2012, the Resolution on alleged transportation and illegal detention of prisoners in European countries by the CIA: follow‑up of the European Parliament TDIP Committee report (2012/2033(INI)) (“the 2012 EP Resolution”). Its general part, in so far as relevant, reads as follows: “The European Parliament, ... T. whereas the Lithuanian authorities have endeavoured to shed light on Lithuania’s involvement in the CIA programme by carrying out parliamentary and judicial inquiries; whereas the parliamentary investigation by the Seimas Committee on National Security and Defence concerning the alleged transportation and confinement of persons detained by the CIA on Lithuanian territory established that five CIA‑related aircraft landed in Lithuania between 2003 and 2005 and that two tailored facilities suitable for holding detainees in Lithuania (Projects Nos. 1 and 2) were prepared at the request of the CIA; whereas the LIBE delegation thanks the Lithuanian authorities for welcoming Members of the European Parliament to Vilnius in April 2012 and allowing the LIBE delegation access to Project No.", "2; whereas the layout of the buildings and installations inside appears to be compatible with the detention of prisoners; whereas many questions relating to CIA operations in Lithuania remain open despite the subsequent judicial investigation conducted in 2010 and closed in January 2011; whereas the Lithuanian authorities have expressed their readiness to re-launch investigations if other new information were to come to light, and whereas the Prosecutor’s Office has offered to provide further information on the criminal investigation in response to a written request from Parliament; ...” 291. Paragraph 14 of the 2012 EP Resolution, which refers to the inquiries in Lithuania, reads: “[The European Parliament], ... “14. Notes that the parliamentary and judicial inquiries that took place in Lithuania between 2009 and 2011 were not able to demonstrate that detainees had been secretly held in Lithuania; calls on the Lithuanian authorities to honour their commitment to reopen the criminal investigation into Lithuania’s involvement in the CIA programme if new information should come to light, in view of new evidence provided by the Eurocontrol data showing that plane N787WH, alleged to have transported Abu Zubaydah, did stop in Morocco on 18 February 2005 on its way to Romania and Lithuania; notes that analysis of the Eurocontrol data also reveals new information through flight plans connecting Romania to Lithuania, via a plane switch in Tirana, Albania, on 5 October 2005, and Lithuania to Afghanistan, via Cairo, Egypt, on 26 March 2006; considers it essential that the scope of new investigations cover, beyond abuses of power by state officials, possible unlawful detention and ill‑treatment of persons on Lithuanian territory; encourages the Prosecutor General’s Office to substantiate with documentation the affirmations made during the LIBE delegation’s visit that the ‘categorical’ conclusions of the judicial inquiry are that ‘no detainees have been detained in the facilities of Projects No. 1 and No. 2 in Lithuania; ...” 4.", "The 2013 European Parliament Resolution 292. Having regard to the lack of response to the recommendations in the 2012 EP Resolution on the part of the European Commission, on 10 October 2013 the EU Parliament adopted the Resolution on alleged transportation and illegal detention of prisoners in European countries by the CIA (2013/2702(RSP) (“the 2013 EP Resolution”). Its general part read, in so far as relevant, as follows: “The European Parliament, ... F. whereas the Lithuanian authorities have reiterated their commitment to reopening the criminal investigation into Lithuania’s involvement in the CIA programme if new elements emerge, but still have not done so; whereas in their observations to the ECtHR in the case of Abu Zubaydah, the Lithuanian authorities demonstrated critical shortcomings in their investigations and a failure to grasp the meaning of the new information; whereas Lithuania holds the presidency of the Council of the European Union in the second half of 2013; whereas a complaint was submitted on 13 September 2013 to the Lithuanian Prosecutor General, calling for an investigation into allegations that Mustafa al-Hawsawi, who is currently facing trial by military commission at Guantánamo Bay, had been illegally transferred to, and secretly detained and tortured in, Lithuania as part of a CIA-led programme; ...” Paragraph 4, which concerns Lithuania, reads: “[The European Parliament,] ... 4. Urges Lithuania to reopen its criminal investigation into CIA secret detention facilities and to conduct a rigorous investigation considering all the factual evidence that has been disclosed, notably regarding the ECtHR case of Abu Zubaydah v Lithuania; asks Lithuania to allow the investigators to carry out a comprehensive examination of the renditions flight network and contact persons publicly known to have organised or participated in the flights in question; asks the Lithuanian authorities to carry out forensic examination of the prison site and analysis of phone records; urges them to cooperate fully with the ECtHR in the cases of Abu Zubaydah v Lithuania and HRMI v Lithuania; calls on Lithuania, in the context of reopening the criminal investigation, to consider applications for status/participation in the investigation from other possible victims; urges Lithuania to respond in full to requests for information from other EU Member States, in particular the request for information from the Finnish Ombudsman regarding a flight or flights that could link Finland and Lithuania to a possible rendition route; urges the Lithuanian Prosecutor General to carry out a criminal investigation into Mustafa al-Hawsawi’s complaint; ...” 5. The 2015 European Parliament Resolution 293.", "Following the publication of the 2014 US Senate Committee Report (see paragraphs 21-23 and 69-88 above), on 11 February 2015 the European Parliament adopted the Resolution on the US Senate Committee Report on the use of torture by the CIA (2014/2997(RSP)) (“the 2015 EP Resolution”). The European Parliament, while noting that the applicant’s application was pending before the ECHR, reiterated its calls on Member States to “investigate the allegations that there were secret prisons on their territory where people were held under the CIA programme, and to prosecute those involved in these operations, taking into account all the new evidence that has come to light”. The European Parliament further expressed concern regarding the “obstacles encountered by national parliamentary and judicial investigations into some Member States’ involvement in the CIA programme”. 6. The October 2015 hearing before the LIBE 294.", "On 13 October 2015 a hearing was held before the LIBE Committee on “Investigation of alleged transportation and illegal detention of prisoners in European Countries by the CIA”. The aim of the hearing was to analyse all past and ongoing parliamentary and judicial inquiries relating to Member States’ involvement in the CIA programme. During the hearing a research paper was presented by the Policy Department C on the latest developments on Member States investigations into the CIA programme titled: “A quest for accountability? EU and Member State inquiries into the CIA Rendition and Secret Detention Programme”. The Committee also heard a summary overview by Mr Crofton Black from the Bureau of Investigative Journalism on what had been achieved with reference to CIA operated secret prisons in Europe.", "In particular, Mr Black stated that since the adoption of the 2012 EP Resolution and the publication of the 2014 US Senate Committee Report the evidence had been conclusive that the CIA had operated a prison in Lithuania from February 2005 to March 2006. 7. The 2016 European Parliament Resolution 295. On 8 June 2016 the European Parliament adopted a follow-up resolution to the 2015 EP Resolution (2016/2573(RSP)) (“the 2016 EP Resolution”). In respect of Lithuania, the resolution states, in so far as relevant, as follows: “[The European Parliament,] 11.", "Urges Lithuania, Romania and Poland to conduct, as a matter of urgency, transparent, thorough and effective criminal investigations into CIA secret detention facilities on their respective territories, having taken into full consideration all the factual evidence that has been disclosed, to bring perpetrators of human rights violations to justice, to allow the investigators to carry out a comprehensive examination of the renditions flight network and of contact people publicly known to have organised or participated in the flights in question, to carry out forensic examination of the prison sites and the provision of medical care to detainees held at these sites, to analyse phone records and transfers of money, to consider applications for status/participation in the investigation from possible victims, and to ensure that all relevant crimes are considered, including in connection with the transfer of detainees, or to release the conclusions of any investigations undertaken to date; ... 17. Notes that the data collected during the Lithuanian Parliamentary Committee on National Security and Defence (Seimas CNSD) inquiry into Lithuania’s involvement in the CIA’s secret detention programme has not been made public, and calls for the release of the data;” C. The 2007 ICRC Report 296. The ICRC made its first written interventions to the US authorities in 2002, requesting information on the whereabouts of persons allegedly held under US authority in the context of the fight against terrorism. It prepared two reports on undisclosed detention on 18 November 2004 and 18 April 2006. These reports still remain classified.", "297. After the US President publicly confirmed on 6 September 2006 that 14 terrorist suspects (“high value detainees”) – including the applicant –detained under the CIA detention programme had been transferred to the military authorities in the US Guantánamo Bay Naval Base (see paragraph 58 above), the ICRC was granted access to those detainees and interviewed them in private from 6 to 11 October and from 4 to 14 December 2006. On this basis, it drafted its Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody of February 2007 –“the 2007 ICRC Report” – which related to the CIA rendition programme, including arrest and transfers, incommunicado detention and other conditions and treatment. The aim of the report, as stated therein, was to provide a description of the treatment and material conditions of detention of the fourteen detainees concerned during the period they had been held in the CIA programme. The report was (and formally remains) classified as “strictly confidential”.", "It was published by The New York Review of Books on 6 April 2009 and further disseminated via various websites, including the ACLU’s site. 298. Extracts from the 2007 ICRC Report giving a more detailed account of the applicant’s and other HVDs’ treatment in CIA custody can be found in Husayn (Abu Zubaydah) v. Poland (cited above, §§ 101-104 and 276). 299. The sections relating to main elements of the HVD Programme, routine procedures for the detainees’ transfers and their detention regime read, in so far as relevant, as follows: “1.", "MAIN ELEMENTS OF THE CIA DETENTION PROGRAM ... The fourteen, who are identified individually below, described being subjected, in particular during the early stages of their detention, lasting from some days up to several months, to a harsh regime employing a combination of physical and psychological ill-treatment with the aim of obtaining compliance and extracting information. This regime began soon after arrest, and included transfers of detainees to multiple locations, maintenance of the detainees in continuous solitary confinement and incommunicado detention throughout the entire period of their undisclosed detention, and the infliction of further ill-treatment through the use of various methods either individually or in combination, in addition to the deprivation of other basic material requirements. ... 2. ARREST AND TRANSFER ...", "Throughout their detention, the fourteen were moved from one place to another and were allegedly kept in several different places of detention, probably in several different countries. The number of locations reported by the detainees varied, however ranged from three to ten locations prior to their arrival in Guantánamo in September 2006. The transfer procedure was fairly standardised in most cases. The detainee would be photographed, both clothed and naked prior to and again after transfer. A body cavity check (rectal examination) would be carried out and some detainees alleged that a suppository (the type and the effect of such suppositories was unknown by the detainees), was also administered at that moment.", "The detainee would be made to wear a diaper and dressed in a tracksuit. Earphones would be placed over his ears, through which music would sometimes be played. He would be blindfolded with at least a cloth tied around the head and black goggles. In addition, some detainees alleged that cotton wool was also taped over their eyes prior to the blindfold and goggles being applied. The detainee would be shackled by hands and feet and transported to the airport by road and loaded onto a plane.", "He would usually be transported in a reclined sitting position with his hands shackled in front. The journey times obviously varied considerably and ranged from one hour to over twenty-four to thirty hours. The detainee was not allowed to go to the toilet and if necessary was obliged to urinate or defecate into the diaper. On some occasions the detainees were transported lying flat on the floor of the plane and/or with their hands cuffed behind their backs. When transported in this position the detainees complained of severe pain and discomfort.", "In addition to causing severe physical pain, these transfers to unknown locations and unpredictable conditions of detention and treatment placed mental strain on the fourteen, increasing their sense of disorientation and isolation. The ability of the detaining authority to transfer persons over apparently significant distances to secret locations in foreign countries acutely increased the detainees’ feeling of futility and helplessness, making them more vulnerable to the methods of ill-treatment described below. ...[T]hese transfers increased the vulnerability of the fourteen to their interrogation, and was performed in a manner (goggles, earmuffs, use of diapers, strapped to stretchers, sometimes rough handling) that was intrusive and humiliating and that challenged the dignity of the persons concerned. As their detention was specifically designed to cut off contact with the outside world and emphasise a feeling of disorientation and isolation, some of the time periods referred to in the report are approximate estimates made by the detainees concerned. For the same reasons, the detainees were usually unaware of their exact location beyond the first place of detention in the country of arrest and the second country of detention, which was identified by all fourteen as being Afghanistan.", "... 1.2. CONTINUOUS SOLITARY CONFINEMENT AND INCOMMUNICADO DETENTION Throughout the entire period during which they were held in the CIA detention program – which ranged from sixteen months up to almost four and a half years and which, for eleven of the fourteen was over three years – the detainees were kept in continuous solitary confinement and incommunicado detention. They had no knowledge of where they were being held, no contact with persons other than their interrogators or guards. Even their guards were usually masked and, other than the absolute minimum, did not communicate in any way with the detainees. None had any real – let alone regular – contact with other persons detained, other than occasionally for the purposes of inquiry when they were confronted with another detainee.", "None had any contact with legal representation. The fourteen had no access to news from the outside world, apart from in the later stages of their detention when some of them occasionally received printouts of sports news from the internet and one reported receiving newspapers. None of the fourteen had any contact with their families, either in written form or through family visits or telephone calls. They were therefore unable to inform their families of their fate. As such, the fourteen had become missing persons.", "In any context, such a situation, given its prolonged duration, is clearly a cause of extreme distress for both the detainees and families concerned and itself constitutes a form of ill-treatment. In addition, the detainees were denied access to an independent third party. ... 1.3. OTHER METHODS OF ILL-TREATMENT ... [T]he fourteen were subjected to an extremely harsh detention regime, characterised by ill-treatment. The initial period of interrogation, lasting from a few days up to several months was the harshest, where compliance was secured by the infliction of various forms of physical and psychological ill-treatment.", "This appeared to be followed by a reward based interrogation approach with gradually improving conditions of detention, albeit reinforced by the threat of returning to former methods. ... 1.4. FURTHER ELEMENTS OF THE DETENTION REGIME The conditions of detention under which the fourteen were held, particularly during the earlier period of their detention, formed an integral part of the interrogation process as well as an integral part of the overall treatment to which they were subjected as part of the CIA detention program. This report has already drawn attention to certain aspects associated with basic conditions of detention, which were clearly manipulated in order to exert pressure on the detainees concerned. In particular, the use of continuous solitary confinement and incommunicado detention, lack of contact with family members and third parties, prolonged nudity, deprivation/restricted provision of solid food and prolonged shackling have already been described above.", "The situation was further exacerbated by the following aspects of the detention regime: • Deprivation of access to the open air • Deprivation of exercise • Deprivation of appropriate hygiene facilities and basic items in pursuance of interrogation • Restricted access to the Koran linked with interrogation. These aspects cannot be considered individually, but must be understood as forming part of the whole picture. As such, they also form part of the ill-treatment to which the fourteen were subjected. ...” D. The 2010 UN Joint Study 300. On 19 February 2010 the Human Rights Council of United Nations Organisation released the “Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism of the Special Rapporteur on the Promotion and protection of Human Rights and Fundamental Freedoms while Countering Terrorism” – “the 2010 UN Joint Study” (A/HRC/1342).", "301. In the summary, the experts explained their methodology as follows: “In conducting the present study, the experts worked in an open, transparent manner. They sought inputs from all relevant stakeholders, including by sending a questionnaire to all States Members of the United Nations. Several consultations were held with States, and the experts shared their findings with all States concerned before the study was finalized. Relevant ехсerpts of the report were shared with the concerned States on 23 and 24 December 2009.", "In addition to United Nations sources and the responses to the questionnaire from 44 States, primary sources included interviews conducted with persons who had been held in secret detention, family members of those held captive and legal representatives of detainees. Flight data were also used to corroborate information. In addition to the analysis of the policy and legal decisions taken by States, the aim of the study was also to illustrate, in concrete terms, what it means to be secretly detained, how secret detention can facilitate the practice of torture or inhuman and degrading treatment, and how the practice of secret detention has left an indelible mark on the victims, and on their families as well.” 302. They described their approach to the States’ complicity in the secret detention as follows: “The experts also address the level of involvement and complicity of a number of countries. For purposes of the study, they provide that a State is complicit in the secret detention of a person when it (a) has asked another State to secretly detain a person; (b) knowingly takes advantage of the situation of secret detention by sending questions to the State detaining the person, or solicits or receives information from persons kept in secret detention; (c) has actively participated in the arrest and/or transfer of a person when it knew, or ought to have known, that the person would disappear in a secret detention facility, or otherwise be detained outside the legally regulated detention system; (d) holds a person for a short time in secret detention before handing them over to another State where that person will be put in secret detention for a longer period; and (e) has failed to take measures to identify persons or airplanes that were passing through its airports or airspace after information of the CIA programme involving secret detention has already been revealed.” 303.", "In relation to Lithuania the report stated, among other things, the following: “120. With regard to Europe, ABC News recently reported that Lithuanian officials had provided the CIA with a building where as many as eight terrorist suspects were held for more than a year, until late 2005, when they were moved because of public disclosure of the programme. More details emerged in November 2009 when ABC News reported that the facility was built inside an exclusive riding academy in Antaviliai. Research for the present study, including data strings relating to Lithuania, appears to confirm that Lithuania was integrated into the secret detention programme in 2004. Two flights from Afghanistan to Vilnius could be identified: the first, from Bagram, on 20 September 2004, the same day that 10 detainees previously held in secret detention, in a variety of countries, were flown to Guantánamo; the second, from Kabul, on 28 July 2005.", "The dummy flight plans filed for the flights into Vilnius customarily used airports of destination in different countries altogether, excluding any mention of a Lithuanian airport as an alternate or back-up landing point. 121. On 25 August 2009, the President of Lithuania announced that her Government would investigate allegations that Lithuania had hosted a secret detention facility. On 5 November 2009, the Lithuanian Parliament opened an investigation into the allegation of the existence of a CIA secret detention on Lithuanian territory. In its submission for the present study, the Government of Lithuania provided the then draft findings of this investigation, which in the meantime had been adopted by the full Parliament.", "In its findings, the Seimas Committee stated that the State Security Department (SSD) had received requests to ‘equip facilities in Lithuania suitable for holding detainees’. In relation to the first facility, the Committee found that ‘conditions were created for holding detainees in Lithuania’. The Committee could not conclude, however, that the premises were also used for that purpose. In relation to the second facility, the Committee found that: ‘The persons who gave testimony to the Committee deny any preconditions for and possibilities of holding and interrogating detainees ... However, the layout of the building, its enclosed nature and protection of the perimeter as well as fragmented presence of the SSD staff in the premises allowed for the performance of actions by officers of the partners without the control of the SSD and use of the infrastructure at their discretion’.", "The report also found that there was no evidence that the SSD had informed the President, the Prime Minister or other political leaders of the purposes and contents of its cooperation with the CIA regarding these two premises. 122. While the experts welcome the work of the Seimas Committee as an important starting point in the quest for truth about the role played by Lithuania in the secret detention and rendition programme, they stress that its findings can in no way constitute the final word on the country’s role. On 14 January 2010, President Dalia Grybauskaitė rightly urged Lithuanian prosecutors to launch a deeper investigation into secret CIA black sites held on the country’s territory without parliamentary approval. 123.", "The experts stress that all European Governments are obliged under the European Convention of Human Rights to investigate effectively allegations of torture or cruel, inhuman or degrading treatment or punishment. Failure to investigate effectively might lead to a situation of grave impunity, besides being injurious to victims, their next of kin and society as a whole, and fosters chronic recidivism of the human rights violations involved. The experts also note that the European Court of Human Rights has applied the test of whether ‘the authorities reacted effectively to the complaints at the relevant time’. A thorough investigation should be capable of leading to the identification and punishment of those responsible for any ill treatment; it ‘must be ‘effective’ in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or the omissions of the authorities’. Furthermore, according to the European Court, authorities must always make a serious attempt to find out what happened and ‘should not rely on hasty or ill‑founded conclusions to close their investigation or as the basis of their decisions’.", "124. According to two high-ranking Government officials at the time, revelations about the existence of detention facilities in Eastern Europe in late 2005 by the Washington Post and ABC News led the CIA to close its facilities in Lithuania and Romania and move the Al-Qaida detainees out of Europe. It is not known where these persons were transferred; they could have been moved into ‘war zone facilities’ in Iraq and Afghanistan or to another black site, potentially in Africa. The experts were not able to find the exact destination of the 16 high-value detainees between December 2005 and their move to Guantánamo in September 2006. No other explanation has been provided for the whereabouts of the detainees before they were moved to Guantánamo in September 2006.” X.", "SUMMARY OF WITNESS TESTIMONY PRODUCED BY THE GOVERNMENT 304. In response to the Court’s request to provide the transcripts of testimony taken from witnesses in the criminal investigation in connection with the implementation of Project No. 1 and Project No. 2, the Government, in their written observations of 17 September 2015, provided a summary description of the witness testimony in English. In order to protect the witnesses’ identity and the secrecy of the investigation, their names were anonymised by a single letter of the alphabet and their workplace and function were described in a general manner.", "However, in some instances several clearly different persons were anonymised by the same letter; for instance, letter “A” designated a person “who held an important political post”; an airport employee; “the officer”; a person “who held a leading post at the SBGS”; and a person “who held a leading post at the Intelligence Services”. Similarly, “B” designated a person “who held a leading post at the Intelligence Services”; an airport employee; “a politician who held an important political post”; an “SBGS officer” and an “employee of another institution”. In sum, in many instances a single letter designated various persons. In view of the foregoing and for the sake of clarity, wherever necessary, the respective witnesses are referred to below as “A”, “A1”, “A3”, etc. The testimony of the witnesses who stated that they “did not remember anything about 6 October 2005”; “did not know anything”; “found out about the events at issue directly from the media”; “did not know anything about any premises”; “could not remember anything of the day in issue”; and “did not know about Project No.", "1 and Project No. 2, did not see any premises suitable for holding persons, “found out about the alleged detentions only from ABC News” and “never heard about the establishment of such premises” are omitted. 305. Until the public hearing, at which the Government withdrew their request to restrict public access to their pleading of 17 September 2015 and documents attached thereto, except to the extent necessary to ensure the protection of personal data, these materials were treated as confidential under Rule 33 § 2 (see also paragraphs 11 and 13 above). 306.", "The statements rendered below are produced verbatim from the Government’s pleading[5]. Witness A 307. On 3 March 2010 a politician, A, who held an important political post at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The construction of Project No. 2 was funded not by the Government but by the partners.", "During the investigation it was established that there were up to ten CIA‑related flights in Palanga and Vilnius. The politician noted that during the presidency of Rolandas Paksas, Mečys Laurinkus – the former head of the SSD at that time – had applied for the temporary possibility of holding persons suspected of terrorism, but the Head of State had replied in the negative. He noted that it was a general inquiry and that there were such inquiries in other countries too. Witness A1 308. During the questioning on 26 March 2010, A1, who held a post at the airport at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, indicated that he did not remember if he was working on 6 October 2005.", "He noted that in cases of departure through the governmental gates only the personal documents should be checked. As an airport employee, A1 noted, during the questioning in the pre-trial investigation, that all vehicles leaving the territory of the airport, to which access was limited, were inspected, paying particular attention to the permission issued to the vehicles or leaving persons. If vehicles left through the governmental gates, they were not inspected. In such cases a letter faxed from the Seimas, the Presidency or the Government, with information as to who, when and what type of vehicle would be leaving was always submitted. Thus, only the documents of leaving persons were inspected.", "Witness A2 309. On 13 April 2010 A2 was questioned for reasons other than the office he held and not directly related to the circumstances being investigated under the pre-trial investigation. The officer provided information as regards Project No. 2 and information as regards the sale of the premises of Project No. 2 in 2004.", "The officer observed that after the sale he did not enter the premises and from the outside there were no big changes to be seen. The premises consisted of residential premises of 240 sq. m., a stable of 350 sq. m. and an equestrian hall of 400 sq. m. After the sale the officer interacted with the residents living nearby, but they had not noticed any large equipment or vehicles with flashing lights.", "Witness A3 310. During the questioning on 15 April 2010, A3, who had held a leading post at the SGPS at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, testified that there were no requests not to inspect passengers of arriving aircraft. It was also noted that customs would perform cargo control. The SGPS could check only personal documents. Witness A4 311.", "On 11 June 2010, A, who held a leading post at the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer confirmed that Project No. 1 belonged to the Ministry of Foreign Affairs, and the SSD had used it under the agreement. The officer noted that he had never visited the said auxiliary building of Project No. 1.", "As regards Project No. 2 the officer noted that he did not know anything about it until the premises were turned into the Training Centre of the SSD. He visited the building for the first time in 2007, but did not see any premises that would be suitable for forced restriction of freedom of persons. The officer had to interact with the representatives of international partners, they had joint projects, but no one had ever applied for unlawful detention of persons. There were no such discussions with other officers either.", "No transportation to/from the airport, escorts or cargos were ever organised and he did not know anything about it. Witness B 312. On 17 February 2010, B, who held a leading post at the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer did not know anything about Project No. 2, which is now the Training Centre.", "The officer had never been there. The officer mentioned that there was talk that the SSD would acquire premises to establish the Training Centre. The officer testified that he was familiar with the premises of Project No. 1. The officer frequently visited the premises of Project No.", "1, where the meetings with foreign partners were held, as the said premises were suited better for these meetings. The officer remembered that once, maybe in 2002-2003, a repair had been carried out, but he did not know what specifically had been repaired. The officer had never been in the second building, which perhaps contained garages. The officer did not know about any requests to hold or transport persons, he had never obtained such information. To his knowledge, the SSD, when carrying out joint operations with foreign partners, received funding from the partners either in money or by technical means; however the officer did not know how it was recorded.", "However, he also remembered that there was talk that the SSD had to be provided with the premises for the establishment of the Training Centre. Witness B1 313. During the questioning on 25 March 2010, B1, who held a post at the airport at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, did not remember anything about the night of 6 October 2005 or the incident in question. As an airport employee, B1 noted that the aim of the patrolling was to ensure aviation security, i.e. to avoid violations of aviation security, to ensure that persons had permissions, corresponding to the airport regime areas, to ensure that vehicles did not violate traffic regulations and drove with flashing lights on, and to ensure the transport escort in the territory of the platform.", "The patrolling was shift work, and during one shift the aviation security vehicles usually patrolled. If possible, for safety purposes to observe normal procedure and to ensure that the members of the maintenance staff at the plane had permissions, corresponding to the regime area, a patrol would approach the plane. When the officers of the aviation security approached the planes, they stopped at the red line 5-10 meters away from the plane, which could not be crossed. The officers waited until the plane passengers got on the bus. If there was cargo on the plane, and unless there were call-outs or other planes landing, the officers waited until the cargo was unloaded.", "However, the safety of the cargo was ensured by the company maintaining the cargo. Witness B2 314. On 8 April 2010 a politician, B2, who held an important political post at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The politician noted that he was addressed as regards the transportation and holding of people in Lithuania. As far as he understood, he was asked for his opinion in this regard, whether he would have approved it, if it had taken place.", "The topic of the conversation at the time was to aid the Americans in the fight against terrorism. B2 did not approve of the idea. While holding his post, he did not happen to hear, nor was he aware of any premises arranged for holding people or certain flights. Witness B3 315. During the questioning on 13 April 2010, B3, who held the post of SGPS officer at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, noted that on 6 October 2005 at 5.15 a.m. an unplanned aircraft from Antalya landed.", "He wanted to perform an inspection, to write down the number, to find out where the aircraft was from, how many passengers there were, when it was to depart, but a vehicle of Aviation Security stopped him from approaching. He noted that some vehicle left the territory through the border control. He did not remember the data of the vehicle. He did not write anything down. Witness B4 (also referred to as “person B” by the Government) 316.", "During the questioning on 18 February 2010 an employee of another institution (person B), able to provide valuable information due to his post, testified that on 6 October 2005 a private non-commercial flight of an aircraft “Boeing 737-200”, tail number N787WH, registered in the USA, was recorded. It arrived from Tallinn without passengers at 4.54 a.m. and on 5.59 a.m. departed for Oslo. It arrived at Tallinn from Antalya. On the same day at 3.58 p.m. another aircraft, model “Beech Be-9L F-90” tail number N41AK registered in the USA departed for Glasgow with two passengers. On 2 January 2005 an aircraft “CASA C-212” tail number N961BW registered in the USA landed in Palanga from Flesland (Norway) and departed for Simferopol (Ukraine).", "On 18 February 2005 an aircraft “Boeing 737” tail number N787WH registered in the USA from Bucharest to Copenhagen landed in Palanga. B4 noted that there were unplanned flights, but they were quite rare. In case of training mainly Palanga Airport was used, as at that airport there were fewer flights. Witness C 317. On 19 February 2010, C, who held a leading post at the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned.", "The officer noted that the work of officer D was delegated to him in June 2005. Officer D took officer C to the building in Project No. 1 where there were two-container garages and premises for economic purposes. The SSD administration premises were situated within the same territory. C was able to confirm that the SSD did not have any public or classified documents which could prove that the premises in Project No.", "1 were used or arranged as a prison or temporary detention facility. Personally the officer believed that the said premises could not have been used for such purpose because there was a window, residential houses were situated nearby, and one of them was within a distance of 3-4 metres and another one right in front of it. The officer found out about Project No. 2 only in 2007, when the Training Centre began to operate there. The officer later visited it in connection with his work.", "The officer did not see any premises suitable for holding or detention of persons, he never heard of either. Witness C1 318. During the questioning on 17 March 2010, C1, who held a leading post at the SGPS at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, testified that nobody applied to the State Border Protection Service to ensure that marks were not put on. C1 noted that the function of the SGPS at the airport was to check the documents of those persons who crossed the State border. The SGPS did not perform the inspection of the planes which landed.", "The customs officers would inspect the cargo. When a plane landed a State border officer used to approach the plane and to escort the bus to the building. All the passengers would pass through passport control. Witness C2 (also referred to as “person C” by the Government) 319. On 27 April 2010 an employee of another institution was questioned (person C), as he could provide valuable information due to his post.", "C2 noted that in 2002-2005 there were no incidents similar to that of 6 October 2005. C confirmed that there was some letter of the SSD of 5 October 2005 on the intended SSD measure. The SGPS received the letter on 7 October [2005]. Witness D 320. On 18 February 2010, D, who held a leading post at the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned.", "The officer participated in looking for the premises of Project No. 1 and arranging them. Witness D1 321. On 9 March 2010, D1, who due to the duties performed was in other ways connected to the circumstances investigated under the pre-trial investigation, was questioned. The person arranged the premises in Project No.", "1. The repairs lasted for around a month. He could not remember the exact works that were carried out. Witness E 322. During the questioning on 18 February 2010, E, who held a leading post at the SGPS at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, knew about the incident of 6 October 2005 as he was informed about it at 6 a.m. by telephone.", "He noted that a letter of the SSD on classified training had been submitted. Witness E1 323. On 26 February 2010, E1, who held a leading post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer noted that he had been at Project No. 2 and pointed out that training took place there.", "The officer gave lectures there himself. The officer did not know anything about any premises that were suitable for detention. The officer had to directly communicate with foreign partners, but there were no inquires as regards the terrorists. The officer also did not know anything about the flights. An officer E1, who held a leading post at the SSD, noted that he did not know anything and that he visited Project No.", "2, where, as he specified, the training took place. He himself gave lectures there. Witness F 324. During the questioning on 20 February 2010, F, who held a leading post at the SGPS at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, noted that the aircraft departed on 6 October 2005 at 6.05 a.m. The officer had not been informed about it in advance.", "The officer also noted that the visibility outside was poor. Witness F1 325. During the questioning on 3 March 2010, F1, who held a leading post at the airport at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, testified that the Operational Services used to issue permissions. F1 noted that the CAA supervised Aviation Security and checked the work. The SSD also used to be in charge of aviation security.", "The officers of the Intelligence service could enter the regime area only after Aviation Security had been warned in written form about it in advance, also after the permanent permissions, issued to the officers of the Intelligence Service, who provided the airport with permanent maintenance, had been submitted, or after the official passes of those officers had been provided. The duty of the Aviation Security officers was to inspect the documents of the said persons and to check whether they actually were the officers of the Intelligence services. It was noted that Aviation Security had cooperated with the SSD as well as with the other intelligence services. Witness G 326. During the questioning on 11 February 2010, G, who held a leading post in the SGPS at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, testified that on 6 October 2005 there was an unplanned landing.", "The officer also noted that the visibility outside was poor. Witness G1 327. During the questioning on 23 February 2010, G1, who held a leading post at the airport at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, testified that a request not to perform an inspection used to be submitted by the Ministry of Transport and Communications of the Republic of Lithuania. The Patrol Services of Aviation Security together with a subdivision of the Ministry of the Interior used to control passage from/to the territory of Vilnius International Airport. As G1 noted, the Passenger Inspection Service of Aviation Security would check the passengers and their cabin bags prior to entering the plane in order to ensure the security of the plane and the passengers.", "While the Patrol Services of Aviation Security, together with a department of the Ministry of the Interior, would control the entry of means of transport into the closed territory of the airport, the SGPS would check the passengers, and Customs would deal with the inspection of luggage. Witness G2 328. On 25 March 2010, G2, who held a leading post in the Intelligence Services, associated with the premises of Project No. 2, was questioned. The officer observed that the Training Centre had been moved into Project No.", "2 in the middle of 2007. The Training Centre was a structural unit of the SSD, where the introductory, qualification and special training was held. The function of the material supply of the Training Centre was assigned to another unit. There were no cells or other premises suitable for holding persons in the Training Centre. The officer did not know about the source of funding and other matters related to the arrangement of the premises.", "There were no guard towers or security alarms in Project No. 2. Witness H 329. During the questioning on 11 February 2010, H, who held a post as SGPS officer at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, testified that there was an unplanned landing and that a State border officer B went to perform an inspection. As soon as a State border officer, H, learnt that he was not allowed to perform the inspection, the officer applied to Aviation Security.", "The Aviation Security Division made an inquiry as to whether they had received any instructions and also noted that the leading officials of the SGPS had been informed. Witness H1 330. During the questioning on 17 February 2010, H1, who held a leading post at the airport at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, testified that on 6 October 2005 classified training of the SSD with other States could have taken place. The security of Vilnius International Airport might have been informed about it. The SSD could have brought in and taken out different letters without registering them.", "There were a lot of international training courses, and the employee H1 could not therefore remember a particular case. If H1 received any request, which was classified, he would keep somebody relevant informed orally. In 2005-2006 there were a lot of flights of the aircraft of NATO member States carrying military and defence delegations in connection with the security of the conferences of NATO Defence Ministers and Ministers for Foreign Affairs in 2005-2006. H1 noted that Aviation Security cooperated with all the Operational Services of the country: those of the Police Department, the Customs Department, the Security Department, the Second Investigation Department under the Ministry of National Defence, the SGPS, the SSD, the SIS and the intelligence services of other institutions. They used to perform certain acts in the areas of limited access in the presence of Aviation Security officers or in their absence.", "Aviation Security officers had a duty to inspect the documents of those persons in order to ensure that they actually were the officers of the Intelligence Services. The laws regulating the said special services established their right to gain access to the objects. The officers of the Intelligence Services could have access to the regime area after Aviation Security had been warned about it in written form in advance, and also after the permanent authorisations, issued to the officers of the Intelligence services, who provided the airport with the permanent maintenance, had been presented or after the official certificates of those services had been presented. H1 emphasised that the classified SSD training courses with the foreign partners could have taken place and that the SSD could have informed Aviation Security about it by a classified letter. Such letters used to be registered by those institutions, which performed certain acts.", "There were cases when secret services used to bring such letters and take them away after the acts had been performed. Such letters were not then registered at the office of Aviation Security. The content of such letters could have comprised State secrets. The content of those letters could have been available only to those who had authorisations to work with the secret information. After they had become acquainted with the said content, they would inform orally other employees about it as far as was necessary.", "The officers of Aviation Security were not always aware of the measures taken by the special services at the airport, or in the area of limited access. There were cases when only oral requests were submitted. Witness K 331. On 4 May 2010, K, who held a leading post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. This officer noted that there had been a conversation with officer F as regards the possibility of accepting foreign partners and how this should be organised.", "He thought that the idea was to accept specialists coming for training. There were no talks about detention or about the arrangement of such premises. The officer was told that the premises were suggested for persons under witness protection programmes. It was also pointed out that the military base could be used. The conversations were abstract and there was no specific information.", "Witness L 332. L, who at the relevant period of time held a leading post in the Intelligence Service, noted that he used to enter the territory controlled by the Vilnius International Airport with a permanent pass. One could also enter the territory with a temporary pass, but such persons could then only enter the territory with an escort. Witness M 333. On 6 April 2010, M, who held a leading post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned.", "The officer had told officer D about the need to establish premises for the extradition of secret collaborators. Officer M had communicated with the representatives of foreign partners. The officer did not know exactly what the status of the operation in Project No. 1 was. The officer stated that they had discussed an idea with the partners to establish an intelligence support centre.", "They needed premises where it could operate. N and O were assigned the task of finding suitable premises. It was decided that the premises of Project No. 2 were suitable. Partners used to cover all the expenses.", "M himself supervised the arrangements process, but he could not provide many details. M noted that there were no premises suitable for custody or detention of persons. Meetings were held in the building. The supervision of the building was carried out by N and O. They used to escort the partners.", "Due to the fact that the partners’ plans slightly changed and the building was not exploited fully, it was decided to use it for the establishment of the SSD Training Centre. In 2005 there were 2-3 flights, communications equipment was transported, parcels for partners and vice versa. The representative of partners would apply for security when escorting. The SSD drafted a letter to the airport administration, possibly to the SGPS for the officers to be given access to the territory. The SSD officers escorted the cargo.", "The officer did not remember where the communications equipment came from – Vilnius International Airport or Palanga Airport – but there was security organised before its transfer. Later the communications equipment was taken away. M told an officer S, who held a leading post, that there were partners’ requests to escort the cargo. M confirmed that it was possible; however, it should have been agreed with Vilnius International Airport, and the SGPS. The letters for that purpose were drafted.", "Witness N 1. Questioning on 9 March 2010 334. On 9 March 2010, N, who held a post as an officer at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. In 2003 N and O were assigned to assist the partners. There was a direct order from M. The officer looked for a place close to Vilnius for the acquisition of premises.", "Once they had chosen the premises, the partners came to have a look at them. The officer and O assisted the representative of the partners, who led the construction work. There were administration and recreation areas, a pool table, table football, darts, a TV, padded benches, a gym, and fitness equipment installed; normally the officer did not have access to the administration area. As regards the acquisition, establishment and maintenance of the building of Project No. 2, no operation file was initiated.", "There were no premises suitable for detention. N himself had free access to the premises; however, he was not aware of the content of the operations that were carried out. Persons did not arrive at the premises of Project No. 2 on their own. Always somebody, N himself or O, used to meet those persons and to escort them from the airport and back.", "If there was somebody on the premises of Project No. 2, there was necessarily at least one officer: N himself, M or O. Even when there was nobody on the premises, N together with O supervised the building. N noted that in order to enter the airport a letter for the airport was to be presented. He also noted that different persons used to come to the premises of Project No.", "2 more often in the beginning of 2005 and ceasing at the end of the year. He used to supervise the premises together with officer O. He himself did not notice if any equipment was transported from the premises. He visited the premises, but not all the rooms, as they were used and there was no reason for him to do that. Besides him, officers M and O were at the building.", "There were no other officers there. He himself carried out technical functions. In the second part of the year of 2005 officer M told him that the protection of the building was to be entrusted to a unit in charge. 2. Questioning on 16 March 2010 335.", "On 16 March 2010, N was questioned again. The officer noted that various persons used to arrive at the premises of Project No. 2 – at the beginning of 2005 more often, and at the end of 2005 it stopped. The officer supervised the premises with O. In the second half of 2005 the officer M told him that the execution of the supervision of the building needs was to be entrusted to a unit in charge.", "N himself did not see whether there had been any equipment carried away from the premises. Once in 2005 or 2006 N escorted vehicles with the partners to Palanga, the vehicles of the SSD remained and the partners drove towards the aircraft. N himself did not see anything in particular. Then the escort went back to Vilnius. If they needed to go, a letter would be written to the airport.", "More than once the officer escorted the cargo from the airport, but usually only from Vilnius International Airport. There used to be a specific letter drafted for the airport. Witness O 1. Questioning on 9 March 2010 336. On 9 March 2010, O, who held a leading post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned.", "He used to escort partners to the airport and went to Palanga and back several times. 2. Questioning on 10 March 2010 337. On 10 March 2010 O was questioned again. In 2003 N told him that it was necessary to find premises.", "O carried out technical operations. They found the premises needed, which later were called the premises of Project No. 2. Partners chose the premises. They had arrived several times.", "In the Spring of 2004 partners started to come. They themselves carried out works, brought the material and the equipment in containers. It was necessary to find a site for storage; they found a site and carried containers there. There was a residential area, recreation area, administration area, a gym, a room with table games, a room with padded benches and a TV, and a kitchenette on the premises. O himself had not been to all of the premises.", "The officer did not know who arrived at the premises and what they were occupied with. They actively supervised the building until the second half of 2005, then the number of visits decreased, the officers themselves were there less often. O carried out the supervision of the building of Project No. 2 in rotation together with N. O himself was there mostly during the day and N at night. A file on the acquisition, repair and maintenance of the building of Project No.", "2 was not initiated. From his conversations with M, O realised that Project No. 2 was an intelligence support centre. In the beginning of 2006 the officer received an order from M that a cargo had to be delivered to Palanga Airport. The officer went together with V and N. They escorted the partners and drove several times to Palanga and back.", "Some vehicles approached the aircraft, there was no inspection carried out by the SGPS or the customs. They drove loaded with the cargo and returned unloaded. Witness P 338. On 1 April 2010, P, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. In 2002-2003 M told him that the representatives of the partners came and proposed to organise a joint operation, to establish premises in Lithuania for the protection of secret collaborators.", "The officer M was asked to inform him when a particular operation as regards the use of the premises was to be launched. However, in the end it did not take place. M said that the partners most likely abandoned the project. The premises were later used for the SSD needs [the officer was referring to Project No. 1].", "During the meetings held with the representatives of the partners, the idea was raised as regards the establishment of an integrated centre in which the SSD officers would be trained and joint operations with partners would be carried out. A was responsible for the support received for Project No. 1, in the form of equipment or by other means. The officer did not know about any requests to establish a prison. The officer offered a purely theoretical consideration that in 2003 there might have been requests for assistance in the fight against terrorism and acceptance of detainees, but it was purely theoretical.", "Witness Q 339. On 4 March 2010, Q, who held a leading post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. He participated in looking for the premises of Project No. 1. Witness R 340.", "On 30 March 2010, R, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre‑trial investigation was initiated, was questioned. The officer never visited the premises of Project No. 1, which were referred to in the questions asked. The premises were established for the extradition of secret collaborators. However, he was told that no prison existed.", "The Training Centre was situated in Project No. 2, which he visited in 2008. M mentioned to the officer R that the Training Centre was built in a joint project with the partners. R testified that he had never been to the premises of Project No. 1, about which he was questioned.", "However, he noted that the premises were arranged for the extradition of secret collaborators. An officer T also noted that he had heard of the centre for the transfer of secret collaborators. An officer S, who held a leading office, knew nothing about the repair of the auxiliary premises of Project No. 1, its aims or funding resources. Only later did he learn that the premises had been established for the operation, which either ended or never took place.", "Witness S 341. On 18 March 2010, S, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer was not aware of the repairs carried out, its purpose or the financing sources of the auxiliary premises situated in Project No. 1. He later found out that they were preparing for an operation, which either ended or did not take place.", "The SSD had been obliged to develop relations with the foreign partners in compliance with the Resolution of 2002. There was a need to communicate with more experienced partners, to learn from their experience and benefit from such cooperation. During this period it was decided to establish an intelligence support centre, which would be used in preparation for operations and at the same time for the training of SSD employees. M was in charge of the said sphere, thus S himself did not have any further information. The officer was informed orally about the development in cooperation with the partners as regards the regional intelligence centre.", "Around May 2004 M was informed that the building had been acquired. M told that him that the partners had covered all the expenses. All information about the centre was provided orally; no documents were provided. There were all sorts of talks, but nothing about terrorists, no enquiries and so on. Project No.", "2 was established at the beginning of 2005. The officer went to inspect the premises, but there were no areas suitable for detention; there were recreation areas and administrative offices. The building was used minimally as the partners were slow to take any decision as regards the intelligence centre. Subsequently an agreement with the partners was reached as regards the transfer of the building to the SSD. There were only considerations as regards detention of terrorists, and no requests as regards the detention of persons were received; in theory it was only discussed with the leading officials, but they did not approve.", "M told him that the requests were received from the partners to escort cargo. The officer was told that they needed to coordinate it with the airport and the SGPS, thus, specific letters had to be drafted. The officer himself had no information about aircraft landing with terrorists. Witness T 1. Questioning on 2 March 2010 342.", "On 2 March 2010, T, who held a post in Intelligence at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer looked for premises where safe facilities could be established for the extradition of secret collaborators. However, all the premises were inadequate. D suggested where it would be possible to arrange them and the premises were arranged in Project No. 1.", "2. Questioning on 16 March 2010 343. On 16 March 2010, T was questioned again. The officer noted that they had been looking for premises for the centre to be used for the transfer of the secret collaborators. The officer never escorted any cargo and did not know anything about Project No.", "2. An Intelligence Service officer U noted that he looked for premises together with T. In compliance with the instructions given by an officer, D, in 2002 the premises were necessary for temporary accommodation and protection of secret collaborators. U noted that while working at Project No. 1 he thought that the premises were to be arranged for the transfer of secret collaborators. Witness U 344.", "On 3 March 2010, U, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer carried out a task together with T. They looked for premises for temporary accommodation and protection of secret collaborators under the order of D of 2002. Witness U1 345. On 8 March 2010, U1, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre‑trial investigation was initiated, was questioned. While working at Project No.", "1, the officer thought that the premises were established for the transfer of secret collaborators. The officer considered that the premises in the city centre were unsuitable for the detention of persons. Witness V 346. On 5 March 2010, V, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer saw that the building of Project No.", "1 was being repaired, but he had no connection to the said project. He had escorted other vehicles together with N in March 2006 to Palanga Airport. The officer arrived at the airport and the escorted vehicle drove to the aircraft. The vehicle that drove off was loaded with boxes of not less than 1 metre in length. They were carried by two persons.", "The officer could not remember the exact number of boxes, but there were not less than three of them. The unloading lasted for around 20-30 minutes. He entered the airport together with M and N, who were standing approximately 50 metres from the aircraft. The aircraft was not inspected. The officer escorted M and N back from Palanga together with O.", "The officer N told him that there was an operation taking place. The officer knew that prior to going to the airport one of the officers had written a letter to the airport in order for them to gain access to the airport. Witness X 347. On 5 March 2010, X, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer participated in arranging and implementing the repair works of the premises of Project No.", "1. Witness Y 348. On 8 March 2010, Y, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer participated in repairing and arranging the premises of Project No. 1.", "The officer did not see any unauthorised persons visiting the premises. Witness Z 349. On 5 March 2010 Z, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer participated in arranging and implementing the repair works of the premises of Project No. 1.", "XI. OTHER DOCUMENTS AND EVIDENCE BEFORE THE COURT A. The 2011 CPT Report 350. Among other evidence available to the Court was the 2011 CPT Report on the CPT delegation’s visit to Lithuania that took place from 14 to 18 June 2010 and which involved inspections of various places of deprivation of liberty – police, prison and psychiatric establishments. As regards the alleged existence of the CIA secret detention facilities in Lithuania, the central issue for the delegation was to try to assess the effectiveness of the pre-trial investigation.", "However, the delegation considered that it should also visit “the two tailored facilities” that had been identified in the parliamentary inquiry as “Project No. 1” and “Project No. 2”. The CPT made the following findings of fact. 351.", "As regards the background of the CPT’s visit, the 2011 CPT Report read: “64. In August 2009, reports appeared in the media that secret detention facilities for ‘high value’ terrorist suspects, operated by the Central Intelligence Agency (CIA) of the United States, had existed in Lithuania until the end of 2005. According to these reports, as many as eight persons were held in those facilities for more than a year. The sources of this information were said to be former CIA officials directly involved with or briefed on a programme of that Agency to detain and interrogate suspected terrorists at sites abroad. Further, it was affirmed that CIA planes made repeated flights into Lithuania during the period in question.", "On 25 August 2009, the President of Lithuania announced that the above-mentioned reports would be investigated. They were subsequently the subject of an investigation (started in November) by the National Security and Defence Committee of the Lithuanian Parliament. The findings of that Committee were endorsed by the Lithuanian Parliament on 19 January 2010, and a pre-trial investigation was launched on 22 January by the Prosecutor General’s Office. That investigation was still underway at the time of the CPT’s visit in June 2010. 65.", "In recent years there have been many allegations of secret detention of terror as well as of the related phenomenon of unlawful inter-State transfers of such persons. And on 6 September 2006, the President of the United States publicly acknowledged that the CIA had been holding and questioning, in secret locations overseas, a number of persons suspected of involvement in acts of terrorism. The possible implication of European countries in the above-mentioned practices has been examined within the framework of the Council of Europe and the European Union, and reports from both the Council’s Parliamentary Assembly and the European Parliament have affirmed that there has been collusion by certain of those countries. 66. As the CPT emphasised in its 17th General Report, secret detention can certainly be considered to amount in itself to a form of ill-treatment, both for the person detained and for members of his or her family.", "Further, the removal of fundamental safeguards which secret detention entails – the lack of judicial control or of any other form of oversight by an external authority and the absence of guarantees such as access to a lawyer – inevitably heightens the risk of resort to ill-treatment. The interrogation techniques applied in the CIA-run overseas detention facilities have certainly led to violations of the prohibition of torture and inhuman or degrading treatment. Any doubts that might have existed on this subject were removed by the publication on 24 August 2009 of a Special Review of CIA counterterrorism detention and interrogation activities, dated 7 May 2004 and covering the period September 2001 to October 2003, carried out by the Agency’s own Inspector General. Despite being extensively censored, the published version of the Special Review makes clear the brutality of the methods that were being used when interrogating terrorist suspects at sites abroad. 67.", "It was against this backdrop that the CPT’s delegation examined the question of the alleged existence of secret detention facilities in Lithuania. The delegation had talks with the Chairman of the Parliament’s Committee on National Security and Defence about the findings from the Committee’s investigation into this matter, and met members of the Prosecutor General’s Office entrusted with the pre-trial investigation which was underway. The central issue for the delegation was to try to assess the effectiveness of the pre-trial investigation. However, for the record, the delegation considered that it should also visit the two tailored facilities that had been identified in the Parliamentary Committee’s report when referring to partnership co-operation Projects Nos. 1 and 2.” 352.", "As regards the inspection of the premises of “Project No. 1” and “Project No. 2”, the report read: “68. The facilities of Project No. 1 consisted of a small, single-storey, detached building located in a residential area in the centre of Vilnius.", "According to the Parliamentary Committee’s report, ‘facilities suitable for holding detainees were equipped, taking account of the requests and conditions set out by the partners ... however, according to the data available to the Committee, the premises were not used for that purpose’. The facilities of Project No. 2 were located in a small locality situated some 20 kilometres outside Vilnius. Far larger than those previously mentioned, the facilities of this project consisted of two buildings (respectively with a brown and a red roof) which were connected and divided into four distinct sectors. As regards the red-roofed building, the layout of the premises resembled a large metal container enclosed within a surrounding external structure.", "Two parts of this building (a fitness room and a technical area) contained apparatus, machinery and spare parts of US origin as well as instructions and notices written in English. A Lithuanian official accompanying the delegation said that this equipment and written material had been left behind by the previous occupants. According to the Parliamentary Committee’s report, ‘the progress of works [to equip these facilities] were ensured by the partners themselves ... The persons who gave testimony to the Committee deny any preconditions for and possibilities of holding and interrogating detainees at the facilities of Project No. 2, however, the layout of the building, its enclosed nature and protection of the perimeter as well as fragmented presence of the SSD [State Security Department] staff in the premises allowed for the performance of actions by officers of the partners without the control of the SSD and use of the infrastructure at their discretion’.", "The CPT shall refrain from providing a detailed description of the above-mentioned facilities. Suffice it to say that when visited by the delegation, the premises did not contain anything that was highly suggestive of a context of detention; at the same time, both of the facilities could be adapted for detention purposes with relatively little effort.” 353. As regards the effectiveness of the criminal investigation carried out in Lithuania the report read, in so far as relevant: “70. As already indicated, the allegations of secret detention facilities in Lithuania that surfaced in August 2009 led to the setting up of a Parliamentary investigation in November 2009, the findings of which in turn resulted in the launching of a pre-trial investigation by the Prosecutor General’s Office in January 2010. It can first be asked whether the Prosecutor General’s Office displayed the necessary promptitude when the reports of secret detention facilities appeared in August 2009.", "Admittedly, it was a question of allegations made in the media. However, those allegations had to be seen in the context of certain undisputable facts that were by that time in the public domain, namely that the CIA had been holding and questioning, in secret locations overseas, a number of suspected terrorists and that the persons concerned had been subjected to ill-treatment (see paragraphs 65 and 66). In addition, there was a growing body of evidence, emanating from reports drawn up within the framework of the Council of Europe as well as other bodies, that some of the CIA facilities concerned might have been located in European countries. Against this background, it might be argued that the Prosecutor General’s Office should itself have taken the initiative and launched an investigation when the issue of the possible existence of secret detention facilities in Lithuania first came to light in the summer of 2009. 71 The question also arises whether the pre-trial investigation that was initiated on 22 January 2010 is sufficiently wide in scope to qualify as comprehensive.", "The investigation relates to a possible abuse of official position as set out in Article 228, paragraph 1, of the Criminal Code. Certainly, the uncovering of evidence indicative of a possible abuse of official position by certain Lithuanian civil servants was an important outcome of the Parliamentary investigation; however, it was not the only outcome. According to the data collected by the Parliamentary Committee, aircraft which official investigations had linked to the transportation of CIA detainees repeatedly crossed Lithuanian airspace during the period 2002 to 2005 and did land in Lithuania during that period. Further, although the Committee failed to establish whether CIA detainees were brought into/out of Lithuanian territory, it concluded that the conditions for such transportation did exist. The Committee also ‘established’ that the Lithuanian State Security Department had received a request from the partners to equip facilities in Lithuania suitable for holding detainees.", "And, although reaching the conclusion that the facilities of Project No. 1 were ultimately not used for detention purposes, the Committee explicitly refrained from ruling out such a possibility as regards the facilities of Project No. 2 (see paragraph 68). When the delegation raised the issue of the scope of the pre-trial investigation with members of the Prosecutor General’s Office, they replied that ‘facts’ were needed to launch a criminal investigation, not ‘assumptions’; at the same time, they emphasised that if evidence of other criminal acts did come to light during the investigation, its scope could be broadened accordingly. For its part, the CPT considers that when the above-mentioned findings of the Parliamentary Committee are combined with the other elements identified in paragraph 70, it becomes clear that it would have been more appropriate for the scope of the pre-trial investigation to have expressly covered, as from the outset, the possible unlawful detention of persons (and their possible ill-treatment) on Lithuanian territory.", "72. During its meeting with members of the Prosecutor General’s Office, the CPT’s delegation sought to ascertain whether the pre-trial investigation complied with the criterion of thoroughness. This was followed up after the visit by a written request from the CPT’s President for a chronological account of all steps taken as from the opening of the pre-trial investigation (persons from whom evidence had been taken, whether orally or in writing; documents obtained and examined; on-site inspections carried out; material seized; etc. ); information was also sought on whether the assistance of authorities outside Lithuania (in particular of the United States and NATO) had been requested and, if so, whether that assistance had been forthcoming. The delegation did not receive the specific information it requested, either during the above-mentioned meeting or from the Lithuanian authorities’ response of 10 September 2010.", "The Committee has been told that: persons related to the subject of the investigation who had meaningful information have been questioned; documents that were meaningful to the investigation have been received; the premises designated as Projects Nos. 1 and 2 have been inspected; no obstacles have been encountered in the conduct of the investigation. It is affirmed that more specific information cannot be provided as the major part of the data gathered during the investigation constitutes a state or service secret. The CPT is not convinced that all the information that could have been provided to the Committee about the conduct of the investigation has been forthcoming. Certainly, given the paucity of the information currently available, it remains an open question whether the pre-trial investigation meets the criterion of thoroughness.", "73. The pre-trial investigation has not yet been finalised. According to the Prosecutor General’s Office, the collected data is still being analysed and decisions remain to be made as regards the necessity for additional investigative acts. The prosecutors met hoped that the investigation would be completed by the end of 2010. Once it has been completed, the CPT trusts that the fullest possible information will be made public about both the methodology and the findings of the pre-trial investigation.", "Any restrictions on access to information on grounds of state or service secrecy should be kept to the absolute minimum. This will enable a proper assessment of the overall effectiveness of the investigation to be made and ensure that there is sufficient public scrutiny of its results. The CPT requests that the findings of the pre-trial investigation be forwarded to the Committee as soon as they become available. 74. Finally, the CPT has been informed that, on 20 September 2010, the UK-based non-governmental organisation REPRIEVE wrote to the Prosecutor General of Lithuania on the subject of a named person who is currently being held by the US authorities in the detention facilities at Guantánamo Bay.", "The organisation affirms that it has received information from ‘the most credible sources inside the United States’ that this person ‘was held in a secret CIA prison in Lithuania’ during the period 2004 to 2006, and requests that this matter be investigated. The CPT would like to be informed of the action taken by the Prosecutor General’s Office in the light of the above-mentioned letter.” 354. The 2011 CPT Report listed the following comments and requests for information in respect of the alleged existence of the CIA secret detention facilities: “Alleged existence of secret detention facilities in Lithuania comments - the CPT trusts that the fullest possible information will be made public about both the methodology and the findings of the pre-trial investigation launched by the Prosecutor General’s Office regarding the allegations of secret detention facilities in Lithuania. Any restrictions on access to information on grounds of state or service secrecy should be kept to the absolute minimum (paragraph 73). requests for information - the findings of the pre-trial investigation launched by the Prosecutor General’s Office regarding the allegations of secret detention facilities in Lithuania, as soon as they become available (paragraph 73); - the action taken by the Prosecutor General’s Office in the light of the letter sent to the Prosecutor General of Lithuania by the UK-based non-governmental organisation REPRIEVE on 20 September 2010 (paragraph 74).” B.", "The Lithuanian Government’s Response to the 2011 CPT Report 355. On 19 May 2011 the Lithuanian Government issued its response to the 2011 CPT Report and requested its publication. The Government in essence summed up the prosecutor’s conclusions of 14 January 2011 (see paragraphs 191-199 above). The passages relating to the alleged existence of secret detention facilities in Lithuania read, in so far as relevant, as follows. 356.", "As regards the CPT’s comment “the CPT trusts that the fullest possible information will be made public about both the methodology and the findings of the pre-trial investigation launched by the Prosecutor General’s Office regarding the allegations of secret detention facilities in Lithuania. Any restrictions on access to information on grounds of state or service secrecy should be kept to the absolute minimum”, the Government stated: “Most data received during a pre-trial investigation are subject to classified information protection, as such data constitute a state or official secret bearing relevant classification markings. Whereas pre-trial investigation material contains information that constitutes a state and official secret, upon terminating a pre-trial investigation all pre-trial investigation material shall be transferred to the Information Security and Operational Control Division of the Prosecutor General’s Office of the Republic of Lithuania for storage.” 357. As regards the CPT’s request for “the findings of the pre-trial investigation launched by the Prosecutor General’s Office regarding the allegations of secret detention facilities in Lithuania, as soon as they become available”, the Government stated: (1) The arrival and departure of aircraft of the Central Intelligence Agency of the United States (hereinafter “the U.S. CIA”) to/from the Republic of Lithuania, U.S. officers’ access to the aircraft and aircraft cargo and passenger inspections. The arrival and departure of U.S. CIA-related aircraft to/from the Republic of Lithuania was established during the pre-trial investigation.", "However, the procedure set forth in the Law on Intelligence (Official Gazette Valstybes Zinios, 2000, No. 64‑1931) was observed in all cases. The competent officers of the airport and the State Border Guard Service (hereinafter the ‘SBGS’) were informed in writing (or orally) in advance about aircraft and cargo checks planned by the State Security Department (hereinafter “the SSD”). This is confirmed by case documents presented by the SSD and questioned witnesses, namely airport employees, SBGS and SSD officers. No data on illegal transportation of any persons by the aforementioned aircraft was received during the pre-trial investigation.", "On the contrary, the persons questioned during the investigation either categorically denied such circumstances or said they had no information about it. Therefore, in terms of criminal law, the allegation that persons detained by the CIA were transported by U.S. CIA-related aircraft or brought to/from the Republic of Lithuania is just an assumption not supported by factual data, which is equivalent to an assumption about transportation of any other persons or items in the civil circulation or prohibited items. In the absence of factual data to substantiate this assumption, prosecution cannot be initiated or criminal proceedings cannot be continued at this point. Therefore, it should be stated that by seeking unhindered access to landed aircraft in airport areas and carrying out related actions, SSD officers acted lawfully, did not abuse their official position and did not exceed their powers, and therefore did not commit the criminal act provided for in Article 228 of the CC. Whereas there are no data on illegal transportation of persons by U.S. CIA‑related aircraft, it should be stated that there is no reason to address the issue of criminal liability under Article 291 of the CC (Illegal crossing of the state border) and Article 292 (Unlawful transportation of persons across the state border).", "(2) Implementation of Projects No. 1 and No. 2. It was established during the pre-trial investigation that the SSD and the U.S. CIA implemented Project No. 1 in 2002 and Project No.", "2 in 2004. The implementation of both projects is related to building reconstruction and equipment. Discussing the arguments for the termination of the pre-trial investigation in the section regarding the implementation of Project No. 1, it is necessary to draw attention to the term of validity of criminal laws and the statute of limitations as regards criminal liability. ....", "However, despite this procedural obstacle to the pre-trial investigation, it should be stated that no unambiguous data showing that during the implementation of Project No. 1 the premises had been prepared for keeping the person detained were received during the pre-trial investigation. The received factual data on the specific features of equipment of the premises (which allow to make an assumption about the possibility of keeping the detainee therein) assessed in connection with the data justifying another purpose of the premises, taking into account the fact that there are no data on any actual transportation to and keeping of detained persons on these premises, do not provide a sufficient reason for formulating a notification of a suspicion of abuse to a person and thus initiating prosecution of the person. Regarding Project No. 2, no data on a connection between it and the keeping of detainees were received during the pre-trial investigation.", "On the contrary, the factual data received during the pre-trial investigation and all related witnesses who have been questioned justify another purpose and use of the building. The real purpose of the premises cannot be disclosed as it constitutes a state secret. It must be stated that the criminal act provided for in Article 228 of the CC was not committed during the implementation of Projects No. l and No. 2 by the SSD and the U.S. CIA.", "It should be noted that there is no reason to address the issue of criminal liability under Article 100 of the CC (Treatment of persons prohibited under international law) and Article 146 of the CC (Unlawful deprivation of liberty) because, as already mentioned before, no data on illegal transportation of persons, their detention or another illegal restriction or deprivation of liberty were received during the pre-trial investigation. Discussing the assumption about the possibility of keeping the person detained on the premises of Project No. 1, as regards the impossibility of classifying the act under Article 100 of the CC, it must be pointed out that in the absence of persons detained, arrested or otherwise deprived of liberty on the aforementioned premises, a legally significant feature necessary for the classification of the act under Article 100 of the CC – ‘denial’ of deprivation of liberty - cannot be stated either. (3) Provision of information on the objectives and content of ongoing Projects No. 1 and No.", "2 by SSD management to top state leaders. The legal framework of international cooperation of the SSD is set forth in the Law on Intelligence. Legal acts do not directly require to ‘approve’ the directions (tasks) of international cooperation of the SSD at any political level. They have been determined by the general need for international cooperation and direct SSD contacts with the special services of other countries. During the implementation of Projects No.", "1 and No. 2 on SSD cooperation with the U.S. CIA, the then SSD leadership failed to inform any top official of the country about the objectives and content of these projects. Upon stating that laws do not establish an obligation to provide such information, and taking into account the fact that, in view of its scope, the provision of such information can and must be performed according to the ‘need-to-know’ principle, it must be stated that there are no signs of a criminal act - abuse - at this point either. Pursuant to Article 166 of the CCP, a pre-trial investigation shall be started (1) upon receiving a complaint, statement or report on an offence; (2) if the prosecutor or the pre-trial investigation officer discovers signs of a criminal act. In the case in question, the decision to start a pre-trial investigation into abuse under Article 228( 1) of the CC was taken by the chief prosecutor of the Organised Crime and Corruption Investigation Department of the Prosecutor General’s Office who drew up an official report.", "There was the only ground for the pre-trial investigation, namely the circumstances indicated in the findings of a parliamentary investigation carried out by the National Security and Defence Committee of the Parliament of the Republic of Lithuania into possible transportation and keeping of persons detained by the U.S. CIA in the territory of the Republic of Lithuania. Summarising the data collected during the pre-trial investigation, it must be stated that although all necessary and sufficient measures were used to collect factual data on suspected criminal acts, no objective data confirming the fact of abuse (or another criminal act) were collected during the pre-trial investigation, and the total factual data collected do not suffice for stating that the criminal acts had been committed. Therefore, it is not possible to state the commission of the criminal acts at the moment. On the contrary, such assumption-based information, which served as a ground for launching the pre-trial investigation under Article 228(1) of the CC, did not prove to be true and was denied. Pursuant to Article 3(1)(1) of the CCP, the criminal process shall not be initiated or, if initiated, shall be discontinued if no act having the signs of a crime or a criminal offence has been committed.", "Therefore, the pre-trial investigation was terminated as no act having the signs of a crime or a criminal offence had been committed. It has already been stated that the factual data on cooperation between the SSD and the U.S. CIA in intelligence activities contained in the pre-trial investigation material showed that no criminal act had been committed when providing information on these activities to top state leaders during the implementation of Projects No. 1 and No. 2. But these data are fully sufficient to state that there were potential signs of a disciplinary offence in the actions of SSD leaders M.L., A.P.", "and D.D. who coordinated cooperation between the SSD and the U.S. CIA and participated in it, SSD leaders who were responsible for building reconstruction (Projects No. 1 and No. 2), initiated and performed this reconstruction, and other officers. However, the aforementioned SSD leaders do not work for the SSD any more, and disciplinary proceedings cannot be initiated against them.", "In addition under Article 34(2) of the SSD Statute, no disciplinary punishment can he imposed one year from the date of commission of the offence. Therefore, even if there were data on a possible disciplinary offence, the decision provided for in Article 214(6) of the CCP to hand over material when terminating a pre-trial investigation for addressing the issue of disciplinary liability cannot be taken.” 358. As regards the CPT’s request for information on “the action taken by the Prosecutor General’s Office in the light of the letter sent to the Prosecutor General of Lithuania by the UK-based non-governmental organisation REPRIEVE on 20 September 2010”, the Government stated: “The aforementioned statement alleged that U.S. CIA officers transported H to the Republic of Lithuania, kept him in the territory of the Republic of Lithuania and transported him from the Republic of Lithuania in the period from the spring of 2004 to September 2006. It was stated in the decision to terminate the pre-trial investigation that REPRIEVE had not provided any facts proving this, had not indicated and disclosed the source of information, and, as already mentioned before, no data on illegal transportation of any persons, including H, by the U.S. CIA to/from the Republic of Lithuania were received during the pre-trial investigation.” C. Mr Fava’s testimony regarding the “informal transatlantic meeting” given in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland 359. In Al Nashiri and Husayn (Abu Zubaydah) Mr Fava was heard in as expert in his capacity as the Rapporteur of the TDIP at the fact finding hearing (see Al Nashiri v. Poland, cited above, §§ 42 and 305-318); and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 42 and 299-304).", "He responded, inter alia, to the Court’s questions concerning records of the informal transatlantic meeting of European Union and North Atlantic Treaty Organisation foreign ministers, including Condoleezza Rice, of 7 December 2005, “confirming that Member State had knowledge of the programme of extraordinary rendition”, as referred to in paragraph “L” of the 2007 EP Resolution (see Husayn (Abu Zubaydah), cited above, § 300; and Al Nashiri v. Poland, cited above, § 306; see also paragraphs 285-286 above). He testified as follows. As regards the checking of the credibility of the confidential source from which the records – to which he referred to as “the debriefing” – had been received: “Yes, the reliability was checked, it was a confidential source coming from the offices of the European Union, in particular from the Commission. In Washington, when we received the debriefing of the [Washington] meeting, we checked that the latter did indeed correspond to the real content of the meeting and that same opinion was shared by the Chair of the Temporary Committee and in fact this document was acquired as one of the fundamental papers of the final report which I proposed and that the Temporary Committee has approved and that the Parliament subsequently approved.” As regards the nature of the document: “[A] debriefing. Some meetings, when there is a request – in that case the request had been put forward by the American Department of State – are not minuted; however, in any case a document which incorporates with sufficient details the course of the discussion is drawn up, even if this is not then formally published in the records of the meeting.", "In this case it was asked not to minute [the meeting], but it was asked to write this document, following the practice, and it is this document, the debriefing, that has been then provided to us.” As regards the topic of the transatlantic meeting: “Extraordinary renditions. The American Secretary of State, Condoleezza Rice, met the ministers and the topic of discussion was what had been discussed in those months by the general public in America and Europe – I believe our Temporary Committee had already been set up – it was a particularly burning issue and there was the concern on the part of several Governments about the consequences that these extrajudicial activities in the fight against terrorism, using extraordinary renditions as a practice, could create problems to the various Governments in respect of the public opinion and in respect of the parliamentary inquiries, some of which had already been undertaken at the time. Therefore, some Governments were asking whether what was known corresponded to the truth and whether all this was not contrary to the international conventions, beginning from the Geneva Convention onwards. In that case, the reply – from the debriefing we received – from Madame Rice, was that that operational choice to counteract terrorism was necessary because the atypical nature of the conflict, with a subject that was not a state but a group of terrorists prevented the use in full of the international conventions which up till then had served mainly to regulate traditional conflicts. This is the thesis which also the legal counsellor of Condoleezza Rice put to us in Washington when we had a hearing and it was explained to us that they felt that they could not apply the Geneva Convention and that they thought that the extraordinary renditions were therefore a necessary and useful practice even for European Governments, because they placed European countries, European Governments [and] the European Community in a position to defend themselves from the threat of terrorism.", "I also remember – of course we are talking about events of seven years ago – that from the said debriefing there emerged quite an animated discussion among the European Governments[:] between those who felt that these practices should be censored for obvious reasons linked to international law, and other Governments which felt on the contrary that they should be supported. ...” As regards the content of the document: “[T]his document indicated precisely the interventions with the names of the ministers of member states of the European Union. That document was a fairly clear picture of how the discussion had proceeded, it was not just a summary of the various topics dealt with but the document actually recalled who said what. In fact, let’s say, the discussion heated up also because of the different positions taken, [which positions] are reproduced quite faithfully in this document. Which member States had felt the need to raise doubts and objections to the practice of extraordinary renditions and which member States had felt on the contrary the need to support the thesis of Madame Rice.", "... The discussion started because a few weeks before the fact had been divulged by the American press, I think it was an article of the Washington Post which was then taken up by ABC, ABC television, saying that there were secret places of detention in Europe. Extraordinary renditions were a fairly widespread practice in 2002 and 2003 and that in Europe there were at least two places of secret detention. Afterwards President Bush, in a statement, confirmed that there had been some detainees, members of Al Qaeda, who had been transferred to Guantánamo after having gone through some places of detention under the CIA’s control, thereby somehow justifying and confirming what had been said by the American journalists at the time. The meeting with Condoleezza Rice and the European ministers, as far as I remember, took place immediately after these revelations of the American press and indeed this was one of the reasons why our Temporary Committee was set up.” D. Documents concerning the on-site inspection of Project No.", "1 and Project No. 2 carried out by the investigating prosecutor 360. The Government produced copies of records made in the course of the on-site inspections of Project No. 1 and Project No. 2 which were carried out by the investigating prosecutor on, respectively, 17 March and 4 June 2010 (see also paragraphs 186 and 190 above).", "The documents were submitted in the Lithuanian language and with an English translation[6]. 1. Record of on-site inspection of Project No. 1 of 17 March 2010. 361.", "The English translation of the document reads, in so far as relevant, as follows: “Translation into English TOP SECRET DECLASSIFIED [Written by hand] RECORD ON INSPECTION OF PREMISES 17 March 2010 Vilnius The inspection commenced at [Written by hand] 2.15 p.m., completed at [Written by hand] 3.00 p.m. The Prosecutor of the Investigation Department of Organised Crime and Corruption of the Prosecutor General’s Office of the Republic of Lithuania [full name], pursuant to Articles 166, 167, 205, 207 of the Code of Criminal Procedure, arrived at [Written by hand] the territory located at Z. Sierakausko str. 25, Vilnius and pursuant to Articles 92, 179 and 207 of the Code of Criminal Procedure performed the inspection of objects relevant to the investigation of criminal acts and recorded the course and results of this investigative action. ... The Prosecutor General’s Office’s Control Section prosecutor [full name] has been participating in the course of the investigative action during the recording of the acts and results thereof ...", "Objects inspected: [written by hand] territory located at Z. Sierakausko str. 25, Vilnius and auxiliary building therein. During inspection it was established: [written by hand] the territory, address Z. Sierakausko str. 25, Vilnius is located next to Z. Sierakausko street. It is a brick wall fenced from the street side and a wired fence on the other side, a fenced territory of irregular shape.", "Along Z. Sierakausko Street the territory is fenced with a brick coloured wall, there are multi-storey dwelling houses surrounding the territory. There is a metal gate at the entrance to the territory. There is also a metal wicket. At the entrance, there is a parking lot. On the left side of the parking a bigger brick building is located.", "It might be called the main building. On the right (right corner of the territory), a smaller building, which might be called the auxiliary building is located. The auxiliary one is a brick walled, yellow coloured, single-floor building. The distance between the building wall and a fence along Z. Sierakausko str. is 5.7 m. The distance between another (back) side of the building and a fence perpendicular to Z. Sierakausko str.", "is 3.55 m. The auxiliary building is oblong, flat roofed. The length of the building is 17.50 m, width 6.30 m. The middle part of the building seems to be sticking out if observed from the front side of it. There are two lifting white coloured gates in this part of the building - entrances to garages. Windows of the building are white, plastic. The windows of the room marked as No.", "2 in the scheme are equipped with metal lifting security levers. On both sides of the building there are entrance doors, i.e. plastic white doors. Windows and doors as well as rooms indicated in the scheme annexed to the record. On the facade of the building as well as in the territory, there are CCTVs.", "The inspection of the premises is commenced by entering the doors, which are located in the furthermost part of the building if the building is observed from the street. Inside walls of the building brown rooms, are bricked, plastered, coloured in yellow. All inside doors are made of plywood, light coloured, equipped with an ordinary lock. Floors are tiled in the rooms, corridors, sanitary rooms, kitchen, garages. Premises marked as No.", "1 and No. 2 are in linoleum flooring. Ceilings in the rooms, corridors, kitchen, sanitary rooms, are covered in plastic panelling. Ceilings of premises No. 1 and No.", "2 are plastered, coloured in white. Upon entering the aforementioned doors the entrance-hall No. 2, size 1.45 x 1.07 is located. On the right side the entrance door to the room No. 2 is located.", "The size of this room is 4.10 x 3.06 m. height 3.61 m. The walls of these premises are plastered, coloured in yellow. Paint is peeling in some lower parts of the wall, possibly due to humidity. There are no other special features of the walls visually notable. There is a table in the room as well as used computer parts on the table and floors. There are two windows in the room, width 1.40 m, height 52 cm.", "Further from the entrance-hall there is a narrow corridor, width 80 cm. On the left side of the corridor sanitary room No. 2 is located. It consists of a lavatory and a sink. At the end of the corridor, there are doors to the garage No.", "2. The garage is located over the entire area of the building, and along the room there is a pit, which is covered with planks at the time of inspection. In the garage, there are different boxes, old items, bicycles, etc. There is an electric heating boiler on the wall in the garage. The heating system of the building consists of radiators, which are located in the entire building.", "The size of the garage No. 2 is 7.05 x 3.65 m. There are doors from the garage to the kitchen. This room is 3.20 x 3.00 in size. There is one window in the room, it is l.33 width. Along the window, there is a table with chairs.", "The kitchen furniture along the wall consisting of catchall, electric stove, rack as well as a sink, equips the kitchen. By the wall, opposite to the wall with the window, a ‘Sharp’ refrigerator is located. There is a shower cubicle in the corner. Further, the entrance to the garage No. 1 and to room No.", "1 from the kitchen is located. The size of the garage No. 1 is 3.85 x 3.22 m. There is a little tractor, tyres, piano, and a rack with different items located in the garage. The size of the room No. 1 is 4.12 x 3.75 m. There are two windows in the room width 1.40 m. An oval table with 6 chairs located in the room.", "Another table is located in the corner of the room, close to the entrance-hall. There is a plastic grey relay box 2 x 20 size, 10 cm depth on the wall, which is the closest to Z. Sierakausko street. There are cable inputs equipped in it; the cables directed to the room are not connected. The box is installed 100 cm distance from the sidewall border of the entrance-hall. From this room one enters the entrance-hall No.", "1, of 2.86 x 1.18 m in size. From the entrance-hall one also enters the sanitary room No. 1, which is equipped with a lavatory and sink. Both sanitary rooms, as well as the kitchen walls, are partly covered in tiles. In the entrance-hall, the exit from the building is accessible.” 2.", "Record of the on-site inspection of Project No. 2 of 4 June 2010 362. The English translation of the document reads, in so far as relevant, as follows: “English translation RECORD ON INSPECTION OF BUILDING AND TERRITORY LOCATED AT ANTAVILIŲ STR. 27A VILNIUS 4 June 2010 Vilnius The inspection commenced at 9.20 a.m., completed at 10.35 a.m. Vilnius Regional Prosecutor’s Office prosecutor of the Investigation Department of Organised Crime and Corruption [full name], arrived at the building and territory located at Antaviliai str. [27] A, Vilnius following Articles 92, 179 and 207 of the Code of Criminal Procedure performed the inspection of the above-mentioned objects.", "... Persons who participated during the inspection and who were present during the inspection activities: the Prosecutor’s General Office prosecutor of the Investigation Department of Organised Crime and Corruption [full name], the head of the board of the State Security Department [full name], the head of the Training Centre of the State Security Department [full name]. Weather conditions, lighting during inspection: daytime, fair weather with no sun, no rainfall. Established during inspection: The territory is fenced with a metal wire fence with no additional safety or lighting devices. Entrance to the territory through a metal wicket, equipped with an ordinary lock, locked by an ordinary key.", "Vehicles enter through the metal gate. There is a building within the territory consisting of two sections. Section 1 seems to be residential. It is a two-storey building with a mansard, second floor with balconies. Outside decoration made from crushed bricks and painted panelling.", "Section 2 is of hangar type, outside decoration is made from tin-plate. Premises equipped in both sections have numbers, premises include classrooms, working rooms, single and double residential rooms, kitchen and laundry rooms, leisure room (tables of a billiard, table tennis), library, storage rooms, WCs, garages, watchman room, closet, fitness room, shooting hall. Mansard is non-equipped; it is without thermal insulation as well. The perimeter of the building is monitored by CCTVs; none of the windows equipped with inside or outside window bars. There are no rooms designated for temporary detention or equipped with bars or in any other way adjusted for the forced deprivation of one’s liberty.", "[Written by hand] Note: the shooting hall is adapted merely for laser guns, not firearms. ...” E. Resolution and Operational Action Plan of 25 July 2002 363. The Government produced copies of partly declassified documents, both dated 25 July 2002 and entitled, respectively, “Resolution to initiate the file of operation” (“2002 SSD Resolution”) and “Operational Action Plan” (“2002 SSD Action Plan”). Most parts of the documents are blackened. 364.", "An English translation of the 2002 SSD Resolution reads: “EXTRACT [the name of the addressee blackened] RESOLUTION no. 01-21-531 vs/02 To initiate [blackened] a file 25 July 2002Vilnius city [three lines of the text blackened] in case [blackened] necessity to find and arrange premises [blackened] for the purpose of extradition (transfer) of working secret intelligence collaborators, also to ensure their protection and living conditions [the remaining part of text, some half page blackened].” 365. An English translation of the 2002 SSD Action Plan reads: “EXTRACT [blackened] file [blackened] [blackened] ACTION PLAN 25/07 2002 Vilnius [three lines of the text blackened] 1) to select premises and to equip them with necessary measures for the organisation of extradition of secret intelligence collaborators [blackened] 2) to organise the protection of secret intelligence collaborators, to provide them with essential living conditions. [the remaining text comprising some one page blackened]” F. Report on the incident of 6 October 2005 in Vilnius airport 366. The Government produced a copy of the report (“SBGS Report”) made by J.K., an officer and senior specialist of the SBGS, which related an incident that took place on 6 October 2005 when R.R., an officer of the SBGS had been refused access to the plane N787WH, which had made an unexpected landing in Vilnius airport.", "An English translation of the report provided by the Government[7] reads, in so far as relevant, as follows: “Translation into English Captain R[...]. C.[...] Acting Chief of the Vilnius airport Border Checkpoint OFFICIAL REPORT REGARDING ACCIDENT AT AIRPORT BORDER CHECKPOINT 6/10/2005 VILNIUS On 5 October at 5.15 a.m. the unplanned plane from Antalya landed in Vilnius Airport BChP [Border Checkpoint]. The state border officer R.R[...] exercising the guard ‘Escort and inspection of aircraft’ attempted to approach the mentioned aircraft and to perform actions according to his service instructions (write down board number, find out where the plane arrived from, what was the time of departure, were there any passengers), however when he was about 400 metres away from the aircraft he was stopped by the Aviation Security staff and was denied access to the aircraft. Outside there was low visibility (fog), but it was possible to discern that the Aviation Security staff were patrolling around the aircraft, and also that there were two patrol vehicles of the Aviation Security parked. The officer saw how the vehicle departed from the mentioned aircraft and left the territory of the airport BChP through the gates.", "I contacted the chief of the Shift of the Aviation Security, who explained to me that the SBGS commanders had been informed about the landing of this aircraft and the aviation security actions undertaken. When the mentioned aircraft had fuelled up, it departed from the Vilnius Airport BCHP at 6.05 a.m. Vilnius frontier district OD [Officer of the day] was informed about the above-mentioned incident.” G. Letter from former President of Lithuania Mr Adamkus to the CNSD of 26 November 2009 367. The Government produced a copy of the letter of 26 November 2009 written by Mr Valdas Adamkus, the President of the Republic of Lithuania and addressed to the CNSD in connection with the Seimas inquiry. An English translation of that letter produced by the Government reads[8], in so far as relevant, as follows: “Having been closely following the work of the parliamentary inquiry instituted by the Seimas National Security and Defence Committee (hereinafter - Committee) concerning the alleged transportation and confinement in the territory of the Republic of Lithuania of persons detained by the United States Central Intelligence Agency, I have decided immediately to inform the Committee about the events in Lithuania at the relevant time. I am confident that this would contribute to the objectivity of the investigation.", "I would like to remind [you] that on 29 March 2004 Lithuania became a member of NATO. When seeking membership in this organisation and especially when approaching the acceptance of our country into the alliance, very intense and active negotiations with many consultations and meetings took place. Therefore communication with the future and subsequently fellow partners, i.e. the NATO organisation and its member States, was very close and active. Particularly I would like to distinguish the cooperation with the strategic partner of Lithuania - the United States of America - whose support for Lithuania’s acceptance into NATO would be hard to overestimate.", "This communication was performed on many different levels, from delegations of heads of State to delegations of politicians, civil servants, specialists of national defence and many other spheres. Also the implementation of joint projects and operations in the sphere of defence and security in cooperation with partners was and still is very important. As the then head of State I was informed about the most important defence and security projects implemented in co-operation with some NATO partners as demonstrating examples of mutual trust and effective cooperation. The Committee should be familiar with this information. However, I have never been informed about the issue concerning CIA prisons which is currently under investigation and I learnt about it only from the media.", "When I was asked about this issue live on air on the Lithuanian Radio and during the Lithuanian Television programme ‘Paskutinis klausimas’ (Last question) I replied to the host that I had never heard of and had never been informed about the above-mentioned operations in the territory of the Republic of Lithuania. My replies were heard by Lithuanian people and the Chairman of the Seimas National Security and Defence Committee Arvydas Anušauskas who participated in the programme. Once again I state that I was not aware and I was not informed about the alleged existence of a prison, detentions and activity related to this. I am hoping that the National Security and Defence Committee of the Seimas of the Republic of Lithuania having examined disseminated information degrading the Lithuanian State shall publish the facts revealing the truth.” H. Letter from the Ministry of the Interior of 9 December 2009 368. The Government produced a letter from the Ministry of the Interior to the Chairman of the Seimas CNSD of 9 December 2009.", "The letter related, among other things, the incident of 6 October 2005. The Ministry also informed the Seimas that no internal investigation had been conducted in that respect in view of the fact that no breach of disciplinary rules had been established and that the SBGS had received a letter from the SSD informing them of the landing of N787WH and the measures that the SSD had intended to take in respect of the landing. The SSD’s letter of 5 October 2005 was received by the SBGS on 7 October 2005. I. Letter from Palanga airport of 15 March 2010 369.", "The Government submitted a copy of the Palanga airport’s letter to the Vilnius City District Prosecutor’s office of 15 March 2010 (“Palanga airport letter”). According to the letter, Palanga airport had not received any letter from the SSD concerning the “possible access of its staff to the airport and performance of any procedures in relation to the aircraft” in respect of the N787WH landing on 18 February 2005. The enclosed invoice stated that N787WH arrived from Bucharest en route to Copenhagen. It arrived at 8.09 p.m. and departed at 9.30 p.m. J. The Customs Department letter of 12 April 2010 370.", "The Government submitted a copy of a letter from the Customs Department under the Ministry of Finance to the to the Vilnius City District Prosecutor’s office, dated 12 April 2004, informing the prosecutor that N787WH, which had landed at Palanga airport on 18 February 2005 at 8.09 p.m. had not been recorded in the Aircraft Arrivals registration journal at the Palanga airport post of the Klaipeda Territorial Customs. Nor had any inspection been carried out in respect of N787WH when it had landed at Vilnius airport from Anatalya, Turkey on 6 October at 5.15 a.m. K. The SBGS letter of 27 April 2010 371. The Government produced a letter from the SBGS to the to the Vilnius City District Prosecutor’s office of 27 April 2010. An English translation[9] of the letter reads, in so far as relevant: “... Hereby we submit the requested documents and we would like to inform you that in the information system of the [SBGS ] the following data have been recorded: ... 5 US citizens arrived in the Republic of Lithuania when on 18 February 2005 the aircraft tail no. N787WH landed at Palanga airport: 1.", "[L.E.W. ], doc. no. ... 2. [F.X.B.", "], doc. no. .. 3. [E.M.V. ], doc.", "no. ... 4. [R.A.L.Z. ], doc. no.", "... 5. [J.S. ], doc. no. ... We do not possess any other date with regard to persons who crossed the border following the arrival of the indicated aircraft.", "... [I]t could be noted that when on 6 October 2005 at 5.15 a.m. the unplanned airplane from Antalya landed in Vilnius airport ... [Border Checkpoint] the State Border officer ... when about 400 metres away from the airplane was stopped by the Aviation Security staff ... and restricted access to the aircraft ... [T]here were two vehicles of the Aviation Security parked. The officer saw how the vehicle departed from the mentioned aircraft and left the territory of the Airport [Border Checkpoint] through the gates controlled by the Aviation Security staff. ... Afterwards the SBGS received a classified letter from the [SSD]. ...” XII.", "EXTRACTS FROM TESTIMONY OF EXPERTS HEARD BY THE COURT 372. On 28 June 2016 the Court took evidence from Senator Marty, Mr J.G.S. and Mr Black (see also paragraphs 17-18 above). The extracts from their statements as reproduced below have been taken from the verbatim records of the fact-finding hearing. They are presented in the order in which evidence was taken.", "A. Presentation by Senator Marty and Mr J.G.S. “Distillation of available evidence, including flight data, in respect of Lithuania and the case of Abu Zubaydah” 373. On 2 December 2013 Senator Marty and Mr J.G.S. gave a similar presentation before the Court in Al Nashiri v. Poland (cited above, §§ 311‑318).", "374. Their oral presentation in the present case was recorded in its entirety and included in the verbatim record of the fact-finding hearing. The passages cited below have been taken from the verbatim record. 375. The aim of the presentation was explained by Mr J.G.S.", "as follows: “Madam President, Honourable Judges, representatives of the parties, I have had the privilege of addressing this Court on three prior occasions in respect of cases involving aspects of the CIA’s rendition, detention and interrogation programme as it has manifested itself on the territories of the Council of Europe. I am asked today to provide a distillation of available documentary evidence including flight data in respect of Lithuania and the applicant into these proceedings, Mr Abu Zubaydah. I would kindly request, however, that the Court and indeed the parties take note of my prior testimonies given in order that I do not repeat myself unduly in the course of this presentation. I would like to simply state that the abuses being discussed are part of a widespread and systematic practice intended at holding in secret and indefinitely persons suspected of terrorism, but never charged with any criminal offence – in some cases, and indeed in Mr Zubaydah’s case – for periods up to and over four years in length, during which a multiplicity of abusive techniques, euphemistically described as enhanced interrogation techniques, are practised on these individuals in violation of their personal integrity in the context of the conditions of confinement in which they are held.” This was followed by the presentation of a map showing a network of interconnected various locations, which was referred to as a “global spider’s web” in the 2006 and 2007 Marty Reports (see paragraphs 270-277 above; and see Husayn (Abu Zubaydah), cited above, § 306). 376.", "As regards the fact that Lithuania was not included among the countries suspected of hosting CIA black sites in the Marty Inquiry, Senator Marty stated as follows: “Madam President, Judges, Ladies and Gentlemen, a few words by way of introduction. First, why is there no mention made of Lithuania in the 2006 and 2007 reports? There are two reasons why. First, at the time, we had very few resources available, we focused on Poland and Romania. The other reason is that we spent a lot of energy establishing the spider web of aircraft movements.", "During that short time we spent a lot of energy collecting flight data, which was really a lot of work. And we invested a lot for the future because, even years later, such data helped us to develop cases. I speak for the first time as rapporteur for Lithuania. In another report, that is, the [2011] Report on abuse of State secrecy I did not really go into secret prisons at that time. What I talked about was the use of State secrecy which had been invoked.", "It was invoked then even in respect of the inquiries of the Committee against Torture – the CPT notwithstanding the fact that the CPT was bound by the strictest confidentiality and there have never been any leaks by the CPT. Whatever the CPT has published has always been in agreement with the country concerned. So, in that part of the report when I mentioned Lithuania I naturally benefited from information that had become public thanks to the remarkable work carried out by several NGOs and I remember well at the time the prosecutor from Lithuania was also very active. What I found troubling in the report is that there too State secrecy was invoked.” Mr J.G.S. added: “One observation with regard to Lithuania bears mentioning at the outset.", "When we took up the mandate of the Council of Europe in late 2005 and early 2006, to investigate alleged secret detentions on Council of Europe Member States territories, we regarded this as an issue that had cast a dark shadow over the continent’s recent past. We had understood at the time of our investigation that it was a category of abuse which had albeit recently concluded. Several years later and today I am in a position to state this categorically: we are faced with the troubling yet inescapable realisation that at the time we were investigating, the abuses were not only part of Europe’s recent past but also of its present for contemporaneously to investigations led by Senator Dick Marty a secret detention site operated by the CIA and its national counterparts existed on the territory of the Republic of Lithuania. I wish to begin by setting out in the form of a graphic illustration the system in which such detention sites were situated. This is a system that spanned the entire globe but it had at its heart several hubs of operation here on the European continent.", "I am using a map of the world to show those present several categories of places at which aircraft landed in the course of the so-called war on terror.” 377. The concept of the so-called “global spider’s web” of rendition circuits executed by the CIA planes was explained as follows: “In order to construct a picture of the scale and volume of operations we began to map out specific circuits flown by rendition aircraft in the material period. I shall demonstrate two of these in order to illustrate the concept. In January 2004, first of all, our rendition circuits spanning twelve days saw the transfer between multiple different sites of up to eight individuals. The aircraft flew from Washington with a stopover in Shannon before arriving at its first staging point in Larnaca Cyprus.", "From Larnaca it embarked on its first pickup of a detainee in Rabat - Morocco, Binyam Mohamed, the British resident, who was flown to further secret detention in Kabul - Afghanistan. Between Kabul and Algiers there was a further detainee transfer before the crew and aircraft repaired to a second staging point in Palma de Majorca. From here the aircraft embarked on a rendition operation already accounted for by this court that of the German national Khaled El-Masri from Skopje via Baghdad to secret detention in Kabul. The aircraft then carried a high-value detainee Hassan Gul from Kabul - Afghanistan, to Bucharest - Romania. The aircraft once more returned to a staging point in Palma before flying back to the United States.", "This type of operation, whilst first uncovered in the Marty Report and seen as an anomaly, has in fact turned out to be quite typical of the way in which the CIA rotated and recycled its detainees among multiple secret detention sites on multiple continents. By way of further illustration in September 2003 the aircraft N313P embarked from Washington and flew to stopover in Prague before collecting detainees in Tashkent Uzbekistan handed over to the CIA by local counterparts. Those persons were transferred to Kabul, Afghanistan, whereupon a circuit encompassing five individual secret detention sites Kabul - Afghanistan, Szymany – Poland, Bucharest - Romania, Rabat - Morocco, culminating at the CIA’s detention facility at Guantánamo Bay. As early as September 2003 therefore it was not uncommon for these aircraft to be traversing long distances in short spaces of time and transferring under severe duress multiple detainees between multiple different detention sites. It is when we collated all of these operations that were known to us at the time and layered them onto this graphic, that we came upon this motif of a global spider’s web.” 378.", "As regards the role played by the Detention Site Violet country’s authorities, Mr J.G.S. stated: “Finally, Your Honours, I wish to point to you specific references to the actions of the Lithuanian counterpart in the administering of the site. The text of the Senate Committee Inquiry appears to refer to an individual, a person, as a representative of the counterpart authority and in this passage here the word that is used, and which I find significant, is “support”. Just as in earlier proceedings we pointed to a passage which referred to the support and cooperation of the Romanian authorities. Here we have an indication that money was offered as a means of quotes “showing appreciation for the support of the local counterpart”.", "We know this is Lithuania because it talks about the expanded facility and it talks about Detention Site Violet earlier in the same passage. It does talk also about complex mechanisms needing to be innovated for the disbursement of this money, which also indicates that notwithstanding the nominal support there were often inclinations to keep secret the nature of the cooperation. This is the last reference from the Senate Committee Report and I will conclude our presentation today, but I sense that it might also be important for the Court’s deliberations. We have heard from both the Seimas Parliamentary inquiry in Lithuania, and subsequently in public releases from the Lithuanian Prosecutor General’s office, that whilst they can confirm the existence of these two highly customised facilities fit to detain individuals, they are unable to endorse the conclusion that these were detention sites, because they have an alternative explanation as to what they were used for. This was a conclusion in the Seimas report and it has recently been cited by the Prosecutor General’s office as a reason for stalling investigation.", "The CIA reporting appears to present a different viewpoint. The CIA states that the Lithuanian counterpart ‘probably has an incomplete notion regarding the facility’s actual function’, meaning that the Lithuanians may have known of the site’s existence, they may have known of a stated purpose or a stated modus of cooperation, but there were some aspects, as in all host countries, which were regulated strictly upon the “need to know principle”, and the CIA did not divulge the individual incoming or outgoing detainee transfers to its Lithuanian counterparts in a manner that would allow them to be apprised of that specific aspect. Hence, when the statement at the end says he probably believes that it is some sort of other centre, there is a plausibility to the Lithuanian position stated in the Parliamentary Inquiry, persons who were not themselves party to the operations, and I think in assessing the cooperation between these two partners we can come to a conclusion very similar to that we reached in our inquiry vis-à-vis Poland and Romania that authorisations and approvals were necessarily provided at the highest levels of government, but primacy in the execution of operations lay unambiguously with the CIA, the American operatives. Sometimes at the expense of good relations with their hosts.” B. Senator Marty 379.", "Senator Marty was a member of the PACE from 1998 until the beginning of 2012. He chaired the Legal Affairs and Human Rights Committee and, subsequently, the Monitoring Committee. At the end of 2005 he was appointed as Rapporteur in the investigation into the allegations of secret detentions and illegal transfers of detainees involving Council of Europe member States launched by the PACE (see also paragraphs 266-277 above). On 2 December 2013 Senator Marty testified before the Court at the fact‑finding hearing held in Al Nashiri and Husayn (Abu Zubaydah) (see Al Nashiri v. Poland, cited above, §§ 319-323; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 305-317). 380.", "In the present case, in response to the questions from the Court and the parties, Senator Marty testified as follows. 381. In response to the judges’ question as to what kind of evidence formed the basis for the findings and conclusions in paragraph 37 of the 2011 Marty Report (see paragraph 277 above) as to the operation of the CIA extraordinary rendition programme and existence of a CIA secret detention facility in Lithuania were made, Senator Marty stated: “First of all I should like to point out that the 2011 Report hardly concentrated on the problem of secret detention at all and therefore my function in relation to that of Mr [J.G.S.] is somewhat different because Mr [J.G.S.] continues to work upon the problem whereas I was occupied in other fields.", "... The fundamental problem in the report of 2011 is to highlight the experiences that had been had in different activities, in other words governments increasingly had recourse to the defence of State secrets to cover the activities of the secret services. We also underscored, and the Assembly followed us in this, the need to strengthen surveillance of the secret services in different countries and we remarked that in different countries this monitoring is very weak, very loose, especially when one is dealing with military secret services. ... Now as to the sources, well, one might say why did the source that mentioned Poland or Romania not say anything about Lithuania? Well there is a rather simple reason for that and this is a reason which we did not grasp initially, but as we moved on we did understand.", "It is because the timeframes are different and those responsible in the CIA that were dealing with these programmes were not necessarily the same people. Therefore those who knew about Poland did not necessarily know about Lithuania and these are sources that we found subsequently. And that is the reason why there was practically no source that was aware of everything, because there was a continuum over time with different phases as Mr [J.G.S. ], I believe, was able to establish with great precision. ...” 382.", "In reply to the judges’ question whether it could be said that Lithuania knew, or ought to have known, of the nature of the CIA rendition programme operated on its territory in 2005-2006 and whether this knowledge was such as to enable the Lithuanian authorities to be aware of the purposes of the CIA aircraft landings in Lithuania in 2005-2006, Senator Mary testified: “Well, again, it depends upon what you mean by authorities. If you’re talking about the Government, I say no. If you’re talking about Parliament – the Lithuanian Parliament, but that also applies to the Polish Parliament or the Romanian one – I would say no, because this operation – I like to recall for the record – was governed by the ‘need to know’ secrecy principle. So only those who absolutely had to know things, and even those who came to know, were not necessarily aware of all the details, that is the fundamental principle that governs the highest degree of military secrecy which is strictly regulated by NATO. So we never affirmed that it was the fault of the Lithuanian Government, we say that there are people at the highest level of the State in Lithuania, as in Poland, as in Romania, or Italy or Germany, who had knowledge of what was going on.", "Amongst those people, limited in number – politically speaking – they perhaps did not know all the details. What is important to know is that somebody allowed the CIA to move about freely, to have access to venues or buildings or premises where they were allowed to do what they wanted without any control whatsoever. I believe that that is the key to the problem. It is a complicity that was not active in any case. I imagine that no Lithuanians, no Poles, no Romanians, participated in these interrogations which were in fact torture pursuant to the International Convention against Torture, but people did not want to know this at a certain level, among certain representatives of the State, they did not want to know.", "That is the real problem. In criminal law you would talk about reckless conduct.” 383. Replying to the Government’s question as to what would be his opinion on Mr J.G.S.’ statement that the 2014 US Senate Committee Report in sections relevant for the present case did not indicate the applicant’s name, Senator Marty stated: “It is true, it does not indicate countries either, but if we are cognisant of all the details of the case, if we know all the plane movements, if we know the movements of those detained during that time, it is relatively easy to reconstruct and come to the affirmation that Mr J.G.S. made. This obviously requires some analysis and cognisance of all the details of this rather complex case.", "However, if one takes the trouble to reconstruct, and Mr J.G.S. has already demonstrated this to me several times, you can only come to that conclusion.” 384. In response to the question from the applicant’s counsel as to how he would categorise the attitude and the level of cooperation of the Lithuanian authorities with his inquiry or, in so far as he was aware, with other international inquiries, Senator Marty said: “The attitude of Lithuania fully tallies, I would say, with all the other European countries that have had dealings with this CIA programme. One of the only countries where a minister immediately called me when I sent out the questionnaire and told me, “well look, I don’t know anything at all”, was Luxembourg. Even my own country – Switzerland – showed itself to be extremely reticent in responding to some of my questions.” C. Mr J.G.S.", "385. Mr J.G.S. is a lawyer and investigator. He worked on multiple investigations under the mandate of the Council of Europe, including as advisor to the Parliamentary Assembly’s Rapporteur Senator Marty (2006‑2007) and as advisor to the former Commissioner for Human Rights, Mr Thomas Hammarberg (2010-2012). In 2008-2010 he served on the United Nations’ international expert panel on protecting human rights while countering terrorism.", "He is presently engaged in official investigations into war crimes and organised crime cases. On 2 December 2013 Mr J.G.S. testified before the Court at the fact‑finding hearing held in Al Nashiri and Husayn (Abu Zubaydah) (see Al Nashiri v. Poland, cited above, §§ 311-318 and 324-331; and Husayn (Abu Zubaydah v. Poland, cited above, §§ 305-312 and 318-325). 386. In his testimony before the Court, he stated, among other things, as follows.", "387. In reply to the judges’ question whether, on the evidence known to him, it could be said that Lithuania knew or ought to have known of the nature of the CIA extraordinary rendition programme and that that programme operated on its territory in 2005-2006 and, if so, whether that knowledge was such as to enable the Lithuanian authorities to be aware of the nature and the purposes of the CIA aircraft landings on Lithuanian territory during that period, Mr J.G.S. stated: “Yes Your Honour, it is my conclusion that the authorities of Lithuania knew about the existence of this detention facility, and that through the highest levels of their government approved and authorised its presence on the territory of Lithuania. It is my conclusion that they certainly should have known the purpose to which this facility was being put because its nature and purpose was part of a systematic practice, which had already been implemented by the CIA across multiple other countries, including territories in the neighbourhood of Lithuania, and had been widely reported by the time the site in Lithuania became active. I would point out that there are different degrees of knowledge held by different sectors of Lithuania’s authorities.", "Of course, on the operational level the details are restricted to a very small number of trusted counterparts, primarily within the secret services, but I am not aware of any single instance of a CIA secret detention site having existed anywhere in the world without the express knowledge and authorisation of the host authorities. I have no reason to believe that Lithuania was any different.” 388. Replying to the Government’s question as to whether he had any data confirming that the aircraft that he mentioned had actually landed in Lithuania in February 2005 and March 2006 and had been used for the CIA renditions and not for other purposes in Lithuania, Mr J.G.S. testified: “In order to provide categorical evidence of where and when particular aircraft landed, investigations have normally relied upon information generated in the host state, so, for example, where an airport authority has serviced an aircraft or ground handling company has administered services to an aircraft. Normally these would be Lithuanian entities providing document from Lithuanian sources in respect of exactly where.", "Now, in respect of these aircraft, we are in possession of certain Lithuanian documents, furnished by notably the airport authorities and also some of the navigation services, including real-time logs, which appear to confirm their landings at Vilnius and Palanga respectively. However, these landings are not the primary focus of the documentation that we assemble from the international perspective. The international perspective tends to tell us what their destinations were and, importantly, what their purposes were. So it is through the collation of that first category of evidence with the second category of evidence that we arrive at conclusions as to the purpose of the flight. And in this respect I can say the following: the aircraft I have mentioned were contracted by the CIA through its established network of contractors including Computer Sciences Corporation, Sportsflight Air Inc., and individual aircraft operating companies for the express and exclusive purpose of transporting detainees between CIA operated detention sites.", "The particular contract in question associated with a unique billing code was administered solely for that purpose and in the course of my decade of investigations I have documented scores of rendition flights performed under this same contract, this same billing code, for the express and exclusive purpose of transporting detainees. There is not an alternative under that contractual designation, so on the second part of your question, Madam, I would say that the purpose was detainee transfer.” 389. In response to the Government’s question regarding his statement that the highest officials in Lithuania knew about the detention site, as to whether he had any information about any specific official who had given his consent for the programme, he stated: “With regard to Lithuania’s officials’ responsibilities, I have not undertaken the investigation to the same degree of rigour that I was able to do when I worked on these cases full-time for the Council of Europe. I can postulate that persons in positions of highest authority in Lithuania, indeed analogous positions to those whom we named in respect of Poland and Romania, would have been among those who knew. But personally I have not satisfied myself of any specific individual’s knowledge and it is purely by virtue of not having had the opportunity to investigate that matter with a sufficient degree of investment, time or rigour.” D. Mr Black 390.", "Mr Black is an investigator with the Bureau of Investigative Journalism and with Reprieve, having an extensive experience in the field of the CIA extraordinary rendition programme. On two occasions, in 2012 and 2015, he was heard as an expert in the LIBE inquiry into the alleged transportation and illegal detention of prisoners in European countries by the CIA (see also paragraphs 288 and 294 above). He was involved in the preparation of the 2015 Reprieve Briefing and also prepared for the LIBE a briefing of 15 September 2015 on “CIA Detention in Romania and the Senate Intelligence Committee Report” (“the 2015 LIBE briefing”; see also Al Nashiri v. Romania, cited above, §§ 288 and 355-358). Since 2010 Mr Black has continuously carried out research on the CIA Eastern European “black sites”. 391.", "In his testimony before the Court he stated, among other things, as follows. 392. In reply to the judges’ question whether it could be said that that Lithuania knew or ought to have known of the nature of the CIA extraordinary rendition programme and that that programme operated on its territory in February 2005-March 2006 and, if so, whether that knowledge was such as to enable the Lithuanian authorities to be aware of the purposes of the CIA aircraft landings during that time on Lithuanian soil, Mr Black testified as follows: “I think it is pretty clear from the Senate Report that Lithuanian officials were aware of the programme operating on their soil. And there are two reasons that I would cite to support this conclusion. One is the reference to an official in the country that hosted site Violet being quite shocked but giving approval to the hosting, to the use of the site.", "And the other is the fact that we see from that same report that host country officials refused to allow medical access or access to their medical facilities for people in that site. I do not think it is logical to assume that they would not have allowed such access unless they believed that there was a particular security risk that was associated with the people who they believed were being held in that building. And I should add also, as in the case of Romania and indeed Poland, it is also clear from the Senate Report that the Lithuanian State received money for allowing their soil to be used in this manner. However, it is not clear how much money, we can only say that it is a certain number of millions of dollars but we cannot say, I do not know how many millions.” 393. The Government asked questions regarding Mr Black’s statement that medical aid had been denied to the CIA detainees, which were formulated as follows.", "– Question no. 1 “Am I right ... that the same US Senate summary states that national institutions refused access of high-value ... CIA detainees, to medical institutions?” – Mr Black’s reply: “Yes, that was specifically stated of Site Violet in the Senate Report and it was also discussed in the new release of the, I think it is called, the facility audit, which is one of the documents released in the last few weeks by the CIA. That document describes the problems that the CIA had in 2005 and 2006 getting medical attention in host countries. Now the new document, the facility audit, does not specifically mention which countries it refers to, although the only countries that were operating at the time that it covers were Lithuania and Afghanistan. The Senate Report on the other hand, contextually, in that paragraph it is clear, I believe, that it references to Lithuania and what it says is that they did not have the right type of medical facilities on their site to deal with medical problems and that they initially had an agreement with the host country that the host country would provide medical facilities in such eventualities.", "The host country had decided that it was not going to do that. The word that is used in the facility audit is that it “reneged”. I do not think that word is used in the Senate Report.” – Question no. 2: “Reading the Report summary it is really difficult to read it, but we have an impression that national institutions did not have knowledge as to what took place there. So if they did not know, how could they deny access?” – Mr Black’s reply: “Well, I think it is unequivocal that the Report summary says that a host country official was quite ‘shocked’ and I think that you can draw your own conclusions as to under what circumstances somebody might be shocked.", "I think that, generally speaking, it is pretty clear that as far as I can say from my accumulated knowledge of the CIA secret detention programme and certainly from my close reading of the Senate Report over the last year and a half, since it came out, my feeling is quite clearly that some host country officials always knew that there were prisoners held in these facilities. That does not imply that every single host country official knew. I believe the number is probably different in each different case, but I think it is clear that (a) at least some knew that there were prisoners being held on their territory and (b) they knew that they were receiving money to facilitate this. I think we can be clear that this is what the Senate Report says.” 394. In reply to the Government’s question as to whether he happened to know the names of the Lithuanian officials who had known of the above elements, Mr Black said: “No, I do not.", "I have not undertaken research into specific Lithuanian officials and what they might or might not have known. I have endeavoured to make the information that I have available to Lithuanian officials. I have sent information, quite exhaustive information, about flights and contracts to the Lithuanian prosecutor to which I never received any response incidentally. But I have not beyond that tried to research personal knowledge by specific officials in Lithuania.” 395. Lastly, in reply to the questions from the applicant’s counsel regarding Mr Black’s field investigation undertaken in Lithuania and whether, to his knowledge the prosecutor’s office had ever contacted eye-witnesses interviewed by Mr Black, he stated: “My field investigation, when I was interviewing local eyewitnesses, was largely in 2011, and at that time we asked each individual who we interviewed as to whether or not they had been approached by a representative of the prosecutor’s office to take a statement and they all said no.", "I do not know whether subsequently after that time, 2012 onwards, whether or not they might have been interviewed by the prosecutor, I could not say. ... [T]o the dossier which I submitted after the publication of the Senate Report, in other words in January 2015, there was no response whatsoever. The purpose of that dossier was to essentially demonstrate the correlation between Lithuania and Site Violet. So no, there was no response to that. I believe that in 2012, when we at first identified the precise, the full contracting details and route of N787WH, I believe we published that material but we also wrote to the prosecutor offering, I guess, to engage in a dialogue about the material or to offer whatever assistance regarding that material the prosecutor’s office might want.", "But again, we received no response to that either.” THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS TO THE ADMISSIBILITY OF THE APPLICATION A. Lithuania’s lack of jurisdiction and responsibility under the Convention in respect of the applicant’s alleged rendition to Lithuania, detention and ill-treatment in a CIA detention facility in Lithuania and transfer out of Lithuania and the applicant’s lack of victim status 396. Article 1 of the Convention states: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” 397. Article 34 of the Convention states: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” 1.", "The Government 398. At the outset, the Government submitted that the facts of the case as described in the application amounted to a mere re-statement of some inquiry reports and various press reports without disclosing even one credible fact. The facts seemed to be based on the beliefs and assumptions of the applicant’s lawyers. For instance, in support of the allegation that the applicant had secretly been detained in Lithuania, his counsel had cited a passage in a media report saying that “according to two former US intelligence officials” Abu Zubaydah had been held in “a secret prison in Lithuania”. 399.", "The Government stressed that the complaints raised in the application were related to charges of exceptional gravity – they concerned alleged incommunicado detention, torture and inhuman treatment, secret rendition, abduction and forcible disappearance, which were all serious crimes within the meaning of international criminal law and which would in any event constitute grave violations of human rights. They thus asked the Court to assess evidence presented by the applicant with particular circumspection. In that regard, they referred to the Court’s case-law regarding victim status which stated that a mere suspicion or conjecture was not enough to establish such status and that, in order to be able to claim to be a victim, an applicant must produce reasonable and convincing evidence. They also relied on rulings of the International Court of Justice, in particular in the case of Bosnia and Herzegovina v. Serbia and Montenegro (Judgment of 26 February 2007, § 209), in which that Court held that “claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive”, and also on the judgment in the Corfu Channel case (United Kingdom v. Albania, ICJ Reports 1949, p. 17). 400.", "At the public hearing, the Government expressed their regret that the applicant had been subjected to particularly brutal and degrading treatment as part of the CIA’s secret High-Value Detainee (HVD) Programme, which was totally irreconcilable with the basic principles of democracy, respect for human rights and the rule of law guaranteed by international and national law. The facts as established in various international investigations and by the Court in Husayn (Abu Zubaydah) v. Poland (no. 7511/13, 24 July 2014), had revealed the shocking scale of that Programme. The Government did not contest those facts. However, they were convinced that no violation of the applicant’s Convention rights had taken place in Lithuania.", "401. Having regard to all evidence produced by the applicant and heard by the Court, the Government considered that there were no objective grounds on which to conclude that any of the aircraft referred to by the applicant had been used to transfer him or any other person to Lithuania. Nor were there any grounds to establish that a CIA secret detention facility had operated on the territory of Lithuania during the relevant or any other period. The evidence collected in the case was not sufficient to establish links between the applicant’s allegations and Lithuania. 402.", "The Government regretted that the case was being heard before the final conclusion of the pre-trial investigation by the Lithuanian Prosecutor General’s Office, which, after being discontinued in 2010, had been re‑opened in 2015 and was currently ongoing. This, in their view distorted the principle of subsidiarity underlying the Convention system. As a result, in order to protect the interests of the current investigation, the Government would have to base their arguments as to Lithuania’s lack of responsibility under the Convention on evidence gathered in the course of the investigation conducted in 2010. 403. To begin with, they said, the applicant’s arguments as to Lithuania’s involvement in the CIA secret detention programme constituted a mere presumption based on the alleged existence of some political agreements to that effect.", "Yet not a single high-ranking State politician or official had ever in any way admitted to having known of or agreed to the country’s involvement in CIA detention facilities. There was sufficient evidence from the State officials and State Security Department officials and the persons who had held the office of the President of the Republic to corroborate that they had not had any knowledge of any such involvement. In that respect, the Government emphasised that the President of the Republic, who was the Head of State and the Commander-in-Chief of the armed forces, had not given his consent for the operation of CIA detention centres and all persons who had held that office did not have any knowledge about the programme. All the high-ranking officials who had worked for the SSD had merely known of some theoretical considerations that there might have been some requests for assistance in the “war on terror”. This consistent and clear evidence could not be refuted merely by the information in the public domain relied on by the applicant.", "404. They further stressed that the applicant’s allegations concerning his secret rendition to and from Lithuania, and his detention and ill-treatment in CIA secret facilities in Lithuania, had been rejected as unfounded in the course of the pre-trial investigation carried out by the Prosecutor General’s Office in 2010. In their opinion, particular importance must be attached to the prosecutor’s conclusion that no evidence had been obtained concerning unlawful rendition by the CIA of any persons, including the applicant, to or from Lithuania. Having established that the applicant had not been transferred to or kept in Lithuania, or sent to other countries from Lithuania, either by its own officials or agents of the CIA, it must likewise be concluded that Lithuania could not be held responsible for any such actions since the applicant had not been within its jurisdiction. 405.", "Consequently, given Lithuania’s lack of jurisdiction and the fact that the applicant’s allegations of secret detention in the country had not been proved beyond reasonable doubt, no responsibility under the Convention could be attributed to the Lithuanian State. Likewise, since there had been no evidence that the facts as alleged by the applicant had taken place, the applicant could not be considered a victim of the acts complained of within the meaning of Article 34 of the Convention. 2. The applicant 406. The applicant asked the Court to dismiss the Government’s preliminary objections.", "He underlined that the Government’s submissions in respect of a lack of evidence in his case failed, in various respects, to take account of the nature and characteristics of the extraordinary rendition and secret detention programme, which was designed and implemented to ensure that no information came to light and that any evidence would be withheld or destroyed. It was inherent in the nature of these practices that some of the key information lay solely with the State authorities and was therefore very difficult, indeed often impossible, for individual applicants to secure. In the absence of a meaningful official investigation, as in the present case, evidence would necessarily be limited. 407. In addition, the applicant was operating under a unique set of encumbrances, arising out of the anomalous and abusive circumstances in which he was currently detained, posing unprecedented levels of difficulty in the presentation of his case.", "The Government, in their submissions, had made no accommodation for the applicant’s circumstances or for the context within which the CIA rendition programme had operated. Despite the challenges, the applicant had presented a compelling case that relied on evidence from a wide range of sources. His case was supported by extensive corroborative material that provided both direct and indirect evidence of the Lithuanian State’s involvement in the rendition programme, and its responsibility for violations of the applicant’s rights through its acts and omissions. 408. In the applicant’s submission, the Government’s arguments in support of their contention that the case be dismissed for lack of evidence of State responsibility should be refuted.", "The same applied to their objection as to the applicant’s victim status. The CIA rendition and torture programme simply would not have been possible but for the willing cooperation of States around the world, including Lithuania. Lithuania had played a key role in the rendition programme. Its role had come at an advanced stage, when knowledge of the facts, concerning the abusive nature of the secret detention programme, had been beyond plausible deniability. Despite this, Lithuania had been a willing partner, actively cooperating with the United States to set up and operate a secret detention centre on its territory.", "Despite now irrefutable evidence that it had hosted a “black site”, Lithuania had still failed to acknowledge the existence of the site or any responsibility on its part. It had still failed to engage in a meaningful investigation, and it had still failed to ensure that those responsible could be held to account or that lessons could be learned to ensure respect for the rule of law in the future. As in the applicant’s case against Poland, the evidence against Lithuania was necessarily drawn from diverse sources and had to be considered as a whole. Taken together, these sources provided overwhelming evidence of Lithuanian responsibility for violations of Articles 3, 5, 8 and 13 of the Convention. 409.", "Furthermore, it was well established that the standard for responsibility under the Convention, was whether the State “knew or should have known” of a real risk of violations and had failed to take reasonable measures to prevent the violations. In the applicant’s view, Lithuanian responsibility on this point was plain. Lithuania not only should have known, it in fact had known of the risk of violations, and not only had it failed to prevent them, it had actively helped to facilitate them. Lithuania had been the last European “black site”, the applicant’s detention there taking place in 2005-2006. The Court in Husayn (Abu Zubaydah) v. Poland had found that already by 2002-2004 there had been widespread generalised knowledge about secret unlawful detention and ill-treatment by the US.", "There was simply no plausible room for doubt as to knowledge of the nature of the secret detention system in 2005 and 2006. 3. The Court’s assessment 410. The Court observes that in contrast to cases where objections that a State had no jurisdiction were based on an alleged lack of the respondent State’s effective control over the “seceded” territory on which the events complained of had taken place (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 300-304, ECHR 2004‑VII) or the alleged lack of attributability on the grounds that the events complained of had occurred outside the respondent State’s territory and were attributable to another entity (see Loizidou v. Turkey (preliminary objections), 23 March 1995, §§ 47 and 56, Series A no.", "310; and Cyprus v. Turkey [GC], no. 25781/94, §§ 69-70 ECHR 2001‑IV), in the present case the Government’s objection in effect amounts to denying that the facts adduced by the applicant in respect of Lithuania had actually ever taken place and to challenging the credibility of the evidence produced and relied on by the applicant before the Court (see paragraphs 396-402 above). The Government’s objection alleging that the applicant lacks victim status for the purposes of Article 34 of the Convention is based on similar arguments (see paragraphs 396 and 402 above). 411. The issues of the Lithuania’s State responsibility under the Convention and the applicant’s victim status are therefore inherently connected with the establishment of the facts of the case and the assessment of evidence.", "Consequently, in order to determine whether the facts alleged by the applicant are capable of falling within the jurisdiction of Lithuania under Article 1 of the Convention and the applicant can be considered, under Article 34, a “victim of a violation ... of the rights set forth in the Convention” by the respondent State, the Court is required first to establish, in the light of the evidence in its possession, whether the events complained of indeed occurred on Lithuanian territory and, if so, whether they are attributable to the Lithuanian State. The Court will therefore rule on the Government’s objections in the light of its findings regarding the facts of the case (see paragraphs 584-585 below). B. Non-compliance with the rule of exhaustion of domestic remedies and the six-month rule 412. Article 35 § 1 of the Convention states: “The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.” 1. The Government (a) Non-exhaustion of domestic remedies 413.", "In the Government’s submission, the applicant failed to exhaust all effective domestic remedies in respect of his complaints under Articles 3, 5 and 8 of the Convention. In their initial observations, they maintained that, pursuant to the relevant provisions of the Code of Criminal Procedure, any person considering that he had been unlawfully detained (a crime defined in Article 146 of the Criminal Code) had the right to challenge, in person or through a legal representative, the lawfulness of the detention. Furthermore, he could seek redress, under Article 6.272 of the Civil Code, for any damage incurred on account of such unlawful detention. They also stressed that torture or inhuman and degrading treatment were prohibited under Lithuanian law, and any person considering that he had been subjected to ill-treatment could address the competent authorities and request that criminal proceedings be brought (e.g. under Articles 100 or 228 of the Criminal Code).", "In that context, criminal liability under other Articles of the Criminal Code might also have arisen (e.g. Articles 291 and 292). Any victim could seek redress for the damage incurred due to ill-treatment before the ordinary or administrative courts (under Articles 6.271 or 6.272 of the Civil Code). A person who was a victim of a crime was entitled to participate in criminal proceedings (Article 28 of the Code of Criminal Procedure) or could submit a civil claim in the course of the criminal proceedings, seeking redress for the damage incurred as a result of a criminal offence (Article 109 of the Code of Criminal Procedure). In sum, where a crime had been committed, the domestic legislation provided a victim of a crime with several legal avenues for the purpose of having perpetrators prosecuted and obtaining pecuniary compensation.", "414. However, the applicant had failed to have recourse to any of those legal remedies available under Lithuanian law. In particular, in the course of the pre-trial investigation carried out by the Prosecutor General’s Office in 2010, Reprieve – which alleged to be “acting on behalf of the applicant” – had never asked the prosecution to recognise the applicant as a victim or had presented any authorisation from the applicant to do so. The applicant had never addressed the national competent authorities in person or through his representatives as regards the alleged breaches of the Convention committed by the Lithuanian authorities to his detriment. As to the possibility of requesting the institution of criminal proceedings, it should be noted that according to the relevant legal provisions, a prosecutor might institute a pre-trial investigation either on his own motion, having established elements of a criminal offence, or upon receiving a notification or request indicating that a criminal offence had been committed.", "However, in both instances certain factual information had to be presented to the prosecuting authorities in order for them to initiate a pre‑trial investigation. Neither the applicant himself nor Reprieve, which had addressed the Prosecutor General’s Office on several occasions, ever presented to the prosecution any factual data or credible evidence in support of their allegations concerning the alleged rendition of the applicant to and from Lithuania or his alleged incommunicado detention at “secret CIA facilities” in Lithuania. 415. In view of the foregoing, the Government asserted that a domestic remedy had been, and still was, available to the applicant, should he ever produce evidence showing the slightest link between him and the Republic of Lithuania. However, apart from some information about the flights and the routes of the aircraft – on which, as it had been established in the course of the pre-trial investigation – no detainees had been transported to and from the territory of Lithuania, the applicant had so far not made a sufficiently credible allegation of having been secretly detained and ill-treated in the country.", "416. In their further pleadings, lodged after the pre-trial investigation had been re-opened on 22 January 2015, the Government asked the Court to consider the fact that fresh proceedings relating to the applicant’s allegations were ongoing in its assessment of the applicant’s compliance with the exhaustion rule. (b) Non-compliance with the six-month rule 417. The Government further argued that the applicant had also failed to comply with the six-month time-limit under Article 35 § 1. They maintained that, even assuming that the events complained of by the applicant had indeed taken place, the application had been lodged out of time.", "The Government were of the view that the period of the six months had started to run on the day when the applicant’s alleged detention in Lithuania ended, i. e. according to his statements, on 25 March 2006. In any event, the latest date on which the applicant could have become aware of his allegedly unlawful detention and ill-treatment in Lithuania was in 2008 when he had supposedly had his meeting with Mr Margulies, his US counsel. Accordingly, had the applicant considered himself a victim of Convention violations on the part of Lithuania, he could have initiated the proceedings before the Court much sooner. 2. The applicant 418.", "The applicant invited the Court to dismiss the Government’s preliminary objections. (a) Non-exhaustion of domestic remedies 419. The applicant emphasised that the Court had repeatedly acknowledged that in cases involving violations of Article 3, the appropriate remedy to pursue for exhaustion purposes was a criminal investigation and process. The Government, however, had alleged that the applicant had failed to exhaust domestic remedies as Reprieve had not requested victim status for him. The requirement to have exhausted domestic remedies under the Convention did not require that victim status be requested in national proceedings, it was sufficient to have complained to the relevant authorities that a crime had been committed.", "The correspondence from Reprieve could not be interpreted in any other way than having raised such a complaint. They had done so not only in the first letter but also in subsequent correspondence. 420. Referring to El-Masri v. the former Yugoslav Republic of Macedonia ([GC], no. 39630/09, § 140, ECHR 2012) the applicant further pointed out that the Court had held, while finding that domestic remedies had been exhausted by the fact of a rendition victim alerting the prosecuting authorities, as follows: “If the actions of the State agents involved have been illegal and arbitrary, it is for the prosecuting authorities of the respondent State to identify and punish the perpetrators.", "Alerting the public prosecutor’s office about these actions must be seen as an entirely logical step on the part of the victim”. The applicant considered that the rationale of the Court in the El-Masri case applied a fortiori to the present case, leading to the conclusion that he had taken all measures that could reasonably have been expected of him in the circumstances to exhaust domestic remedies. To suggest that the efforts to secure justice in Lithuania had, in all the circumstances, been insufficient, on the basis of a lack of personal involvement or a lack of formal authorisation, was, in his view, a short-sighted and formalistic approach inconsistent with the need to interpret and apply the Convention in a way that rendered its rights practical and effective. The Government’s arguments were moreover disingenuous in that they could not meaningfully contend, in the light of their arguments on the nature of the investigation and the reasons for the decision to close it, that had the applicant applied for victim status, or had a written legal authorisation form been obtained, the outcome of the domestic process could or would have been any different. (b) Non-compliance with the six-month rule 421.", "In the applicant’s submission, the Government’s argument that the time-limit of six months should have run from the day when the applicant’s alleged detention in Lithuania had ended, despite the fact that he had continued to be kept in secret CIA incommunicado detention at that time and for sometime thereafter, was an absurdity. Likewise, their further argument that his meeting with Mr Margulies in 2008 represented, in temporal terms, the outer limit beyond which the current application fell foul of the six month time limit could not be accepted. Neither suggestion stood up to scrutiny when considered in the overall context of the applicant’s circumstances and the availability of information concerning extraordinary rendition and secret detention in Lithuania. The applicant had requested a criminal investigation, in pursuit of the only effective remedy in cases of this nature, and had urged that certain investigative steps be taken which should have prompted a pre-trial investigation under Article 166 of the Lithuanian Code of Criminal Procedure. Subsequently, on 14 January 2011, the Prosecutor decided to discontinue the pre-trial investigation.", "The applicant submitted an introductory complaint to the Court on 14 July 2011. Accordingly, he had taken his case to the Court within six months from the closure of the domestic investigation at which time it had become indisputably apparent that there would be no effective domestic remedy in Lithuania. 3. The Court’s assessment 422. The Court observes that the Government’s objections raise issues concerning the effectiveness of the criminal investigation into the applicant’s allegations of torture and secret detention on Lithuanian territory and are thus closely linked to his complaint under the procedural limb of Article 3 of the Convention (see paragraph 3 above and paragraph 588 below).", "That being so, the Court considers that they should be joined to the merits of that complaint and examined at a later stage (see, mutatis mutandis, Al Nashiri v. Poland, no. 28761/11, § 343, 24 July 2014; and Husayn (Abu Zubaydah) v. Poland, cited above, § 337, both with further references to the Court’s case-law). II. THE COURT’S ESTABLISHMENT OF THE FACTS AND ASSESSMENT OF EVIDENCE A. The parties’ positions on the facts and evidence 1.", "The Government 423. As noted above, the Government dismissed the applicant’s allegations as being unsupported by any evidence and, consequently, lacking any factual basis. They also challenged the credibility of the evidence relied on by the applicant and denied that Lithuania had any knowledge of, or complicity in, the operation of the CIA HVD Programme on its territory at the material time (see paragraphs 398-405 above). The Government’s conclusions on the facts and evidence were as follows. (a) Lack of credibility of evidence adduced by the applicant 424.", "The Government contested the evidential value of the material produced by the applicant. They stressed that most of that material had originated in various public sources whose credibility had not been verifiable. The Government would not play down the significance of publicly available information about the CIA’s HVD Programme; indeed, in the El-Masri case (cited above) similar material on public record had been taken into account by the Court. However, in contrast to the present case, that material had constituted merely a supplementary source for the Court’s findings. In El-Masri the Court had relied first of all on the applicant’s description of the circumstances, which had been very detailed and, secondly, on indirect evidence obtained during the international inquiries and the investigation in Germany.", "The Court had had at its disposal scientific evidence, such as a test of the applicant’s hair follicles, geological records confirming the applicant’s recollection or sketches of the layout of the prison in Afghanistan that the applicant had drawn. Only in addition had the Court relied on the material available in the public domain. In the present case, the applicant had built his case the other way round, starting from publicly available information and, in fact, also finishing with it as he had been unable to produce any other evidence. 425. As regards the applicant’s reliance on the case of Richmor Aviation Inc. v. Sportsflight Air Inc. (see paragraphs 450-451 below), the Government saw little, if any, connection with his alleged detention in Lithuania.", "The case had concerned a commercial dispute between two aviation companies, where the plaintiff, Richmor Aviation, had submitted an invoice to Sportsflight Air demanding payment for unused flight time for thirty-two months between May 2002 and January 2005. It did not appear that the companies had exclusively carried out rendition flights. The aircraft mentioned in the case-file differed from those appearing in the present case. The events that had given rise to the litigation had occurred prior to the flights to Lithuania, before February 2005. Even if the witnesses in the Richmor case had given some fragmentary testimony to the effect that the flights contracted by the US Government through the companies at the material time (from May 2002 to January 2005) and performed by the Gulfstream IV aircraft could be used sometimes for the purposes of the rendition programme, this had nothing to do with the flights to and from Lithuania allegedly used for the applicant’s rendition.", "(b) Lack of evidence demonstrating that certain CIA-linked planes landing in Lithuania between 17 February 2005 and 25 March 2006 carried out extraordinary rendition missions 426. The Government did not dispute the fact that during the relevant period, as well as earlier, there had been a number of CIA-linked aircraft landings in Lithuania at Palanga and Vilnius airports. The circumstances relating to those landings had been thoroughly analysed in the course of the pre-trial investigation and no links between the impugned aircraft and the CIA rendition programme had been established. In particular, all persons who had been present at the time of arrivals or departures of the planes, including the airports’ employees, officers of the SBGS and the SSD had been questioned and all relevant documents had been obtained from the SSD. From the totality of that material the prosecutor had concluded that no detained persons had ever been brought into or taken from the territory of Lithuania.", "Furthermore, no link had been found between the flights in question and any detainees of the CIA in general and the Projects No. 1 or No. 2 in particular. The prosecuting authorities had established that despite the fact that on some occasions Customs and SBGS inspections had not been carried out, it appeared from the documents provided by the SSD that in all instances the SSD officers had had access to the aircraft in accordance with the Law on Intelligence. It had also been established that the SSD officers, who had sought and obtained uninterrupted access to the airports’ sectors at which the CIA aircraft had landed, had acted in a lawful manner and had not abused their office or exceeded the limits of their authority.", "427. As regards the flights N787WH of 18 February 2005 and N733MA of 25 March 2006 indicated by the applicant as those on which he had been brought into and taken out of Lithuania, the prosecution having investigated in detail both flights had established beyond any reasonable doubt that no CIA detainee (including the applicant) had been transported on them. The same applied to any other CIA-linked flights landings during the period in question. The evidence collected in the investigation had revealed the true purpose of the N787WH’s and N733MA’s landings. In that connection, twenty-six witnesses had been questioned and abundant documentary evidence had been obtained.", "428. It had been established that the N787WH flight of 18 February 2005 had arrived with, in the Government’s words, “five foreign citizens of one State” and three crew members. Needless to say, the Government added, the applicant had not been among them. All of them had gone through a State border control for passengers between 20:05 and 20:15 and again between 20:30 and 20:50. Then the plane had left for Copenhagen.", "The purpose of the landing had been a carriage of some specific cargo, which explained why the vehicle had been seen next to the plane and then leaving. The carriage of the cargo had been related to the activities of the SSD, and the nature of the activities explained why the SSD had asked to be provided with access to the plane. Likewise, the N733MA flight of 25 March 2006 had brought cargo into Lithuania and had not been involved in the transportation of the CIA detainees. 429. Notwithstanding the fact that there was no data in the pre-trial investigation as to the purpose of the cargo, on the basis of the whole body of material collected it might be concluded that “some specific cargo” could have been communications equipment necessary for the technical maintenance of the implementation of a joint project of the SSD and the partners.", "Due to the particular importance of certain cargo, the Intelligence Services would request direct access to planes. For this purpose, as confirmed by witnesses M, O and N, classified letters used to be written to the airport and the SBGS. As regards the flight N787WH on 18 February 2005 it might be concluded that five persons, US citizens, had arrived at Palanga airport. As regards the cargo on the flight N733MA of 25 March 2006, it might be concluded that some equipment could have been carried on the flight at issue. It had been packed in boxes of not less than one metre in length, which, as V confirmed, had been carried by two persons.", "There was a record in the investigation file showing that the cargo could have been exported by the flight on 25 March 2006, as confirmed by officer O. According to the testimony of the witnesses, it might be concluded that the vehicles of partners used to enter and leave the airports escorted by the SSD officers. The officers used to escort them to the plane; officer V had stated that he had been fifty metres away from the plane. The investigation file included the SSD’s requests submitted in respect of both flights; both of them had been duly reasoned and indicated the purpose of the flights, which constituted a State secret. No customs control had been performed in either case, not because of the SSD’s requests but due to legal regulations under which it had not been obligatory and could be performed on an occasional basis.", "430. The SSD had asked the administration of the airport in both instances to allow their officials to access the airport in order to carry consignments and parcels from the airport to their final destination and nothing else. The SSD had never asked for a customs or State border control not to be carried out. It had not interfered in any way with the functions of the State Border Security Service. According to testimonies of many SSD officials, these two flights had not been exceptional and they were not the only ones where the SSD had asked for permission to have access to certain aircraft.", "In general, over the years 2005-2006 there had been an enormous number of flights of various NATO States with military, official and non-official delegations. According to the testimony of the director of the Civil Aviation Authority, Palanga International Airport had mostly been used for those landings since it received less flights than Vilnius International Airport. 431. All the SSD officials involved in the reception and transport of the cargo had been questioned by the prosecutors in that connection and had described in detail what the cargo looked like, where it had been transported, whether anyone else had been able to see it and why special supervision of the SSD had been needed. All of them had testified that it had been only boxes which had been unloaded first from the aircraft and then other boxes and some parcels which had been loaded into the aircraft.", "There had been many of them, all of the same size, definitely too small to place any person inside. The loading itself had been carried out openly and could be seen by the employees of the airport. The boxes brought by the aircraft had been carried by the SSD officials to Vilnius, but not to Project No. 1 or Project No. 2.", "432. At the public hearing, answering the judges’ questions as to the nature of the cargo, the Government further explained that the cargo had contained “special equipment that had been meant for a special investigation department” – and that the purpose had been “to equip this department and its personnel”. (c) Lack of evidence demonstrating that a CIA secret detention facility operated in Lithuania and that the applicant was detained in that facility (i) As regards the alleged existence of a CIA secret detention facility 433. The Government maintained that the pre-trial investigation had established conclusively that no secret prison run by the CIA had existed in Lithuania. In particular, the applicant’s allegation that a CIA secret detention facility had operated on the premises of Project No.", "2 and that Project No. 1 had been designated for that purpose but not used as such had lacked any factual basis. 434. It was true that Project No. 1, which had been carried out in 2002 by the SSD and the CIA and the Project No.", "2, which had been implemented by the same partners in 2004, had involved the reconstruction and fitting-out of certain premises. However, evidence gathered by the prosecutor had conclusively excluded the possibility of either of these premises having been used as a prison for CIA detainees. 435. In the course of the pre-trial investigation numerous persons had been questioned – not only those who had participated directly in the construction works on Project No. 1, but also those responsible for its subsequent use.", "Having analysed all relevant evidence, the prosecutor – contrary to the statement made by the CNSD that “conditions [had been] created for holding detainees” – had concluded that this building had been used exclusively by the SSD officers and that it had been absolutely unsuitable for holding detainees due to its geographical location (the city centre) and the facilities on the premises. In that regard, the Government also underlined that the CNSD Findings had to be seen in the light of its competence and the nature of parliamentary inquiries performed by it. According to the Constitutional Court’s ruling of 13 May 2004, “the Seimas [was] neither an institution of pre-trial investigation, nor a prosecutor’s office, nor the court” and therefore its conclusions were not “binding on institutions of pre-trial investigation, the prosecutor’s office or the court” (see also paragraph 219 above). 436. The premises referred to as Project No.", "1 were situated in an auxiliary building in the yard next to the main building at Z. Sierakausko Street in Vilnius where the premises of the SSD had been located at the material time. In 2002 the auxiliary building had been in an emergency condition, and repair works had been needed. As all repair works had been documented, the documentation had been received and analysed by the prosecutor. The builders had confirmed that no wishes had been expressed by the SSD officers that the work be related to the detention of any persons. One of the witnesses, who, at the relevant time, had been in charge of the administration of both Projects No.", "1 and No. 2, had described the purpose of the premises in the building referred to as Project No. 1 at Z. Sierakausko Street for which they had been fitted out, though he had testified that the premises had never been used since 2002 for that particular purpose. This purpose had been closely related with the structure and functions performed by the SSD, which in themselves constituted a State secret and therefore could not be declassified. Those statements had been corroborated by many other lower SSD officials and technical workers, who had testified that the premises had never been used for any other purposes that were not related to the needs of the SSD.", "437. As regards Project No. 2, the Prosecutor General’s Office, based on witness testimony, had established that no special facilities suitable for holding detainees had ever been installed inside the building. In particular, there had been no premises fitted with bars or otherwise specifically adapted for detention purposes. Also, it had been established that access had been permanently controlled and the persons in charge of the building’s security had confirmed that no detainees had ever been present there.", "Thus, having regard to all the relevant evidence, the prosecution, contrary to the CNSD’s findings that the SSD officers had not always had the possibility of monitoring the arrival and departure of persons at Project No. 2, concluded that access to Project No. 2 had been under permanent control, thus ruling out the possibility of bringing detainees into the building. 438. Project No.", "2 was located in Antaviliai. The building had been acquired for the needs of the SSD in accordance with the requirements of national law and the repair work on the premises had started in 2004. The work had been finished in January 2005. All the SSD officials involved in this project (Director General, Deputy Director General and other SSD officials of lower rank), had been questioned by the prosecutors. They had testified that the purpose of the premises in question could not have – and in fact had not had – anything to do with the detention of any persons.", "All witnesses had spoken of classrooms, living and meeting rooms, as well as sports rooms. The SSD officials of lower rank had been in charge of the repair work on the premises and the security of the building after its completion. Having been questioned several times, they had confirmed that no facilities suitable for holding detainees had ever been fitted in the building. The building had never been left without supervision of the SSD officials, who had testified that there had been no secret or closed zones inside it which would not be accessible to them. Also, in the Government’s view, the geographical location of the building had made it totally unsuitable for detention as it was situated in the village of Antaviliai and surrounded by residential houses.", "439. According to the Director General of the SSD at the relevant time, the building had been used at the beginning of 2005 to a very limited extent – several meetings took place there. As the SSD officials in charge of the building’s security had testified, it had been used randomly and only for short-term meetings in which the SSD officials and their guests had participated. The visitors had been driven there exclusively by the authorised SSD officials. Thus, contrary to the findings of the CNSD, it had not been possible for any other persons save the SSD officials to use the building at their discretion.", "In the second half of 2005 the surveillance of the building had been taken over by the SSD’s section. At that time it had temporarily not been used at all but had remained open to the SSD employees. Since 2007 the SSD training centre had occupied the building. 440. All documents related to the Projects No.", "1 and No. 2 had been collected from the SSD, including material containing State secrets. Part of those documents, for instance the records of the on-site inspection of Projects No. 1 and No. 2 together with annexes comprising the photos of the buildings, premises and their surroundings, had been declassified and submitted to the Court.", "The materials clearly showed that no prison could have been hosted on those premises. 441. In sum, the prosecutor had found that both premises had, at the relevant time, served other purposes, which had in no way been related to the holding or confinement of persons, although those purposes could not be declassified for the simple reason that the SSD’s partner would have to consent to such disclosure. 442. At the public hearing, the Government reiterated the above statements.", "They added that after analysing all the relevant circumstances it had been established that the flight N787WH on 18 February 2005 and the flight N733MA on 25 March 2006 had been used for transporting a special‑purpose cargo and that cargo could not contain the applicant or any other person. It had been the connection equipment for the SSD providing them and their partners with technical services in order to implement their joint project. That explained why they had asked for direct access to the aircraft. As regards the alleged locations of the CIA prison, Project No. 1 had been used for operational activities, Project No.", "2 had been used for intelligence activities. The facilities of Project No. 2 had never been used for their original purpose and they had later been reconverted and used as the SSD’s training centre. Replying to the judges’ questions as to why the 2002 SSD Resolution and the 2002 SSD Action Plan referring to the purpose of the premises to be selected had spoken of the “extradition of secret intelligence collaborators”, the Government explained that this was due to the terminology used at that time – at present that term would correspond to “exfiltration” or “extraction”, meaning the relocation of special agents or secret agents into their normal life or natural environment. The added that, as regards the purposes served by the facilities, Project No.", "1 had been meant for special officers and their “extraction”, while Project No. 2 had been the support centre for intelligence. (ii) As regards the applicant’s alleged secret detention in Lithuania 443. The Government argued that there had been no credible evidence confirming the applicant’s presence on the territory of Lithuania. The present case was built on some leaked information which had appeared in media in 2009 and which referred to the alleged existence of CIA secret detention facilities in Lithuania.", "That information had never been confirmed officially, either directly or indirectly. Moreover, the applicant’s lawyers had referred to unknown “public sources” indicating that the applicant had been moved from Morocco to Lithuania in early 2005, that the Lithuanian prison site had been closed in the first half of 2006 and that its occupants had been transferred to Afghanistan or other countries. In essence, the entire case rested on the routes of certain flights and their alleged links with the CIA. The applicant had described in detail the routes of N787WH on 15-19 February 2005 and N733MA on 23-27 March 2006, highlighting the stopovers of the first aircraft in Morocco and the second one in Cairo. He also referred to some invoices and contracts regarding those flights which, in his view, indicated their links with the CIA and the extraordinary rendition programme.", "Not a single direct or indirect piece of evidence had ever been produced that would reveal the slightest connection between the applicant and the flights in question. The Government said that in this regard they would appeal to pure common sense – the routes of the flights demonstrated nothing more than the fact that the aircraft had landed for a short while in Lithuania. Even if their links with the CIA were confirmed, this did not prove by itself Lithuania’s involvement in the HVD Programme, still less the applicant’s secret detention on its territory. 444. The Government regretted the suffering sustained by the persons, including the applicant, detained under that programme.", "However, they could not but emphasise that while this might have occurred somewhere in Europe, it had not happened in Lithuania. (d) Lack of evidence demonstrating that the Lithuanian authorities agreed to the running of a secret detention facility by the CIA on Lithuanian territory or cooperated in the execution of the HVD Programme 445. In the Government’s submission, not a single high-level State politician or official had in any way admitted to knowing of or agreeing to the involvement of Lithuania in the CIA extraordinary rendition programme. It was true that the SSD officials had given some consideration to the possibility of having requests for assistance from the US authorities in the context of the war on terror but this possibility had proved to be purely theoretical because there had been no requests for the detention of any individuals. In that regard, the Government referred to the statements of the State officials and the SSD officers who had been questioned in the pre-trial investigation.", "They also relied on the letter of 26 November 2009 written by Mr Adamkus, the former President of Lithuania, to the CNSD in which he had stated that he had never been informed of any CIA prisons in the country (see also paragraph 367 above). Nor had any other former President of the Republic had had any such knowledge. In the investigation the Heads of State had testified that they had not known about any transfer of any detainees and had not given their consent to the transportation of any persons held by the CIA. (e) Lack of evidence of Lithuania’s knowledge of the CIA HVD Programme at the material time 446. The Government said that they agreed with the Court’s conclusions in Husayn (Abu Zubaydah) v. Poland that without the knowledge of the State authorities and their assistance, the CIA HVD Programme could not have been executed, and that the running of the CIA prisons would have been impossible in the countries concerned.", "However, as stated above, Lithuania had not had any knowledge of such activities on its territory. The fact that in 2005-2006, as the applicant argued, there had been generalised knowledge of the HVD Programme owing to findings of international inquiries and public reports disclosing the nature of the CIA secret scheme, was irrelevant since Lithuania had not been included in any of the inquiries and there had been no CIA prison in the country. 2. The applicant 447. The applicant maintained that the whole body of evidence from numerous sources, such as the international inquiries, recent research into the CIA rendition and secret detention operations, abundant aviation data confirming the CIA planes landings in Lithuania, declassified CIA documents, the 2014 US Senate Committee Report and evidence from the experts heard by the Court conclusively confirmed his allegations.", "In his submission, it was established beyond reasonable doubt that a CIA secret detention facility – referred to as “Detention Site Violet” in the 2014 US Senate Committee Report – had operated in Lithuania in 2005-2006 and that he had been detained at that facility from 17 or 18 February 2005 to 25 March 2006. (a) As regards the Government’s allegation of a lack of credibility of sources of information and evidence before the Court 448. The applicant said that the Government’s objection to his reliance on public documents, reports and other material as evidence in this case was unfounded. The Court had on a number of occasions stated that it would freely evaluate all the evidence, and might draw “such inferences as may flow from the facts and the parties’ submissions”. The Court routinely relied on public source evidence; this was demonstrated, for instance, in El-Masri where the Court had taken into account publicly available information of a similar nature and evidence from a range of other sources, including reports from Amnesty International, Human Rights Watch, the International Helsinki Federation for Human Rights and the ICRC.", "It had also cited numerous media reports. Consequently, the Government’s objections to the nature of the evidence in the case was not based on the Court’s established approach to evidence. The Court would take into account all available sources of evidence and determine whether, in the circumstances of cases such as this, taken together they were sufficient to give rise to “strong and concordant inferences” of State responsibility. In the applicant’s view, the range of evidence submitted in his case considered as a whole more than satisfied the relevant test. (b) As regards the CIA-linked planes landing in Lithuania between 17 February 2005 and 25 March 2006 449.", "The applicant considered that the Government’s suggestion that the flights referenced in his submissions as being CIA rendition flights, even if chartered by the CIA, could have had other purposes or simply stopped at some places for technical reasons, lacked any support in the facts. While apparently plausible, this assertion had no merit in the context of the assembled data presented as evidence to the Court. A large number of international and regional bodies, human rights organisations and respected and credible media outlets, which had acknowledged the evidence disclosing that rendition flights flew into and out of Lithuania, disagreed. For example, on 11 September 2012 the LIBE Committee, following its April 2012 visit to Lithuania, had issued a resolution noting “new evidence provided by the Eurocontrol data showing that plane N787WH, alleged to have transported Abu Zubaydah, [had] stop[ped] in Morocco on 18 February 2005 on its way to Romania and Lithuania”. It had also noted that analysis of the Eurocontrol data had revealed new information through flight plans connecting Romania to Lithuania, via a plane switch in Tirana, Albania, on 5 October 2005, and Lithuania to Afghanistan, via Cairo, Egypt, on 26 March 2006.", "This was mirrored in the findings and reports of other international organisations. 450. In the light of the accumulated material before the Court it was evident that the planes passing through Lithuania in February 2005 and March 2006 had been chartered by the US Government in the context and for the purpose of the rendition programme. A clear line of evidence connected these flights to Lithuania. To begin with, all the flights involved in rendition into and out of Lithuania had been chartered by a US company, Computer Sciences Corporation on behalf of the US Government.", "This prime contract originated in 2002 with another US company, DynCorp Systems and Solutions LLC (DynCorp), and was then inherited by CSC through its purchase of DynCorp in 2004. The US Government’s initial contract with DynCorp had given rise to a succession of subcontracts, including the agreement with Capital Aviation of 17 June 2002 and a similar agreement between Sportsflight Air as authorised agent for DynCorp and plane operator Richmor Aviation on 18 June 2002. These companies, along with various other plane operators including Victory Aviation (operating N787WH) and Miami Air International (operating N733MA and N740EH), had thereby established a method and pattern of doing business which had lasted at least until 2006. 451. The February 2005 flights of N787WH and N724CL, travelling from the USA to Lithuania via Morocco, had been arranged under CSC’s subcontract with Sportsflight Air Inc. trading as Capital Aviation.", "These flights corresponded to the dates on which information indicated that the applicant had been transferred from Morocco to Lithuania in early 2005. The March 2006 flights of N733MA and N740EH had also been arranged under CSC’s successor subcontract with Sportsflight. Flights organised and billed by Sportsflight and CSC had been the subject of civil litigation in New York, concluding in 2011, between Sportsflight and Richmor Aviation. During this litigation, both parties had made clear that the flights had been part of the rendition programme and that the contractual arrangements under which these flights were provided had been set up to facilitate that programme. 452.", "Furthermore, all the flights connecting with Lithuania in February 2005 and March 2006, as well as flight N787WH in October 2005, exhibited a common pattern of behaviour designed for the sole purpose of disguising the true flight routes, the so-called “dummy” flight planning. Taking into account, on a cumulative basis, all the available evidence such as the contracts and invoices, the patterns of behaviour, the statements made in the litigation referred to above, the timing of the flights, and the overall context within which rendition flights had been shown to take place, there was a compelling basis on which to conclude that the sole purpose of the flights of N787WH, N724CL, N733MA and N740EH had been to interconnect the CIA’s various secret prison locations. In addition, these interconnections had been made at times when, according to authoritative news reports, prisoner transfers had been made between the respective countries. 453. Lastly, even if one were to leave aside the entire significance of the above evidence, in the applicant’s view a number of questions would remain.", "For instance, why, if these had been entirely innocent or “technical” stopovers had the SBGS been prevented from inspecting the planes? Why had the planes been cordoned off by the SSD? Why had a vehicle been seen leaving one of the planes, and the airport, if this had merely been a “technical” stop? (c) As regards the existence of a CIA secret detention facility in Lithuania and the applicant’s secret detention in Lithuania 454. In the applicant’s submission, the evidence before the Court established beyond reasonable doubt, based on strong and concordant inferences of fact, that Lithuania had housed a CIA secret black-site, a site at which the applicant had been detained between 17 or 18 February 2005 and 25 March 2006.", "The 2014 US Senate Committee Report had referred to a detention site codenamed “Violet”, which multiple independent investigators had consistently and unequivocally identified as referring to Lithuania, as confirmed by the experts at the fact-finding hearing. The 2014 US Senate Committee Report stated that Detention Site Violet had specifically been developed to ensure that multiple detainees could be interrogated simultaneously, that the site had begun operating as a detention centre in 2005 and that it had been closed down in 2006 due to the lack of medical care for ailing detainees. The report’s categorical findings corresponded to and confirmed the credibility of a host of other evidence available at a much earlier stage. This included flight data and contracts, information collected by the Lithuanian Parliament’s own Committee on National Security and Defence, the Lithuanian prosecutor’s own investigation file, the statements and findings of multiple additional inquiries at the regional and international level and the work of non‑governmental organisations, journalists and investigators. 455.", "At the fact-finding hearing the Court had heard evidence from the experts of the highest calibre who, having investigated and analysed the CIA HVD Programme for many years, had confirmed that, consistent with a cyclical pattern of sudden site closures, Lithuania had undoubtedly set up a secret detention site in 2005 following the closure of the site in Morocco. Lithuania had become, as Mr J.G.S. had described it, the hub for detention of high-value detainees at that point. It had been the experts’ firm and consistent professional assessments as investigators, that the evidence had showed that Abu Zubaydah had been among those detained in Lithuania. Senator Marty had noted that if one had taken the trouble to reconstruct the story, one could only come to that conclusion.", "Mr J.G.S.’s work had definitively associated Abu Zubaydah with Lithuania and Mr Black had found that the detention of Abu Zubaydah in Lithuania had been beyond reasonable doubt. 456. One aspect of the evidence before the Court, considered in detail by the experts, included evidence from multiple sources that showed the landing of rendition flights in Lithuania on 17 and 18 February 2005, having followed a circuitous route, from the United States via Morocco, where the applicant was known to have been detained at the relevant time. Likewise it showed that on 25 March 2006 another rendition flight departed from Lithuania, en route to Afghanistan, where again it was known that the applicant had been detained in 2006. False flight plans had been filed for the Lithuanian leg of these journeys, showing alternative destinations in accordance with standard modus operandi for rendition flights.", "The Government had argued that there was no evidence that these had been rendition flights. Yet the pattern these flights displayed, the paths they had taken, and the contracts and invoices, combined with other corresponding details, had led to them being consistently identified by investigators, parliamentary and other inquiries, and by the experts of the Court, unequivocally as flights whose sole purpose had been extraordinary rendition. If any doubt remained about whether these had been rendition flights, it had been dispelled in the above-mentioned civil litigation between sub-contractors in US courts where the flight operators had themselves stated, in their pleadings, in clear and explicit terms that this contract had been for rendition flights carried out for the US Government. 457. The dates and routes of these rendition flights and the periods of operation of Detention Site Violet corresponded with the conclusive evidence of the applicant’s location prior to and after Lithuania.", "As the Court noted in Husayn (Abu Zubaydah) v. Poland, the applicant, after being captured in Pakistan, had been transferred to secret CIA detention in Thailand, from there to Poland, and then on to a secret CIA site in Guantánamo Bay. Expert testimony had confirmed earlier reports that in 2004 he had been moved out of Guantánamo Bay – in anticipation of the US Supreme Court ruling granting access to lawyers and habeas corpus review – and he had been transferred to Morocco. As the experts had explained, the Moroccan site had closed in February 2005, prompting the opening of the next site in the cycle, Lithuania, precisely when rendition flights had flown the route from Morocco to Lithuania. In March 2006, the Lithuanian site itself had closed, prompting the transfer of the applicant, like all of the remaining CIA detainees, to Afghanistan. It was from Afghanistan that he had ultimately been transferred back to Guantánamo Bay in September 2006.", "458. Referring to the Government’s explanations as to the “special cargo” and the purposes served by Project No. 2 given at the public hearing, the applicant said these facts were entirely consistent with his statements and did not really provide any information that would counter his case. In particular, the transportation of the “cargo” was fully consistent with the expert testimony given by Mr J.G.S. in Husayn (Abu Zubaydah), stating that the high-value detainees had been treated as human cargo and that when they had been brought into a country they had not been registered – even if the passengers on the plane had been registered.", "Likewise, the Government’s claim that Project No. 2 had been for a special intelligence purpose was entirely consistent with the purpose of Detention Site Violet and the applicant’s submissions in that respect. 459. In conclusion, the applicant contended that multiple strands of corroborating evidence considered together, supportive of the first 2009 media accounts citing CIA insiders, led to the irresistible conclusion that, as confirmed by the experts, Lithuania had hosted Detention Site Violet. It had been set up by the Lithuanian authorities and had been operated with their assistance by the CIA and the applicant had been detained at that site between 17 or 18 February 2005 and 25 March 2006.", "(d) As regards the Lithuanian authorities’ agreement to the running of a secret detention facility by the CIA on Lithuanian territory and their complicity in the execution of the HVD Programme 460. The applicant maintained that multiple sources, including the 2014 US Senate Committee Report, the CNSD Findings and press reports, mentioned high-level members of the Government and intelligence agencies as having approved the establishment of the CIA sites. The 2014 US Senate Committee Report made it clear that millions of dollars had been covertly transferred to show appreciation for the country’s support for the HVD Programme. 461. Furthermore, the applicant emphasised, for State responsibility to be engaged under the Convention it was not necessary for the highest level official of a State to have known and approved the setting up of the CIA secret “black site” in the country.", "It was sufficient for the relevant officials within the State to have approved and to have been responsible. In the applicant’s view, there was compelling evidence that the Lithuanian State had actively undertaken to facilitate and make possible his rendition to, and secret detention in, Lithuania. (e) As regards Lithuania’s knowledge of the CIA HVD Programme at the material time 462. The applicant reiterated that there had been no plausible room for doubt as to Lithuania’s knowledge of the nature of the secret detention system in 2005 and 2006. This had been clear from the vast publicly available information, including extensive media coverage which had reverberated around the globe, including in Lithuania, detailing the secret detention programme, specifically identifying Eastern European “black sites”, the nature of the enhanced interrogation techniques, and identifying Abu Zubaydah by name as one the missing “ghost prisoners”.", "The Marty Inquiry was already underway when the applicant had been detained in Lithuania. To suggest innocent ignorance on the part of the authorities as to what might have been going on in the secret site that they set up for the CIA by 2005 simply beggared belief. 463. In addition, evidence showed that high-level officials had had specific and direct knowledge. For example, the former President had publicly admitted having been asked by the head of intelligence whether he would be willing to bring accused terrorists into the country unofficially.", "The head of intelligence in response had noted that he had enquired as to the President’s position precisely on the basis that he had known what had been going on in the world. In another example, also from 2005, while the applicant was still detained in Lithuania, the Lithuanian Government attended a NATO-EU meeting with Ms Condoleezza Rice; Mr Fava’s testimony set out in Husayn (Abu Zubaydah) made it clear that all member States had known about the enhanced interrogation techniques. That had been clear from the records of the meeting. 464. As experts had testified, while not everyone would have known, just as in all other host countries, some certainly had known and had approved.", "It was beyond reasonable doubt that by 2005 Lithuania had known of the real risk of violations on its territory and evidence demonstrated that the authorities had taken no measures to prevent, to monitor or even to enquire. The parliamentary inquiry concluded that it had been evident that the SSD had not sought to control the CIA’s activities in the country and the premises placed at their disposal. It had not monitored or recorded cargoes brought in and out of the country, and it had not controlled the CIA’s arrival and departure. This lack of oversight was confirmed by the prosecution file. The Lithuanian authorities had not only failed to exercise due diligence to prevent violations but they had actively intervened to support and enable them.", "As the evidence showed, again including evidence from the prosecution file, the Lithuanian officials had agreed to, purchased and helped to equip the CIA’s secret sites. The Lithuanian officials had provided vital logistics and support for the site, keeping local inquiries at bay. The Lithuanian authorities had intervened to ensure that normal oversight of CIA flights had been lifted by the use of classified letters that had ensured that neither planes, nor passengers, nor cargo had been monitored or inspected. This had been true specifically of the rendition flights identified by the experts as bringing the CIA detainees into the country and taking them out again. B.", "Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on public knowledge of US practices in respect of captured terrorist suspects 465. Referring to the knowledge of the US authorities’ practices in respect of suspected terrorists attributable to any Contracting State to the Convention at the material time, AI/ICJ pointed to, among other things, the following facts that had been a matter of public knowledge. 466. They stressed at the outset that already on 16 September 2001, in an interview, the US Vice President Richard Cheney had said that, in response to the attacks of 11 September, the US intelligence agencies would operate on “the dark side”, and had agreed that US restrictions on working with “those who [had] violated human rights” would need to be lifted. AI warned in November 2001 that the USA might exploit its existing rendition policy in the context of what it was calling the “war on terror” to avoid human rights protections.", "From early 2002 it became clear that non‑US nationals outside the USA suspected of involvement in international terrorism were at a real risk of secret transfer and arbitrary detention by US forces. 467. In that regard, AI/ICJ submitted that from January 2002 to 2003 the USA had transferred more than 600 foreign nationals to the US Naval Base in Guantánamo Bay, Cuba, with reports from the outset of ill-treatment during transfers, holding them without charge or trial or access to the courts, lawyers or relatives. By July 2005, there were more than 500 men held there. Cases of arbitrary detention and secret transfer continued to emerge during 2002.", "In April 2002, alongside the case of Abu Zubaydah, arrested in Pakistan and whose whereabouts after transfer to US custody remained unknown AI reported that “the US authorities had transferred dozens of people to countries where they [might] be subjected to interrogation tactics -including torture [...]. In some cases, it [was] alleged that US intelligence agents [had] remained closely involved in the interrogation”. Also, in December 2002, the Washington Post reported on a secret CIA facility at Bagram, Afghanistan, and the CIA’s use of “stress and duress” techniques, including sleep deprivation, stress positions and hooding, and the use of renditions by the CIA. Thus, as early as the end of 2002, any Contracting Party was or should have been aware that there was substantial credible information in the public domain that the USA was engaging in practices of enforced disappearance, arbitrary detention, secret detainee transfers, and torture or other ill-treatment. 468.", "In the years 2003 and 2004 information continued to emerge. In June 2003, for example, AI reported that the CIA had been involved in the arrest in Malawi of five men and their rendition out of that country to an undisclosed location. In August 2003, AI reported that Indonesian national Riduan Isamuddin, also known as Hambali, was being interrogated in US custody in incommunicado detention at an undisclosed location after his arrest in Thailand. In January 2004, the ICRC issued a press release stating that “[b]eyond Bagram and Guantánamo Bay, the ICRC [was] increasingly concerned about the fate of an unknown number of people captured as part of the so‑called global war on terror and held in undisclosed locations”. Furthermore, a February 2004 confidential report of the ICRC on Coalition abuses in Iraq, leaked in 2004 and published in the media at that time, found that detainees labelled by the USA as “high-value” were at particular risk of torture and other ill-treatment and that “high value detainees” had been held for months in a facility at Baghdad International Airport in conditions that violated international law.", "In May 2004, AI publicly denounced as torture the interrogation technique known as “waterboarding” reportedly used against Khalid Sheikh Mohammed, a “high-value detainee” who had by then been held in secret US detention for more than a year following his arrest in Pakistan in March 2003. 469. In June 2004, the Washington Post published a leaked August 2002 memorandum written in the US Department of Justice’s Office of Legal Counsel. The memo advised, inter alia, that presidential powers or the doctrines of necessity or self-defence could override the criminal liability for torture under US law, and that a “significant range of acts” would not be punishable as they did not amount to torture. Another government memorandum leaked in 2004 asserted that not applying the Geneva Conventions to “captured terrorists and their sponsors” would reduce the threat of domestic prosecution of US interrogators for war crimes.", "In June 2004, a December 2002 memorandum signed by the US Secretary of Defense was declassified. It had authorized “counter‑resistance” techniques for use at Guantánamo, including stress positions, sleep deprivation, sensory deprivation, stripping, hooding, exploitation of phobias, and prolonged isolation. A 2003 Pentagon Working Group report on “detainee interrogations in the global war on terrorism”, declassified and published in June 2004 after an earlier draft of it was leaked, recommended the use of various techniques, including environmental manipulation, threat of rendition, isolation, sleep deprivation, removal of clothing, exploitation of phobias, prolonged standing, and hooding. 470. In October 2004, AI published a 200-page report on US human rights violations in the “war on terror”, including case details of secret transfers of detainees, the alleged existence of secret US detention facilities, and torture and other ill-treatment.", "The numerous rendition cases listed included detailed allegations made by Khaled el-Masri. In addition, in its annual reports covering each of the years from 2002 to 2005, AI made multiple references to human rights violations in the context of US counterterrorism operations, not only in the entries on the USA, but also in a number of other country entries. Paper copies of these reports were widely distributed, including to media and governments. For example, copies of the reports were mailed at the time of their publication directly to the President, the Prime Minister, the Minister of the Interior and the Minister of Justice in Vilnius, Lithuania. 471.", "In the AI/ICJ’s submission, by early 2005 it was beyond reasonable doubt that the USA was engaging in human rights violations against detainees, including holding individuals in secret custody at undisclosed locations, and that detainees labelled “high-value” were at particular risk as the USA pursued intelligence on al-Qaeda and associated groups. Consequently, by 2005, any Contracting Party agreeing to host a CIA “black site” on its territory would or should have known that such a site would be part of a programme that involved unlawful transfer, enforced disappearance, and torture or other ill- treatment. Further, any Contracting Party would or should have known that any US assurances that a detainee previously subjected to the US programme would be treated in a manner consistent with international law, in the case of further transfer, lacked credibility. Any State would or should have known that even if not transferred to further undisclosed detention, the alternative for a “high‑value” detainee would be indefinite arbitrary detention without charge or committal for trial by military commission with the power to hand down death sentences. C. HFHR submissions 472.", "The HFHR focused on their experience regarding Poland’s involvement in the CIA extraordinary rendition programme. They produced a number of documents, including flight data, concerning eleven landings of the CIA-rendition aircraft in Poland, ten of which had occurred at Szymany military airfield between 5 December 2002 (the date of the applicant’s rendition to Poland) and 22 September 2003 (the date of the applicant’s rendition from Poland) and one landing of a plane from Kabul in Warsaw en route to Keflavik that occurred on 28 July 2005. D. The parties’ positions on the standard and burden of proof 473. The parties expressed opposing views on the standard and burden of proof to be applied in the present case. 1.", "The Government 474. The Government reiterated that there was no evidence that the facts complained of had taken place in Lithuania. In their view, the applicant’s allegations could not be considered sufficiently convincing or established beyond reasonable doubt, as required by the Court’s case-law. In that regard, the Government referred to the standard of proof applied by the Court in El-Masri (cited above), emphasising that the present case was substantially different in several aspects. In the first place, in the El‑Masri case the applicant himself had lodged the case and presented his statements; his account had been supported by a large amount of indirect evidence obtained during the international inquiries and the investigation by the German authorities.", "As the Court held, Mr El-Masri’s case had been “a case of documented rendition”. Secondly, there had been other relevant elements corroborating the applicant’s story. Thirdly, the circumstances described by the applicant had been verified and confirmed by other international investigations concerning the applicant, to mention only the Marty and Fava Inquiries. Lastly, the Court had before it a written statement made by one of the State’s top officials confirming the facts established in the course of the investigations and the applicant’s consistent and coherent description of events. All this material taken together satisfied the Court that there had been prima facie evidence in favour of the applicant’s version of events, and, consequently, it found the applicant’s allegations sufficiently convincing and established beyond reasonable doubt.", "In contrast, Mr Abu Zubaydah had failed to produce such evidence and to make a credible claim either before the domestic authorities or before the Court. In view of the foregoing, the Government were confident that the burden of proof should not be shifted to them. 475. The Government further stressed that the applicant’s allegations concerning rendition to and from Lithuania, and his secret detention and ill‑treatment in CIA secret facilities in Lithuania had been rejected in their entirety as unfounded following the pre-trial investigation carried out by the Prosecutor General’s Office. Those proceedings followed the Seimas inquiry.", "While it was true that the Seimas had come to conclusions that had left some doubt as to whether any CIA prisoners had been transported to and from the country and whether a CIA secret prison had operated on the premises of Project No. 1 and Project No. 2, all such doubts had been dispelled in the criminal investigation. In that context, the Government also drew the Court’s attention to the limited competence of the Seimas and the nature of its inquiry as defined in the Constitutional Court’s ruling of 13 May 2004, holding that “the Seimas [was] neither an institution of pre-trial investigation under the Constitution, nor the prosecutor’s office, nor the court” and that “the conclusions of the Seimas ... investigation ... may not be construed as legal qualification of the actions that [it had] investigated ... and of other circumstances ... elucidated by it”. Consequently, the Seimas findings had not been binding and remained subject to the verification in the prosecutor’s investigation.", "476. The Government attached particular importance to the prosecutor’s conclusion that in the course of the pre-trial investigation no evidence concerning unlawful rendition by the CIA of any persons, including the applicant, to or from Lithuania had been obtained. That decision had been based on a wide range of evidence, including classified sources, conclusively refuting the applicant’s version of the events. Those findings, made as they were on a solid evidential basis could not, therefore, be undermined by the mere flight data or other information available in the public domain. 477.", "In conclusion, the Government asked the Court to hold that there was no prima facie evidence in support of the applicant’s version of events and that, accordingly, the burden of proof could not be shifted to them. 2. The applicant 478. The applicant submitted that in his case against Poland, the Court had acknowledged the undeniable evidential challenges that arose in a case of this nature, and how the facts of the case, and the nature of the allegations, conditioned the Court’s approach to evidence and proof. As regards the “beyond reasonable doubt” standard, to which the Government referred, the Court had long been clear that this did not have the meaning commonly associated with that term in criminal law and domestic systems.", "Proof might flow from the existence of sufficiently strong, clear and concordant inferences of presumptions of fact. The Court must adopt an approach consistent with its purpose as a Human Rights Court. Where the events in issue lay wholly, or in large part, within the exclusive knowledge of the domestic authorities, strong presumptions of fact might arise. When prima facie evidence was presented, the burden of proof shifted to the authorities to provide a satisfactory and convincing explanation. 479.", "In the applicant’s view, the evidence in his case more than met the relevant standard of prima facie evidence and created, at a minimum, strong and concordant inferences of fact as to his secret detention on Lithuanian soil. The Government had failed to provide any satisfactory explanation in the face of overwhelming evidence that they had established a “black site” on their territory. Instead, they had engaged in a policy of denial and obfuscation, drawing categorical conclusions that there could not possibly have been detainees on Lithuanian soil. These conclusions were plainly at odds with the evidence before the Court. As the Court in the Polish case had noted, given the nature of the case, the fact that there was no document identifying Abu Zubaydah by name as a detainee on a specific flight or in a specific secret prison site was not surprising and could not determine the outcome in this case.", "As the evidence plainly showed and as all the three experts had concluded, Abu Zubaydah had been transferred to the Lithuanian “black site” on the relevant dates. E. The Court’s assessment of the facts and evidence 1. Applicable principles deriving from the Court’s case-law 480. The Court is sensitive to the subsidiary nature of its role and has consistently recognised that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see Imakayeva v. Russia, no. 7615/02, § 113, ECHR 2006‑XIII (extracts); Aslakhanova and Others v. Russia, nos.", "2944/06 and 4 others, § 96, 18 December 2012; and El-Masri, cited above, § 154; Al Nashiri v. Poland, cited above, § 393; and Husayn (Abu Zubaydah) v. Poland, cited above, § 393). 481. In assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems which use that standard. Its role is not to rule on criminal guilt or civil liability but on the responsibility of Contracting States under the Convention.", "The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to the Court’s established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake.", "The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see, among other examples, Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25; Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005‑VII; Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012; and El-Masri, cited above, § 151; Georgia v. Russia (I) [GC], no. 13255/07, §§ 93-94, ECHR 2014 (extracts); Al Nashiri v. Poland, cited above, § 394; Husayn (Abu Zubaydah) v. Poland, cited above, § 394; and Nasr and Ghali v. Italy, no.", "44883/09, § 119, 23 February 2016). 482. While it is for the applicant to make a prima facie case and adduce appropriate evidence, if the respondent Government in their response to his allegations fail to disclose crucial documents to enable the Court to establish the facts or otherwise provide a satisfactory and convincing explanation of how the events in question occurred, strong inferences can be drawn (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 184, ECHR 2009, with further references; Kadirova and Others v. Russia, no. 5432/07, § 94, 27 March 2012; Aslakhanova and Others, cited above, § 97; Al Nashiri v. Poland, cited above, § 395; and Husayn (Abu Zubaydah) v. Poland, cited above, § 395).", "483. Furthermore, the Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio. According to the Court’s case-law under Articles 2 and 3 of the Convention, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, for instance as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no.", "21986/93, § 100, ECHR 2000-VII; and Imakayeva, cited above, §§ 114-115; El-Masri, cited above, § 152; Al Nashiri v. Poland, cited above, § 396; Husayn (Abu Zubaydah) v. Poland, cited above, § 396; and Nasr and Ghali, cited above, § 220). In the absence of such explanation the Court can draw inferences which may be unfavourable for the respondent Government (see El-Masri, cited above, § 152). 2. Preliminary considerations concerning the assessment of the facts and evidence in the present case 484. The Court has already noted that it is not in a position to receive a direct account of the events complained of from the applicant (see paragraphs 15-16 above; also compare and contrast with other previous cases involving complaints about torture, ill-treatment in custody or unlawful detention, for example, El-Masri, cited above, §§ 16-36 and 156‑167; Selmouni v. France [GC], no.", "25803/94, §§ 13-24, ECHR 1999‑V; Jalloh v. Germany [GC], no. 54810/00, §§ 16-18, ECHR 2006‑IX; and Ilaşcu and Others, cited above, §§ 188-211). 485. The regime applied to High Value Detainees such as the applicant is described in detail in the CIA declassified documents, the 2014 US Senate Committee Report and also, on the basis, inter alia, of the applicant’s own account, in the 2007 ICRC Report. That regime included transfers of detainees to multiple locations and involved holding them in continuous solitary confinement and incommunicado detention throughout the entire period of their undisclosed detention.", "The transfers to unknown locations and unpredictable conditions of detention were specifically designed to deepen their sense of disorientation and isolation. The detainees were usually unaware of their exact location (see Al Nashiri v. Poland, cited above, §§ 397-398; Husayn (Abu Zubaydah) v. Poland, cited above, §§ 397‑398; and paragraphs 47-58, 85 and 299 above). 486. As held in Husayn (Abu Zubaydah) (cited above, § 397) and as emerges from the material cited above (see paragraphs 90-164 above), since 27 March 2002 the applicant has not had contact with the outside world, save the ICRC team in October and December 2006, the Combatant Status Review Tribunal’s members and his US counsel. It has also been submitted that the applicant’s communications with the outside world are subject to unprecedented restrictions and that his communications with his US counsel and his account of experiences in CIA custody are presumptively classified.", "In fact, for the last sixteen years, he has been subjected to a practical ban on communication with others, apart from mail contact with his family which was allowed at some point after his transfer to Guantánamo (see paragraphs 161-163 and 407 above). 487. The above difficulties in gathering and producing evidence in the present case caused by the restrictions on the applicant’s contact with the outside world and by the extreme secrecy surrounding the US rendition operations have inevitably had an impact on his ability to plead his case before the Court. Indeed, in his application and further written pleadings the events complained of were to a considerable extent reconstructed from threads of information gleaned from numerous public sources. In consequence, the Court’s establishment of the facts of the case is to a great extent based on circumstantial evidence, including a large amount of evidence obtained through the international inquiries, considerably redacted documents released by the CIA, the declassified 2014 US Senate Committee Report, other public sources and the testimony of the experts heard by the Court (see also Husayn (Abu Zubaydah) v. Poland, cited above, § 400; and Al Nashiri v. Poland, cited above, § 400).", "488. Furthermore, it is to be noted that while the Government firmly denied the applicant’s allegations in so far as they concerned Lithuania, they refrained from making any comments on the facts relating to the circumstances preceding his alleged rendition to Lithuania on 17 or 18 February 2005 or following his alleged transfer from the country on 25 March 2006 (see paragraphs 423-446 above). However, the facts complained of in the present case are part of a chain of events lasting from 27 March 2002 to 5 September 2006 and concerning various countries. The examination of the case necessarily involves the establishment of links between the dates and periods relevant to the applicant’s detention and a sequence of alleged rendition flights to those countries. Accordingly, the Court’s establishment of the facts and assessment of evidence cannot be limited to the events that allegedly took place in Lithuania but must, in so far as is necessary and relevant for the findings in the present case, take into account the circumstances occurring before and after his alleged detention in Lithuania (see Al Nashiri v. Poland, cited above, §§ 401-417); and Husayn (Abu Zubaydah) v Poland, cited above, §§ 401-419).", "3. As regards the establishment of the facts and assessment of evidence relevant to the applicant’s allegations concerning his transfers and secret detention by the CIA before his rendition to Lithuania (27 March 2002 to 17 or 18 February 2005) (a) Period from 27 March 2002 to 22 September 2003 489. The Court has already established beyond reasonable doubt the facts concerning the applicant’s capture, rendition and secret detention until 22 September 2003, the date of his rendition on plane N313P from Poland to another CIA secret detention facility (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 401-404 and 406-419). The relevant passages from Husayn (Abu Zubaydah) containing the Court’s findings of fact are cited above (see paragraphs 91 and 97 above). Some additional elements, which are all fully consistent with the Court’s establishment of the facts in that case, can also be found in the 2014 US Senate Committee Report (see paragraphs 92-96 and 98 above).", "(b) Whether the applicant’s allegations concerning his secret detention and transfers in CIA custody from 22 September 2003 (transfer out of Poland) to 17 or 18 February 2005 (transfer out of Morocco) were proved before the Court 490. It is alleged that before being rendered by the CIA to Lithuania the applicant had been detained in Guantánamo from 23 September 2003 to Spring 2004 and, subsequently in Rabat, Morocco until 17 or 18 February 2005 (see paragraph 99 above). 491. In Husayn (Abu Zubaydah) Mr J.G.S. testified that on 22 September 2003 the plane N313P had taken the applicant from Szymany, Poland via Bucharest and Rabat to Guantánamo.", "The plane’s destinations to Romania and Morocco had been disguised by the so-called “dummy” flight planning, showing, among other things Constanţa, not Bucharest as the arrival airport in Romania (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 109 and 312; see also paragraphs 103-104 above). In the present case, Mr Black, having analysed the available evidence, testified that “Abu Zubaydah must have ... been taken to Guantánamo on that flight” (see paragraph 108 above). 492. The N313P rendition circuit of 20-24 September 2003 was analysed in detail in Husayn (Abu Zubaydah), where, as stated above, the Court held that on 22 September 2003 Mr Abu Zubaydah had been transferred by the CIA from Poland on board that plane to another CIA secret detention facility elsewhere. It also held that this flight had marked the end of CIA-associated aircraft landings in Poland and the closure of the CIA “black site” codenamed “Quartz” in that country (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 414 and 419).", "The collation of data from multiple sources shows that the plane left Washington D.C. on 20 September 2003 and undertook a four-day flight circuit during which it landed in six countries. It arrived in Szymany from Kabul. It flew from Szymany to Bucharest, then to Rabat and from Rabat to Guantánamo on the night of 23 September 2003, landing there in the morning of 24 September 2003 (see paragraphs 103-104 and 108 above). 493. The 2014 US Senate Committee Report confirms that “beginning in September 2003” the CIA held its detainees at CIA facilities in Guantánamo and that by a – redacted but clearly two-digit – date in April 2004 “all five CIA detainees were transferred from Guantánamo to other CIA detention facilities” pending the US Supreme Court’s ruling in Rasul v. Bush which, as the US authorities expected, “might grant habeas corpus rights to the five CIA detainees”.", "The transfer was preceded by consultations among the US authorities in February 2004. It was recommended by the US Department of Justice (see paragraphs 61 and 110 above). 494. At the fact-finding hearing in the present case, Mr J.G.S. explained that the applicant had been transferred from Guantánamo on board the rendition plane N85VM on 27 March 2004.", "The flight was first part of the CIA double rendition circuit performed by that plane between 27 March and 13 April 2004. On the first circuit some prisoners, including the applicant, were transferred to Rabat directly (see paragraph 107 above). Mr Black confirmed that everyone who had been taken to Guantánamo had had to be moved out in March or April 2004 (see paragraph 108). The experts identified the country to which the applicant had been transferred from Guantánamo as Morocco on the basis of the correlation of the flight data and unredacted information in the 2014 US Senate Committee Report (see paragraphs 105-108 above). 495.", "Furthermore, both experts confirmed that the CIA, due to various disagreements with the Moroccan authorities, had been forced to take all its prisoners out of Morocco in early 2005. In that regard, the 2014 US Senate Committee Report relates “tensions” with a country whose name is redacted. Those tensions arose in connection with the “deterioration of intelligence cooperation” and the treatment of their prisoners by the local authorities, resulting in “cries of pain” being heard by CIA detainees kept in the same detention facility. It states that the CIA detainees were transferred out of the country concerned in 2005; the month was redacted but seems to have comprised eight characters (see paragraphs 105-110 above). Both experts indicated February 2005 as the month in question.", "Mr J.G.S., referring to the Moroccan detention facility, testified that “it [had been] in this site that Mr Zubaydah found himself in early 2005, specifically February 2005, when the aforementioned clear-out of Morocco [had taken] place” (see paragraph 105 above). Mr Black stated that “after a certain time in Morocco, the CIA [had] had too many disagreements with the Moroccan Intelligence Agencies with regard to treatment of prisoners in Morocco. ... And so everyone who [had been] in Morocco [had been] moved out at the latest in February 2005” (see paragraph 108). 496. In the light of the material in its possession – which has not been as such contested by the Government (see paragraph 488 above) – the Court finds no counter evidence capable of casting doubt on the accuracy of the experts’ conclusions regarding the above sequence of events, the places of the applicant’s secret detention and the dates of his transfers during the relevant period.", "497. Accordingly, the Court finds it established beyond reasonable doubt that: (1) on 22 September 2003 on board N313P the applicant was transferred by the CIA from Szymany, Poland to Guantánamo, Cuba; (2) from 24 September 2003 to 27 March 2004 the applicant was detained in Guantánamo; (3) on 27 March 2004 on board N85VM the applicant was transferred by the CIA from Guantánamo to Rabat, Morocco; (4) from 27 March 2004 to an unspecified date in the month (redacted in the 2014 US Senate Committee Report), identified by the experts as February 2005, the applicant was detained in Morocco at a facility used by the CIA; and (5) on an unspecified date in February 2005 he was transferred by the CIA from Morocco to another detention facility elsewhere. 4. As regards the establishment of the facts and assessment of evidence relevant to the applicant’s allegations concerning his rendition by the CIA to Lithuania, secret detention in Lithuania and transfer by the CIA out of Lithuania (17 or 18 February 2005 to 25 March 2006) (a) Whether a CIA secret detention facility existed in Lithuania at the time alleged by the applicant (17 or 18 February 2005 to 25 March 2006) 498. It is alleged that a CIA secret detention facility, codenamed “Detention Site Violet” operated in Lithuania from 17 or 18 February 2005, the dates on which either or both CIA rendition planes N724CL and N787WH brought CIA detainees to Lithuania, to 25 March 2006, when it was closed following the detainees’ transfer out of Lithuania on board the rendition plane N733MA (see paragraphs 111-117 and 449-459 above).", "The Government denied that a CIA detention facility had ever existed in Lithuania (see paragraphs 423-446 above). 499. The Court notes at the outset that although the Government have contested the applicant’s version of events on all accounts, they have not disputed the following facts, which were also established in the Seimas inquiry and confirmed in the course of the pre-trial investigation conducted in 2010-2011 (see paragraphs 174, 199, 307-349, and 367-370 above): (a) In 2002-2005 the CIA-related aircraft repeatedly crossed Lithuania’s airspace; according to the CNSD Findings, on at least twenty-nine occasions. (b) In the period from 17 February 2005 to 25 March 2006 four CIA-related aircraft landed in Lithuania: – planes N724CL and N787WH landed at Vilnius International Airport on, respectively, 17 February 2005 and 6 October 2005; – planes N787WH and N733MA landed at Palanga International Airport on, respectively, 18 February 2005 and 25 March 2006. (d) On three occasions the SSD officers received the CIA aircraft and “escorted what was brought by them” with the knowledge of the heads of the SSD: – on 18 February 2005 N787WH, which landed at Palanga airport with five US passengers on board, without any thorough customs inspection of the plane being carried out; according to the CNSD Findings, “no cargo was unloaded from it or onto it”; – on 6 October 2005 N787WH, which landed at Vilnius airport, where a certain R.R., the SBGS officer, was prevented from inspecting the aircraft and no customs inspection of the plane was carried out; and – on 25 March 2006 N733MA, which landed at Palanga airport, but the SBGS documents contained no records of the landing and inspection of the plane, and no customs inspection was carried out.", "(e) In connection with the landing of N787WH in Vilnius on 6 October 2005 and of N733MA in Palanga on 25 March 2006 the SSD issued classified letters to the SBGS, but the letter regarding the landing on 6 October 2005 was delivered ex post facto, and before that event the SSD had never issued such letters. (f) The SSD high-ranking officers provided the US officers with unrestricted access to the aircraft at least on two occasions, including on 6 October 2005. (g) In 2002-2006 the SSD and the CIA were in “partnership cooperation”, which involved the “equipment of certain tailored facilities”, i.e. Project No. 1 and Project No.", "2. (h) The facilities of Project No. 1 were installed in 2002. (i) The SSD started the implementation of Project No. 2 in cooperation with the CIA at the beginning of 2004; this involved assisting the CIA in the acquisition of the land and building in Antaviliai and carrying out construction work in order to equip the facility; the work was carried out by contractors brought by the CIA to Lithuania; the materials and equipment for the facility were brought to Lithuania by the CIA in containers.", "(j) Project No. 1 and Project No. 2 were fully financed by the CIA. (k) Witnesses A and B2, politicians questioned in the criminal investigation, were addressed in connection with “the temporary possibility of holding persons suspected of terrorism” and “as regards the transportation and holding [of] people in Lithuania”. 500.", "The Court further notes that, according to the material in the case file, the first public disclosure of Lithuania’s possible participation in the CIA secret detention scheme appeared on 20 August 2009 in the ABC News report. The report was followed by a more detailed publication of 18 November 2009. The reports mentioned “CIA officials directly involved in or briefed on the highly classified [HVD] programme”, “a former US intelligence official”, “one of the former CIA officers involved in the secret prison program”, “Lithuanian officials” and “a current Lithuanian government official” as their sources. The August 2009 ABC News report stated that “Lithuanian officials [had] provided the CIA with a building on the outskirts of Vilnius ... where as many as eight suspects [had been] held for more than a year until late 2005 when they [had been] moved because of public disclosures”. The reporters said that they had viewed flight logs – shown to them by “one of the former CIA officers involved in the secret prison program”, confirming that CIA planes made “repeated flights into Lithuania during that period” and that the purpose of the flights had been “to move terrorist suspects”.", "The officer told the reporters that the CIA had “arranged for false plans to be submitted to European aviation authorities”. It was also reported that “the prison in Lithuania [had been] one of eight facilities the CIA set up after 9/11 to detain and interrogate al Qaeda operatives captured around the world” (in this connection, see also paragraph 166 above). In November 2009 ABC News reported that a current Lithuanian government official and a former US intelligence official had told them that the CIA had “built one of its secret European prisons inside an exclusive riding academy outside Vilnius”. ABC News stated that “the CIA [had built a thick concrete wall inside the riding area. Behind the wall, it [had] built what one Lithuanian source [had] called a ‘building within a building’.", "On a series of thick concrete pads, it [had] installed what a source called ‘prefabricated pods’ to house prisoners, each separated from another by five or six feet. Each pod included a shower, a bed and a toilet. Separate cells were constructed for interrogations. ... Intelligence officers working at the prison [had been] housed next door in the converted stable ... Electrical power for both structures [had been] provided by a 2003 Caterpillar autonomous generator. All the electrical outlets in the renovated structure [had been] 110 volts, meaning that they [had been] designed for American appliances” (see paragraphs 258-259 above).", "501. The Government have contested the evidential value of the above publications and, in general terms, expressed reservations as to the evidential value of media and other reports in the public domain (see paragraphs 423-424 above). However, at the material time the Lithuanian authorities apparently considered the August 2009 ABC News disclosure sufficiently credible, given that the report prompted the joint meeting of the CNSD and Committee on Foreign Affairs on 9 September 2009 and the further parliamentary inquiry, which was opened on 5 November 2009. In the course of the inquiry the CNSD interviewed fifty-five persons, including the highest authorities of the State, and obtained various evidence, including classified information (see paragraphs 167-176 above). The CNSD, made the following findings: (a) In 2002-2005 the aircraft that had been linked in official investigations to the transportation of CIA detainees had crossed Lithuania’s airspace on repeated occasions.", "(b) It had not been established whether CIA detainees had been transported through Lithuania; however, conditions for such transportation had existed. (c) The SSD had received a request from the CIA to equip facilities suitable for holding detainees. (d) The SSD, in Project No. 1, had created conditions for holding detainees in Lithuania; ”facilities suitable for holding detainees [had been] equipped, taking account of the requests and conditions set out by the partners”; however, according to evidence in the CNSD’s possession the premises had not been used for that purpose. (e) While persons who had given evidence to the CNSD had denied that there existed any preconditions for holding and interrogating detainees at Project No.", "2, the layout of the building, its enclosed nature and protection of the perimeter, as well as the fragmented presence of the SSD staff at the premises allowed the CIA officers to carry out activities without the SSD’s control and to use the infrastructure at their discretion. The above Findings were endorsed by the Seimas in its Resolution of 19 January 2010 (see paragraph 174 above). 502. The Government submitted that the CNSD Findings had been subsequently verified in the pre-trial investigation conducted in 2010-2011. According to the Government, the investigation, based on the testimony of witnesses who had been directly involved in the implementation of Project No.", "1 and Project No. 2, and in the landing and departure procedures for CIA flights, had conclusively established that there had been no CIA secret detention centre in Lithuania, that the facilities of Project No. 1 and Project No. 2 had not been, and could not have been, used for holding detainees and that there had been no evidence of CIA detainees ever being held in the country. The sole purpose of the CIA planes landing was, in the Government’s words, the delivery of a “special cargo”, described as a “connection” or “communication” equipment providing the SSD and the CIA “with technical services in order to implement their joint project”.", "The Government also attached importance to the fact that Lithuania had not been the object of any international inquiries conducted into the European countries’ collusion in the CIA HVD Programme (see paragraphs 426-446 above). 503. As regards the latter argument, the Court observes that it is true that, on account of the fact that the allegations of the CIA secret prison being run in Lithuania emerged only in August 2009 (see paragraphs 258 and 500 above), Lithuania had not been included in any of the inquiries carried out by the Council of Europe and the European Parliament in 2005-2007 (see paragraphs 269-286 above). Nor were any international investigations of a scale comparable to the Marty Inquiry and the Fava Inquiry subsequently conducted into the allegations concerning Lithuania. 504.", "However, the investigative work of the experts involved in the 2010 UN Joint Study encompassed Lithuania’s possible involvement in the CIA scheme of secret prisons. According to the UN experts, research for the study, including data strings relating to the country, appear to confirm that it was integrated into the CIA extraordinary rendition programme in 2004 (see paragraph 303 above). 505. The CPT delegation visit to Lithuania on 14-18 June 2010 and the 2011 CPT Report involved the issue of alleged CIA secret prisons. While the central focus for the delegation was to try to assess the effectiveness of the pre-trial investigation which was at that time pending, the CPT considered it important to visit the “two tailored facilities” identified in the CNSD Findings as Project No.", "1 and Project No. 2. The 2011 CPT Report, referring to Project No. 2, described the facilities as “far larger than” Project No. 1” and consisting of “two buildings ... connected and divided into four distinct sectors”.", "In one of the buildings, “the layout of premises resembled a large metal container enclosed with a surrounding external structure”. The CPT refrained from providing a more detailed description of the facilities but concluded that even though when visited by the delegation the premises did not contain anything that was “highly suggestive of a context of detention”, both Project No. 1 and Project No. 2 could be adapted for detention purposes “with relatively little effort” (see paragraphs 350-352 above). 506.", "It is also to be noted that since at least early 2012, the European Parliament, through the LIBE Committee, has conducted an inquiry into allegations concerning Lithuania’s complicity in the CIA extraordinary rendition scheme. As part of the inquiry, the LIBE delegation visited Lithuania and carried out an inspection of Project No. 2 which, in the words of the LIBE Rapporteur, Ms Flautre, was described as a “kind of building within the building, a double-shell structure” equipped with an “enormous air-conditioning system and a water-pumping system, the purpose of which [was] not evident” (see paragraph 289 above). That visit gave rise to concerns subsequently expressed in the 2012 EP Resolution, which stated that “the layout [of Project No. 2] and installations inside appear[ed] to be compatible with the detention of prisoners” (see paragraph 290 above).", "507. Furthermore, the conclusions of the pre-trial investigation relied on by the Government and the Government’s explanation of the purpose of the CIA planes landing seem to have been contradicted by other evidence in the Court’s possession, including material available in the public domain and the experts’ testimony. To begin with, as regards the purpose of the CIA-linked planes landing in Lithuania at the material time, the extensive flight data produced by the applicant, including the data in the 2015 Reprieve Briefing, and expert evidence show that in respect of three out of four planes that landed in and departed from Vilnius and Palanga airports during the period from 17 February 2005 to 25 March 2006 the CIA used its methodology of “dummy” flight planning, that is to say, a deliberate disguise of their true destinations by declaring in the flight plans the route that the planes did not, nor even intended to, fly (see paragraphs 123-125 and 130-133 above). According to expert evidence obtained by the Court in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, as well as in the present case, the methodology of disguising flight planning pertained primarily to those renditions which dropped detainees off at the destination – in other words, at the airport connected with the CIA secret detention facility (see Al Nashiri v. Poland, cited above, §§ 316-318; and Husayn (Abu Zubaydah) v. Poland, cited above, § 310-312; see also paragraph 127 above). (a) Significantly, the N787WH’s circuit executed on 15-19 February 2005 included two disguised – undeclared – destinations on the plane’s route from Rabat to Palanga.", "The first disguised destination was Bucharest, whereas the flight plan was filed for Constanţa; the second one was Palanga, whereas the flight plan was filed for Gothenburg (see paragraph 123 above). (b) The N787WH’s circuit on 1-7 October 2005 was disguised by both the “dummy” flight planning and switching aircraft in the course of the rendition operation, also called a “double-plane switch” – that is to say, another CIA method of disguising its prisoner-transfers, which was designed, according to expert J.G.S., to avoid the eventuality of the same aircraft appearing at the site of two different places of secret detention (see paragraph 129 above; see also Al Nashiri v. Romania, cited above, § 135). The experts testified that the “double-plane switch” operation had been executed on 5-6 October 2005 in Tirana by two planes – N308AB, which arrived there from Bucharest after collecting detainees from the CIA “black site” in Romania, and N787WH. The CIA detainees “switched” planes in Tirana and they were transferred from N308AB onto N787WH for the rendition flight. On its departure from Tirana, N787WH filed a false plan to Tallinn in order to enable the flight to enter Lithuanian airspace, but its true destination was Vilnius, where it landed on 6 October 2005 in the early hours (see paragraphs 114, 130-131 and 140 above).", "In relation to this flight it is also noteworthy that the flight data submitted by the Lithuanian aviation authorities to the CNSD in the course of the Seimas inquiry indicated that N787WH had arrived from Antalya, Turkey (see paragraph 174 above). Witnesses questioned in the pre-trial investigation gave inconsistent indications as to where the plane arrived from. For instance, Witness B3 spoke of an “unplanned aircraft from Antalya” (see paragraph 315 above). Witness B4 (“person B”) said that it had “arrived from Tallinn without passengers” and that it had “arrived in Tallinn from Antalya” (see paragraph 316 above). The Administration of Civil Aviation, for its part, informed the prosecutor that “they could [have] confuse[d] the code of Antalya and Tirana due to their similarity” (see paragraph 183 above).", "(c) According to the experts, a combination of “dummy” flight planning and aircraft switching methodologies was likewise used in connection with the N733MA flight on 25 March 2006 (see paragraphs 134 and 140 above). The Palanga airport records indicated that on that date the plane had arrived in Palanga from Porto and that it had left for Porto on the same day (see paragraphs 125 and 174 above). However, as stated in the 2015 Reprieve Briefing and confirmed by the experts at the fact-finding hearing, a false plan was filed for Porto, whereas the plane flew to Cairo where it made connection with N740EH, another CIA rendition plane. The 2015 Reprieve Briefing also states that the documents relating to the planning of these two trips showed complex attempts to disguise the fact that the purpose of the trips was to provide a connection between Lithuania and Afghanistan (see paragraph 125 above). In the Court’s view, the CIA’s above repeated, deliberate recourse to the complex flight-disguising methodologies typical of rendition flights transporting detainees to “black sites” does not appear to be consistent with the stated purpose of the CIA-linked planes landing in Lithuania, which according to the Government had been merely the delivery of “special cargo”, described as “communication” or “connection” equipment”, in the context of the routine intelligence cooperation (see paragraphs 427-432 above).", "508. The Court further observes that in respect of the above planes the authorities applied a distinct practice, which resembles the special procedure for landings of CIA aircraft in Szymany airport followed by the Polish authorities in December 2002-September 2003 and found by the Court to have been one of the elements indicative of the State’s complicity in the CIA HVD Programme (see Al Nashiri v. Poland, cited above, §§ 418 and 442; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 420 and 444). In particular, as in Poland, the planes were not subject to any customs or the border guard control. On 6 October 2005 the SBGS officer R.R. was prevented from carrying out the N787WH plane inspection (see paragraphs 174 and 366 above).", "In connection with the arrivals of the “partners’” and the SSD officers at the airports, classified letters asking for access to the aircraft were issued to the SBGS at least on two occasions – one ex post facto, following the above incident with the SBGS officer on 6 October 2005 and one in connection with the N733MA landing in Palanga on 25 March 2006. Also, the rendition planes landing involved special security procedures organised by the CIA’s counterpart in Lithuania. As confirmed by the SSD officers questioned in the course of the pre-trial investigation, they used to escort “the partners”, that is to say, the CIA teams to and from Vilnius and Palanga airports. In that connection, the CIA asked the SSD to make security arrangements. In the airport, the CIA vehicles approached the aircraft, whereas the SSD’s escorting vehicles remained at some distance (see paragraphs 174, 184, 315, 329, 337, 346, 366, 370-371 above).", "509. At the fact-finding hearing held in the present case the experts, Mr J.G.S. and Mr Black, confirmed categorically that – beyond reasonable doubt – a CIA secret detention facility had operated in Lithuania in the period indicated by the applicant. In the same categorical terms they identified Lithuania as a country hosting the CIA secret detention facility codenamed “Detention Site Violet” in the 2014 US Senate Committee Report (see paragraphs 128-145 above). The 2015 Reprieve Briefing, relying on research into the CIA rendition operations, the analysis of the public data regarding the CIA prisoners’ transfers and the unredacted parts of the report, likewise concluded that it had been established beyond reasonable doubt that one of the facilities adapted by the CIA in Lithuania had been used to hold prisoners and that Detention Site Violet had been located in Lithuania (see paragraphs 120-122 above).", "510. The experts and the Briefing gave the same time-frame – February 2005-March 2006 – for the CIA’s secret prison operation. The Briefing stated that the opening of the site had been marked by the transfer of prisoners which could have been effected on either or both of two CIA rendition aircraft – N724CL, which landed in Vilnius on 17 February 2005, or N787WH, which landed in Palanga on 18 February 2005 (see paragraph 123 above). Both experts stated that the opening of the CIA “black site” in Lithuania had been prompted by the disagreements with the Moroccan authorities in the administering of a secret detention site used by the CIA in Rabat, which had led to the transfer of the CIA detainees out of Morocco (see paragraphs 129, 132-133 and 139-141 above). 511.", "In that regard, Mr J.G.S. referred to the “cyclical nature” of the CIA detention sites and explained that the CIA HVD Programme had included several junctures “at which one detention close[d] abruptly and another open[ed] in its place”. In his view, “17-18 February 2005 had been the critical juncture at which CIA detention operations overseas had been dramatically overhauled”. In the light of the flight data of February 2005, there were only two destinations for detainees being taken from Morocco –Romania and Lithuania. Mr J.G.S.", "reached the “incontrovertible conclusion” that when the facility in Morocco had been finally closed, the only possibility was that Detention Site Violet in Lithuania then took the detainees from Morocco in conjunction with Detention Site Black in Romania (see paragraphs 129-137 above). He further stated that references in the 2014 US Senate Committee Report had “accorded completely with the timings, with the character and with the chronological progression of detention operations in respect of Lithuania”. He referred to the report’s sections stating that Detention Site Violet had been created in a “separate country” from any of the other detention sites mentioned therein. This, in his view, had opened a new territory in the CIA HVD Programme and referred to a site that had endured beyond the life span of Detention Site Black in Romania which, according to report, was closed shortly after the Washington Post publication of 2 November 2005. In that connection, Mr J.G.S.", "also testified that the two projects in Lithuania aimed at providing support to the CIA detention operations, referred to in the Seimas inquiry as Project No. 1 and Project No. 2, corresponded to the description of two facilities in the country hosting Detention Site Violet. In particular, the report stated that by mid-2003 the CIA had concluded that its completed but still unused holding cell in the country – by which it had meant Project No. 1 – had been insufficient.", "It further stated that the CIA had thus sought to build a new expanded facility in the country. This corresponded precisely with the description of the provenance of Project No. 2 as given in the CNSD Findings (see paragraph 133 above). 512. Mr Black said that the report clearly indicated that Detention Site Violet had operated from February 2005 to March 2006.", "The site had been in a country where there had previously been another site that had never been used. This detail of there having been two sites, one never used and one that had been used between February 2005 and March 2006 corresponded accurately with the parliamentary inquiry’s findings, stating that “partners” – the CIA – had equipped two sites. His research established that flights went into and out of Lithuania precisely at the time that the prisoners were said to have been moved into and out of Detention Site Violet. This corresponded with flights into and out of Lithuania in, firstly, February 2005, then in October 2005 and lastly in March 2006 (see paragraph 140 above). Mr Black added that, taking into account the whole weight of various indicators, “the only solution that ma[d]e any sense is that the solution that indeed the site in Lithuania [had] operated at the times that we [had] stated and [had been] serviced by the flights that we [had] stated” (see paragraph 144 above).", "513. In that context the Court would also note that, as shown by the evidence referred to above, the 17-18 February 2005 flights were followed by the landing on 6 October 2005 of the plane N787WH, which, according to the experts, transferred CIA detainees, via a “double-plane switch” operation in Tirana, from the CIA facility codenamed “Detention Site Black” in the 2014 US Senate Committee Report and located in Bucharest. Mr Black added that Khalid Sheikh Mohammed had been transferred from Romania to Detention Site Violet in Lithuania on that plane (see paragraphs 130-131 and 143-144 above). 514. The experts were not in complete agreement as to which date – 17 or 18 February 2005 – was the one definitely marking the opening of the CIA “black site” in Lithuania.", "Mr J.G.S. considered that it was more likely that the flight of N734CL on 17 February 2005 signified the opening of the “black site”, since it had landed in Vilnius and Vilnius was the airport physically associated with Antaviliai, the location of the CIA facility. However, he did not rule out the possibility that another airfield, Palanga, may have been used in conjunction with Vilnius (see paragraphs 130, 134 and 137 above). Mr Black, for his part, was categorical in stating that the transfer of detainees from Morocco to Lithuania had been executed by the N787WH flight into Palanga on 18 February 2005 (see paragraphs 141-142 above). However, the Court does not find it indispensable to rule on which specific date the CIA site in Lithuania opened given that, according to the evidence before it, there were only these two, closely situated, dates on which it could have happened.", "515. As regards the date marking the end of Detention Site Violet’s operation, both Mr J.G.S. and Mr Black stated that it had been closed as a result of medical issues experienced by CIA detainees, who had been refused medical treatment in the country, as described in the 2014 US Senate Committee Report. The experts linked the closure to the rendition mission executed by the plane N733MA, which had landed in Palanga on 25 March 2006. They stated that it had taken the CIA prisoners via Cairo by means of an aircraft switching operation to another detention facility, which they unambiguously identified as “Detention Site Brown” located in Afghanistan.", "The 2015 LIBE Briefing likewise stated that the above transfer had matched the closure of Detention Site Violet. In that regard, it also referred to the passages in the 2014 US Senate Committee Report, stating that the site had been closed as a result of lack of available medical care in the “five-character redacted” month in 2006 – the redacted month could only be “March” or “April” on account of the length of the redaction (see paragraphs 122-125 and 128-145 above). 516. As regards the physical location of Detention Site Violet, both Mr J.G.S. and Mr Black stated that, beyond reasonable doubt, it had been located in Antaviliai, a neighbourhood of Vilnius, in the former horse-riding academy converted into a customised CIA detention facility, the construction of which had been supervised by the CIA “afresh”.", "Mr Black, who in 2011-2012 had made several trips to Antaviliai to interview local people, said it was clear from those interviews that the Americans had been there, had been fitting the site out, had been guarding the place and that vehicles with tinted windows had been coming and going (see paragraphs 137 and 140 above). 517. Lastly, the experts, on the analysis of the 2014 US Senate Committee Report and recently declassified CIA material, also established that at least five CIA prisoners were held at Detention Site Violet and conclusively identified three of them – Mustafa al-Hawsawi, who was explicitly mentioned in the report in connection with medical issues experienced at that site, Khalid Sheikh Mohammed and the applicant (see paragraphs 133, 135 and 141 above). 518. The Court observes that the 2014 US Senate Committee Report includes several references to Detention Site Violet.", "It clearly refers to two detention facilities in the country hosting that site: one completed but, “by mid-2003”, still unused and considered by the CIA as insufficient “given the growing number of CIA detainees in the program and the CIA’s interest in interrogating multiple detainees at the same detention site” and one “expanded” which the CIA “sought to build”. In that connection, the CIA offered some redacted sum of USD million “to ‘show appreciation’ ... for the ... support” for the CIA HVD Programme (see paragraph 147 above). That information is consistent with evidence from witnesses M, N, O and P, who were questioned in the criminal investigation. They confirmed that in 2003 N and O had been assigned to assist their CIA partners in finding suitable premises for a joint project – an “intelligence support centre”– in respect of which the partners had “used to cover all expenses”. According to Witness P, in 2002-2003 the “partners” had come and proposed to organise a joint operation, “to establish the premises in Lithuania for the protection of secret collaborators”.", "Witness O said that the CIA partners had chosen the premises which had then become Project No. 2 and that they had started to come in Spring 2004, had carried out the work themselves and had brought material and the equipment in the containers (see paragraphs 333‑337 above). 519. The 2014 US Senate Report further states that Detention Site Violet “opened in early 2005” (see paragraph 148 above). This element corresponds to the dates of the landings of the rendition planes N724CL and N787WH – 17 and 18 February 2005.", "It also corresponds to the statement of Witness S, who testified that Project No. 2 had been “established at the beginning of 2005” (see paragraph 341 above). The closure of Detention Site Violet is mentioned in the report in a specific context and chronology, namely “press stories”, in particular the Washigton Post publication of 2 November 2005 that led to the closure of Detention Site Black and “the CIA’s inability to provide emergency medical care” due to the refusal of the country hosting Detention Site Violet to admit Mustafa al-Hawsawi, one of the CIA detainees, to a local hospital. This refusal, according to the report, resulted in the CIA’s having sought assistance from third-party countries in providing medical care to him and “four other CIA detainees with acute ailments”. In relation to the Washington Post publication, the report gives a fairly specific time-frame for the closure of Detention Site Black, which occurred “shortly thereafter”.", "However, Detention Site Violet still operated in “early January 2006”. At that time “the CIA was holding twenty-eight detainees in its two remaining facilities, Detention Site Violet ... and Detention Site Orange”. Detention Site Violet was closed in 2006, in the month whose name comprised five characters which were redacted in the report (see paragraph 149 above). As noted in the 2015 Reprieve Briefing, there are only two possibilities: the relevant month could be either “March” or “April” 2006. 520.", "Considering the material referred to above as whole, the Court is satisfied that there is prima facie evidence in favour of the applicant’s allegation that the CIA secret detention site operated in Lithuania between 17 or 18 February 2005 and 25 March 2006. Accordingly, the burden of proof should shift to the respondent Government (see El-Masri, cited above, §§ 154-165 and paragraph 482 above). 521. However, the Government have failed to demonstrate why the evidence referred to above cannot serve to corroborate the applicant’s allegations. Apart from their reliance on the conclusions of the criminal investigation of 2010-2011 and, in particular, the testimony of witnesses who, as the Government underlined, had all consistently denied that any transfers of CIA detainees had taken place or that a CIA had run a secret detention facility in Lithuania, they have not offered convincing reasons for the series and purpose of the CIA-associated aircraft landings at Vilnius and Palanga between 17 February 2005 and 25 March 2006, the special procedures followed by the authorities in that connection and the actual purpose served by Project No.", "2 at the material time (see paragraphs 424‑443 above). 522. The witness testimony obtained in the criminal investigation is the key evidence adduced by the Government in support of their arguments (see paragraphs 307-349 above). The Court has not had the possibility of having access to full versions of the testimony since the relevant material was and still is classified. It has nevertheless been able to assess that evidence on the basis of a summary description produced by the Government (see paragraphs 304-306 above).", "Having considered the material submitted, the Court finds a number of elements that do not appear to be consistent with the version of events presented by the Government. 523. First, the Government asserted that both Project No. 1 and No. 2 were found to have been completely unsuitable for secret detention (see paragraphs 433-442 above).", "The Court does not find it necessary to analyse in detail the purposes actually served by Project No. 1 or determine whether or not that facility was used, as the Government argued at the oral hearing, for “extraction” or “exfiltration” of secret agents or otherwise, since in the present case it is not claimed that CIA detainees were held in that facility. It thus suffices for the Court to take note of the CNSD’s conclusion that in Project No. 1 “conditions were created for holding detainees in Lithuania” (see paragraph 174 above). 524.", "Secondly, as regards Project No. 2, the Government submitted that while the exact purpose served by the premises at the material time could not be revealed since it was classified, the witnesses had unequivocally confirmed that no premises suitable for detainees had been located there. Moreover, access to the premises had been under the permanent surveillance of the SSD and there had been no secret zones inaccessible to the SSD officers in the building. This excluded any possibility of unauthorised access or holding detainees in the premises (see paragraphs 436-441 above). However, the Court notes that Witnesses N and O, the SSD officers assigned to assist the CIA partners, who escorted them to and from the airports and who were also responsible for supervision of the premises, said that they had not visited all the rooms.", "Witness N said that he had not had access to the “administration area”. O was not given access to all the premises. Moreover, the building was apparently not used for the purpose of the declared “joint operation” of an intelligence support centre. The only Lithuanian intelligence personnel present in the building were the three SSD officers M, N and O, who supervised the building on changing shifts even if nobody was there. Witness O stated that he had not known who had arrived at the premises or “with what they had been occupied with”.", "Witness N “was not aware of the contents of the operations” that were carried out in Project No. 2. Witnesses N and O “actively supervised” the building until the second half of 2005 but then the number of the CIA partners’ visits decreased (see paragraphs 333-337 above). 525. As regards the Government’s explanation that the premises were acquired for the SSD’s needs and used for “short-term meetings” with “their guests” (see paragraph 439 above), the layout of one of the buildings at Project No.", "2, depicted by the CPT as “a large metal container enclosed within a surrounding external structure” and by the LIBE delegation as “a kind of building within the building” (see paragraphs 289 and 352 above) does not strike the Court as being a structure typical for the declared purpose. Also, no convincing explanation has been provided as to why Project No. 2, claimed to have been designated for an “intelligence support centre” and reconstructed with evidently considerable effort and expense on the part of the CIA had – according to the witnesses – been virtually unused by the SSD or their partners throughout 2005 (see paragraphs 333-338 and 341 above). 526. The Government further argued that in the light of abundant evidence it had been established in the criminal investigation that the purpose of two CIA-linked flights into Palanga, alleged to have transported the applicant to and out of Lithuania, namely N787WH and N733MA, which had taken place on, respectively, 18 February 2005 and 25 March 2006 had been the delivery of a “special cargo”.", "The object of the delivery was “special equipment for a special investigation department” in a number of boxes, which had all been of the same size, one metre long (see paragraphs 427-432 above). 527. However, the witness statements relied on are not only partly inconsistent with each other but they also do not fully support the Government’s account. Furthermore, the Government’s account is at variance with evidence collected in the course of the parliamentary inquiry. In this regard, the Court would refer to testimony given by the SSD officers involved in escorting “cargo” and the CIA partners to and from the Lithuanian airports and to the CNSD Findings.", "528. As regards the Government’s submission that the purpose of the flight N787WH which landed in Palanga on 18 February 2005 was the delivery of cargo containing the “connection” or “communication” equipment (see paragraphs 428-432 above), the Court notes that none of the witnesses heard in the criminal investigation referred to any “delivery of cargo” to Lithuania in relation to the plane in question (see paragraphs 333‑337 and 346 above). It further notes that the Government’s contention stands in contrast with the CNSD Findings, which in the light of the evidence gathered in the inquiry, established that “no cargo was unloaded from it or onto it” (see paragraph 174 above). However, as confirmed by the 2010 SBGS letter, “five US citizens arrived in the Republic of Lithuania on that plane” (see paragraph 371 above). 529.", "Moreover, the statements made by witnesses V and O do not support the Government’s contention that the purpose of the flight N733MA into Palanga on 25 March 2006 was likewise “to deliver equipment” for the Lithuanian “special investigation department”. On the contrary, the two escorting officers clearly related the loading of a “cargo” onto the CIA aircraft from the CIA partners’ vehicles (see paragraphs 333-337 and 346 above). This happened in the course of what was called an “operation”, which suggests that the activities involved in the aircraft landing and loading were not quite of a routine nature. As in respect of the other CIA aircraft landings referred to above (see paragraphs 507-508 above), the special procedure, without any customs or SBGS control, had been applied. 530.", "Having regard to the inconsistency of the Government’s version with the witness statements and the factual findings made by the Lithuanian Parliament and in the light of the documentary and expert evidence analysed in detail above, the Government’s explanations as to the purposes served by the CIA rendition flights landing in Lithuania between 17 February 2005 and 25 March 2006 and the facility Project No. 2 cannot be regarded as convincing. 531. In view of the foregoing and taking into account all the elements analysed in detail above, the Court concludes that the Government have not produced any evidence capable of contradicting the applicant’s allegations. In particular, they have not refuted the applicant’s argument that the planes N724CL, N787WH and N733MA that landed in Lithuania between 17 February 2005 and 25 March 2006 served the purposes of the CIA rendition operations and the conclusions of the experts heard by the Court, categorically stating that the aircraft in question were used by the CIA for transportation of prisoners into Lithuania.", "Nor have they refuted the applicant’s assertion that the above rendition flights marked the opening and the closure of a CIA secret prison referred to in the 2014 US Senate Report as “Detention Site Violet”, which was conclusively confirmed by expert evidence to the effect that Detention Site Violet was located in Lithuania and operated during the period indicated by the applicant (see also and compare with Al Nashiri v. Poland, cited above, §§ 414-415; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 414-415). 532. Consequently, the Court considers the applicant’s allegations sufficiently convincing and, having regard to the above evidence from various sources corroborating his version, finds it established beyond reasonable doubt that: (a) a CIA detention facility, codenamed Detention Site Violet according to the 2014 US Senate Committee Report, was located in Lithuania; (b) the facility started operating either from 17 February 2005, the date of the CIA rendition flight N724CL into Vilnius airport, or from 18 February 2005, the date of the CIA rendition flight N787WH into Palanga airport; and (c) the facility was closed on 25 March 2006 and its closure was marked by the CIA rendition flight N733MA into Palanga airport, which arrived from Porto, Portugal and, having disguised its destination in its flight plan by indicating Porto, on the same day took off for Cairo, Egypt. (b) Whether the applicant’s allegations concerning his rendition to Lithuania, secret detention at the CIA Detention Site Violet in Lithuania and transfer from Lithuania to another CIA detention facility elsewhere were proved before the Court 533. It is alleged that the applicant was transferred to Lithuania from Rabat, Morocco either on 17 February 2005 on board N724CL or on 18 February 2006 on board N787WH and that he had been secretly detained at Detention Site Violet in Lithuania until 25 March 2005, when he had been transferred out of Lithuania on board N733MA (see paragraphs 112‑117 above).", "(i) Preliminary considerations 534. The Court is mindful of the fact that, as regards the applicant’s actual presence in Lithuania, there is no direct evidence that it was the applicant who was transported on 17 or 18 February 2005, the two possible dates indicated by the experts (see paragraphs 130-135 above) from Rabat to Lithuania or that he was subsequently transferred on 25 March 2006 from Lithuania to another CIA secret detention facility on board the plane N733MA. The applicant, who for years on end was held in detention conditions specifically designed to isolate and disorientate detainees by transfers to unknown locations, even if he had been allowed to testify before the Court, would not be able to say where he was detained. Nor can it be reasonably expected that he will ever, on his own, be able to identify the places in which he was held. No trace of the applicant can, or will, be found in any official flight or border police records in Lithuania or in other countries because his presence on the planes and on their territories was, by the very nature of the rendition operations, purposefully not to be recorded.", "As confirmed by expert J.G.S. in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, in the countries concerned the official records showing numbers of passengers and crew arriving and departing on the rendition planes neither included, nor purported to include detainees who were brought into or out of the territory involuntarily, by means of clandestine HVD renditions. Those detainees were never listed among the persons on board in documents filed with any official institution (see Al Nashiri v. Poland, cited above, §§ 410-411; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 410-411). 535. In view of the foregoing, in order to ascertain whether or not it can be concluded that the applicant was detained at Detention Site Violet in Lithuania at the relevant time, the Court will take into account all the facts that have already been found established beyond reasonable doubt (see paragraphs 489-532 above) and analyse all other material in its possession, including, in particular, the 2014 US Senate Committee Report and expert evidence reconstructing the chronology of the applicant’s rendition and detention in 2002-2006 (see paragraphs 102-156, 159, 167-200 and 264-395 above).", "(ii) Transfers and secret detention 536. As noted above, the facts of the present case form an integral part of a chain of events lasting from the applicant’s capture on 27 March 2002 to his transfer by the CIA into the custody of the US military authorities in the Guantánamo Bay Naval Base on 5 September 2006. Those events took place in multiple countries hosting the CIA secret detention facilities that operated under the HVD Programme during that period. They involve a continuing sequence of the applicant’s renditions from one country to another, with the periods of his detention at each country’s “black site” being marked by the movements of the CIA’s rendition aircraft corresponding to locations within the network of secret prisons (see paragraphs 485-488 above). 537.", "The Court further notes that the facts concerning the applicant’s secret detention and continuous renditions from the time of his capture in Faisalabad, Pakistan, on 27 March 2002 to his rendition from Rabat, Morocco, in February 2005, including the names of the countries in which he was detained, the exact dates on which he was transferred by the CIA to and out of each country and the identities of all the rendition planes on which he was transferred have already been established conclusively and to the standard of proof beyond reasonable doubt in Husayn (Abu Zubaydah) v. Poland and in the present case (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 404 and 419; and paragraphs 489-532 above). 538. In particular, it has been established beyond reasonable doubt that until an unspecified date in February 2005 the applicant was held in secret detention in Morocco, at a facility used by the CIA and that on that date he was transferred by the CIA from Morocco to another detention facility elsewhere (see paragraph 497 above). It has also been established to the same standard of proof, beyond reasonable doubt, that: (a) The CIA secret detention facility codenamed “Detention Site Violet” in the 2014 US Senate Committee Report became operational in Lithuania either on 17 February 2005, the date of the CIA rendition flight N724CL from Rabat via Amman, which landed at Vilnius airport or on 18 February 2005, the date of the CIA rendition flight N787WH from Rabat via Bucharest, which landed at Palanga airport. (b) The Detention Site Violet operated in Lithuania until 25 March 2006, the date of the CIA rendition flight N733MA from Palanga airport to Cairo (see paragraph 532 above).", "539. It accordingly remains for the Court to determine whether it has been adequately demonstrated to the required standard of proof that the applicant was transferred from Morocco to Lithuania on either of the February 2005 CIA flights and whether he was secretly detained in Lithuania over the subsequent period, until 25 March 2006. 540. The Court observes that the main argument put forward by the Government is that there is no credible evidence confirming the applicant’s presence in Lithuania during that period and no link between the impugned flights and the applicant. In the Government’s submission, even if the flights had been linked with the CIA and landed in Lithuania, it could not constitute a proof of his detention in the country (see paragraphs 426 and 443 above).", "It has already been reiterated above that, given the veil of secrecy surrounding the CIA rendition operations, it cannot be expected that any traces of the applicant are to be found in any official flight or border control records in Lithuania or elsewhere. As in other cases concerning the CIA HVD Programme the fate of the applicant can be reconstructed only by an analysis of strings of data from various sources available in the public domain and expert evidence (see paragraph 487 above). The fact that the applicant’s name does not appear in the official record with reference to his alleged secret detention in Lithuania is not therefore decisive for the Court’s assessment. 541. In that regard, the Court notes that the 2014 US Senate Committee Report contains a number of often extensive references to the applicant, in particular in relation to the EITs inflicted on him during the series of interrogations, including the use of waterboarding, in the early stages of his secret detention at Detention Site Green located in Thailand and “debriefing” that he underwent at Detention Site Blue located in Poland (see paragraphs 92-96 above).", "Yet, as also confirmed by the experts, the report does not mention the applicant explicitly by name in connection with Detention Site Violet (see paragraphs 135, 137 and 141 above). 542. Nonetheless, the experts, following a comprehensive analysis of the entirety of the available documentary evidence concerning the CIA’s extraordinary rendition operations at the material time, were able to conclude that he had been detained at that site on the basis of a number of other elements consistently demonstrating that there is no – and there could not be any – alternative account of the applicant’s fate following his February 2005 rendition from Morocco. The Court would reiterate that the experts started by determining, beyond reasonable doubt, that Morocco was the only place in which the applicant could have been detained in February 2005 and that, according to the rendition aircraft schedules at that time he could only have been transferred from there either to Detention Site Black in Romania or to Detention Site Violet in Lithuania. On the basis of evidence indicating his absence from Detention Site Black in the relevant period, the one and only remaining destination of the applicant’s transfer from Rabat was Detention Site Violet.", "They further went on to infer information relevant for the applicant from unredacted passages of the report concerning other HVDs in CIA custody, Khalid Sheikh Mohammed and Mustafa al-Hawsawi, simultaneously being detained in the country hosting Detention Site Violet. The experts correlated this information with the data relating to the CIA detainee transfers in the period of the operation of the Lithuanian site, including the transfer from Detention Site Black to Detention Site Violet on 6 October 2005 and the transfer from Detention Site Violet, via Cairo and an aircraft switching operation, to Detention Site Brown (see paragraphs 132, 134-135, 137 and 141‑143 above). 543. The Court would refer, in particular, to the following statements made by the experts. Mr J.G.S.", "stated that “through an intimate familiarity with the chronology of [the applicant’s] detention” he had reached the conclusion that “there [was] only one place he could have been in the early part of 2005 and that that place was indeed Morocco”. He knew that “the transfers out of Morocco in 2005 went to other active ‘black sites’ that that one of these was ‘Detention Site Black’ in Romania, but that there was also another one in a separate country ... and ... this other country was Lithuania”. He added that “because [the applicant] did not arrive in Romania, ‘Detention Site Black’” – which he knew based on his “years’ long investigations into the operations of that site ... the only other destination to which he could have been transferred was the active site in Lithuania and this transfer took place in accordance with the flights ... in February 2005” (see paragraph 137 above). Mr Black testified that, based on the overall effect of the evidence, he was satisfied “that beyond reasonable doubt Abu Zubaydah was held in Lithuania starting from February 2005”. He said that while prima facie it was possible that the applicant, being in Morocco in February 2005, had been moved either to Romania or to Lithuania, there was evidence indicating, first, that he was not in Romania in or prior to the Summer 2005 and, second, that he was in Lithuania in March 2005 (see paragraphs 141‑144 above).", "544. The experts attributed a different threshold of proof to their conclusions. Mr J.G.S. stated that on the “balance of probabilities”, he believed it was established that the applicant had been secretly detained at Detention Site Violet (see paragraph 137). He was nevertheless satisfied as to “the presence of Mr Zubaydah, respectively in early 2005 in Morocco up to the point where the CIA detention [facility] [had been] cleared, thereafter on the territory of Lithuania in Detention Site coded as ‘Violet’ and thereafter on the territory of Afghanistan in the Detention Site coded as ‘Brown’” (see paragraph 139 above).", "Also, he said that there was a “categorical certainty” that the applicant had been brought to Lithuania on one of the February 2005 flights from Morocco to Lithuania – N724CL or N787WH – either on 17 or on 18 February 2005 and that “beyond reasonable doubt he [had been] taken to Afghanistan when he [had] left Lithuania” (see paragraphs 134, 137 and 139 above). Mr Black categorically stated that the applicant, beyond reasonable doubt, had been held in Lithuania from February 2005 onwards and that he believed that the applicant had been “flown into Lithuania on N787WH on 18 February 2005 and flown out of Lithuania on N733MA and N70EH on 25 March 2006” (see paragraphs 142-143 above). 545. The Court does not consider that this difference in terminology used by the experts has a direct and dispositive bearing on its own assessment of the evidence. It reiterates that, while in assessing evidence it applies “the standard of proof beyond reasonable doubt”, that concept is independent from the approach of the national legal systems which use that standard.", "The Court is not called upon to rule on criminal guilt or civil liability based on “beyond reasonable doubt” or “balance of probabilities” standards as applied by the domestic courts but on the responsibility of the respondent State under the Convention (see paragraph 481 above, with references to the Court’s case-law). 546. Based on its free evaluation of all the material in its possession, the Court considers that there is prima facie evidence corroborating the applicant’s allegation as to his secret detention in Lithuania, at Detention Site Violet, from 17 or 18 February 2005 to 25 March 2006. Consequently, the burden of proof should shift to the respondent Government. 547.", "However, the Government, apart from their above contention that there is no credible evidence confirming the applicant’s detention in Lithuania, in particular in any border control records, and their general denial that any CIA secret detention facility had operated in the country, have not adduced any counter-evidence capable of refuting the experts’ conclusions. Having regard to the very nature of the CIA secret detention scheme, the Government’s argument that there is no indication of the applicant’s physical presence in Lithuania – which they sought to support by the fact that his name had not been found in the records of passengers on the flights in February 2005-March 2006 (see paragraphs 426-428 above) – cannot be upheld. In the Court’s view, it would be unacceptable if the Government, having failed to comply with their obligation to register duly and in accordance with the domestic law all persons arriving on or departing from Lithuanian territory on the CIA planes and having relinquished any border control in respect of the rendition aircraft (see paragraphs 508 above), could take advantage of those omissions in the fact-finding procedure before the Court. When allowing the CIA to operate a detention site on Lithuanian soil the Government were, by pure virtue of Article 5 of the Convention, required to secure the information necessary to identify detainees brought to the country (see paragraphs 652-654 below, with references to the Court’s case-law). The Court cannot accept that the Government’s failure to do so should have adverse consequences for the applicant in its assessment of whether it has been adequately demonstrated by the Government, against the strong prima facie case made by the applicant, that his detention in Lithuania did not take place.", "548. In view of the foregoing, the Court considers the applicant’s allegations sufficiently convincing. For the same reasons as stated above in regard to the date marking the opening of Detention Site Violet (see paragraph 514 above), the Court does not find it indispensable to rule on which of the two dates indicated by the applicant – 17 or 18 February 2005 – and on which of the two planes – N724CL or N787WH – he was brought to Lithuania. Consequently, on the basis of strong, clear and concordant inferences as related above, the Court finds it proven to the required standard of proof that: (a) on 17 or 18 February 2005 the applicant was transferred by the CIA to from Rabat, Morocco to Lithuania on board either the rendition plane N724CL or the rendition plane N787WH; (b) from 17 or 18 February 2005 to 25 March 2006 the applicant was detained in the CIA detention facility in Lithuania codenamed “Detention Site Violet” according to the 2014 US Senate Committee Report; and (c) on 25 March 2006 on board the rendition plane N733MA and via a subsequent aircraft-switching operation the applicant was transferred by the CIA out of Lithuania to another CIA detention facility, identified by the experts as being codenamed “Detention Site Brown” according to the 2014 US Senate Committee Report. (iii) The applicant’s treatment in CIA custody in Lithuania 549.", "The applicant stated that, as in Husayn (Abu Zubaydah) v. Poland on account of the secrecy of the HVD Programme and restrictions on his communications with the Court, he could not present specific evidence of what had happened to him in Lithuania. However, as the Court found in the above case, at an absolute minimum detainees in CIA custody, whether in Lithuania or elsewhere, would have been subjected to the applicable standard conditions of detention at the relevant time, including solitary confinement, shackling, exposure to bright light, low and loud noise on a constant basis and the standard conditions of transfer, stripping, shaving, hooding, diapering and strapping down into painful crammed positions. The Government have not addressed this issue. 550. The Court observes that, in contrast to treatment inflicted on the applicant during an early period of his secret detention, which is often documented in detail in various material (see paragraphs 92-97 above), there is no evidence demonstrating any instances of similar acts at Detention Site Violet.", "According to the 2014 US Senate Committee Report, the applicant from his capture to his transfer to US military custody on 5 September 2006 “provided information”, which resulted “in 766 disseminated intelligence reports”. The fact that nearly 600 such reports were produced between September 2002 and September 2006 indicates that he was continually interrogated or “debriefed” by the CIA during the entire period of his secret detention (see paragraph 156 above). However, in the light of the material in the Court’s possession, it does not appear that in Lithuania the applicant was subjected to the EITs in connection with interrogations (see paragraphs 48-55 above). As regards recourse to harsh interrogation techniques at the relevant time, the 2014 US Senate Committee Report states in general terms that in mid-2004 the CIA temporarily suspended the use of the EITs. While their use was at some point resumed and they were apparently applied throughout the most part of 2005, such techniques were again temporarily suspended in late 2005 and in 2006.", "However, the applicant’s name is not mentioned in that context (see paragraph 86 above). 551. According to the experts, it was not possible to pronounce categorically on specific interrogation techniques or other forms of treatment or ill-treatment practised on the applicant in Lithuania, as in 2005‑2006 there was less information about the treatment of prisoners in the HVD Programme than there had been in the previous years. However, the CIA documents and the 2014 US Senate Committee Report described the routine conditions of detention at “black sites”, which included such practices as sensory deprivation, sleep deprivation, denial or religious rights and incommunicado detention. Those conditions alone passed the threshold of treatment prohibited by Article 3 of the Convention (see paragraphs 154‑155 above).", "552. As regards the Court’s establishment of the facts of the case, detailed rules governing conditions in which the CIA kept its prisoners leave no room for speculation as to the basic aspects of the situation in which the applicant found himself from 17 or 18 February 2005 to 25 March 2006. The Court therefore finds it established beyond reasonable doubt that the applicant was kept – as any other high-value detainee – in conditions described in the DCI Confinement Guidelines, which applied from the end of January 2003 to September 2006 to all CIA detainees (see paragraphs 54-56 above; see also Husayn (Abu Zubaydah) v. Poland, cited above, §§ 418-419 and 510). While at this stage it is premature to characterise the treatment to which the applicant was subjected during his detention at Detention Site Violet for the purposes of his complaint under the substantive limb of Article 3 of the Convention, the Court would point out that that regime included at least “six standard conditions of confinement”. That meant blindfolding or hooding the detainees, designed to disorient them and keep from learning their location or the layout of the detention facility; removal of hair upon arrival at the site; incommunicado, solitary confinement; continuous noise of high and varying intensity played at all times; continuous light such that each cell was illuminated to about the same brightness as an office; and use of leg shackles in all aspects of detainee management and movement (see paragraphs 55-56 above).", "5. As regards the establishment of the facts and assessment of evidence relevant to the applicant’s allegations concerning Lithuania’s knowledge of and complicity in the CIA HVD Programme (a) Relations of cooperation between the Lithuanian authorities and the CIA, including an agreement to host a CIA detention facility, acceptance of a financial reward for supporting the HVD Programme and assistance in the acquisition and adaptation of the premises for the CIA’s activities (Project No. 1 and Project No. 2) (i) Agreement to host a CIA detention facility and acceptance of a financial reward for supporting the HVD Programme 553. The Government firmly denied that the State authorities had received any CIA request that would even vaguely imply the running of a secret detention facility on Lithuanian territory.", "The prospects of receiving from the US authorities a request for assistance in the “war on terror” had been considered by the SSD on a purely theoretical basis. Moreover, in the criminal investigation all the Heads of State in office at the material time had consistently testified that they had not known about any detainees transfers and had not given their consent to the transportation of any persons held by the CIA (see paragraph 445 above). 554. However, the above contention does not seem to be supported by the CNSD Findings, which established that the SSD had received a request from the CIA “to equip facilities in Lithuania suitable for holding detainees”. In that connection, the CNSD referred to the testimony of the former Head of State, Mr Rolandas Paksas who had confirmed that Lithuania had been asked for permission to bring into the country persons suspected of terrorism; however, the information that he had received had not mentioned a detention centre or prison.", "The former Director General of the SSD, Mr Mečys Laurinkus testified that in mid-2003 he had informed Mr Paksas about a possibility of receiving a “request to participate in the programme concerning the transportation of detainees” after Lithuania’s accession to NATO (see paragraph 174 above). In that context, the Court would refer to the 2014 US Senate Report, which states, in relation to Detention Site Violet, that at the same time, that is “by mid-2003”, the CIA “had concluded that its completed but still unused holding cell in Country ... [had been] insufficient” and had “sought to build a new, expanded detention facility in the country” (see paragraph 147 above). The Court would also note that Lithuania’s accession to NATO took place on 29 March 2004 (see paragraph 364 above). The CNSD further established that, “when carrying out the SSD partnership cooperation Project No. 1 and Project No.", "2, the ... heads of the SSD [had] not inform[ed] any of the country’s officials of the purposes and content of the said projects”. On the basis of the material in its possession, it related that although Mr Laurinkus had received a negative answer from Mr Paksas in respect of the “bringing into the Republic of Lithuania of persons interrogated by the USA”, he had not asked either Mr Paksas or acting Head of State, Mr Artūras Paulauskas, for “political approval of activities under Project No. 2”. Mr Laurinkus had “had knowledge of launching the activities under Project No. 2” in March‑April 2004 – which, the Court would note, was around the same time as Lithuania’s accession to NATO.", "Several SSD officers, including the Director General, Mr Arvydas Pocius, and acting Director General, Mr Dainius Dabašinskas had “had knowledge of Project No. 2 at the time of launching” (see paragraph 174 above). Mr Valdas Adamkus, the former Head of State stated that “no information [had been] provided to [him] about running Project No. 2 in 2004-2006”. However, according to Mr Pocius, Mr Adamkus had been “adequately informed” of Project No.", "2 (see paragraphs 174, 177-178 and 367 above). In the Seimas public debate on the CNSD Findings it was again confirmed that the SSD had received a request from the CIA “to install premises ... suitable for keeping detainees” (see paragraphs 177-178 above). 555. Witness evidence obtained in the criminal investigation also confirms that fact. Witness A, an important political post-holder at the relevant time, testified that Mr Laurinkus had addressed Mr Paksas in connection with a “temporary possibility to hold persons suspected of terrorism” and received a negative answer (see paragraph 307 above).", "Witness B2, an another important political post-holder, confirmed that he had been addressed “as regards the transportation and holding [of] people in Lithuania” and that he had not approved the idea (see paragraph 314 above). 556. Moreover, referring to the availability of information of the establishment of the CIA clandestine detention sites, the 2014 US Senate Committee Report clearly confirms that the “political leaders of host countries were generally informed of their existence” (see paragraph 79 above). The report further confirms that an approval for the CIA detention facility corresponding to Project No. 2 was received from the authorities.", "Although the relevant section specifying a person or authority is heavily redacted, it clearly states that “the plan to construct the expanded facility was approved by the [redacted] of the Country” – which, however, required “complex mechanisms” in order to provide an unspecified amount of USD million to the country’s authorities. The money was offered to “show appreciation” for the support for the CIA programme. It may be inferred from the report that certain national authorities “probably [had] an incomplete notion” as to the CIA facility’s “actual function”. Also, the report refers to a certain official who, when he became aware of the facility, was described as “shocked” but “nonetheless approved” it (see paragraph 147 above). 557.", "As regards the money paid by the CIA to the authorities, the Court would note that the fact that such financial rewards were, as a matter of general policy and practice, offered to the authorities of countries hosting CIA “black sites” is confirmed in Conclusion 20 of the 2014 US Senate Committee Report. The conclusion states that “to encourage governments to clandestinely host CIA detention sites, or to increase support for existing sites, the CIA provided millions of dollars in cash payments to foreign government officials” and that “the CIA Headquarters encouraged CIA Stations to construct ‘wish lists’ of proposed financial assistance” and “to ‘think big’ in terms of that assistance” (see paragraph 89 above). (ii) Assistance in the acquisition and adaptation of the premises for the CIA’s activities (Project No. 1 and Project No. 2) 558.", "It is undisputed and has been confirmed by the CNSD Findings and in the criminal investigation that Project No. 1 and Project No. 2 were implemented in cooperation with the CIA. Nor has it been contested that in the framework of that cooperation the SSD adapted the premises of Project No. 1 according to the CIA’s requests, assisted the CIA in acquiring the premises of Project No.", "2 and adapting and reconstructing the premises for the CIA’s needs (see paragraphs 174 and 199 above). The cooperation dated back to 2002 and started from the adaptation of Project No. 1. Later, in 2003 several officers of the SSD were assigned to assist the CIA in finding a suitable location for Project No. 2 and purchasing the land and buildings in Antaviliai.", "Both projects were fully financed by the CIA. Starting from the beginning of 2005 when the Project No. 2, according to Witness S, was “established”, the SSD officers ensured the security and surveillance of the premises (see paragraphs 333-338 and 341 above). (b) Assistance in disguising the CIA rendition aircraft routes through Lithuania by means of the so-called “dummy” flight planning 559. In Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland the fact that the national authorities had cooperated with the CIA in disguising the rendition aircraft’s actual routes and validated incomplete or false flight plans in order to cover up the CIA’s activities in the country was considered relevant for the Court’s assessment of the State authorities’ knowledge of, and complicity in, the HVD Programme (see Al Nashiri v. Poland, cited above, §§ 419-422; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 421-424).", "The Court will follow that approach in analysing the facts of the present case. 560. It has already been established that in respect of three rendition flights – N787WH on 18 February 2005, N787WH on 6 October 2005 and N733MA on 25 March 2006 the CIA used the methodology of “dummy” flight planning – an intentional disguise of flight plans for rendition aircraft applied by the air companies contracted by the CIA (see paragraph 507 above). As the Court found in the judgments referred to above, the “dummy” flight planning, a deliberate effort to cover up the CIA flights into the country, required active cooperation on the part of the host countries through which the planes travelled. In addition to granting the CIA rendition aircraft overflight permissions, the national authorities navigated the planes through the country’s airspace to undeclared destinations in contravention of international aviation regulations and issued false landing permits (ibid.).", "561. Consequently, the fact that the Lithuanian aviation authorities participated in the process demonstrated that Lithuania knowingly assisted in the CIA scheme disguising the rendition planes. (c) Special procedure for CIA flights 562. The Government acknowledged that the CIA planes on two occasions had not been subject to the customs and SBGS control, in connection with the delivery of a “special cargo” for the Lithuanian services (see paragraph 429 above). To this end, the SSD addressed classified letters to the relevant authorities.", "The purpose was to obtain unrestricted access to the aircraft for the SSD and the CIA partners. As described by the witnesses questioned in the criminal investigation, the CIA teams were escorted to the area in the airport and drove in their vehicles to the aircraft, whereas the SSD officers escorting them remained in their vehicles at some distance. As noted above, that practice resembled the special procedure followed by the Polish authorities in respect of the CIA rendition planes landings in Szymany in December 2002-September 2003 (see paragraph 508 above, with references to Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland). (d) Circumstances routinely surrounding HVDs transfers and reception at the CIA “black site” 563. The Court considers, as it did in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, that the circumstances and conditions in which HVDs were routinely transferred by the CIA from rendition planes to the CIA “black sites” in the host countries should be taken into account in the context of the State authorities’ alleged knowledge and complicity in the HVD Programme (see Al Nashiri v. Poland, cited above, § 437; and Husayn (Abu Zubaydah) v. Poland, cited above, § 439).", "It follows from the Court’s findings in the above cases and the CIA material describing the routine procedure for transfers of detainees between the “black sites” (see paragraphs 47-48 above) that for the duration of his transfer a HVD was “securely shackled” by his hands and feet, deprived of sight and sound by the use of blindfolds, earmuffs and a hood and that upon arrival at his destination was moved to the “black site” under the same conditions. 564. The Court finds it inconceivable that the transportation of prisoners over land from the planes to the CIA detention site could, for all practical purposes, have been effected without at least minimal assistance by the host country’s authorities, to mention only securing the area near and around the landing planes and providing conditions for a secret and safe transfer of passengers. Inevitably, the Lithuanian personnel responsible for security arrangements, in particular the reception of the flights and on-land transit, must have witnessed at least some elements of the detainees’ transfer to Detention Site Violet, for instance the loading or unloading of blindfolded and shackled passengers from the planes (see also Al Nashiri v. Poland, cited above, §§ 330 and 437; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 322 and 439). Consequently, the Court concludes that the Lithuanian authorities which received the CIA personnel in the airport could not have been unaware that the persons brought by them to Lithuania were the CIA prisoners.", "(e) Public knowledge of treatment to which captured terrorist suspects were subjected in US custody in 2002-2005 565. The Court also attaches importance to various material referring to ill-treatment and abuse of terrorist suspects captured and detained by US authorities in the “war on terror”, which was available in the public domain at the relevant time (see El Masri, cited above, § 160; Al Nashiri v. Poland, cited above, § 439; Husayn (Abu Zubaydah) v. Poland, cited above, § 441; and Nasr and Ghali, cited above, § 234). 566. Before analysing that material, the Court would refer to President Bush’s memorandum of 7 February 2002, stating that neither al-Qaeda nor Taliban detainees qualified as prisoners of war under the Geneva Conventions and that Common Article 3 of the Geneva Conventions, did not apply to them (see paragraph 226-231 above). The White House Press Secretary announced that decision at the press conference on the same day.", "It was widely commented in the US and international media. That decision, however, included a disclaimer that even detainees “not legally entitled” to be treated humanely would be so treated, and also spoke of respecting the principles of the Geneva Conventions “to the extent appropriate and consistent with military necessity” (see paragraphs 29-30 above). Consequently, already at this very early stage of the “war on terror” it was well known that “military necessity” was a parameter for determining the treatment to be received by the captured terrorist suspects. 567. The Court would further note that from at least January 2002, when the UN High Commissioner for Human Rights issued a statement relating to detention of Taliban and al-Qaeda prisoners in Guantánamo, strong concerns were expressed publicly as to the treatment of detainees, in particular the use of “stress and duress” methods of interrogations and arbitrary and incommunicado detention.", "From January 2002 onwards the international governmental and non-governmental organisations regularly published reports and statements disclosing ill-treatment and abuse to which captured terrorist suspects were subjected in US custody in various places, for instance in Guantánamo and the US Bagram military base in Afghanistan. The material summarised above and cited in the AI/ICJ’s amicus curiae brief include only some sources selected from a large amount of documents available in the public domain throughout the above period (see paragraphs 234-250 and 465-471 above). Moreover, in the 2003 PACE Resolution of 26 June 2003 – of which Lithuania, one of the Council of Europe’s member States, must have been aware – the Parliamentary Assembly of the Council of Europe was “deeply concerned at the conditions of detention” of captured “unlawful combatants” held in the custody of the US authorities (see paragraph 238 above). 568. At the material time the ill-treatment, use of harsh interrogation measures, and arbitrary detention of al-Qaeda and Taliban prisoners in US custody, as well as the existence of “US overseas centres” for interrogations was also often reported in the international media from early 2002 (see paragraphs 251-255 above).", "Following the Washington Post report on 2 November 2005, which disclosed the complicity of the “Eastern European countries” in the CIA HVD Programme and prompted the closure of “black sites” in Europe, as well as the ABC News disclosure and the 2005 HRW Statement naming Poland and Romania as CIA accomplices, there could be no doubt as what kind of activities had been carried out by the CIA in the countries concerned (see paragraphs 248-249 and 256-257 above). At that time, Detention Site Violet in Lithuania was still active. The issue of the CIA renditions and abusive detention and interrogation practices used against the captured terrorist suspects in their custody was also present, reported and discussed in the Lithuanian media. In particular, between June 2004 and November 2005 the Lithuanian press published a number of articles concerning secret renditions, ill-treatment of prisoners and the abusive conditions under which detainees were held and interrogated (see paragraph 263 above). (f) Informal transatlantic meeting 569.", "As in Al Nashiri v. Poland (cited above, § 434) and Husayn (Abu Zubaydah) v. Poland (cited above, § 436) the Court considers the informal transatlantic meeting of the European Union and North Atlantic Treaty Organisation foreign ministers with the then US Secretary of State, Ms Condoleezza Rice, held on 7 December 2005, to be one of the elements relevant for its assessment of the respondent State’s knowledge of the CIA rendition and secret detention operations in 2003-2005. 570. In his testimony in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, Mr Fava stated that the meeting had been convened in connection with recent international media reports, including disclosures by the Washington Post and ABC News of, respectively, 2 November 2005 and 5 December 2005, naming European countries that had allegedly had CIA “black sites” on their territories (see Al Nashiri v. Poland, cited above, §§ 306 and 434; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 300 and 436). He also described the content of the “debriefing” of that meeting, a document that the TDIP obtained from a credible confidential source in the offices of the European Union. He stated that it had appeared from Ms Rice’s statement “we all know about these techniques” made in the context of the CIA operations and interrogations of terrorist suspects, which had been recorded in the debriefing that there had been an attempt on the USA’s part to share the “weight of accusations” (ibid., see alsp paragraph 359 above)).", "As pointed out by the applicant (see paragraph 460 above), Lithuania, an EU and NATO member must have participated in that meeting and been aware of the issues discussed. At that time, the CIA detention site in Lithuania was still active. 6. The Court’s conclusion as to the Lithuanian authorities’ knowledge of and complicity in the CIA HVD Programme 571. The Court is mindful of the fact that knowledge of the CIA rendition and secret detention operations and the scale of abuse to which high-value detainees were subjected in CIA custody has evolved over time, from 2002 to the present day.", "A considerable part of the evidence before the Court emerged several years after the events complained of (see paragraphs 22-24, 34-56, 287-294 and 296-303 above; see also Al Nashiri v. Poland, cited above, § 440; and Husayn (Abu Zubaydah) v. Poland, cited above, § 442). Lithuania’s alleged knowledge and complicity in the HVD Programme must be assessed with reference to the elements that its authorities knew or ought to have known at or closely around the relevant time, that is to say, between 17 or 18 February 2005 and 25 March 2006. However, the Court, as it has done in respect of the establishment of the facts relating to the applicant’s secret detention in Lithuania, will also rely on recent evidence which, as for instance the 2014 US Senate Committee Report and expert evidence obtained by the Court, relate, explain or disclose facts occurring in the past (see Al Nashiri v. Poland, cited above, § 440 and Husayn (Abu Zubaydah) v. Poland, cited above, § 442). 572. In its assessment, the Court has considered all the evidence in its possession and the various related circumstances referred to above.", "Having regard to all these elements taken as a whole, the Court finds that the Lithuania authorities knew that the CIA operated, on Lithuanian territory, a detention facility for the purposes of secretly detaining and interrogating terrorist suspects captured within the “war on terror” operation by the US authorities. This finding is based on the material referred to extensively above, in particular the evidence deriving from the 2014 US Senate Committee Report and, to a considerable extent, the evidence from experts. The passages of the report relating the approval for the plan to construct the expanded detention facility given by the Detention Site Violet host country leave no doubt as to the Lithuanian high-office holders’ prior acceptance of hosting a CIA detention site on their territory. Nor can there be any doubt that they provided “cooperation and support” for the “detention programme” and that, in appreciation, were offered and accepted a financial reward, amounting to some redacted sum of USD million (see paragraphs 554-557 above). 573.", "Furthermore, the experts, who in the course of their inquiries also had the benefit of contact with various sources, including confidential ones, unanimously and categorically stated that Lithuania not only ought to have known but actually did know of the nature and purposes of the CIA activities in the country. Senator Marty stated that since the operation had been governed by the “need-to-know” secrecy principle, only those few people who had absolutely needed to know had known about it. As in other countries, there had been persons at the highest level of the Lithuanian State who had had certain knowledge of what had been going on but even those who had come to know had not necessarily known all the details. Yet somebody had allowed the CIA to move about freely and have access to premises where they had been allowed to do what they had wanted without any control whatsoever. He described the national authorities’ conduct as complicity which had not been active; the national authorities had not participated in the CIA interrogations (see paragraph 382 above).", "Mr J.G.S. testified that the authorities of Lithuania had known about the existence of the detention facility and that through the highest levels of their government had approved and authorised its presence on their territory. In his view, they certainly should have known the purpose which the facility had served because its nature and purpose was part of a systematic practice, which had already been implemented by the CIA across multiple other countries and had been widely reported by the time the site in Lithuania had become active. There had been different degrees of knowledge in different sectors of Lithuania’s authorities. At the operational level the details had been known to a very small number of trusted counterparts, primarily within the secret services.", "He added that he was not aware of any single instance of a CIA detention site having existed anywhere in the world without the express knowledge and authorisation of the host authorities (see paragraph 387 above). Mr Black stated that it had been clear from the 2014 US Senate Committee Report that the Lithuanian officials had been aware of the CIA programme operating on their territory. He added that, as he could say from his accumulated knowledge of the CIA HVD Programme and close reading of the 2014 US Senate Committee Report, some host country officials had always known that there had been prisoners held in the facilities. That did not imply that every single host country official had known but in Lithuania’s case it was evident that at least some had known that the prisoners had been held on their territory and they had known that they had been receiving money to facilitate this (see paragraphs 392-393 above). 574.", "The Court, as in previous similar cases, does not consider that the Lithuanian authorities necessarily knew the details of what exactly went on inside the CIA secret facility or witnessed treatment or interrogations to which the CIA prisoners were subjected in Lithuania. As in other countries hosting clandestine prisons, the operation of the site was entirely in the hands of the CIA and the interrogations were exclusively the CIA’s responsibility (see paragraph 272 above; see also Al Nashiri v. Poland, cited above, § 441; and Husayn (Abu Zubaydah) v. Poland, cited above, § 443). 575. However, in the Court’s view, even if the Lithuanian authorities did not have, or could not have had, complete knowledge of the HVD Programme, the facts available to them through their contacts and cooperation with their CIA partners, taken together with extensive and widely available information on torture, ill-treatment, abuse and harsh interrogation measures inflicted on terrorist-suspects in US custody which in 2002-2005 circulated in the public domain, including the Lithuanian press (see paragraphs 565-568 above), enabled them to conjure up a reasonably accurate image of the CIA’s activities and, more particularly, the treatment to which the CIA was likely to have subjected their prisoners in Lithuania. In that regard the Court would reiterate that in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland it has found that already in 2002-2003 the public sources reported practices resorted to, or tolerated by, the US authorities that were manifestly contrary to the principles of the Convention.", "All the more so did the authorities, in 2005-2006, have good reason to believe that a person detained under the CIA rendition and secret detention programme could be exposed to a serious risk of treatment contrary to those principles on their territory. It further observes that it is – as was the case in respect of Poland – inconceivable that the rendition aircraft could have crossed the country’s airspace, landed atand departed from its airports, or that the CIA could have occupied the premises offered by the national authorities and transported detainees there, without the State authorities being informed of or involved in the preparation and execution of the HVD Programme on their territory. Nor can it stand to reason that activities of such character and scale, possibly vital for the country’s military and political interests, could have been undertaken on Lithuanian territory without the Lithuanian authorities’ knowledge and without the necessary authorisation and assistance being given at the appropriate level of the State (see Al Nashiri v. Poland, cited above, §§ 441-442 and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 443-444). 576. The Court accordingly finds it established beyond reasonable doubt that: (a) the Lithuanian authorities knew of the nature and purposes of the CIA’s activities on its territory at the material time; (b) the Lithuanian authorities, by approving the hosting of the CIA Detention Site Violet, enabling the CIA to use its airspace and airports and to disguise the movements of rendition aircraft, providing logistics and services, securing the premises for the CIA and transportation of the CIA teams with detainees on land, cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory; and (c) given their knowledge of the nature and purposes of the CIA’s activities on their territory and their involvement in the execution of that programme, the Lithuanian authorities knew that, by enabling the CIA to detain terrorist suspects – including the applicant – on their territory, they were exposing them to a serious risk of treatment contrary to the Convention.", "III. LITHUANIA’S JURISDICTION AND RESPONSIBILITY UNDER THE CONVENTION AND THE APPLICANT’S VICTIM STATUS A. The parties’ submissions 577. The parties’ submissions regarding the Government’s objections that Lithuania lacked jurisdiction within the meaning of Article 1 of the Convention and, consequently, could not be responsible under the Convention and the applicant’s victim status are set out above (see paragraphs 398-409 above). B.", "The Court’s assessment 578. The Court notes that the applicant’s complaints relate both to the events that occurred on Lithuanian territory and to the consequences of his transfer from Lithuania to other places where he was secretly detained (see paragraphs 110-160 above). In that regard, the Court will reiterate the relevant applicable principles. 1. As regards jurisdiction 579.", "It follows from Article 1 of the Convention that Contracting States must answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their “jurisdiction”. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions attributable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention. In that regard, the Court would refer to its case-law to the effect that the concept of “jurisdiction” for the purposes of Article 1 of the Convention must be considered to reflect the term’s meaning in public international law (see Gentilhomme, Schaff-Benhadji and Zerouki v. France, nos. 48205/99 and 2 others, § 20, 14 May 2002; Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, §§ 59-61, ECHR 2001-XII; Assanidze v. Georgia [GC], no.", "71503/01, § 137, ECHR 2004-II; and Ilaşcu and Others, cited above, §§ 311-312). From the standpoint of public international law, the words “within their jurisdiction” in Article 1 of the Convention must be understood to mean that a State’s jurisdictional competence is primarily territorial, but also that jurisdiction is presumed to be exercised normally throughout the State’s territory (see Ilaşcu and Others, cited above, § 312 with further references to the Court’s case-law; and Sargsyan v. Azerbaijan [GC], no. 40167/06, §§ 149-150, ECHR 2015). 580. It must also be reiterated that, for the purposes of the Convention, the sole issue of relevance is the State’s international responsibility, irrespective of the national authority to which the breach of the Convention in the domestic system is attributable (see, Assanidze, cited above, § 146, with further references to the Court’s case-law).", "2. As regards the State’s responsibility for an applicant’s treatment and detention by foreign officials on its territory 581. In accordance with the Court’s settled case-law, the respondent State must be regarded as responsible under the Convention for internationally wrongful acts performed by foreign officials on its territory with the acquiescence or connivance of its authorities (see Ilaşcu and Others, cited above, § 318; El-Masri, cited above, § 206; Al Nashiri v. Poland, cited above, § 452; Husayn (Abu Zubaydah) v. Poland, cited above, § 449; and Nasr and Ghali, cited above, § 241). 3. As regards the State’s responsibility for an applicant’s removal from its territory 582.", "The Court has repeatedly held that the decision of a Contracting State to remove a person – and, a fortiori, the actual removal itself – may give rise to an issue under Article 3 where substantial grounds have been shown for believing that the person in question would, if removed, face a real risk of being subjected to treatment contrary to that provision in the destination country (see Soering v. the United Kingdom, 7 July 1989, §§ 90‑91 and 113; Series A no. 161; Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008; Babar Ahmad and Others v. the United Kingdom, nos. 24027/07 and 4 others, § 168, 10 April 2012; El‑Masri, cited above, §§ 212-214, with further references; Al Nashiri v. Poland, cited above, § 454; Husayn (Abu Zubaydah) v. Poland, cited above, § 450; and Nasr and Ghali, cited above, § 242). Where it has been established that the sending State knew, or ought to have known at the relevant time, that a person removed from its territory was being subjected to “extraordinary rendition”, that is, “an extra-judicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there was a real risk of torture or cruel, inhuman or degrading treatment”, the possibility of a breach of Article 3 is particularly strong and must be considered intrinsic in the transfer (see El-Masri, cited above, §§ 218-221; Al Nashiri v. Poland, cited above, § 454; Husayn (Abu Zubaydah) v. Poland, cited above, § 450; and Nasr and Ghali, cited above, § 243).", "583. Furthermore, a Contracting State would be in violation of Article 5 of the Convention if it removed, or enabled the removal, of an applicant to a State where he or she was at real risk of a flagrant breach of that Article (see Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, §§ 233 and 285, ECHR 2012 (extracts); and El-Masri, cited above, § 239). Again, that risk is inherent where an applicant has been subjected to “extraordinary rendition”, which entails detention “outside the normal legal system” and which, “by its deliberate circumvention of due process, is anathema to the rule of law and the values protected by the Convention” (see El-Masri, ibid. ; Al Nashiri v. Poland, cited above, § 455; Husayn (Abu Zubaydah) v. Poland, cited above, § 451; and Nasr and Ghali, cited above, § 244).", "584. While the establishment of the host State’s responsibility inevitably involves an assessment of conditions in the destination country against the standards set out in the Convention, there is no question of adjudicating on or establishing the responsibility of the destination country, whether under general international law, under the Convention or otherwise. In so far as any responsibility under the Convention is or may be incurred, it is responsibility incurred by the host Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment or other alleged violations of the Convention (see Soering, cited above, §§ 91 and 113; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 67 and 90, ECHR 2005‑I, with further references; Othman (Abu Qatada), cited above, § 258; and El‑Masri, cited above, §§ 212 and 239). 585.", "In determining whether substantial grounds have been shown for believing that a real risk of the Convention violations exists, the Court will assess the issue in the light of all the material placed before it or, if necessary, material it has obtained proprio motu. It must examine the foreseeable consequences of sending the applicant to the destination country, bearing in mind the general situation there and his personal circumstances. The existence of the alleged risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the removal. However, where the transfer has already taken place at the date of the Court’s examination, the Court is not precluded from having regard to information which comes to light subsequently (see Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 125, ECHR 2010; and El‑Masri, cited above, §§ 213-214, with further references; Al Nashiri v. Poland, cited above, § 458; Husayn (Abu Zubaydah) v. Poland, cited above, § 455; and Nasr and Ghali, cited above, § 246).", "4. Conclusion as to the Lithuanian Government’s preliminary objections that Lithuania lacks jurisdiction and responsibility under the Convention and as to the applicant’s victim status 586. Following an extensive and detailed analysis of evidence in the present case, the Court has established conclusively and to the required standard of proof that the Lithuanian authorities hosted CIA Detention Site Violet from 17 or 18 February 2005 to 25 March 2006; that the applicant was secretly detained there during that period; that the Lithuanian authorities knew of the nature and purposes of the CIA’s activities in their country and cooperated in the execution of the HVD Programme; and that the Lithuanian authorities knew that, by enabling the CIA to detain terrorist suspects – including the applicant – on their territory, they were exposing them to a serious risk of treatment contrary to the Convention (see paragraph 576 above). The above findings suffice for the Court to conclude that the matters complained of in the present case fall within the “jurisdiction” of Lithuania within the meaning of Article 1 of the Convention and are capable of engaging the respondent State’s responsibility under the Convention, and that the applicant can be considered a “victim” for the purposes of Article 34 of the Convention. Accordingly, the Government’s preliminary objections on these grounds must be dismissed.", "587. The Court will accordingly examine the applicant’s complaints and the extent to which the events complained of are attributable to the Lithuanian State in the light of the above principles of State responsibility under the Convention, as deriving from its case-law (see also Al Nashiri v. Poland, cited above, § 459; and Husayn (Abu Zubaydah) v. Poland, cited above, § 456). IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 588. The applicant’s complaints under Article 3 of the Convention concerned both substantive and procedural aspects of this provision.", "(1) As regards his alleged ill-treatment and detention in Lithuania, he complained that the Lithuanian authorities had knowingly and intentionally enabled the CIA to hold him in secret detention at the CIA site for over one year. Lithuania had known about the CIA’s rendition programme on its territory and of the real and immediate risk of torture to which high-value detainees under this programme had been subjected. Lithuania had actively agreed to establish a secret detention site and to facilitate the CIA unhindered use of that site. (2) Furthermore, the applicant alleged that Lithuania, by enabling the CIA to transfer him from its territory to its other secret “black sites”, had exposed him to further torture and ill-treatment. The Lithuanian authorities had known, or should have known, of the real risk that he would continue to be held in the same detention regime as that to which he had hitherto been subjected.", "(3) He also complained under Article 3 taken separately and in conjunction with Article 13 of the Convention that the Lithuanian authorities had been in breach of the procedural obligations under Article 3 and that he had been denied the right to a remedy under Article 13, since they had failed to conduct an effective investigation into his allegations of torture, ill‑treatment and secret detention in a CIA-run detention facility on Lithuanian territory and of being unlawfully transferred to places where he had faced further torture and ill-treatment. 589. Article 3 of the Convention states: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 590. The Court will first examine the applicant’s complaint under the procedural aspect of Article 3 about the lack of an effective and thorough criminal investigation into his allegations of ill-treatment when in CIA custody on Lithuanian territory (see El-Masri, cited above, § 181; Al Nashiri v. Poland, cited above, § 462; and Husayn (Abu Zubaydah) v. Poland, cited above, § 459). A.", "Procedural aspect of Article 3 1. The parties’ submissions (a) The Government 591. In their written and oral pleadings, the Government submitted that the pre-trial investigation in 2010-2011 had been prompt, independent, thorough and transparent as required by Article 3. They also underlined that the proceedings had been re-opened on 22 January 2015 immediately after the publication of the 2014 US Senate Committee Report disclosing new evidence concerning the CIA rendition operations. 592.", "As regards the proceedings conducted in 2010-2011, the Government maintained that, despite the fact that the prosecution had not been obliged to follow the CNSD’s recommendation to initiate a pre-trial investigation, that investigation had been opened and carried out promptly after the adoption of the Seimas Resolution. There could be no doubt as to the independence of the investigation since, as set forth in the Constitution, a prosecutor “shall be independent and obey only the law”. The investigation had been thorough; it had not been limited to materials available to the Seimas and replies to requests for information from the relevant State institutions. In the course of the proceedings numerous additional witnesses had been questioned, including all persons who had been involved in, or had had knowledge of, the circumstances being investigated, such as airport workers, the SSD officials, Customs and SBGS officials, or other former and current State officials. However, since the issues concerning the State or official secrets and classified information had been involved in the investigation, it was not possible for the Government to disclose the identities of all witnesses.", "In that regard, the Government also explained that the succinct nature of the Prosecutor’s decision to discontinue the pre-trial investigation did not reflect the exact scope and content of the investigation because part of the materials in the file constituted a State secret. This particular reason precluded the Government from providing the Court with a more detailed description of all procedural steps taken by the prosecution in the course of the pre-trial investigation or more detailed explanations of the factual circumstances that had been disclosed. Yet part of the material had been declassified and had been submitted to the Court in order to assure the Court that all relevant information had been gathered by the prosecution, rebutting the hypothesis raised earlier in the course of the parliamentary inquiry. 593. As to the victim’s participation in the investigation, in the present case no ground had been established to grant the applicant victim status in the proceedings as not the slightest link had been established between the applicant and the circumstances under examination.", "The Government noted that under Article 28 of the Lithuanian Code of Criminal Procedure, a person could be recognised as a victim of a criminal offence by a decision of the prosecutor adopted on his own initiative. As regards the letter of 20 September 2010 from Reprieve, requesting investigation into “new and credible allegations that our client Mr Husayn had been held in Lithuania sometime from 2004 to 2006”, the Government noted that Reprieve had provided only some publicly available information of a general nature, which had already been in the possession of the Seimas and the prosecutor. Moreover, Reprieve had not asked for victim status to be granted to the applicant under Article 28 of the Code of Criminal Procedure, nor had it ever presented the applicant’s authorisation. It had been alleged in Reprieve’s request that “recent information [had] come to us from a confidential and extremely reliable unclassified source, confirming that Mr Husayn [had been] held in a secret CIA prison in Lithuania”. The Prosecutor General’s Office had asked it to provide all information leading to the conclusion as to Mr Husayn’s transportation to/from Lithuania and his alleged presence from Spring 2004 to 2006 September and also to indicate the “confidential and extremely reliable source” referred to in the request.", "However, no further information had been provided and no source had been indicated. 594. Overall, the investigation had met the requirements under the procedural limb of Article 3 of the Convention. It had made a serious attempt to find out what happened and, relying on the entirety of information obtained in the course of the pre-trial investigation, had established beyond reasonable doubt that no persons, including the applicant, had been brought into Lithuania or detained there. The prosecution had acted actively and independently, gathering information of a much more detailed nature compared with that available to the CNSD, the mass media, NGOs and, to a certain extent, even international delegations which had carried out their respective research into the circumstances of the disputed events.", "Furthermore, “the State secret” concept had not precluded the prosecuting authorities from undertaking an adequate investigation, as in the course of the pre-trial investigation they had been given full access to all classified information and, thereby enabling them to find out the nature and purpose of the above-mentioned Projects Nos. 1 and 2, and to other information which had been withheld from other persons. The information at the prosecutor’s disposal had been much more extensive, and of a much more exact and reliable nature, than the publicly available information on which the applicant had relied. Also, in the Government’s view, public scrutiny had been ensured, since part of the material had been declassified in the context of the proceedings before the Court. 595.", "Lastly, as regards the proceedings reopened on 22 January 2015, the Government submitted that they had progressed without delay. However, the authorities had been confronted with numerous obstacles on the part of other countries to which they had addressed requests for legal assistance. They had sent six requests. Poland’s response had been received after ten months. As at June 2016, they had not received any replies to the requests that had been sent to Romania and Afghanistan a year or so earlier.", "Morocco had refused the request. The US authorities, addressed twice, replied that they could not provide the information requested. (b) The applicant 596. The applicant maintained that Lithuania had failed to carry out an investigation that satisfied its obligations under Article 3 of the Convention. In his submission, the authorities had failed to meet any of the Convention benchmarks of promptness, independence, thoroughness, effectiveness or transparency.", "As regards promptness, it was eleven years since the applicant had been detained on Lithuanian territory. It was eleven years since media reports had revealed secret CIA detention in Eastern European sites, and six years since reports had addressed Lithuanian responsibility specifically and identified the applicant. When specific reports had come out in relation to Lithuania in 2009, the Prosecutor had waited half a year to open his investigation – and then opened it only after the express prompting of the Parliamentary Committee. Four years had then passed from the closure of that investigation until the purported re-opening that had been announced in January 2015. During this four year interim period, there had been consistent and pervasive calls for the investigation to be re-opened, including from the applicant’s representatives, from NGO’s such as AI, Human Rights Watch, Redress, the Human Rights Monitoring Institute, the Constitution Project, from the head of the Lithuanian Parliamentary Committee, from Senator Dick Marty, the European Parliament, the Human Rights Council’s Special Rapporteur on Terrorism, the UN Committee against Torture, and others.", "The Prosecutor had been alerted to a growing body of evidence, not encompassed in the original, cursory investigation, but had failed to follow leads. 597. The lack of thoroughness and effectiveness of the investigation was apparent in various ways. It was apparent from the limited scope of the investigation. An investigation in a case of this type must look at crimes and reflect the nature and gravity of the violations at the heart of the case; in this case, torture, mistreatment of persons and forced disappearance, for example.", "However, the public statements and information provided to the Court had suggested a much narrower framing, limited previously to possible “abuse of office” offences, more recently perhaps to the crime of transfer. One of the implications of the focus on less grave crimes was the suggestion that had been advanced by the Prosecutor when closing the initial investigation, that the crimes in question might be subject to a statute of limitations; and in the applicant’s view this would also entail a violation of Convention obligations. A thorough investigation, he argued, should also embrace the full range of those potentially responsible, directly and indirectly. In this case there was nothing to suggest any intention or effort to investigate and hold to account the full range of Lithuanian and foreign US agents, at all levels, who had together engaged in this international criminal conspiracy. Most notably, the lack of thoroughness and effectiveness was seen in the failure of the Prosecutor’s Office to take basic investigative steps that it had been called upon to take for many years.", "598. The information from the prosecution file suggested, for example, that there had not been an attempt to take testimony from key eye-witnesses, including local inhabitants of the area, from foreign officials, agents, contractors, psychologists, pilots crew or brokers, interrogators at the heart of this case, several of whom had now publicly confessed to their involvement in Abu Zubaydah’s rendition and torture, or from witnesses at the highest levels of authority within the Lithuanian Government. There had not been an investigation into key rendition flights including one of those entering Lithuania from Morocco on the relevant dates. 599. Finally and critically, in the applicant’s submission, the Convention’s requirements of transparency and the essential element of public scrutiny had been flouted in this case.", "The Prosecutor’s Office had refused to respond to or share information with the applicant, other victims, or with the public, or to cooperate adequately with international inquiries. The process had been shielded by an excessive and overreaching approach to State secrecy. The 2010 investigation had been closed on the basis that there was no remaining doubt concerning detainees, though even the partially redacted summary version of the evidence from the Prosecutor’s file made it clear that the evidence supported the applicant’s case and certainly could not plausibly justify closure. While there had been public statements on the purported re-opening of the investigation, the State had notably provided no information in its written submissions about any progress in that investigation, despite being asked by the Court to do so explicitly and despite being permitted to present a summary investigative file to the Court on a confidential basis. 600.", "In sum, Lithuania had categorically failed to meet its Convention obligations. 2. Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on “effective investigation” 601. AI/ICJ, relying on the Court’s case-law, submitted that a duty to investigate implied an obligation to act “with the required determination to identify and prosecute those responsible”. Criminal proceedings were a critical aspect of ensuring an effective remedy for gross violations of Convention rights.", "They were the primary means through which the victims’ right to the truth could be given effect, including in respect of identifying the perpetrators. Although there was no right guaranteeing the prosecution or conviction of a particular person, prosecuting authorities had to, where the facts so warranted, take the necessary steps to bring those who had committed serious human rights violations to justice”. 602. As regards the State parties’ involvement or complicity in systematic human rights violations such as those that had occurred in the CIA secret detention and rendition programme, failure to conduct timely an effective investigations or prosecutions in appropriate cases would violate the Convention rights, including rights under Articles 3 and 5 ECHR, and would seriously undermine public confidence in Contracting Parties’ adherence to the rule of law throughout the Council of Europe. 603.", "Furthermore, the State’s duty to initiate and continue an investigation could not be limited by the fact that alleged victims found themselves in situations where it was impossible for them to produce evidence of violations of their Convention rights. This was the case not only regarding detention by public authorities, but also in cases of detention by third parties. Where an individual was held within the exclusive control of the authorities, and there was a prima facie indication that the State might have been involved in the violations alleged, the burden of proof in establishing the violations shifted on the State, since the events in issue might lie wholly, or in large part, within the exclusive knowledge of the authorities. These principles applied in cases of forced disappearances, including those within the extraordinary rendition programme. 604.", "In order to be effective, an investigation had to be initiated promptly once the matter had come to the attention of the authorities and must be conducted with reasonable expedition. As regards the latter requirement, the Court had, for instance, criticised situations where multiple adjournments of an investigation had occurred. The obligation to ensure an effective investigation would not be met where significant delays were combined with a restricted scope of a criminal investigation – for example, one which focused only on offences which were subject to limitation periods under domestic law, when the allegations related to offences that were not time-barred under international law. Nor could any investigation lacking the necessary public scrutiny be regarded as compatible with Article 3 of the Convention. 605.", "Lastly, the interveners, referring to El-Masri (cited above) and the right to the truth, maintained that the right to an effective investigation, under, inter alia, Articles 3 and 5, taken together with Article 13, entailed a right to the truth concerning the violations of Convention rights perpetrated in the context of the “secret detentions and renditions system”. This was so, not only because of the scale and severity of the human rights violations concerned, but also in the light of the widespread impunity for these practices, and the suppression of information about them, which had persisted in multiple national jurisdictions. Where renditions or secret detentions had taken place with the co-operation of Contracting Parties to the Convention, or in violation of those States’ positive obligations of prevention, the positive obligations of those States required that they take all reasonable measures open to them to disclose to victims, their families and society as a whole information about the human rights violations that those victims suffered within the renditions system. 3. The Court’s assessment (a) Admissibility 606.", "The Court takes the view that the applicant’s complaint under the procedural aspect of Article 3 raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Furthermore, the Court has already found that the Government’s objection based on non-compliance with the rule of exhaustion of domestic remedies and with the six-month rule should be joined to the merits of this complaint (see paragraph 422 above). Consequently, it cannot be considered that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible having been established, the complaint must therefore be declared admissible. (b) Merits (i) Applicable general principles deriving from the Court’s case-law 607.", "Where an individual raises an arguable claim that he has suffered treatment infringing Article 3 at the hands of agents of the respondent State or, likewise, as a result of acts performed by foreign officials with that State’s acquiescence or connivance, that provision, read in conjunction with the Contracting States’ general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. Such investigation should be capable of leading to the identification and – where appropriate – punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other examples, Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII; Ilaşcu and Others, cited above, §§ 318, 442, 449 and 454; El‑Masri, cited above, § 182; Al Nashiri v. Poland, cited above, § 485; Husayn (Abu Zubaydah) v. Poland, cited above, § 479; Cestaro v. Italy, no. 6884/11, §§ 205-208, 7 April 2015; Nasr and Ghali, cited above, § 262; see also Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 233, ECHR 2016).", "608. The investigation into serious allegations of ill-treatment must be both prompt and thorough. That means that the authorities must act of their own motion once the matter has come to their attention and must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard.", "The investigation should be independent of the executive. Independence of the investigation implies not only the absence of a hierarchical or institutional connection, but also independence in practical terms. Furthermore, the victim should be able to participate effectively in the investigation in one form or another (see, El-Masri, cited above, §§ 183‑185; Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 167; Al Nashiri v. Poland, cited above, § 486; and Husayn (Abu Zubaydah) v. Poland, cited above, § 480). 609.", "Even if there is a strong public interest in maintaining the secrecy of sources of information or material, in particular in cases involving the fight against terrorism, it is essential that as much information as possible about allegations and evidence should be disclosed to the parties in the proceedings without compromising national security. Where full disclosure is not possible, the difficulties that this causes should be counterbalanced in such a way that a party can effectively defend its interests (see Al Nashiri v. Poland, cited above, § 494-495; and Husayn (Abu Zubaydah) v. Poland, cited above, § 488-489, both judgments with further references to the Court’s case-law). 610. Furthermore, where allegations of serious human rights violations are involved in the investigation, the right to the truth regarding the relevant circumstances of the case does not belong solely to the victim of the crime and his or her family but also to other victims of similar violations and the general public, who have the right to know what has happened. An adequate response by the authorities in investigating allegations of serious human rights violations may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of impunity, collusion in or tolerance of unlawful acts.", "For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory (see El‑Masri, cited above, §§191-192; Al Nashiri v. Poland, cited above, § 495; and Husayn (Abu Zubaydah) v. Poland, cited above, § 489, with further references to the Court’s case‑law). (ii) Application of the above principles to the present case 611. The Court, having regard to the fact that the Prosecutor General’s Office opened the pre-trial investigation within a few days after the Seimas Resolution of 19 January 2010 endorsing the CNSD Findings and recommendations (see paragraphs 174 and 179 above), does not consider that the authorities failed to give a prompt response to the public allegations suggesting Lithuania’s possible complicity in the CIA extraordinary rendition programme. Nor can it be said that during the subsequent six months the authorities failed to display procedural activity. From 10 February to 14 June 2010 the prosecutor took evidence from fifty-five witnesses, including some high political post-holders, the SSD officers, the SBGS, and the airport authorities and employees.", "Over that period numerous requests for information were addressed to various bodies, including the relevant ministries, airports, the aviation authorities, the Customs Service and others. The prosecution also consulted classified material of the parliamentary inquiry and carried out on-site inspections of Project No. 1 and Project No. 2 (see paragraphs 181-190 above). 612.", "However, it does not appear that, after June 2010, any further actions were taken, apart from responding to correspondence from Reprieve, which had addressed the prosecutor in connection with the suspicion that the applicant had been secretly detained in a CIA detention facility in Lithuania. The first letter, of 20 September 2010, in which Reprieve asked the prosecution to investigate the matter, gave a fairly extensive description of the applicant’s detention in other countries, before his alleged rendition to Lithuania. It indicated the putative period of his detention, which was situated between spring 2004 and September 2006 and matched the repeated movements of the CIA-linked aircraft through Lithuania’s airspace, which were the object both of the parliamentary inquiry and current investigation. The prosecution replied that these circumstances had already been covered by the pending investigation. No action was taken.", "In the second letter, of 18 November 2010, Reprieve asked the prosecutor to attempt to interview the applicant under the bilateral agreement on mutual legal assistance in criminal matters between the USA and Lithuania and, in addition, made eight motions for taking evidence from various sources, including the US CIA officials and Lithuanian officials listed by name, eyewitnesses, forensic evidence, companies involved in flights and many others. It also asked for information about the progress of the investigation On 13 January 2011 the prosecutor refused the request since Reprieve “was not party to the proceedings [with] the right to examine the material of the pre-trial investigation”. None of the proposed actions were taken. The next day the prosecutor discontinued the investigation, finding that there had been no evidence demonstrating “illegal transportation of anyone”, by the CIA, including of the applicant, into or out of Lithuania (see paragraphs 191-195 above). 613.", "The Court observes that the Government have stated that the prosecutor’s decision was based on the fact that Reprieve had not provided any new evidence apart from the information already in the public domain and available to the authorities. This, however, does not explain the lack of any attempt to consider evidential motions which do not appear to have been unreasonable or unrelated to the object of the investigation. 614. It is not the Court’s role to advise the domestic authorities about which evidence is to be admitted and which is to be refused, but their decisions in that respect are subject to the Court’s scrutiny for compliance with the requirements of an “effective and thorough investigation”. According to the Courts case-law, as stated above, the authorities must “always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions” (see paragraph 608 above, with references to the Court’s case-law).", "615. In that regard, the Court cannot but note that the prosecutor had in his possession personal details, including passports numbers, of the five US citizens who arrived on the CIA plane N787WH at Palanga airport on 18 February 2005 (see paragraph 371 above). Also, despite the fact that the case involved allegations of a large-scale rendition scheme operated by the CIA and that it was clearly established in the investigation that the CIA‑linked aircraft “did arrive and did depart” from Lithuania at the material time (see paragraph 198 above), the prosecutor apparently made no effort to identify, and to obtain evidence from, US citizens who could have been involved in the “partnership cooperation” with the SSD by means of formal requests for legal assistance to the US authorities. In the light of the material before the Court such formal requests were only made in the proceedings that were re-opened in January 2015 (see paragraphs 209‑210 and 595 above). 616.", "The Court also takes note of concerns regarding the adequacy of the investigation expressed in the 2011 CPT Report. In particular, the CPT stated that, given that the investigation had related to a possible abuse of power, “the question [arose] whether [it] ... [was] sufficiently wide in scope to qualify as comprehensive”. When the CPT delegation raised the issue of the scope of the investigation with the Prosecutor General’s Office, they replied that “facts” were needed to launch a criminal investigation, not “assumptions” (see paragraph 353 above). 617. After the investigation was discontinued on 14 January 2011, in 2011-2013 the Lithuanian prosecutors received repeated requests from non‑governmental organisations and appeals from the European Parliament to resume the proceedings in order to consider newly emerging evidence (see paragraphs 201-205 and 290-295 above).", "No response was given. Until the publication of the 2014 US Senate Committee Report and receipt of the detailed 2015 Reprieve Briefing – to which, according to Mr Black, the prosecutor has not so far responded either – the authorities remained totally passive (see paragraphs 206 and 395 above). Moreover, on the basis of the Government’s summary description of the fresh investigation, ongoing since 22 January 2015, it does not appear that any meaningful progress in investigating Lithuania’s complicity in the CIA HVD Programme and identifying the persons responsible has so far been achieved (see paragraphs 206-211 above). 618. Nor does it seem that any information from the 2010-2011 investigation or the fresh proceedings regarding their conduct has been disclosed to the public.", "The Government have argued that the 2010-2011 investigation was transparent and subject to public scrutiny since part of the material was declassified in the context of the proceedings before the Court (see paragraph 592 above). However, the Court notes that this material had not been publicly accessible until the public hearing in the present case held on 29 June 2016, at which the Government withdrew their request to apply Rule 33 § 2 to all documents submitted by them, except to the extent necessary to ensure the protection of personal data (see paragraphs 11 and 13 above). It further notes that both Reprieve and Amnesty International were either denied any information about the progress and scope of the investigation or refused access – even restricted – to the investigation file, or had their requests to that effect left unanswered (see paragraphs 195 and 201-205 above). Furthermore, as stated in the 2011 CPT Report, the CPT’s delegation “did not receive the specific information it requested” about the investigation. In that context, the CPT also expressed doubts as to whether “all the information that could have been provided to [it] about the conduct of the investigation ha[d] been forthcoming” and whether the investigation was sufficiently thorough, “given the paucity of the information currently available” (see § 72 of the Report cited in paragraph 353 above).", "619. The Court would emphasise that the importance and gravity of the issues involved require particularly intense public scrutiny of the investigation. The Lithuanian public has a legitimate interest in being informed of the criminal proceedings and their results. It therefore falls to the national authorities to ensure that, without compromising national security, a sufficient degree of public scrutiny is maintained in respect to the investigation (see Al Nashiri v. Poland, cited above, § 497 and Husayn (Abu Zubaydah) v. Poland, cited above, § 489). 620.", "The Court would further underline that the securing of proper accountability of those responsible for enabling the CIA to run Detention Site Violet on Lithuanian territory is conducive to maintaining confidence in the adherence of the Lithuanian State’s institutions to the rule of law. The applicant and the public have a right to know the truth regarding the circumstances surrounding the extraordinary rendition operations in Lithuania and his secret detention and to know what happened at the material time. A victim who has made a credible allegation of being subjected to ill-treatment in breach of Article 3 of the Convention has the right to obtain an accurate account of the suffering endured and the role of those responsible for his ordeal (see paragraph 610 above; see also Association “21 December 1989” and Others v. Romania, nos. 33810/07 and 18817/08, § 144, 24 May 2011; Al Nashiri v. Poland, cited above, § 495; and Husayn (Abu Zubaydah) v. Poland, cited above, § 487). 621.", "Having regard to the above deficiencies of the impugned proceedings, the Court considers that Lithuania has failed to comply with the requirements of an “effective and thorough” investigation for the purposes of Article 3 of the Convention. 622. Accordingly, the Court dismisses the Government’s preliminary objections of non-exhaustion of domestic remedies and non-compliance with the six-month rule (see paragraphs 413-417 above) and finds that there has been a violation of Article 3 of the Convention, in its procedural aspect. B. Substantive aspect of Article 3 1.", "The parties’ submissions (a) The Government 623. The Government submitted that, having regard to Lithuania’s lack of jurisdiction as invoked above, they would refrain from making any observations on the merits of the applicant’s complaint under the substantive limb of Article 3 of the Convention. (b) The applicant 624. The applicant submitted that Lithuania had known, or ought to have known about the CIA’s secret detention and extraordinary rendition programme, the secret CIA prison in Lithuania, and the torture and cruel, inhuman and degrading treatment to which the CIA had subjected high‑value detainees as part of this programme. 625.", "He therefore asked the Court to follow Husayn (Abu Zubaydah) v. Poland (cited above), and find a violation of Article 3 of the Convention. In his view, there was no doubt that the standard conditions of detention and transfer to which he had been subjected, the nature of the interrogation techniques having been used against him and the secrecy of his detention itself amounted to torture and cruel, inhuman and degrading treatment. This was confirmed by disclosures in the 2014 US Senate Committee Report, which had clearly shown that the extent of the extreme brutality and cruelty of the CIA HVD Programme had gone beyond what had been known when the Court had adopted the above judgment. 626. In the applicant’s submission, the cumulative effect of the features of his rendition and secret detention showed beyond reasonable doubt that he was a victim of treatment prohibited by Article 3.", "In that regard, he referred to the complete arbitrariness of the rendition programme, the uncertainty as to his fate, which had been entirely in the hands of his captors and abusers, and the deliberate manipulation of fear and disorientation, which had been designed to and had in fact resulted in a long-term psychological impact. Furthermore, the prolonged duration of the secret incommunicado detention compounded its intensity and effect. The applicant had been held: in secret, unacknowledged detention for a prolonged period of several years, from the date of his arrest on 27 March 2002, at least until his transfer to the custody of the US Department of Defence at the US Naval Base at Guantànamo Bay on 5 September 2006. This period included over one year of secret detention in Lithuania. 627.", "Lithuania had been under a positive obligation under Article 3 to protect him from torture and other forms of ill-treatment by the CIA on its territory and to prevent his transfer from its territory to other CIA secret detention facilities, which had exposed to him to further torture, ill‑treatment and abuse in CIA custody. However, the authorities, despite the fact that at the relevant time they knew and ought to have known, that under the HVD Programme CIA prisoners had been subjected to interrogation methods and other practices manifestly incompatible with the Convention, had failed to prevent his transfer to other secret CIA detention sites elsewhere, thus exposing him to a continued and prolonged risk of treatment contrary to Article 3 of the Convention. 2. The Court’s assessment (a) Admissibility 628. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. (b) Merits (i) Applicable general principles deriving from the Court’s case-law 629. Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in time of war or other public emergency threatening the life of the nation (see, among many other examples, Soering, cited above, § 88; Selmouni, cited above, § 95; Labita v. Italy [GC], no.", "26772/95, § 119, ECHR 2000‑IV; Ilaşcu and Others cited above, § 424; Shamayev and Others v. Georgia and Russia, no. 36378/02, § 375, ECHR 2005‑III; El-Masri, cited above, § 195; see also Al-Adsani v. the United Kingdom [GC], no. 35763/97, §§ 26-31, ECHR 2001‑XI). Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see Chahal v. the United Kingdom, 15 November 1996, § 79, Reports 1996-V; see Labita, cited above, § 119; Öcalan v. Turkey [GC], no. 46221/99, § 179, ECHR 2005‑IV ; El-Masri, cited above, § 195; Al Nashiri v. Poland, cited above, § 507; Husayn (Abu Zubaydah) v. Poland, cited above, § 499; and Nasr and Ghali, cited above, § 280).", "630. In order for ill-treatment to fall within the scope of Article 3 it must attain a minimum level of severity. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, cited above, § 162; Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000‑XI; and Jalloh, cited above, § 67). Further factors include the purpose for which the treatment was inflicted together with the intention or motivation behind it (compare, inter alia, Aksoy v. Turkey, 18 December 1996, § 64, Reports 1996-VI; Egmez v. Cyprus, no.", "30873/96, § 78, ECHR 2000-XII; Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004; and El‑Masri, cited above, § 196). Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see Labita, cited above, § 120). In order to determine whether any particular form of ill-treatment should be classified as torture, the Court must have regard to the distinction drawn in Article 3 between this notion and that of inhuman or degrading treatment. This distinction would appear to have been embodied in the Convention to allow the special stigma of “torture” to attach only to deliberate inhuman treatment causing very serious and cruel suffering (see Aksoy, cited above, § 62).", "In addition to the severity of the treatment, there is a purposive element, as recognised in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which came into force on 26 June 1987, which defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or intimidating (Article 1 of the United Nations Convention) (see İlhan v. Turkey [GC], no. 22277/93, § 85, ECHR 2000‑VII; El-Masri, cited above, § 197; Al Nashiri v. Poland, cited above, § 508; and Husayn (Abu Zubaydah) v. Poland, cited above, § 500). 631. Furthermore, a threat of conduct prohibited by Article 3, provided it is sufficiently real and immediate, may fall foul of that provision. Thus, to threaten an individual with torture may constitute at least inhuman treatment (see Gäfgen v. Germany [GC], no.", "22978/05, § 91, ECHR 2010; and Husayn (Abu Zubaydah) v. Poland, cited above, § 501). 632. The obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998‑VI; and Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001‑V). The State’s responsibility may therefore be engaged where the authorities fail to take reasonable steps to avoid a risk of ill-treatment about which they knew or ought to have known (see Mahmut Kaya v. Turkey, no.", "22535/93, § 115, ECHR 2000‑III; El‑Masri, cited above, § 198; Al Nashiri v. Poland, cited above, § 509; Husayn (Abu Zubaydah) v. Poland, cited above, § 502; and Nasr and Ghali, cited above, § 283). (ii) Application of the above principles to the present case 633. The Court has already found that the applicant’s assertions concerning his secret detention in Lithuania from 17 or 18 February 2005 to 25 March 2006 and his transfer from Lithuania to another CIA “black site” on the latter date have been proved before Court and that those facts are established beyond reasonable doubt (see paragraph 548 above). It remains to be determined whether the treatment to which he was subjected during his detention falls within the ambit of Article 3 of the Convention and, if so, whether and to what extent it can be attributed to the respondent State (see paragraph 587 above). (α) Treatment to which the applicant was subjected at the relevant time 634.", "In the light of the material in the case file, as the Court has already pointed out, it does not appear that at Detention Site Violet the applicant was subjected to the EITs in connection with interrogations, although there are indications that he must have been continually interrogated or “debriefed” by the CIA during the entire period of his secret detention (see paragraphs 550-552 above). In that regard, the Court also notes that on 27 March 2007, at the hearing before the Combatant Status Review Tribunal in Guantánamo the applicant, after relating the ordeal to which he had been subjected in CIA custody, stated that “after the second – or second – after one complete year, two year, they start[ed] tell[ing] me the time for the pray[ers] and slowly, slowly circumstances [had become] good”. However, that statement must be read in the context of the treatment inflicted on him previously and in the light of what had happened to him before. The description of his plight given by the applicant at the above hearing and records of his statements in the 2007 ICRC Report give a shocking account of the particularly cruel treatment to which he had been subjected in CIA custody, from the waterboarding, being slammed against the wall and kept naked for days or months on end, through the confinement in a coffin‑shaped box, to sleep deprivation, prolonged stress positions, exposure to cold temperature and food deprivation (see paragraphs 151-153 and 299 above; see also Husayn (Abu Zubaydah) v. Poland, cited above, §§ 102-107 and 508). The Court considers that the applicant’s experience in CIA custody prior to his detention in Lithuania is an important factor to be taken into account in its assessment of the severity of the treatment to which he was subsequently subjected (ibid.).", "635. The Court has established beyond reasonable doubt that during his detention in Lithuania the applicant was kept – as any other CIA detainee – under the regime of “standard conditions of confinement” laid down in the DCI Confinement Guidelines. That regime included, as a matter of fixed, predictable routine, blindfolding or hooding of the detainees, designed to disorient them and keep from learning their location or the layout of the detention facility; removal of hair upon arrival at the site; incommunicado, solitary confinement; continuous noise of high and varying intensity played at all times; continuous light such that each cell was illuminated to about the same brightness as an office; and use of leg shackles in all aspects of detainee management and movement (see paragraphs 54-56 and 552 above). Conditions of confinement were an integral part of the CIA interrogation scheme and served the same purposes as interrogation measures, namely to “dislocate psychologically” the detainee, to “maximise his feeling of vulnerability and helplessness” and “reduce or eliminate his will to resist ... efforts to obtain critical intelligence” (see paragraphs 46-53 above). 636.", "A complementary description of the applicant’s conditions of detention throughout the entire period that he spent in CIA custody can also be found in the 2007 ICRC Report. According to that description, based on the applicant’s own account and on that of thirteen other high-value detainees’ they “had no knowledge of where they were being held, no contact with persons other than their interrogators or guards”; and “even the guards were usually masked and, other than the absolute minimum, did not communicate in any way with detainees”. None of the detainees “had any real – let alone regular – contact with other persons detained, other than occasionally for the purposes of inquiry when they were confronted with another detainee”. They had “no access to news from the outside world, apart from the later stages of their detention when some of them occasionally received printouts of sports news from the Internet and one reported receiving newspapers”. The situation was further exacerbated by other aspects of the detention regime, such as deprivation of access to the open air and exercise, lack of appropriate hygiene facilities and deprivation of basic items in pursuance of interrogations (see paragraph 299 above).", "637. Referring to the general situation in the CIA secret prisons, the 2014 US Senate Committee Report states that “the conditions of confinement for CIA detainees were harsher than [those] the CIA represented to the policymakers and others” and describes them as being “poor” and “especially bleak early in the programme” (see paragraph 84 above). It further states that in respect of the conditions of detention the DCI Confinement Guidelines of 28 January 2003 set forth minimal standards and required only that the facility be sufficient to meet “basic health needs”. That, according to the report, in practice meant that a facility in which detainees were kept shackled in complete darkness and isolation, with a bucket for a human waste and without heating during the winter months met that standard (see paragraphs 54-56 and 77 above). 638.", "As regards the impact of the regime on the CIA detainees, the 2014 US Senate Committee Report states that “multiple CIA detainees who were subjected to the CIA’s enhanced interrogation techniques and extended isolation exhibited psychological and behavioural issues, including hallucinations, paranoia, insomnia and attempts at self-harm and self‑mutilation” and that “multiple psychologists identified the lack of human contact experienced by detainees as a cause of psychiatric problems” (see paragraph 77 above). In the CIA’s declassified documents, adverse effects of extreme isolation to which HVDs were subjected have been recognised as imposing a “psychological toll” and capable of altering “the detainee’s ability to interact with others” (see paragraph 56 above). 639. For the purposes of its ruling the Court does not find it necessary to analyse each and every aspect of the applicant’s treatment in detention, the physical conditions in which he was detained in Lithuania or the conditions in which he was transferred to and out of Lithuania. While the intensity of the measures inflicted on him by the CIA might have varied, the predictability of the CIA’s regime of confinement and treatment routinely applied to the high-value detainees give sufficient grounds for the Court to conclude that the above described standard measures were used in respect of the applicant in Lithuania and likewise elsewhere, following his transfer from Lithuania, as an integral part of the HVD Programme (see also Al Nashiri v. Poland, cited above, §§ 514-515; and Husayn (Abu Zubaydah) v. Poland, cited above, § 510).", "640. Considering all the elements, the Court finds that during his detention in Lithuania the applicant was subjected to an extremely harsh detention regime including a virtually complete sensory isolation from the outside world and suffered from permanent emotional and psychological distress and anxiety also caused by the past experience of torture and cruel treatment in the CIA’s hands and fear of his future fate. Even though at that time he had apparently not been subjected to interrogations with the use of the harshest methods, the applicant – having beforehand experienced the most brutal torture, (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 86‑89, 99-102, 401 and 416-417; see also paragraphs 149-152 and 296 above) – inevitably faced the constant fear that, if he failed to “comply”, the previous cruel treatment would at any given time be inflicted on him again. Thus, Article 3 of the Convention does not refer exclusively to the infliction of physical pain but also to that of mental suffering, which is caused by creating a state of anguish and stress by means other than bodily assault (see El-Masri, cited above, § 202; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 509-510). Consequently, having regard to the regime of detention to which the applicant must have been subjected in Lithuania and its cumulative effects on him, the Court finds that the treatment complained of is to be characterised as having involved intense physical and mental suffering falling within the notion of “inhuman treatment” under Article 3 of the Convention (see paragraphs 630-631 above, with references to the Court’s case-law).", "(β) Court’s conclusion as to Lithuania’s responsibility 641. The Court has already found that the Lithuanian authorities knew of the nature and purposes of the CIA’s activities on its territory at the material time and cooperated in the preparation and execution of the CIA extraordinary rendition, secret detention and interrogation operations on Lithuanian territory. It has also found that, given their knowledge and involvement in the execution of the HVD Programme the Lithuanian authorities knew that, by enabling the CIA to detain terrorist suspects – including the applicant – on Lithuania’s territory, they were exposing them to a serious risk of treatment contrary to the Convention (see paragraph 576 above). 642. It is true that in the assessment of the experts – which the Court has accepted – the Lithuanian authorities did not know the details of what exactly happened inside Detention Site Violet or witnessed the treatment to which the CIA’s detainees were subjected.", "The running of the detention facility was entirely in the hands of and controlled by the CIA. It was the CIA personnel who were responsible for the physical conditions of confinement, interrogations, debriefings, ill-treatment and inflicting of torture on detainees (see paragraphs 571-575 above). However, under Article 1 of the Convention, taken together with Article 3, Lithuania was required to take measures designed to ensure that individuals within its jurisdiction were not subjected to torture or inhuman or degrading treatment or punishment, including ill-treatment administered by private individuals (see paragraph 632 above). Notwithstanding the above Convention obligation, the Lithuanian authorities, for all practical purposes, facilitated the whole process of the operation of the HVD Programme on their territory, created the conditions for it to happen and made no attempt to prevent it from occurring. As held above, on the basis of their own knowledge of the CIA activities deriving from Lithuania’s complicity in the HVD Programme and from publicly accessible information on treatment applied in the context of the “war on terror” to terrorist-suspects in US custody the authorities – even if they did not see or participate in the specific acts of ill-treatment and abuse endured by the applicant and other HVDs – must have been aware of the serious risk of treatment contrary to Article 3 occurring in the CIA detention facility on Lithuanian territory.", "Accordingly, the Lithuanian authorities, on account of their “acquiescence and connivance” in the HVD Programme must be regarded as responsible for the violation of the applicant’s rights under Article 3 of the Convention committed on their territory (see paragraph 592; see also El‑Masri, cited above, §§ 206 and 211; Al Nashiri v. Poland, cited above, § 517; and Husayn (Abu Zubaydah) v. Poland, cited above, § 512). 643. Furthermore, the Lithuanian authorities were aware that the transfer of the applicant to and from their territory was effected by means of “extraordinary rendition”, that is, “an extra-judicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there was a real risk of torture or cruel, inhuman or degrading treatment” (see El-Masri, cited above, § 221; Al Nashiri v. Poland, cited above, § 518; and Husayn (Abu Zubaydah) v. Poland, cited above, § 513). In these circumstances, the possibility of a breach of Article 3 was particularly strong and should have been considered intrinsic in the transfer (see paragraphs 579-580 above). Consequently, by enabling the CIA to transfer the applicant out of Lithuania to another detention facility, the authorities exposed him to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3 of the Convention.", "644. There has accordingly been a violation of Article 3 of the Convention, in its substantive aspect. V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 645. The applicant complained that Lithuania had enabled the CIA to hold him on its territory in secret, unacknowledged detention, which had been imposed and implemented outside any legal procedures and designed to ensure the complete denial of any safeguards contained in Article 5 of the Convention. In addition, by enabling the CIA to transfer him from Lithuanian territory to other secret CIA detention facilities elsewhere, it had exposed him to a real and serious of risk further undisclosed detention.", "He alleged a breach of Article 5 of the Convention, which reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.", "3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.", "5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. The parties’ submissions 1. The Government 646. The Government reiterated their position that Lithuania lacked responsibility under the Convention and refrained from making any observations on the admissibility and merits of this complaint.", "2. The applicant 647. The applicant, relying on El-Masri, Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland (all cited above), submitted that his rendition and secret detention had constituted arbitrary deprivation of liberty, defined by the Court as “anathema to the rule of law and the values protected by the Convention”. Accordingly, it had not been “in accordance with a procedure prescribed by law” and had, therefore, been in manifest violation of Article 5 § 1. 648.", "In the applicant’s submission, Lithuania’s acts and omissions in relation to the CIA HVD Programme as applied to the applicant on Lithuanian territory had also amounted to a breach of its positive obligations under Article 5. Thus, where persons directly responsible for deprivation of liberty of an individual were not the State authorities, but private persons, or another State’s authorities, the State’s responsibility would be engaged where it had failed to meet its positive duty to protect those within its territory and jurisdiction from arbitrary detention. The positive obligation to protect included an obligation to prevent deprivation of liberty of which the authorities had known or ought to have known, including by ensuring access to counsel and to judicial supervision and to regularly inspect places of confinement to ensure that detention was justified and that the safeguards enshrined in Article 5 had been provided. 649. Not only had Lithuania failed to comply with its positive obligations, it had also intentionally collaborated with the CIA to ensure that it could operate its HVD Programme on Lithuanian territory, outside the oversight or interference of any judicial body or institution.", "It had facilitated the operation of the CIA “black site” and the secrecy of that programme. The CIA secret prison could not have operated on Lithuanian territory without the support and assistance of the State authorities. 650. After being transferred out of Lithuania the applicant had continued to be subjected to CIA secret detention elsewhere, ultimately having been transferred to Guantánamo Bay, where he was currently being held. The Lithuanian authorities knew or ought to have known of the real and substantial risk that he would continue to be held under essentially the same regime of detention as that to which he had hitherto been subjected.", "At the time of his transfer, information about the treatment of detainees at Guantánamo Bay had been a matter of common knowledge. In view of the foregoing, the applicant asked the Court to find a violation of Article 5 of the Convention. B. The Court’s assessment 1. Admissibility 651.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) Applicable general principles deriving from the Court’s case-law 652.", "The guarantees contained in Article 5 are of fundamental importance for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. It is for that reason that the Court has repeatedly stressed in its case-law that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness (see Chahal, cited above, § 118 and El-Masri, cited above, § 230). This insistence on the protection of the individual against any abuse of power is illustrated by the fact that Article 5 § 1 circumscribes the circumstances in which individuals may be lawfully deprived of their liberty, it being stressed that these circumstances must be given a narrow interpretation having regard to the fact that they constitute exceptions to a most basic guarantee of individual freedom (see Quinn v. France, 22 March 1995, § 42, Series A no. 311; and El-Masri, cited above, § 230). 653.", "It must also be stressed that the authors of the Convention reinforced the individual’s protection against arbitrary deprivation of his or her liberty by guaranteeing a corpus of substantive rights which are intended to minimise the risks of arbitrariness, by allowing the act of deprivation of liberty to be amenable to independent judicial scrutiny and by securing the accountability of the authorities for that act. The requirements of Article 5 §§ 3 and 4, with their emphasis on promptness and judicial supervision, assume particular importance in this context. Prompt judicial intervention may lead to the detection and prevention of life-threatening measures or serious ill-treatment which violate the fundamental guarantees contained in Articles 2 and 3 of the Convention (see Aksoy, cited above, § 76). What is at stake is both the protection of the physical liberty of individuals and their personal security in a context which, in the absence of safeguards, could result in a subversion of the rule of law and place detainees beyond the reach of the most rudimentary forms of legal protection (see El-Masri, cited above, § 231; Al Nashiri v. Poland, cited above, § 528; Husayn (Abu Zubaydah) v. Poland, cited above, § 522; and Nasr and Ghali, cited above, § 297). 654.", "Although the investigation of terrorist offences undoubtedly presents the authorities with special problems, that does not mean that the authorities have carte blanche under Article 5 to arrest suspects and detain them in police custody, free from effective control by the domestic courts and, in the final instance, by the Convention’s supervisory institutions, whenever they consider that there has been a terrorist offence (see Aksoy, cited above, § 78; and El-Masri, cited above, § 232). The Court emphasises in this connection that the unacknowledged detention of an individual is a complete negation of these guarantees and a most grave violation of Article 5. Having assumed control over an individual, the authorities have a duty to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since (see Kurt v. Turkey, 25 May 1998, §§ 123-124, Reports 1998‑III; and El-Masri, cited above, § 233; see also Al Nashiri v. Poland, cited above, § 529; Husayn (Abu Zubaydah) v. Poland, cited above, § 523; and Nasr and Ghali, cited above, § 298). (b) Application of the above principles to the present case 655.", "In the previous cases concerning similar allegations of a breach of Article 5 arising from secret detention under the CIA HVD Programme in other European countries the Court found that the respondent States’ responsibility was engaged and that they were in violation of that provision on account of their complicity in that programme and cooperation with the CIA (see El-Masri, cited above, § 241; Al Nashiri v. Poland, cited above, §§ 531-532; Husayn (Abu Zubaydah) v. Poland, cited above, §§ 525-526; and Nasr and Ghali, cited above, §§ 302-303). The Court does not see any reason to hold otherwise in the present case. 656. As the Court has held in Al Nashiri v. Poland (cited above, § 530) and Husayn (Abu Zubaydah) v. Poland (cited above, § 524), secret detention of terrorist suspects was a fundamental feature of the CIA rendition programme. The rationale behind the programme was specifically to remove those persons from any legal protection against torture and enforced disappearance and to strip them of any safeguards afforded by both the US Constitution and international law against arbitrary detention, to mention only the right to be brought before a judge and be tried within a reasonable time or the habeas corpus guarantees.", "To this end, the whole scheme had to operate outside the jurisdiction of the US courts and in conditions securing its absolute secrecy, which required setting up, in cooperation with the host countries, overseas detention facilities (see also paragraphs 22-23, 26-58 and 74-87 above). The rendition operations largely depended on the cooperation, assistance and active involvement of the countries which put at the USA’s disposal their airspace, airports for the landing of aircraft transporting CIA prisoners, and facilities in which the prisoners could be securely detained and interrogated, thus ensuring the secrecy and smooth operation of the HVD Programme. While, as noted above, the interrogations of captured terrorist suspects was the CIA’s exclusive responsibility and the local authorities were not to be involved, the cooperation and various forms of assistance by those authorities, such as the customising of the premises for the CIA’s needs or the provision of security and logistics, constituted the necessary condition for the effective operation of the CIA secret detention facilities (see Al Nashiri v. Poland, cited above, § 530; and Husayn (Abu Zubaydah) v. Poland, cited above, § 524). 657. In respect of the applicant’s complaint under the substantive aspect of Article 3 the Court has already found that the Lithuanian authorities were aware that he had been transferred from their territory by means of “extraordinary rendition” and that by enabling the CIA to transfer the applicant to its other secret detention facilities, exposed him to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3 of the Convention (see paragraph 643 above).", "These conclusions are likewise valid in the context of the applicant’s complaint under Article 5. In consequence, Lithuania’s responsibility under the Convention is engaged in respect of both the applicant’s secret detention on its territory and his transfer from Lithuania to another CIA detention site. 658. There has accordingly been a violation of Article 5 of the Convention. VI.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 659. The applicant further complained that Lithuania had violated his rights under Article 8 by enabling the CIA to ill-treat him, to subject him to various forms of physical and mental abuse, to detain him incommunicado on its territory and to deprive him of any contact with his family or the outside world. Article 8 of the Convention reads as follows: “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.” A. The parties’ submissions 1. The Government 660. The Government restated their position that Lithuania lacked responsibility under the Convention and refrained from making any observations on the admissibility and merits of the complaint. 2.", "The applicant 661. The applicant submitted that under Article 8 of the Convention, the right to respect for private life covered the physical, psychological and moral integrity of the person, including, crucially, the mental health of an individual. The secret incommunicado detention had completely isolated him and removed his ability to interact with the outside world. The physical and psychological abuse to which he had been subjected in CIA custody constituted a serious breach of the right to the physical and psychological integrity of the person, which were integral aspects of Article 8. The absolute ban on contact with his family members or with the outside world had amounted to an interference with his private and family life, and with his correspondence.", "Secret detention, he added, being designed to remove the person from all contact with and support from the outside world, was the antithesis of the letter and spirit of Article 8 of the Convention. 662. The interference with his rights under Article 8 rights had had no legal basis and had not been “in accordance with the law”, whether Lithuanian or international. It had specifically pursued aims antithetical to the Convention, as it had been aimed at enhancing his vulnerability and removing him from the protection of the law, in order to achieve the all‑consuming end of unfettered intelligence gathering. It had not pursued any of the legitimate aims listed in paragraph 2 of Article 8, and could not be considered “necessary” or proportionate for the purposes of that provision.", "B. The Court’s assessment 1. Admissibility 663. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. 2. Merits 664. The notion of “private life” is a broad one and is not susceptible to exhaustive definition; it may, depending on the circumstances, cover the moral and physical integrity of the person. These aspects of the concept extend to situations of deprivation of liberty (see El-Masri, cited above, § 248, with further references to the Court’s case-law; Al Nashiri v. Poland, cited above, § 538; and Husayn (Abu Zubaydah) v. Poland, cited above, § 532).", "Article 8 also protects a right to personal development, including the right to establish and develop relationships with other human beings and the outside world. A person should not be treated in a way that causes a loss of dignity, as “the very essence of the Convention is respect for human dignity and human freedom” (see Pretty v. the United Kingdom, no. 2346/02, §§ 61 and 65, ECHR 2002-III). Furthermore, the mutual enjoyment by members of a family of each other’s company constitutes a fundamental element of family. In that context, the Court would also reiterate that an essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities (see El-Masri, cited above, § 248; Al Nashiri v. Poland, cited above, §538; and Husayn (Abu Zubaydah) v. Poland, cited above, § 532).", "665. Having regard to its conclusions concerning the respondent State’s responsibility under Articles 3 and 5 of the Convention (see paragraphs 643 and 657 above), the Court is of the view that Lithuania’s actions and omissions in respect of the applicant’s detention and transfer likewise engaged its responsibility under Article 8 of the Convention. Considering that the alleged interference with the applicant’s right to respect for his private and family life occurred in the context of the imposition of fundamentally unlawful, undisclosed detention, it must be regarded as not “in accordance with the law” and as inherently lacking any conceivable justification under paragraph 2 of that Article (see El-Masri, cited above, § 249; Husayn (Abu Zubaydah) v. Poland, cited above, § 533; and Al Nashiri v. Poland, cited above, § 539). 666. There has accordingly been a violation of Article 8 of the Convention.", "VII. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION 667. The applicant complained that Lithuania had been in breach of Article 13 of the Convention, taken separately and in conjunction with Article 3, on account of having failed to carry out an effective, prompt and thorough investigation into his allegations of serious violations of the Convention. Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties’ submissions 668.", "The parties essentially reiterated their observations concerning the procedural aspect of Article 3 of the Convention (see paragraphs 592-600 above). 669. The Government maintained that that the pre-trial investigation had been thorough and effective and had, therefore, met the requirements of an “effective remedy” for the purposes of Article 13 of the Convention. 670. The applicant disagreed and said that the investigation had been superficial and that he had not been able to participate effectively in the proceedings.", "B. The Court’s assessment 1. Admissibility 671. The Court notes that this complaint is linked to the complaint under the procedural aspect of Article 3, which has been found admissible (see paragraph 606 above). It must likewise be declared admissible.", "2. Merits (a) Applicable general principles deriving from the Court’s case-law 672. Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention.", "Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see, among other authorities, Kaya v. Turkey, 19 February 1998, § 106, Reports 1998‑I; and Mahmut Kaya, cited above, § 124). 673. Where an individual has an arguable claim that he has been ill‑treated by agents of the State, the notion of an “effective remedy” entails, in addition to the payment of compensation where appropriate, a procedure enabling a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure (see Anguelova v. Bulgaria, no. 38361/97, §§ 161-162, ECHR 2002 IV; Assenov and Others, cited above, §§ 114 et seq. ; Aksoy, cited above, §§ 95 and 98; and El-Masri, cited above, § 255).", "674. The requirements of Article 13 are broader than a Contracting State’s obligation under Articles 3 and 5 to conduct an effective investigation into the disappearance of a person who has been shown to be under their control and for whose welfare they are accordingly responsible (see, El-Masri, cited above, § 255, with further references to the Court’s case-law). 675. Given the irreversible nature of the harm that might occur if the risk of ill-treatment materialised and the importance the Court attaches to Article 3, the notion of an effective remedy under Article 13 requires independent and rigorous scrutiny of the claim of, or on behalf of, the individual concerned that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3. This scrutiny must be carried out without regard to what the person may have done to warrant his expulsion or to any perceived threat to the national security of the State from which the person is to be removed (see Chahal, cited above, § 151 and El-Masri, cited above, § 257; see also Al Nashiri v. Poland, cited above, § 549; and Husayn (Abu Zubaydah) v. Poland, cited above, § 543).", "(b) Application of the above principles to the present case 676. The Court has already concluded that the respondent State is responsible for violations of the applicant’s rights under Articles 3, 5 and 8 of the Convention (see paragraphs 643-644, 657-658 and 665-666 above). The complaints under these Articles are therefore “arguable” for the purposes of Article 13 and the applicant should accordingly have been able to avail himself of effective practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation, as required by that provision (see paragraph 673 above; see also El-Masri, cited above, § 259; Al Nashiri v. Poland, cited above, § 550; and Husayn (Abu Zubaydah) v. Poland, cited above, § 544). For the reasons set out in detail above, the Court has found that the criminal investigation in Lithuania fell short of the standards of the “thorough and effective investigation” that should have been carried out in accordance with Article 3 (see paragraph 621 above). In these circumstances, none of the remedies relied on by the Government (see paragraphs 413-416 above), whether civil or criminal, would have been “effective” in practice.", "For the reasons that prompted the Court to dismiss the Government’s preliminary objection of non-exhaustion of domestic remedies (see paragraph 622 above), the Court must also find that the requirements of Article 13 of the Convention were not satisfied in the present case and that the applicant did not have available to him in Lithuania an “effective remedy” to ventilate his claims of a violation of Articles 3, 5 and 8 of the Convention. 677. Consequently, there has been a violation of Article 13, taken in conjunction with Article 3 of the Convention. VIII. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION A.", "Article 46 of the Convention 678. In addition to asking the Court to award him just satisfaction for non-pecuniary damage and legal costs under Article 41 of the Convention (see paragraph 686 below), the applicant sought the Court’s ruling indicating that the Lithuanian Government take certain specific individual measures in execution of the judgment. That request was formulated as follows: (a) Lithuania should carry out an effective, thorough and independent investigation to provide a full account of the applicant’s rendition into and out of Lithuania and his treatment while there. The investigation should include guarantees of independence and transparency, and victim participation, in line with the State’s obligations. It should pursue vigorously the investigation of past crimes, including by taking all possible measures to secure information and cooperation from the United States and conducting a rigorous forensic investigation.", "The investigation should lead to a full public account of Lithuanian involvement in the rendition programme. (b) Those persons who were believed, upon proper investigation, to be responsible for crimes committed against the applicant on Lithuanian territory should be subject to prosecution and appropriate punishment in accordance with the gravity of the crimes; that the State should clarify that there could be no legal impediments to accountability for the crimes in question under Lithuanian law. (c) The Lithuanian State should formally recognise the violations of the applicant’s rights and acknowledge its wrongdoing and responsibility for those violations, and its contribution to his current circumstances; the State should provide suitable guarantees of non-repetition to ensure that violations committed against the applicant would not be repeated in the future and that its cooperation would be consistent with its human rights obligations under the Convention. (d) Lithuania should secure, through diplomatic or other means, the cooperation and assistance of the United States Government in order to establish the full and precise details of the applicant’s treatment at the hands of the CIA, and it should make such representations and interventions, individually or collectively, as were necessary to bring an end to the on-going violations of his rights. 679.", "The Court considers it appropriate to deal with the applicant’s request under Article 46 of the Convention which, in so far as relevant, states: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. ...” 680.", "The present case concerns the removal of an applicant from the territory of the respondent State by means of extraordinary rendition. The general principles deriving from the Court’s case-law under Article 46 as to when, in such a situation, the Court may be led to indicate to the State concerned the adoption of individual measures, including the taking of “all possible steps” to obtain the appropriate diplomatic assurances from the destination State, have been summarised in Al Nashiri v. Poland (cited above, §§ 586-588, with further references to the Court’s case-law, in particular to Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 209, ECHR 2012; Assanidze v. Georgia [GC], no. 71503/01, §§ 198 and 202, ECHR 2004-II; Savriddin Dzhurayev v. Russia, no. 71386/10, §§ 138, 252-254 and 256, ECHR 2013 (extracts); and Al-Saadoon and Mufdhi, cited above, § 170).", "681. As regards possible representations to the US authorities by the respondent State, as requested by the applicant (see paragraph 678 (d) in fine above), the Court would recall its finding that, by enabling the transfer of the applicant to another CIA detention site, the Lithuanian authorities exposed him to a foreseeable risk of continued secret, incommunicado and otherwise arbitrary detention, liable, in his case, to continue for the rest of his life, in breach of Article 5 of the Convention (see paragraphs 655-657 above; see also paragraphs 80 and 161-164 above) as well as to further ill‑treatment and conditions of detention, in breach of Article 3 (see paragraphs 641-643 above). The Court is mindful of the fact that the Lithuanian authorities already sought assistance and judicial cooperation from the US authorities in the context of the domestic criminal investigation (see paragraph 210 above). However, in the opinion of the Court, the treaty obligation of Lithuania under Article 46 of the Convention to take the necessary individual measures to redress as far as possible the violation found by the Court, require that the Lithuanian authorities attempt to make further representations to the US authorities with a view to removing or, at the very least seeking to limit, as far as possible, the effects of the Convention violations suffered by the applicant. 682.", "In the context of individual measures to be adopted by the respondent State, the applicant also contended that the Lithuanian authorities were obliged to carry out an effective, thorough and independent investigation to provide a full account of his rendition to and from Lithuania and of his treatment in Lithuania and to ensure the punishment of those responsible (see paragraph 678 (a) and (b) above). In this connection, it can be inferred from the Court’s case-law that the obligation of a Contracting State to conduct an effective investigation under Article 3, as under Article 2, of the Convention persists as long as such an investigation remains feasible but has not been carried out or has not met the Convention standards (see, for instance, Association “21 December 1989” and Others, cited above, § 202; Benzer and Others v. Turkey, no. 23502/06, §§ 218-219, 12 November 2013; see also, mutatis mutandis, Jeronovičs v. Latvia GC, no. 44898/10, §§ 107 and 118, 5 July 2016). An ongoing failure to provide the requisite investigation will be regarded as a continuing violation of that provision (see, mutatis mutandis, Cyprus v. Turkey, cited above, § 136; and Aslakhanova and Others v. Russia, cited above, §§ 214 and 230).", "683. The Court considers that, having regard in particular to the nature of the procedural violation of Article 3 found in the present case, the obligation incumbent on Lithuania under Article 46 inevitably requires that all necessary steps to reactivate the still pending criminal investigation be taken without delay. Thereafter, in accordance with the applicable Convention principles (see paragraphs 607-610 above, with references to the Court’s case-law), the criminal investigation should be brought to a close as soon as possible, once, in so far as this proves feasible, the circumstances and conditions under which the applicant was brought into Lithuania, treated in Lithuania and thereafter removed from Lithuania have been elucidated further, so as to enable the identification and, where appropriate, punishment of those responsible. The Court notes that on the basis of the elements in the case file, there appear to be no insurmountable practical obstacles to the hitherto lacking effective investigation being carried out in this manner (see, mutatis mutandis, Abuyeva and Others v. Russia, no. 27065/05, §§ 240-241, 2 December 2010).", "It is not, however, for the Court to address to the respondent State detailed, prescriptive injunctions of the kind requested by the applicant. It falls to the Committee of Ministers, acting under Article 46 of the Convention, to address the issue of what – in practical terms – may be required of the respondent Government by way of compliance (see, mutatis mutandis, ibid., § 243, and Al Nashiri v. Poland, cited above, § 586, with further references to the Court’s case-law). 684. For the remainder, the Court is satisfied that the issues raised by the applicant in his requests for specific measures are adequately addressed by its findings of violations of the Convention. B.", "Article 41 of the Convention 685. 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.” 1. Damage 686. The applicant asked the Court to award him 150,000 euros (EUR) for non‑pecuniary damage. He submitted that the Convention violations which he had sustained had caused significant harm to his mental and physical health.", "In his view, the factors relevant for an assessment of non‑pecuniary harm in the present case included the “extreme seriousness of the violations of the Convention”, their duration, context and lasting impact. 687. The Government replied that the sum claimed by the applicant in respect of the alleged non-pecuniary damage was excessive. 688. Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate.", "In the present case the Court has found serious violations of several Convention provisions by the respondent State. It has held that the responsibility of the respondent State is engaged in respect of the applicant’s inhuman treatment and secret detention on its territory. The respondent State has also failed to carry out an effective investigation as required under Articles 3 and 13 of the Convention. In addition, the Court has found a violation of the applicant’s rights under Article 8 (see paragraphs 622, 644, 658, 666, and 677 above). In view of the foregoing, the Court considers that the applicant has undeniably suffered non-pecuniary damage which cannot be made good by the mere finding of a violation.", "689. Consequently, regard being had to the extreme seriousness of the violations of the Convention of which the applicant has been a victim, and ruling on an equitable basis, as required by Article 41 of the Convention (see El-Masri, cited above, § 270; Al Nashiri v. Poland, cited above, § 595; and Huseyn (Abu Zubaydah) v. Poland, cited above, § 567), the Court awards him EUR 100,000, plus any tax that may be chargeable on that amount. 2. Costs and expenses 690. The applicant also claimed EUR 30,000 for the costs and expenses incurred before the Court.", "691. The Government were of the view that the sum claimed with respect to the costs of the proceedings was exorbitant and had not been in any way substantiated by the applicant’s lawyer. 692. 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 30,000 for the proceedings before the Court.", "3. Default interest 693. 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. Holds that the matters complained of are within the “jurisdiction” of Lithuania within the meaning of Article 1 of the Convention and that the responsibility of Lithuania is engaged under the Convention; 2.", "Dismisses the Government’s preliminary objections as to the lack of Lithuania’s jurisdiction under Article 1 and as to the lack of the applicant’s victim status under Article 34 of the Convention; 3. Decides to join to the merits the Government’s preliminary objections of non-exhaustion of domestic remedies and non-compliance with the six-month rule and dismisses them; 4. Declares the complaints under Articles 3, 5, 8 and 13 of the Convention admissible; 5. Holds that there has been a violation of Article 3 of the Convention in its procedural aspect on account of the respondent State’s failure to carry out an effective investigation into the applicant’s allegations of serious violations of the Convention, including inhuman treatment and undisclosed detention; 6. Holds that there has been a violation of Article 3 of the Convention in its substantive aspect, on account of the respondent State’s complicity in the CIA’s High-Value Detainee Programme, in that it enabled the US authorities to subject the applicant to inhuman treatment on Lithuanian territory and to transfer him from its territory, in spite of a real risk that he would be subjected to treatment contrary to Article 3; 7.", "Holds that there has been a violation of Article 5 of the Convention on account of the applicant’s undisclosed detention on the respondent State’s territory and the fact that the respondent State enabled the US authorities to transfer the applicant from its territory, in spite of a real risk that he would be subjected to further undisclosed detention; 8. Holds that there has been a violation of Article 8 of the Convention; 9. Holds that there has been a violation of Article 13 of the Convention on account of the lack of effective remedies in respect of the applicant’s complaints under Article 3 of the Convention; 10. 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: (i) EUR 100,000 (one hundred thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 30,000 (thirty thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (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; 11. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 31 May 2018. Abel CamposLinos-Alexandre SicilianosRegistrarPresident ANNEX I List of abbreviations used in the Court’s judgment 2002 SSD Action Plan – Operational Action Plan dated 25 July 2002 2002 SSD Resolution – Resolution to initiate the file of operation dated 25 July 2002 2003 PACE Resolution - Parliamentary Assembly of the Council of Europe’s Resolution no. 1340 (2003) on rights of persons held in the custody of the United States in Afghanistan or Guantánamo Bay of 26 June 2003 2004 CIA Background Paper – background paper on the CIA’s combined interrogation techniques of 30 December 2004 2004 CIA Report – CIA Inspector General’s report of 7 May 2004 “Special Review Counterterrorism Detention and Interrogation Activities September 2001-October 2003” 2005 HRW List – Human Rights Watch’s “List of ‘Ghost Prisoners’ Possibly in CIA Custody” of 30 November 2005 2005 HRW Statement – Human Rights Watch’s Statement on US Secret Detention Facilities of 6 November 2005 2006 Marty Report – Report of the Parliamentary Assembly of the Council of Europe, Committee on Legal Affairs and Human Rights, Rapporteur Mr Dick Marty, of 12 June 2006, “Alleged secret detentions and unlawful inter‑state transfers of detainees involving Council of Europe member states” (Doc. 10957) 2007 EP Resolution – European Parliament resolution of 14 February 2007 on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/22009INI) 2007 Marty Report – Report of the Parliamentary Assembly of the Council of Europe, Committee on Legal Affairs and Human Rights, Rapporteur Mr Dick Marty, of 11 June 2007, “Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report” - (Doc. 11302.rev) 2009 DOJ Report – Report of the US Department of Justice, Office of Professional Responsibility of 29 July 2009 -“Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Agency’s Use of ‘Enhanced Interrogation Techniques’ on Suspected Terrorists” 2010 UN Joint Study – UN Human Rights Council “Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism of the Special Rapporteur on the Promotion and protection of Human Rights and Fundamental Freedoms while Countering Terrorism”, released on 19 February 2010 2011 CPT Report – Report to the Lithuanian Government on the visit to Lithuania carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) from 14 to 18 June 2010 2011 Marty Report – Report of the Parliamentary Assembly of the Council of Europe, Committee on Legal Affairs and Human Rights, Rapporteur Mr Dick Marty, of 16 September 2011, “Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations” (Doc.", "12714) 2012 EP Resolution – European Parliament resolution of 11 September 2012 on alleged transportation and illegal detention of prisoners in European countries by the CIA: follow-up of the European Parliament TDIP Committee report (2012/2033(INI)) 2013 EP Resolution – European Parliament resolution of 10 October 2013 on alleged transportation and illegal detention of prisoners in European countries by the CIA (2013/2702(RSP) 2014 US Senate Committee Report – US Senate Select Committee on Intelligence’s Executive Summary of the “Study of the Central Intelligence Agency’s Detention and Interrogation Program”, released on 9 December 2014 2015 EP Resolution – European Parliament resolution of 11 February 2015 on the US Senate Report on the use of torture by the CIA (2014/2997(RSP)) 2015 LIBE Briefing – Briefing for the European Parliament’s LIBE Committee Delegation to Romania: CIA Detention in Romania and the Senate Intelligence Committee Report, dated 15 September 2015 2015 Reprieve Briefing – Briefing and Dossier for the Lithuanian Prosecutor General: CIA Detention in Lithuania and the Senate Intelligence Committee Report dated 11 January 2015 and prepared by Reprieve 2016 EP Resolution – European Parliament resolution of 8 June 2016 on follow-up to the European Parliament resolution of 11 February 2015 on the US Senate report on the use of torture by the CIA (2016/2573(RSP)) ACLU – American Civil Liberties Union AI – Amnesty International, CAA – Lithuanian Civil Aviation Administration (Civilinės Aviacijos Administracija) CIA – Central Intelligence Agency of the United States CNSD – Lithuanian Seimas Committee on National Security and Defence CNSD Findings – the Annex to the Seimas’ Resolution No. XI-659 of 19 January 2010 – “Findings of the parliamentary investigation by the Seimas Committee on National Security and Defence concerning the alleged transportation and confinement of persons detained by the Central Intelligence Agency of the United States of America on the territory of the Republic of Lithuania” CPT – European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment CSC – Computer Sciences Corporation CTC – Chief of the Counterterrorism Center DCI Confinement Guidelines – CIA Guidelines on Confinement Conditions for CIA Detainees signed on 28 January 2003 DCI Interrogation Guidelines – CIA Guidelines on Interrogations Conducted Pursuant to the Presidential Memorandum of Notification of 17 September 2001 signed on 28 January 2003 DDO – CIA Deputy Director for Operations EITs – Enhanced Interrogation Techniques EP – European Parliament EU – European Union Fava Inquiry – inquiry following the European Parliament’s decision setting up a Temporary Committee on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners of 18 January 2006, Rapporteur Giovanni Claudio Fava FBI – Federal Bureau of Investigation Flautre Report – Report of the European Parliament Committee on Civil Liberties Justice and Home Affairs on alleged transportation and illegal detention of prisoners in European countries by the CIA: follow-up of the European Parliament TDIP Committee (2012/2033(INI)), Rapporteur Hélène Flautre, adopted by the European Parliament on 11 September 2012 HFHR – Helsinki Foundation for Human Rights HVD – high-value detainee HVD Programme – High-Value Detainee Program HVTs – high-value targets ICCPR – International Covenant on Civil and Political Rights ICJ – International Commission of Jurists ICRC – International Committee of the Red Cross III Geneva Convention – Geneva (III) Convention relative to the Treatment of Prisoners of War of 12 August 1949 IV Geneva Convention – Geneva (IV) Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 ILC Articles – International Law Commission 2001 Articles on Responsibility of States for Internationally Wrongful Acts IRCT – International Rehabilitation Council for Torture JITPS – Jeppesen International Trip Planning Service LIBE – European Parliament’s Committee on Civil Liberties, Justice and Home Affairs Marty Inquiry - inquiry into the allegations of CIA secret detention facilities in the Council of Europe’s member States launched by the Parliamentary Assembly of the Council of Europe on 1 November 2005 and conducted by Senator Dick Marty MON - covert action Memorandum of Notification signed by President George W. Bush on 17 September 2001 NATO – North Atlantic Treaty Organisation ODNI – Office of the Director of National Intelligence OGC – CIA Office of General Counsel OIG – Office of Inspector General OLC – Office of Legal Counsel OTS – Office of Technical Service PACE – Parliamentary Assembly of the Council of Europe RDI Programme – Rendition Detention Interrogation Program SBGS – Ministry of the Interior’s State Border Guard Service SSD – State Security Department TDIP – European Parliament’s Temporary Committee on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners UN – United Nations UN Special Rapporteur - UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism UNCAT – UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 Venice Commission – European Commission for Democracy through Law ANNEX II List of references to the Court’s case-law A. v. the United Kingdom, 23 September 1998, Reports of Judgments and Decisions 1998-VI Abuyeva and Others v. Russia, no. 27065/05, 2 December 2010 Aksoy v. Turkey, 18 December 1996, Reports of Judgments and Decisions 1996-VI Al Nashiri v. Poland, no. 28761/11, 24 July 2014 Al Nashiri v. Romania, no. 33234/12, 31 May 2018 Al-Adsani v. the United Kingdom [GC], no.", "35763/97, ECHR 2001-XI Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, ECHR 2010 Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, ECHR 2011 Anguelova v. Bulgaria, no. 38361/97, ECHR 2002 IV Armani Da Silva v. the United Kingdom [GC], no. 5878/08, ECHR 2016 Aslakhanova and Others v. Russia, nos.", "2944/06 and 4 others, 18 December 2012 Assanidze v. Georgia [GC], no. 71503/01, ECHR 2004-II Assenov and Others v. Bulgaria, 28 October 1998, Reports of Judgments and Decisions 1998-VIII Association “21 December 1989” and Others v. Romania, nos. 33810/07 and 18817/08, 24 May 2011 Babar Ahmad and Others v. the United Kingdom, nos. 24027/07 and 4 others, 10 April 2012 Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, ECHR 2001-XII Benzer and Others v. Turkey, no.", "23502/06, 12 November 2013 Çakıcı v. Turkey [GC], no. 23657/94, ECHR 1999-IV Cestaro v. Italy, no. 6884/11, 7 April 2015 Chahal v. the United Kingdom, 15 November 1996, Reports of Judgments and Decisions 1996-V Creangă v. Romania [GC], no. 29226/03, 23 February 2012 Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001-IV Egmez v. Cyprus, no.", "30873/96, ECHR 2000-XII El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, ECHR 2012 Gäfgen v. Germany [GC], no. 22978/05, ECHR 2010 Gentilhomme, Schaff-Benhadji and Zerouki v. France, nos. 48205/99 and 2 others, 14 May 2002 Georgia v. Russia (I) [GC], no. 13255/07, ECHR 2014 (extracts) Hirsi Jamaa and Others v. Italy [GC], no.", "27765/09, ECHR 2012 Husayn (Abu Zubaydah) v. Poland, no. 7511/13, 24 July 2014 Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004-VII İlhan v. Turkey [GC], no. 22277/93, ECHR 2000-VII Imakayeva v. Russia, no. 7615/02, ECHR 2006-XIII (extracts) Ireland v. the United Kingdom, 18 January 1978, Series A no.", "25 Jalloh v. Germany [GC], no. 54810/00, ECHR 2006-IX Jeronovičs v. Latvia [GC], no. 44898/10, 5 July 2016 Kadirova and Others v. Russia, no. 5432/07, 27 March 2012 Kaya v. Turkey, 19 February 1998, Reports of Judgments and Decisions 1998-I Krastanov v. Bulgaria, no. 50222/99, 30 September 2004 Kudła v. Poland [GC], no.", "30210/96, ECHR 2000-XI Kurt v. Turkey, 25 May 1998, Reports of Judgments and Decisions 1998-III Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV Loizidou v. Turkey (preliminary objections), 23 March 1995, Series A no. 310 Mahmut Kaya v. Turkey, no. 22535/93, ECHR 2000-III Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, ECHR 2005-I Nachova and Others v. Bulgaria [GC], nos.", "43577/98 and 43579/98, ECHR 2005-VII Nasr and Ghali v. Italy, no. 44883/09, 23 February 2016 Öcalan v. Turkey [GC], no. 46221/99, ECHR 2005-IV Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, ECHR 2012 (extracts) Pretty v. the United Kingdom, no. 2346/02, ECHR 2002-III Quinn v. France, 22 March 1995, Series A no.", "311 Saadi v. Italy [GC], no. 37201/06, ECHR 2008 Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII Sargsyan v. Azerbaijan [GC], no. 40167/06, ECHR 2015 Savriddin Dzhurayev v. Russia, no. 71386/10, ECHR 2013 (extracts) Selmouni v. France [GC], no.", "25803/94, ECHR 1999-V Shamayev and Others v. Georgia and Russia, no. 36378/02, ECHR 2005‑III Soering v. the United Kingdom, 7 July 1989, Series A no. 161 Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, ECHR 2009 Z. and Others v. the United Kingdom [GC], no. 29392/95, ECHR 2001-V [1].", "As of 29 June 2010, this provision is in Article 95 § 8 of the Criminal Code. [2]. The wording of this Article was slightly different before 2010; it was again amended as of 2015. [3]. The last sentence was added by the amendment effective as of 31 December 2011.", "[4]. Translation from French into English submitted by the applicant has been edited by the Registry and certain editorial corrections made. [5]. Note by the Court’s Registry: The material has been edited by the Registry and certain editorial corrections made. The review does not affect the content of the documents.", "[6]. The translation has been edited by the Registry and certain editorial corrections made. The review does not affect the content of the documents produced. [7]. The translation has been edited by the Registry and certain editorial corrections made.", "The review does not affect the content to the document. [8]. The translation has been edited by the Registry and certain editorial corrections made. The review does not affect the content of the document. [9].", "The translation has been edited by the Registry and certain editorial corrections made. The review does not affect the content of the document." ]
[ "FIRST SECTION CASE OF RICHTER v. AUSTRIA (Application no. 4490/06) JUDGMENT STRASBOURG 18 December 2008 FINAL 18/03/2009 This judgment may be subject to editorial revision. In the case of Richter v. Austria, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 27 November 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 4490/06) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Richard Richter (“the applicant”), on 18 January 2006.", "2. The applicant was represented by Mr W.L. Weh, a lawyer practising in Bregenz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the Law Department at the Federal Ministry for European and International Affairs. 3.", "On 4 April 2007 the President of the First Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1966 and lives in Wolfurt.", "5. By decision of 17 November 1998 the Hard municipality granted a request by H., a building company, for permission to construct an apartment block, situated next to the applicant’s property. H. carried out the construction work and, since the building deviated from one of the authorised height levels by 21 centimetres, it requested an amendment of the building permit on 19 November 1999. 6. On 7 February 2000 the mayor of Hard granted the amended building permit.", "He dismissed the applicant’s objection that the ramp of the building’s underground car park failed to comply with the statutory distance from his property. 7. The applicant lodged an appeal with the Hard Municipal Council (Gemeinderat) on 23 February 2000. He alleged, in particular, that the covered ramp of the underground car park did not constitute a construction (Bauwerk) within the meaning of section 2(e) of the Vorarlberg Building Act, for which a distance of two metres from the adjacent property was required, but was a part of the building within the meaning of section 2(g) of the said Act, for which a minimum distance of three metres had to be observed. In addition he claimed that, at any rate, the ramp was too high.", "8. On 12 December 2000 the Hard Municipal Council dismissed the applicant’s appeal. It found that the applicant had failed to raise his argument in the initial proceedings concerning the building permit and was therefore precluded from raising it now in the proceedings concerning a mere request for amendment of the building permit. In any event, the covered ramp to the underground car park could neither be classified as a building or part of a building, but qualified as a construction within the meaning of section 2(e) of the Vorarlberg Building Act. The minimum distance from the applicant’s plot of land was therefore two metres and had in fact been respected.", "9. Subsequently, on 28 December 2000 the applicant filed an objection (Vorstellung) with the Bregenz District Administrative Authority, contesting the Municipal Council’s competence, because the respective appeals commission had not been duly composed following municipal elections. In addition, he repeated that the amendment of the permit did not only involve minor changes, but constituted an overall change of the project. 10. On 31 May 2001 the District Administrative Authority dismissed the applicant’s objection.", "11. The applicant lodged a complaint with the Administrative Court on 20 July 2001, repeating his arguments. Moreover, he requested an oral hearing. 12. On 28 September 2001 the District Administrative Authority submitted its observations.", "13. On 20 March 2003 the Administrative Court, without a hearing, quashed the District Administrative Authority’s decision and remitted the case back to it. Referring to a previous decision in a similar case, it found that contrary to section 53 of the Vorarlberg Municipal Act the Municipal Council’s decision had been signed by the mayor and not by the president of the appeals commission. 14. On 14 May 2003 the District Administrative Authority granted the applicant’s objection of 28 December 2000 and remitted the case to the Hard Municipal Council.", "15. Upholding its decision of 12 December 2000, the Municipal Council again dismissed the applicant’s appeal on 19 August 2003. 16. On 2 September 2003 the applicant lodged a further objection (Vorstellung) with the Bregenz District Administrative Authority, which the latter dismissed by a decision of 21 January 2004. It found that the ramp of the underground car park was only partly covered and was thus to be qualified as a construction within the meaning of section 2(e) of the Vorarlberg Building Act.", "The fact that the building was 21 centimetres higher than initially authorised did not change that assessment. 17. Subsequently, on 6 February 2004, the applicant lodged a further complaint with the Administrative Court. He requested an oral hearing and, relying on Article 6 of the Convention, complained that he had never been heard in person during the proceedings. He contested the authority’s finding that the ramp of the underground car park was only partly covered.", "The authority had wrongly applied the statutory minimum distance between his plot of land and that ramp. Complying with an order of the Administrative Court, the applicant supplemented his complaint on 13 April 2004. The District Administrative Authority submitted its observations on 6 July 2004. 18. On 21 June 2005 the Administrative Court, without a hearing, dismissed the applicant’s complaint as being unfounded.", "It upheld the District Administrative Authority’s decision as to the minimum distance from the applicant’s property. Referring to the case of Allan Jacobsson v. Sweden (no. 2) (19 February 1998, Reports of Judgments and Decisions 1998‑I) it held that no legal or factual questions had been at stake, which required the holding of an oral hearing. 19. The decision was served on the applicant’s counsel on 25 July 2005.", "THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION 20. The applicant complained about the length of the proceedings and about the lack of a hearing before the Administrative Court. He relied on Article 6 § 1 of the Convention, the relevant part of 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 ...” A. Admissibility 21. The Government asserted that Article 6 was not applicable in the present case.", "They underlined that the applicant had not appealed against the decision granting the initial building permit to the H. company. In the proceedings which concerned the amendment of that building permit, the applicant’s objection as to the distance of the ramp from his property was dismissed as being precluded. The only point in dispute was the increased height of the building. In the Government’s view a minor increase in the height of the building could not affect the applicant’s civil rights or pecuniary interests and the case therefore had to be distinguished from the Ortenberg v. Austria judgment (25 November 1994, Series A no. 295‑B).", "22. For his part the applicant maintained that Article 6 applied. He argued in particular that the change in the height of building negatively affected his property. 23. The Court observes that in the Ortenberg judgment (cited above, § 28) it found that the civil limb of Article 6 § 1 applied to proceedings in which the applicant opposed the granting of planning permission to her neighbour.", "In coming to that conclusion the Court had regard to the close link between the proceedings and the consequences of their outcome for the applicant’s property. The present proceedings concerned an amendment of the building permit granted to the applicant’s neighbour allowing an increase of the height of the building. Moreover, the authorities dealt with the merits of the applicant’s objection concerning the distance between the ramp of the underground car park and his property. The Court sees no reason to doubt that an increase in the height of a neighbouring building or its distance has consequences for the applicant’s property. The civil limb of Article 6 §1 therefore applies.", "24. 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 length of the proceedings 25. The applicant maintained that the duration of the proceedings was unreasonable. 26. The Government referred to the facts of the case, arguing that they did not disclose a violation of Article 6 of the Convention.", "27. The period to be taken into consideration began on 7 February 2000 when the mayor of Hard granted the amended building permit to the applicant’s neighbour, dismissing at the same time the applicant’s objection against it, and ended on 25 July 2005, when the Administrative Court’s decision was served on the applicant’s counsel. It thus lasted five years and five and a half months for four levels of jurisdiction. 28. 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). 29. The present case was not complex and the applicant did not contribute to their duration. As regards the conduct of the domestic authorities, the Court notes that while the administrative authorities dealt expeditiously with the case, considerable delays occurred in the proceedings before the Administrative Court. There were periods of inactivity in both sets of proceedings, namely from September 2001 to March 2003 and from July 2004 to June 2005, thus amounting to a total delay of two years and five months.", "30. 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, for instance, Gierlinger v. Austria, no. 38032/05, §§ 18-20, 29 November 2007; Bösch v. Austria, no.17912/05, §§ 20-22, 3 May 2007; Brunnthaler v. Austria, no. 45289/99, §§ 38-41, 29 June 2006; and Alge v. Austria, no. 38185/97, §§ 23-25, 22 January 2000).", "31. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. 2.", "The lack of a hearing before the Administrative Court 32. The applicant argued that the legal and factual questions raised by the case were not straightforward and would have benefitted from oral argument. 33. The Government asserted that the Administrative Court had to deal exclusively with questions of law which could be determined on the basis of the case file without a hearing. Furthermore, the applicant had failed to give any reasons for his request for an oral hearing.", "34. The Court notes that the applicant’s case was heard by the mayor of Hard, the Hard Municipal Council and the Bregenz District Administrative Authority, that is, purely administrative authorities, and then by the Administrative Court, which was the first and only tribunal to examine the case. 35. As the Austrian reservation in respect of Article 6 § 1 concerning the requirement that hearings be public has been found to be invalid (see Eisenstecken v. Austria, no. 29477/95, § 29, ECHR 2000-X), the applicant was in principle entitled to a public hearing before the first and only tribunal examining his case, unless there were exceptional circumstances which justified dispensing with such a hearing (see, for instance, Fredin v. Sweden (no.2), 23 February 1994, §§ 21-22, Series A no.", "283-A; Fischer v. Austria, 26 April 1995, § 44, Series A no. 312; Stallinger and Kuso v. Austria, 23 April 1997, § 51, Reports 1997-II; and Allan Jacobsson, cited above, § 46. 36. The Court has accepted such exceptional circumstances in cases where the proceedings concerned exclusively legal or highly technical questions (see Schuler-Zgraggen v. Switzerland, 24 June 1993, § 58, Series A no. 263; Varela Assalino v. Portugal (dec.), no.", "64336/01, 25 April 2002; and Speil v. Austria (dec.) no. 42057/98, 5 September 2002). In particular, the Court has had regard to the rather technical nature of disputes over benefits under social-security schemes and has repeatedly held that in this sphere the national authorities, having regard to the demands of efficiency and economy, could abstain from holding a hearing if the case could be adequately resolved on the basis of the case file and the parties’ written observations (see, among other authorities, Döry v. Sweden, no. 28394/95, 12 November 2002, and Pitkänen v. Sweden (dec.), no. 52793/99, 26 August 2003).", "37. Turning to the circumstances of the present case, the Court notes that the dispute, as presented by the applicant to the Administrative Court, involved legal issues but also questions of fact. In particular the applicant contested the District Administrative Authority’s finding that the ramp of the underground car park was only partly covered. 38. The Court cannot find that the subject matter of the dispute was of such a nature, namely highly technical or exclusively legal, as to dispense the Administrative Court from the obligation to hold a hearing.", "It notes that it has found violations of Article 6 § 1 of the Convention in a number of similar cases (see, for instance, Emmer-Reissig v. Austria, no. 11032/04, §§ 29-31, 10 May 2007; Hofbauer v. Austria, no. 7401/04, §§ 28-30, 10 May 2007; Bösch, cited above, §§ 29-31; Brugger v. Austria, no. 76293/01, §§ 23-25, 26 January 2006; Schelling v. Austria, no. 55193/00, §§ 31-33, 10 November 2005; Birnleitner v. Austria, no.", "45203/99, §§ 40-41, 24 February 2005; and Alge, cited above, §§ 30‑31). It does not see any reason to come to a different conclusion in the present case. 39. There has accordingly been a violation of Article 6 § 1 of the Convention. II.", "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.” A. Damage 41. The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage suffered as a result of the unreasonable duration of the proceedings. 42.", "The Government contested the claim. 43. The Court, having regard to the sums awarded in comparable cases and making an assessment on an equitable basis, awards the applicant EUR 2,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant on that amount. B. Costs and expenses 44.", "The applicant also claimed EUR 7,402.32, inclusive of value-added tax (VAT), for the costs and expenses incurred in the second set of domestic proceedings and in the Convention proceedings. He argued that the duration of the proceedings would have remained reasonable had the Administrative Court had the power to rule on the merits of the case instead of referring it back to the administrative authorities. 45. The Government commented that the costs incurred in the domestic proceedings were not caused by an attempt to prevent or redress the violation at issue. The costs claimed in respect of the Convention proceedings were excessive.", "46. 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 were reasonable as to quantum. 47. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings. As regards the Convention proceedings, the Court finds that an amount of EUR 2,000 is reasonable.", "This sum includes VAT. C. Default interest 48. 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 on account of the excessive length of the proceedings; 3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the lack of a hearing before a tribunal; 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 2,000 (two thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant on that amount, and EUR 2,000 (two thousand euros), which includes value-added tax, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 18 December 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos RozakisRegistrarPresident" ]
[ "THIRD SECTION CASE OF MAXIAN AND MAXIANOVÁ v. SLOVAKIA (Application no. 44482/09) JUDGMENT STRASBOURG 24 July 2012 This judgment is final but it may be subject to editorial revision. In the case of Maxian and Maxianová v. Slovakia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Ineta Ziemele, President,Ján Šikuta,Nona Tsotsoria, judges,and Marialena Tsirli, Deputy Section Registrar, Having deliberated in private on 3 July 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 44482/09) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Slovak nationals, Mr J. Maxian and Ms I. Maxianová (“the applicants”), on 12 August 2009.", "2. The applicants were represented by Ms M. Beňová, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3. On 14 March 2011 the application was communicated to the Government.", "4. On 1 August 2011 the Agent of the Austrian Federal Government informed the Court that his Government did not wish to exercise the right to intervene under Article 36 § 1 of the Convention and Rule 44 of the Rules of Court. THE FACTS THE CIRCUMSTANCES OF THE CASE 5. The first applicant, Mr J. Maxian, is both a Slovakian and Austrian national who was born in 1949. The second applicant, Mr I. Maxianová, is a Slovak national who was born in 1965.", "The applicants live in Vienna, Austria. A. Proceedings concerning the applicants’ action of 27 May 1996 (the Dunajská Streda District Court file no. 8 C 105/96) 6. On 27 May 1996 the applicants claimed payment of a sum of money from an individual who used their real property before the Dunajská Streda District Court.", "7. On 3 June 2003 the proceedings were stayed pending the outcome of a different set of proceedings (file no. 4 C 204/96). Proceedings file no.4 C 204/96 concerned a different claim of the applicants filed to the Dunajská Streda District Court on 19 November 1996. The final decision in those proceedings was given on 10 November 2008.", "8. On 9 December 2008 the District Court decided to resume the proceedings file no. 8 C 105/96. It asked the applicants to specify their claim submitted on 27 May 1996. 9.", "In February 2009 the applicants extended their claim and asked for the case to be joined to a different set of proceedings. They made further submissions in March 2009. 10. On 25 May 2009 the District Court joined the proceedings to those concerning a different claim of the applicants (proceedings file no. 4 C 108/2001).", "11. Between February and September 2009 and between October 2009 and August 2010 courts at two levels determined the applicants’ obligation to pay court fees, also in view of the modification of their claim. 12. On 13 December 2010 the District Court decided to examine the applicants’ claims jointly with those submitted in another set of proceedings brought on 29 March 1996 (file no. 9 C 171/96).", "13. The proceedings concerning the applicant’s claim of 27 May 1996 are pending before the Dunajská Streda District Court. B. Constitutional proceedings 1. Judgment III.", "ÚS 317/06 of 4 September 2007 14. On 4 September 2007 the Constitutional Court found no breach of the applicants’ right to a hearing within a reasonable time in the Dunajská Streda District Court proceedings file no. 8 C 105/96. 15. The judgment stated that the District Court had proceeded with the case until 12 March 1998 and that subsequently the District Court judge had waited for developments in proceedings file no.", "4 C 204/96. As from 3 June 2003 proceedings file no. 8 C 105/96 had been stayed. 16. The Constitutional Court noted that the applicants had contributed to the duration of proceedings file no.", "8 C 105/96. In particular, they had challenged at a higher instance the District Court judge and a decision on procedural fine. 17. The duration of the proceedings was partly due to the District Court’s failure to proceed in an appropriate manner in the period until March 1998. While it was true that the District Court had not proceeded with the case between 12 March 1998 and 3 June 2003, the Constitutional Court accepted that it had been justified by the need to follow the developments and wait for the outcome in proceedings file no.", "4 C 204/96. 2. Judgment II. ÚS 197/02 18. On 16 April 2003 the Constitutional Court found that the Dunajská Streda District Court had breached the applicants’ right to a hearing within a reasonable time in proceedings file no.", "4 C 204/96 which had been brought on 19 November 1996. 19. The Constitutional Court awarded the applicants the equivalent of EUR 2,656 as just satisfaction. It further ordered the District Court to avoid further delays in the proceedings and to reimburse the applicants’ costs in the constitutional proceedings. 20.", "Subsequently the applicants introduced an application in respect of the above proceedings (application no. 50780/11). It is pending before the Court. 3. Judgment II.", "ÚS 78/06 21. On 24 May 2006 the Constitutional Court found that the Dunajská Streda District Court had breached the applicants’ right to a hearing within a reasonable time in proceedings file no. 9 C 171/96. 22. Those proceedings concerned the applicants’ civil claim of 29 March 1996.", "They were formally stayed, on 26 May 2003, pending the outcome of proceedings file no. 4 C 204/96. The Constitutional Court noted that the District Court judge had expressed her intention to wait for the outcome of the last mentioned proceedings. However, a formal decision to stay proceedings file no. 9 C 171/96 had been taken on 26 May 2003, and there had been no progress in the proceedings between January 2000 and 26 May 2003.", "Such way of dealing with the case was inappropriate. 23. The Constitutional Court awarded the applicants jointly the equivalent of EUR 1,990 as just satisfaction. It further ordered the District Court to avoid further delays in the proceedings and to reimburse the applicants’ costs in the constitutional proceedings. 4.", "Judgment II. ÚS 47/09 24. On 24 February 2009 the Constitutional Court found that the Dunajská Streda District Court had breached the applicants’ right to a hearing within a reasonable time in proceedings file no. 5 C 171/96. 25.", "Those proceedings concerned the applicants’ civil claim lodged on 30 September 1996. They were stayed, on 9 September 2003, pending the outcome of proceedings no. 4 C 204/96. In its judgment the Constitutional Court noted, in particular, that the District Court had known that a prejudicial issue was the subject-matter of proceedings 4 C 204/96 in 1997, but it had formally stayed the proceedings only five years later, in 2003. The judgment further stated that the overall length of the proceedings under considerations was excessive.", "26. The Constitutional Court awarded the applicants 3,000 euros each as just satisfaction. It further ordered the District Court to avoid further delays in the proceedings and to reimburse the applicants’ costs in the constitutional proceedings. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 27.", "The applicants complained that the length of the proceedings file no. 8 C 105/96 concerning their action of 27 May 1996 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...” 28. The Government contested that argument. 29. The proceedings complained of started on 27 May 1996 and they have not yet ended.", "They were stayed for five and half years pending the outcome of a different set of proceedings in respect of the duration of which the applicants sought separately redress before both the Constitutional Court and the Court (see paragraphs 7-8 and 18-20 above). 30. Since the Court is to address in the context of a different application the proceedings which concerned a prejudicial issue, it considers it appropriate not to take into account in the context of the present application the period during which the proceedings complained of were stayed (see, to the contrary, Probstmeier v. Germany, 1 July 1997, §§ 46, 48 and 52, Reports of Judgments and Decisions 1997‑IV; or Matoušková v. Slovakia, no. 39752/98, § 73, 12 November 2002). The period to be taken into consideration in the present case has thus exceeded to date ten years for two levels of jurisdiction.", "A. Admissibility 31. The Government argued, with reference to the Constitutional Court’s judgment III. ÚS 317/06 of 4 September 2007, that there had been no breach of the applicants’ right to a hearing within a reasonable time during the period covered by that judgment. Their complaint in respect of that period was therefore manifestly ill-founded. As to the subsequent period, the Government argued that the applicants should have sought redress by means of a fresh complaint to the Constitutional Court.", "Since they failed to do so, they did not exhaust domestic remedies as required by Article 35 § 1 of the Convention. 32. The applicants disagreed with the Government’s arguments. 33. The Court notes that in its judgment III.", "ÚS 317/06 of 4 September 2007 the Constitutional Court found no breach of Article 6 § 1. However, it reached a conclusion to the contrary in judgments II. ÚS 78/06 and II. ÚS 47/09 in respect of different sets of proceedings in which the position was similar as in the present case (see paragraphs 21, 22, 24 and 25 above). In particular, in judgments II.", "ÚS 78/06 and II. ÚS 47/09 it qualified as unjustified delays the District Court’s failure to formally stay the proceedings where a prejudicial issue was to be determined in a different set of proceedings. The Court considers the reasons for such conclusion relevant and convincing. 34. In these circumstances, and having regard to the principles established in its practice (see Becová v. Slovakia (dec.), no.", "23788/06, 12 July 2008), the Court cannot accept the argument that the applicants should have repeatedly sought redress before the Constitutional Court after the delivery of its judgment III. ÚS 317/06 of 4 September 2007. Accordingly, the Government’s objection must be dismissed. 35. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 36. 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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no.", "30979/96, § 43, ECHR 2000-VII). 37. 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). 38. 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.", "Among other things the Court notes, in particular, that the merits of the applicants’ action still remain to be determined by the court at first instance. 39. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II.", "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.” A. Damage 41. The applicants claimed jointly 68,896.92 euros (EUR) in respect of pecuniary damage. They further claimed EUR 8,000 each in respect of non‑pecuniary damage.", "42. The Government contested these claims. 43. 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 applicants EUR 6,000 jointly in respect of non‑pecuniary damage.", "B. Costs and expenses 44. The applicants also claimed EUR 6,844.05 for the costs and expenses incurred before the domestic courts and the Court. 45. The Government left the matter to the Court’s discretion.", "46. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the applicants the sum of EUR 2,000 jointly covering costs under all heads. C. Default interest 47. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicants jointly, within three months, the following amounts: (i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (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 applicants’ claim for just satisfaction. Done in English, and notified in writing on 24 July 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Marialena TsirliIneta ZiemeleDeputy RegistrarPresident" ]
[ "FIRST SECTION CASE OF VALERIY LOPATA v. RUSSIA (Application no. 19936/04) JUDGMENT STRASBOURG 30 October 2012 FINAL 30/01/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision In the case of Valeriy Lopata v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Anatoly Kovler,Peer Lorenzen,Elisabeth Steiner,Khanlar Hajiyev,Linos-Alexandre Sicilianos,Erik Møse, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 9 October 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 19936/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Valeriy Mikhaylovich Lopata (“the applicant”), on 14 May 2004.", "2. The applicant was represented by Mr A. Yu. Yablokov, a lawyer practising in the city of Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicant complained, in particular, that the conditions of his detention on remand had been appalling and that the criminal proceedings against him had been unfair in that he could not attend the hearings in his case. 4. On 10 September 2008 the President of the First Section decided to communicate 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 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1959 and lives in the town of Troitsko-Antropovo, the Moscow Region. A. Criminal investigation and detention 1. Background information 6.", "The applicant is a military doctor, with the rank of colonel, in the medical military service. Prior to his criminal prosecution, he was head of the department of dermatology of the hospital of military unit no. 93240 based in the town of Krasnoznamensk, the Moscow Region. 7. On 22 February 2002 criminal proceedings were instituted in connection with the death of one E., whose body had been found on the outskirts of the town of Krasnoznamensk.", "2. The applicant’s arrest and events in his criminal case before his release in April 2002 8. At 4 p.m on 1 March 2002 the applicant was arrested in his office by colonel B., head of the Department of the Interior of the town of Krasnoznamensk, on suspicion of involvement in the above-mentioned incident. 9. Thereafter the applicant was escorted to the Temporary Detention Unit of the Krasnoznamensk Town Department of the Interior and remained there for the next eight hours.", "10. The applicant submitted that colonel B. and officer A. interrogated him for four hours. They allegedly delivered blows to his feet with a rubber truncheon and to his head with a bullet-proof jacket and demanded he confess. 11. At around 11.30 p.m. a doctor arrived and gave him an injection of what the applicant believed was a “psychoactive drug”.", "The interrogation then resumed. 12. The next morning the applicant’s condition had deteriorated and the doctor gave him another injection of the same “psychoactive drug”. It appears that both injections were related to the applicant’s diabetes. 13.", "The applicant alleged that he had been transported to a hospital where he was given some medicines in connection with his diabetes and then at once transported back to the Town Department of the Interior. 14. On 4 March 2002 the applicant’s detention on remand was ordered by investigator D. This order was approved by the prosecutor on the same date. 15. On the same day a medical report was issued by a doctor, in which the applicant was diagnosed with type 2 diabetes.", "The applicant alleged that the ambulance had come six times on that day in connection with his diabetes condition. 16. On 5 March 2002 the military prosecutor of the Krasnoznamenskiy Garrison K. identified the applicant and two other individuals as suspects in the case. On the same date he questioned the applicant as a suspect in the presence of his counsel. 17.", "On 6 March 2002 charges of intentional infliction of serious bodily harm leading to death were brought against the applicant. As of that date he became the accused in that criminal case. 18. As the applicant’s medical condition deteriorated, on 10 April 2002 the investigator, acting with the consent of the prosecutor, changed the preventive measure applied to the applicant from detention on remand to an undertaking not to leave the hospital in which he would receive his medical treatment for diabetes or his home town of Krasnoznamensk. It was noted specifically that the change was due to the applicant’s poor state of health.", "3. The conditions of the applicant’s detention in March-April 2002 19. It appears that between 2 and 6 March 2002, except for a stay for a few hours in an unspecified hospital on 2 March 2002 (see paragraph 13), the applicant was held in the Temporary Detention Ward of the Department of the Interior of the Town of Odintsovo of the Moscow Region. He submitted that there had been no proper beds or bedding, that the temperature in the cell had been very low all the time, that there had been no windows to allow fresh air to enter, there had been no proper food and that he had been denied treatment for his diabetes. 20.", "It appears that from 6 March to 1 April 2002 the applicant was held in remand prison IZ-50/10 located in the town of Mozhaysk, the Moscow Region. According to the applicant, the cells there lacked a separate toilet area, were constantly overcrowded and lacked heating and daylight. Furthermore, he received no treatment for his diabetes. 21. Between 1 and 10 April 2002 the applicant was apparently held in remand prison IZ-77/2 in the city of Moscow because the authorities wanted him to undergo a psychiatric examination in a specialised clinic in that prison.", "22. According to him, for the first three days in the latter prison he had been denied food, there had been no heating in the cell, the toilet had been out of order, requiring him to use the floor of the cell as a toilet. His cellmates had slept taking three turns per day, there had been no bedding, the cell designed for thirty-five inmates measuring thirty-two square metres had contained eighty people, and there had been no daylight or any possibility of obtaining medicine, even with the assistance of his family. 23. As indicated above, the applicant was released on 10 April 2002 due to his poor state of health.", "4. The applicant’s medical treatment and various events leading to his second arrest 24. On 10 April 2002 the applicant was admitted to a military hospital for treatment of his diabetes. 25. On 21 April 2002 the applicant apparently left the hospital contrary to the conditions of his release (see paragraph 18 above) and subsequently lived in hiding at friends’ places in Moscow and Krasnoznamensk.", "26. On 6 May 2002, having learned about the applicant’s disappearance, the investigator changed the preventive measure back to detention on remand and ordered that the applicant be searched for, arrested and detained in remand prison IZ-50/10. 27. The applicant’s name appeared on the fugitives list that same day. 28.", "On 24 September 2002 the authorities brought new charges against the applicant. These now included abuse of power through unlawful use of the services of two soldiers for personal purposes during a fight, theft of ID cards and money from the victims of that fight and negligent infliction of death, since following the scuffle the applicant and the two soldiers had transported the victims to a nearby forest and left them there, as a result of which one of them died. 29. On 26 September 2002 the criminal case was separated into two parts, one relating solely to the applicant and the other relating to the acts of the two soldiers who had been involved in the incident in question. 30.", "On 30 September the investigation in the criminal case was suspended pending the search for the applicant; it resumed on 25 October only to be suspended on 30 October 2002 due to the authorities’ inability to locate him. 31. According to the applicant, on 15 May 2003 he gave himself up to an officer of the Federal Security Service who then passed him on to the police. The Government submitted that the applicant had not given himself up but rather had been arrested by a policeman in the street during an ID check. The applicant was taken into custody and escorted to the temporary detention unit of the police station Odintsovo.", "5. The criminal investigation of the applicant’s case after his second arrest on 15 May 2003 32. On 16 May 2003 the suspended criminal proceedings were resumed. 33. On 20 May 2003 the investigator decided to order a comprehensive forensic examination of the applicant’s mental condition in a specialised institution (the Scientific Centre of Social and Forensic Psychiatry, named “the Serbskiy Centre”).", "The investigator also decided to request the competent court to extend the applicant’s detention on remand until 5 August 2003. 34. On 3 June 2003 the Krasnoznamenskiy Garrison Military Court (“the Garrison Court”) examined the motion of the investigator and, having heard the applicant in person, extended his detention on remand until 5 August 2003. 35. The decision of 3 June 2003 was appealed against by the applicant, but later upheld by the Third Circuit Military Court (“the Circuit Court”) on 16 July 2003.", "36. Between 26 June and 22 July 2003 the applicant underwent a medical examination in the Serbskiy Centre. This examination was concluded on the latter date with a final report diagnosing him as suffering from an organic delusionary schizoid disorder. Among other things, the report also mentioned that the applicant was suffering from type 2 diabetes. 37.", "On 1 August 2003 the Garrison Court, having heard the applicant and his lawyer, extended the applicant’s detention until 5 October 2003. 38. On 6 August 2003 the investigator recognised the applicant’s mother as his sole legal guardian and representative for the purposes of the criminal proceedings because the applicant had been diagnosed as mentally ill. It appears that from that moment on, the applicant did not participate in the investigation or the criminal proceedings, with the applicant’s mother and his lawyers replacing him and acting on his behalf. 39.", "On 13 August 2003 the Garrison Court, referring to his mental condition, ordered the applicant’s transfer to the psychiatric ward of the clinic in remand prison IZ-77/2. The court took this decision in the presence of the applicant’s mother and one of his lawyers. 40. On 1 October 2003 the Garrison Court extended the applicant’s detention on remand until 5 December 2003. The hearing took place with the participation of the applicant’s mother.", "41. The decision of 1 October 2003 was appealed against by the applicant’s defence and was upheld by the Circuit Court on appeal on 17 October 2003. The appeal hearing took place with the participation of his mother and one of his lawyers. 42. On 12 November 2003 the investigation of the applicant’s criminal case was finalised and it was sent to the Garrison Court for examination on the merits.", "The investigation concluded that the applicant had committed the crimes in question, whereas he had later become insane, which again excluded holding him criminally liable. The prosecution proposed to relieve the applicant of criminal liability and punishment and to apply a compulsory measure of a medical nature (Article 439 of the Code of the Criminal Procedure of Russia, see “Relevant Domestic Law” below). 43. The applicant’s mother and his lawyers were notified of the outcome of the investigation and received a copy of the decision of 12 November 2003 containing, among other things, an attachment, which listed the people to be summoned in person in court. The list included the applicant’s mother and his two lawyers, the victims and their families and various witnesses, but not the applicant himself.", "6. The conditions of the applicant’s detention after his arrest on 15 May 2003 44. According to the applicant, after his arrest on 15 May 2003 and onwards he was detained in the temporary detention ward of the police station Odintsovo and then in IZ-50/10, IZ-77/1 and IZ-77/2. Throughout this time, the conditions of his detention were consistently dire on account of severe overcrowding of the cells. He also claimed that he had been denied medical treatment on account of his diabetes and that the conditions of his transportation to and from the remand centres had been appalling.", "The applicant stated that he had been transported on eight occasions, but failed to provide approximate dates of his journeys. 45. The Government submitted the following information about the dates and locations of the applicant’s detention. Dates Facilities 15 May-6 June 2003 Detention units of the Ministry of the Interior 6-16 June 2003 IZ-50/10 16-26 June 2003 IZ-77/2 26 June-24 July 2003 The Serbskiy Centre 24 July 2003-30 October 2003 IZ-77/2 30 October-14 November 2003 IZ-77/1 14 November 2003-28 January 2004 IZ-77/2 28 January 2004-4 December 2005 IZ-50/10 4 December 2005-16 January 2006 IZ-77/2 16 January 2006-8 February 2006 The Serbskiy Centre 8 February 2006-16 February 2006 IZ-77/2 16 February 2006-12 April 2006 IZ-50/10 46. The Government submitted the following information concerning the detention facilities IZ-50/10, IZ-77/1 and IZ-77/2.", "(a) IZ-50/10 47. According to the Government, the applicant was held in the following cells: Cell no. Surface area in m² Number of inmates Dates of detention 322 19 No more than 4 29 January-25 February 2004, 10-16 March 2004 325 17 No more than 4 25 February-10 March 2004 336 31 No more than 6 16 March-1 December 2004 346 17 No more than 4 1 December 2004-4 December 2005 309 42 No more than 10 As of 16 February 2006 48. The above data was contained in a certificate of 18 November 2008 no. 51/49-5414 issued by the administration of prison IZ-50/10 and did not refer to original prison documentation.", "In addition, the Government produced original prison logs in respect of the following five dates, 24 February 2004 (the overall number of detainees in the prison was 396 and the number of inmates in cell 322 was four), 10 March 2004 (the overall number of detainees in the prison was 406 and the number of inmates in cell no. 322 was four), 16 March 2004 (the overall number of detainees in prison was 405 and the number of inmates in cell no. 336 was six), 1 December 2005 (the overall number of detainees was 570 and the number of inmates in cell no. 346 was four) and 18 December 2006 (the overall number of detainees was 552 and the number of inmates in cell no. 309 was ten).", "49. According to the Government, all cells were sufficiently well-lit and aerated. The toilet in all of them was in working order and partitioned from the living area by a wall of a metre and a half high. The cells were centrally heated and regularly disinfected. The applicant received hot food three times a day and also had adequate access to medical assistance.", "The Government maintained that the applicant had received all the medical aid he required for his diabetes, noting (with reference to a copy of his medical card) that the applicant had asked for it on 25 February and 26 March 2004. (b) IZ-77/1 50. The Government submitted that between 30 October and 14 November 2003 the applicant was held in cell no. 719 of that remand prison, along with three other inmates. The cell measured 20 square metres and was designed for four people.", "They did not submit the original prison documentation to confirm this information. 51. According to the Government, the cell was sufficiently well-lit and aerated. The toilet was in working order and partitioned from the living area by a wall of a metre and a half. The cell was centrally heated and regularly disinfected.", "The applicant received hot food three times a day and also had adequate access to medical assistance. The Government maintained that the applicant had been provided with all the medical aid he required for his diabetes, having mentioned (with reference to a copy of his medical card) that the applicant had refused such treatment on two occasions, once on an unspecified date and once on 4 November 2003. (c) IZ-77/2 52. According to the Government, the applicant was held in the following cells: Cell no. Surface area in m² Number of inmates Dates of detention 8 80 No more than 20 16-26 June 2003 409 52 No more than 13 24 July-30 October 2003, 14 November 2003-28 January 2004 95 84 No more than 21 10-16 January 2006 159 80 No more than 20 4 December 2005- 10 January 2006 401 84 No more than 35 8-16 February 2006 53.", "The above data was contained in a certificate issued by the administration of prison IZ-77/2 and did not refer to original prison documentation. In addition, the Government produced original prison logs in respect of the following four dates, 24 June 2003 (cell no. 8 contained 20 inmates), 10 January 2006 (cell no. 95 contained 21 inmates), 8 December 2005 (cell no. 159 contained 20 inmates), 10 February 2006 (cell no.", "401 contained 35 detainees). 54. According to the Government, all cells were sufficiently well-lit and aerated. The toilet in all of them was in working order and partitioned from the living area by a wall of a metre and a half high. The cells were centrally heated and regularly disinfected and disinfested.", "The applicant had received hot food three times a day and had also had adequate access to medical assistance. The Government also submitted that the applicant had been provided with all the medical aid he required for his diabetes. The applicant’s medical file shows that he was examined and received medical treatment in therapeutic ward 2 of the prison hospital of remand prison IZ‑77/2. He was diagnosed with chronic diabetes and visited various doctors in this connection. He was regularly provided with medicine and was discharged in a satisfactory condition.", "The medical file does not refer to any complaint by the applicant about his mental health. (d) Conditions of the applicant’s transportation 55. The Government submitted that the applicant’s description of the conditions of his transportation was erroneous and that he had never complained about such conditions at the domestic level. They were unable to submit any specific information concerning the dates and destinations of the applicant’s journeys because the relevant documents had been destroyed due to the lapse of the statutory time-limit for storage. The Government submitted that the applicant must have been transported in prison vans ZIL‑4331 (measuring 4.7x2.4 metres and designed for 36 inmates), GAZ‑3307 “AZ” and GAZ-3309 “AZ” (measuring 3.8x2.35 metres and designed for 25 inmates).", "B. Court proceedings 1. First round of proceedings 56. As indicated above (see paragraph 42), the investigation was finalised on 12 November 2003. On 1 December 2003 the Garrison Court examined the case file received from the prosecution and decided to hold a preliminary hearing in the case on 10 December 2003.", "The court also ordered that the applicant remain in custody pending the court proceedings. 57. On 10 December 2003 the Garrison Court held a preliminary hearing in the case and, having perused the charges against the applicant, made various preparations to hear the case. The court noted that the applicant’s interests in the proceedings would be secured by his mother and his two lawyers. By the same decision the court ordered again that the applicant stay in custody pending the proceedings.", "58. On 23 December 2003 the Garrison Court, in the presence of the applicant’s lawyers, examined the charges against him and rendered a judgment in the case. The court established that the applicant had beaten to death a third person, battered another person and had used fake ID documents but had subsequently developed a psychiatric disorder. In view of the above, the court decided to relieve the applicant from criminal liability and, regard being had to his condition and the dangerous nature of the acts he had committed, to apply a “compulsory measure of a medical nature” and commit him to a specialised institution. The court ordered that the applicant stay in detention pending the appeal proceedings.", "59. The applicant’s mother and his lawyers appealed against the judgment of 23 December 2003. 60. On 30 January 2004 the Garrison Court, acting of its own motion, amended the judgment of 23 December 2003. It acknowledged that its earlier decision ordering that the applicant stay in custody had been erroneous and replaced it with a decision to transfer the applicant to a specialised hospital.", "61. On 17 March 2004 the Circuit Court examined and rejected all of the appeals of the defence against the judgment of 23 December 2003. The applicant was represented in those proceedings by his mother and his lawyers. 62. The appeal of the defence against the decision of 30 January 2004 was rejected by the Circuit Court on 19 May 2004.", "63. It appears that on an unspecified date in 2005 the applicant’s lawyers requested a judge of the Circuit Court to initiate supervisory review proceedings in respect of the judgment of 23 December 2003, the decision of 30 January 2004 and the appeal decisions of 17 March and 19 May 2004. This request was accepted on 4 May 2005. 64. On 27 May 2005 the Presidium of the Circuit Court, acting as a supervisory court, examined and quashed all of the above-mentioned decisions in the applicant’s case with reference to the lower courts’ failure to establish the date of the onset of the applicant’s mental condition.", "The court remitted the case for a fresh examination on the merits at first instance. 2. Second round of proceedings 65. On 1 November 2005 the Garrison Court ordered the applicant’s detention on remand until 17 December 2005. 66.", "On 16 December 2005 the Garrison Court extended his detention until 17 March 2006. 67. On 13 March 2006 the Garrison Court examined the applicant’s case on the merits in the presence of his mother and his two lawyers. The applicant was partly acquitted because of the lack of evidence of a crime and partly because of the expiry of the statutory time-limits for prosecution. By the same judgment the court decided to apply a “compulsory measure of a medical nature” and commit him to a specialised institution.", "The court ordered the applicant’s transfer to Psychiatric Clinic no. 5 pending the entry into force of the judgment. 68. No appeal was submitted against that judgment and on 12 April 2006 he was escorted to Psychiatric Clinic no. 5 for treatment.", "69. On 24 April 2008 the Garrison Court examined the request of Psychiatric Clinic no. 5 and medical examination report no. 119 dated 11 March 2008 recommending the applicant’s release on the grounds that he was in remission and could be treated at home. 70.", "The decision to grant the request was not appealed against by the applicant and on 7 May 2008 he was released from the clinic. II. RELEVANT DOMESTIC LAW A. Detention 71. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic (Law of 27 October 1960).", "From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the CCrP”). 1. Preventive measures 72. “Preventive measures” or “measures of restraint” include an undertaking not to leave a town or region, a personal guarantee, bail and detention on remand (Article 98 of the CCrP).", "2. Authorities ordering detention on remand 73. The Russian Constitution of 12 December 1993 provides that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22). The CCrP requires a judicial decision by a district or town court on a reasoned request by a prosecutor supported by appropriate evidence (Article 108 §§ 1, 3-6). 3.", "Grounds for ordering detention on remand 74. When deciding whether to remand an accused in custody, the competent authority is required to consider whether there are “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99). 75. The CCrP lays down a general rule permitting defendants to be detained on remand if the charge against them carries a sentence of at least two years’ imprisonment.", "In exceptional cases, the Code permits detention of defendants on a charge carrying a sentence of less than two years’ imprisonment, if they have previously defaulted, have no permanent residence in Russia or if their identity cannot be ascertained. A defendant should not be detained on remand if a less severe preventive measure is available (Articles 97 § 1 and 108 § 1). 4. Proceedings to examine the lawfulness of detention (a) As regards detention “during the investigation” 76. An appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention on remand.", "The appeal court must rule on the appeal within three days of its receipt (Article 108 § 10). The right to appeal against a judicial decision belongs to a defendant, his representative and legal guardian, a prosecutor, a victim and his representative (Articles 127 § 1 and 354 § 4). (b) During the judicial proceedings 77. At any time during the judicial proceedings the court may order, vary or revoke any preventive measure, including detention on remand (Article 255 § 1). Any such decision must be given in the deliberation room and signed by all the judges on the bench (Article 256).", "78. An appeal against such a decision lies to a higher court. It must be examined within the same time-limit as an appeal against the judgment on the merits (Article 255 § 4). B. Compulsory measures of a medical nature 79.", "The Criminal Code of the Russian Federation, in force since 1 January 1997, and the Code of Criminal Procedure of the Russian Federation set out the grounds and procedure for the application of compulsory measures of a medical nature. 1. Criminal Code of the Russian Federation Article 97. Grounds for the application of compulsory measures of a medical nature “1. Compulsory measures of a medical nature may be applied by a court to individuals: (a) who, in a state of insanity, committed an offence described in [...] the ... present Code; (b) who, after having committed a criminal offence, became mentally ill, making it impossible to sentence him and execute that sentence; (c) who committed a criminal offence and who suffer from a mental illness, which does not [reach the level of insanity]; (d) who committed a criminal offence and who were considered in need of treatment for alcoholism or drug abuse.", "2. Compulsory measures of a medical nature shall only be applied to people [falling within the categories] listed in the first paragraph of the present Article in cases where the mental disorders are linked to the ability of those persons to cause substantial damage or to present a danger to themselves or other individuals.” 2. The Code of Criminal Procedure of the Russian Federation Article 435. Placement in a psychiatric hospital “1. When it is established that a person to whom detention on remand has been applied as a preventive measure suffers from a mental illness, a court, upon a prosecutor’s motion and in accordance with the procedure laid down in Article 108 of the present Code, shall take a decision authorising the transfer of that person to a psychiatric hospital.", "2. Placement of a person who is not detained on remand in a psychiatric hospital may be authorised by a court in accordance with the procedure laid down in Article 203 of the present Code.” Article 443. A court decision “1. When a court finds it proven that a criminal offence was committed by that person in a state of insanity or that after having committed a criminal offence the person became mentally ill, making it impossible to sentence him and execute the sentence, the court shall take a decision in accordance with Articles 21 and 81 of the Criminal Code of the Russian Federation relieving that person from criminal responsibility or from serving the sentence and authorising the application of compulsory measures of a medical nature to him ...” Article 444. Procedure for lodging appeals against a court decision (as in force at the relevant time) “A court decision may be appealed against by a representative, a victim and his representative, a legal guardian or close relative of a person in respect of whom a criminal case was examined, and by a prosecutor in accordance with Chapter 45 of the present Code.” Article 444.", "Procedure for lodging appeals against a court decision (as amended by Federal Law dated 29 November 2010 no. 323-FZ) “A court decision may be appealed against ... by a victim, his or her representative, a person in respect of whom [a criminal case] was examined, his or her representative, a legal guardian or close relative of that person, and by a prosecutor in accordance with Chapter 45 of the present Code.” C. Judicial proceedings The Code of Criminal Procedure of the Russian Federation 80. Section 51 of the Russian Code of Criminal Procedure lays down procedural norms for the examination of a criminal case against a person who is charged with having committed a criminal offence in a state of insanity or who became mentally ill after having committed a criminal offence when he can no longer bear criminal responsibility and serve a sentence. 81. By virtue of Section 51 of the CCrP, the courts shall examine a criminal case against such a person in an ordinary manner, save for specific exceptions laid down in that provision.", "Section 51 as in force at the relevant time did not set any specific rules concerning the presence of a mentally ill person at trial and appeal hearings and did not actually require such presence. By decision of the Constitutional Court of Russia dated 20 November 2007 no. 13-P Article 437 of Section 51 of the CCrP was declared unconstitutional in so far as it impeded the persons in question from taking part in the judicial proceedings in person. This provision was amended by Federal Law of 5 June 2007 no. 87-FZ and Federal Law of 29 November 2010 no.", "323-FZ. The wording of that provision as it is now in force gives full procedural rights to a person in respect of whom the relevant proceedings are pending to participate in those proceedings, if his or her mental condition so permits. D. Confinement to a psychiatric hospital 82. The Psychiatric Assistance Act of 2 July 1992, as amended (“the Act”), provides that any recourse to psychiatric care should be voluntary. However, a person declared fully incapacitated may be subjected to psychiatric treatment at the request or with the consent of his official guardian (section 4 of the Act).", "83. Section 5 of the Act establishes that individuals suffering from mental disorders have all the human rights and freedoms guaranteed by the Russian Constitution and federal laws. Limitations of their rights and freedoms are only allowed when specifically provided for by laws of the Russian Federation. Section 5(3) of the Act provides that the rights and freedoms of persons with mental illnesses cannot be limited solely on the grounds of their diagnosis, or the fact that they have undergone treatment in a psychiatric hospital. 84.", "Under section 5 of the Act, a patient in a psychiatric hospital can have a legal representative. However, pursuant to point 2 of section 7, the interests of a person declared fully incapacitated are represented by his official guardian. 85. Section 34 regulates the procedure for involuntary placement of a mentally ill individual in a psychiatric hospital. A judge is to examine a request for involuntary admission to a psychiatrist hospital in the presence of an individual whose placement in the hospital is sought.", "Section 35 provides that only a judicial order may serve as grounds for the admission of an individual to a psychiatric hospital. Such an order may be appealed against within ten days by the individual whose detention in a psychiatric hospital was authorised, his representative, the head of the psychiatric hospital or a prosecutor (section 35(3) of the Act). 86. Section 37 (2) of the Act establishes the list of rights of a patient in a psychiatric hospital. In particular, the patient has the right to communicate with his lawyer without censorship.", "However, under section 37(3) the patient’s doctor may limit the patient’s rights to correspond with other persons, have telephone conversations and meet visitors. 87. Section 47 of the Act provides that the doctors’ actions can be challenged before the courts. E. Changes in the application of Russian law on mentally ill individuals following the Court’s judgment in the case of Shtukaturov v. Russia (no. 44009/05, 27 March 2008) 88.", "In Resolution no. 6 of 7 April 2011 the Plenary Supreme Court of the Russian Federation held that a person whose admission to a psychiatric hospital was authorised or whose detention in hospital was extended by a court has the right to appeal against that decision, along with his lawyer, legal guardian or other persons authorised to do it by the Russian Code of Criminal Procedure (§ 8). The Plenary Supreme Court also stressed that, unless the accused’s state of mental health precludes it, an individual against whom criminal proceedings are pending should have the opportunity to make use, personally, of every procedural right guaranteed by Articles 46 and 47 of the Code of Criminal Procedure (the right to be informed of the charges against him and to receive related procedural documents, the right to give explanations and make statements or to remain silent, the right to legal assistance, the right to submit evidence, the right to lodge requests, complaints, and so on, and to participate in their examination by a court, the right to an interpreter, the right to appeal against actions/inaction on the part of, inter alia, the courts, prosecutors and investigators, the right to attend hearings before the trial and appeal courts as well as hearings concerning detention matters, and so on). The courts should take into account expert reports, medical and other evidence, including that provided by the psychiatric hospital, to determine whether the individual’s state of mental health permits him or her to fully benefit from his or her procedural rights (§ 10). 89.", "The Plenary Supreme Court held that it was the trial court’s task to duly and timeously inform the person of the date, time and place of any court hearing so as to provide him or her with an opportunity to submit various procedural requests, including a request to attend (§ 13). F. Rules on the prison regime in pre-trial detention centres (as approved by Ministry of Justice Decree no. 148 of 12 May 2000) 90. Rule 42 provided that all suspects and accused persons in detention had to be given, among other things: a sleeping place; bedding, including a mattress, a pillow and one blanket; bed linen, including two sheets and a pillow case; a towel; tableware and cutlery, including a bowl, a mug and a spoon; and seasonal clothes (if the inmate had no clothes of his own). 91.", "Rule 44 stated that cells in pre-trial detention centres were to be equipped, among other things, with a table and benches to seat the number of inmates detained there, sanitation facilities, running water and lighting for use in the daytime and at night. 92. Rule 46 provided that prisoners were to be given three warm meals a day, in accordance with the norms laid down by the Government of Russia. 93. Under Rule 47 inmates had the right to have a shower at least once a week for at least fifteen minutes.", "They were to receive fresh bed linen and towels after taking their shower. 94. Rule 143 provided that inmates could be visited by their lawyer, family members or other persons, with the written permission of an investigator or an investigative body. The number of visits was limited to two per month. G. Order no.", "7 of the Federal Service for the Execution of Sentences dated 31 January 2005 95. Order no. 7 of the Federal Service for the Execution of Sentences of 31 January 2005 deals with the implementation of the “Pre-trial detention centres 2006” programme. 96. The programme is aimed at improving the functioning of pre-trial detention centres so as to ensure their compliance with the requirements of Russian legislation.", "It expressly acknowledges the issue of overcrowding in pre-trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem. 97. Amongst those most affected, the programme mentions remand prison IZ-50/10, IZ-77/1 and IZ-77/2. In particular, the programme states that on 1 July 2004 remand prison IZ-77/2 had a capacity of 2,120 inmates and in reality housed 2,715 detainees, in other words 28.1% more than the permitted number. On the same date remand prison IZ-77/1 had a capacity of 2013 inmates and in reality contained 2675 detainees, or 32.9% more than the permitted number.", "98. The Order estimates the average rate of overpopulation of remand prisons in the city of Moscow at 116%, whilst the average rate of overpopulation of remand prisons in the Moscow Region was of 119%. Nine out of the thirty-six most “problematic” remand prisons in Russia were situated in the Moscow Region. III. Relevant Council of Europe documents 99.", "The relevant extracts from the General Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows: Extracts from the 2nd General Report [CPT/Inf (92) 3] “46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint. 47.", "A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners ... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature ... 48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard ...", "It is also axiomatic that outdoor exercise facilities should be reasonably spacious ... 49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ... 50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners. 51.", "It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ...” Extracts from the 7th General Report [CPT/Inf (97) 10] “13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46).", "An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive. The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ...” Extracts from the 11th General Report [CPT/Inf (2001) 16] “28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports ... 29.", "In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large­capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions. 30. The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners.", "The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 100. The applicant complained that the conditions of his detention in various detention centres and remand prisons from 15 May 2003 until 12 April 2006 had been deplorable. The Court will examine these grievances under Article 3, which provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Submissions of the parties 101.", "The Government submitted that the Court was precluded from examining most of the detention period referred to by the applicant because of his failure to introduce the complaint in time. The Government also considered that the conditions of detention in the prisons concerned had not been incompatible with Article 3 of the Convention. 102. The applicant disagreed and maintained his complaints. He argued that the data and figures provided by the Government were inaccurate.", "B. The Court’s assessment 1. Admissibility 103. The Court accepts the accuracy of the dates of the applicant’s detention as submitted by the Government, and notes that during the detention period from 15 May 2003 until 12 April 2006 referred to by the applicant he was transferred from one detention facility or remand prison to another and that the applicant initially complained that the conditions of his detention in all these facilities had been similarly appalling on account of severe overcrowding. 104.", "The Court would point out that according to its constant case-law a period of detention in various remand prisons and detention centres with essentially similar conditions of detention could be regarded as a “continuing situation” for the purposes of the calculation of the six-month time­limit, unless the period in question is interrupted by an applicant’s release or transfer to a facility with improved conditions of detention (see Benediktov v. Russia, no. 106/02, § 12, 10 May 2007; Igor Ivanov v. Russia, no. 34000/02, § 30, 7 June 2007; Guliyev v. Russia, no. 24650/02, § 31, 19 June 2008; Maltabar and Maltabar v. Russia, no. 6954/02, §§ 82-84, 29 January 2009; and Aleksandr Matveyev v. Russia, no.", "14797/02, §§ 67‑68, 8 July 2010). 105. The information submitted by the Government revealed, however, that the period referred to by the applicant was interrupted by his stay in the Serbskiy Centre twice, first from 26 June to 24 July 2003 and then from 16 January 2006 to 8 February 2006. In his submissions the applicant never mentioned any dissatisfaction with the conditions of detention in that institution. Given the one month duration of that stay on the first occasion and the date of introduction of the case to the Court on 14 May 2004, the Court considers that the applicant’s grievances relating to his detention prior to his transfer to the Serbskiy Centre on 26 June 2003 have been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.", "106. As regards the period starting from his transfer to IZ-77/2 on 24 July 2003 and until his second placement in the Serbskiy Centre on 16 January 2006 as well as his detention after he left the Centre again on 8 February 2006 and until 12 April 2006, the Court notes that the applicant’s grievances about IZ‑77/1, IZ-77/2 and IZ-50/10, in which he was held during this time period, all concern the same problem, namely, overcrowding and the general lack of living space. In view of this, the Court finds that the said period of detention should be regarded as a “continuing situation” for the purposes of the calculation of the six-month time­limit. It thus finds that the applicant lodged his complaints about the conditions of his detention during that period in good time. 107.", "In the light of the parties’ submissions, the Court finds that this part of the case raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes that these complaints are not manifestly ill­founded within the meaning of Article 35 § 3 (a) of the Convention. No other grounds for declaring them inadmissible have been established. 2. Merits 108.", "The Court would note that the parties disagree on many aspects of the conditions of the applicant’s detention, including the size of the cells, the number of beds, and the number of detainees in the cells. Most importantly, the Government deny that the cells in question were overcrowded or cramped, and have submitted official certificates to that effect provided by the authorities of the detention centres in question and partly covering the period in question, whereas the applicant insists on his initial account of events. 109. Having studied the documents submitted by the parties, the Court finds that it need not resolve the parties’ disagreements on all of the aforementioned points as the case file contains sufficient documentary evidence to confirm the applicant’s allegations of severe overcrowding in remand prisons IZ-77/1 and IZ-77/2 located in Moscow and IZ-50/10 located in the Moscow Region, which is in itself sufficient to conclude that Article 3 of the Convention has been breached. 110.", "The Court would note that the existence of a deplorable state of affairs in all three detention facilities may be inferred from the information contained in Order no. 7 of the Federal Service for the Execution of Sentences of 31 January 2005 (see paragraphs 95-more than the permitted number. 98 above), which expressly acknowledges the issue of overcrowding in all three detention centres and, more generally, in the remand prisons in Moscow and the Moscow Region in 2004. 111. The Court also observes that it has previously examined the question of the conditions of detention in IZ-77/1 and IZ-77/2 in 2003 and 2004 in its judgments in the cases of Popov v. Russia, no.", "26853/04, §§ 210‑20, 13 July 2006, Lind v. Russia, no. 25664/05, §§ 58-63, 6 December 2007, Starokadomskiy v. Russia, no. 42239/02, §§ 35-46, 31 July 2008, Andreyevskiy v. Russia, no. 1750/03, §§ 83-88, 29 January 2009, Gubin v. Russia, no. 8217/04, §§ 51-62, 17 June 2010, Skachkov v. Russia, no.", "25432/05, §§ 45-60, 7 October 2010, Romokhov v. Russia, no. 4532/04, §§ 77-86, 16 December 2010, Trepashkin v. Russia (no. 2), no. 14248/05, §§ 106-30, 16 December 2010, Ilyadi v. Russia, no. 6642/05, §§ 30-34, 5 May 2011 and Khodorkovskiy v. Russia, no.", "5829/04, §§ 103‑19, 31 May 2011, and found them to have been incompatible with the requirements of Article 3 of the Convention on account of severe overcrowding. 112. The Court next notes that the Government’s descriptions for the years 2003-2004 rely on incomplete data in respect of some of the cells in which the applicant was detained on some of the dates. Since the Government did not support their own submissions with reference to original documentation covering in full the period in question, the Court is prepared to accept the aforementioned indications as sufficient confirmation of the applicant’s point that the overcrowding of cells was a problem in all three detention facilities at the time he was detained there. 113.", "The Court has frequently found a violation of Article 3 of the Convention on account of a lack of personal space afforded to detainees (see Peers v. Greece, no. 28524/95, §§ 69 et seq., ECHR 2001-III; Khudoyorov v. Russia, no. 6847/02, §§ 104 et seq., ECHR 2005-X (extracts); Labzov v. Russia, no. 62208/00, §§ 44 et seq., 16 June 2005; Novoselov v. Russia, no. 66460/01, §§ 41 et seq., 2 June 2005; Mayzit v. Russia, no.", "63378/00, §§ 39 et seq., 20 January 2005; Kalashnikov, cited above, §§ 97; and Ananyev v. Russia, no. 20292/04, §§ 121-66, 30 July 2009). 114. Having regard to its case-law on the subject and the material submitted by the parties, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Although in the present case there is no indication that there was a positive intention to humiliate or debase the applicant, the Court finds that the fact that the applicant had to spend two years and almost eight months (between 24 July 2003 and 16 January 2006 and from 8 February to 12 April 2006) in the overcrowded cells of IZ‑77/1, IZ-77/2 and IZ-50/10 was itself sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and to arouse in him feelings of anguish and inferiority capable of humiliating and debasing him.", "115. There has therefore been a violation of Article 3 of the Convention as the Court finds the applicant’s detention to have been inhuman and degrading within the meaning of that provision. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 116. The applicant further complained of the authorities’ failure to ensure his presence before the trial and appeal courts which had examined the criminal case against him.", "He relied on Article 6 §§ 1 and 3 (c) of the Convention, which, insofar as relevant, reads as follows: “1. In the determination of his civil rights and obligations or of any criminal charge against him... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;...” A. Submissions by the parties 117. The Government submitted that the applicant’s criminal case had been heard in compliance with the requirements of Section 51 of the Russian Code of Criminal Procedure and that Article 6 of the Convention in its criminal limb was inapplicable to these proceedings. In the latter connection, they referred to the cases of Antoine v. the United Kingdom ((dec.), no.", "62960/00, ECHR 2003‑...) and Kerr v. the United Kingdom (dec.), no. 63356/00, 23 September 2003) and maintained that the procedure under section 4A of the 1964 Act was similar in operation to the procedure in the case at hand. The Government argued that the purpose of the compulsory medical measures was curing the persons who had committed a socially dangerous act or improvement of their mental health as well as preventing them from commission of other such acts. According to the Government, the applicable domestic legal provisions did not prescribe mandatory attendance at court hearings by a mentally ill defendant. At the same time, they guaranteed the protection of the interests of a mentally ill defendant through mandatory legal assistance and representation by a legal guardian.", "Furthermore, on the facts of the case, the applicant’s lawyer had attended the hearings and had ensured the applicant’s defence. 118. The applicant maintained his complaint, arguing that he should have had an opportunity to attend the trial and appeal hearings in person but had been denied that possibility. B. The Court’s assessment 1.", "Admissibility 119. The Court notes that the Government contested the applicability of Article 6 of the Convention in its criminal limb to the proceedings against the applicant, having relied on the Antoine and Kerr cases, in which the Court found that from the time that the applicant was found by a jury to be unfit to plead, the criminal proceedings against him had come to an end. This conclusion was reached with reference to a procedure under section 4A of the 1964 Act and the Government were drawing parallels between that procedure and the one described in the relevant parts of Section 51 of the CCrP. 120. The Court notes that by contrast to the above mentioned cases, the applicant’s situation in the case at hand did not change substantially after the investigator’s decision of 6 August 2003, in which the applicant was found to be mentally ill.", "He remained in custody as an accused in the criminal case for another two years and nine months and had to await the conclusion of the procedure against him as any other defendant in ordinary criminal proceedings. Even despite some similarities in the essential purpose of the procedures in question, the Court cannot but notice the differences in their practical operation and, accordingly, concludes that the proceedings in respect of the applicant in the present case were “criminal” within the meaning of Article 6 § 1 of the Convention. 121. The Court notes that the reopening of the proceedings by way of supervisory review after the first round of examination of the case failed to provide appropriate and sufficient redress for the applicant and he may therefore still claim to be a victim within the meaning of Article 34 of the Convention in respect of the entirety of the criminal proceedings against him (see Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 82-84, 2 November 2010).", "It further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds and that it must therefore be declared admissible. 2. Merits 122. The Court reiterates that it flows from the notion of a fair trial that a person charged with a criminal offence should, as a general principle, be entitled to be present and participate effectively in the criminal proceedings (see Colozza v. Italy, 12 February 1985, §§ 27 and 29, Series A no.", "89). In the present case, this requirement was not satisfied because the District Court decided the applicant’s case in his absence. The applicant was also not given an opportunity to appear before the appeal court. The Court has, therefore, to decide whether the instant case involved any circumstances which were capable of justifying a complete loss by the applicant of the entitlement to be present. 123.", "The Court reiterates that the object and purpose of Article 6 §§ 1 and 3 (c) presuppose the accused’s presence. The State is under an obligation to secure the attendance of an accused who is in custody (see, mutatis mutandis, Goddi v. Italy, 9 April 1984, § 29, Series A no. 76). It is of capital importance that a defendant appear, both because of his right to a hearing and because of the need to verify the accuracy of his statements and compare them with those of witnesses (see Van Geyseghem v. Belgium [GC], no. 26103/95, § 33, ECHR 1999‑I).", "The Court reiterates further that the trial court may exceptionally continue hearings where the accused is absent on account of illness, provided that his or her interests are sufficiently protected (see Ninn-Hansen v. Denmark (dec.), no. 28972/95, p. 351, ECHR 1999-V). However, where proceedings involve an assessment of the personality and character of the accused and his state of mind at the time of the offence and where their outcome could be of major detriment to him, it is essential to the fairness of the proceedings that he be present at the hearing and afforded the opportunity to participate in it together with his counsel (see Kremzow v. Austria, 21 September 1993, § 67, Series A no. 268-B; Zana v. Turkey, 25 November 1997, §§ 71-73, Reports of Judgments and Decisions 1997‑VII; and Pobornikoff v. Austria, no. 28501/95, § 31, 3 October 2000).", "124. In the present case the authorities did not ensure the applicant’s appearance before the trial and appeal courts, alleging that domestic law did not call for his presence in view of his mental condition. It is not in dispute between the parties that starting from 6 August 2003, the date on which the investigator recognised the applicant’s mother as his sole legal representative for the purposes of the criminal proceedings, the applicant was personally excluded from participation in the proceedings, including his ability to study the case file, be directly informed of the relevant events in the case and be summoned and to attend the court hearings in the case. It is unclear whether the applicant had any say in the choice of his legal representative for the purposes of that decision, but the parties seem to be in agreement that his mother and his two lawyers acted in the applicant’s interests throughout the proceedings in this case (see, by contrast, Shtukaturov v. Russia, no. 44009/05, § 124, ECHR 2008).", "125. The Court finds that, although not having an absolute character, the right of being heard enjoys such a prominent place in a democratic society and has such a fundamental value for the protection of an individual against arbitrariness on the part of public authorities, that the mere fact of the individual suffering from a mental illness, as well as his being declared legally incapacitated, cannot automatically lead to the exclusion of the exercise of that right altogether. It is the very weakness of a mentally ill defendant which should enhance the need for supporting his rights. In this context, authorities must show requisite diligence in ensuring the accused’s right to be present in an effective manner and must act particularly carefully when infringing upon that right, so as not to place the mentally ill at a disadvantage when compared with other defendants who do enjoy such a right (see, mutatis mutandis, F.C.B. v. Italy, 28 August 1991, § 33, Series A no.", "208‑B). The Court is not convinced that the Russian courts complied with that responsibility in the present case. 126. In particular, there is no indication that the Russian courts have made a proper assessment of the applicant’s ability to participate at a qualified level in the criminal proceedings against him. The applicant did not appear before the Garrison Court even once.", "The absence of a formal decision dealing with the issue of the applicant’s attendance does not escape the Court’s attention either. Furthermore, the applicant never appeared before the Circuit Court judges. In turn, the Court does not see any evidence convincingly demonstrating that the applicant’s behaviour or his mental condition precluded his stating his case in open court. The Court would add that the applicant’s inability to participate in the proceedings in person seemed to have resulted not from the seriousness of his mental condition, but rather from the lack of a legal provision in the domestic law which would recognise his right to attend the court hearings even in a limited number of situations. The domestic law replaced the applicant with his legal representative for all purposes relating to procedural participation in those proceedings and simply did not provide a possibility for the applicant to be present in person.", "127. The Court further notes that the domestic courts decided on the criminal charge against the applicant, found him unfit to bear criminal responsibility owing to his mental health and ordered his confinement in a psychiatric institution. Their argument that the applicant’s presence was not required purely on the grounds of his being a mentally disturbed person is striking, given that it was for the courts to determine whether he had committed the offence in a deranged state of mind and to assess whether his mental condition required compulsory medical care (see, Romanov v. Russia, no. 63993/00, § 109, 20 October 2005). 128.", "In view of what was at stake for the applicant the courts could not, if the criminal proceedings were to be fair, have decided on his case without observing the applicant’s demeanour and directly assessing the evidence submitted by him. The presence of the applicant’s lawyer and mother could not compensate for the applicant’s inability to state his own case by appearing before the court (see, for similar reasoning, Romanov, cited above, § 112, and, mutatis mutandis, Mamedova v. Russia, no. 7064/05, 1 June 2006, and Duda v. Poland, no. 67016/01, 19 December 2006). 129.", "In view of the above considerations the Court finds a breach of Article 6 §§ 1 and 3 (c) of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 130. In addition, the applicant complained under Articles 3, 5, 6 and 13 of the Convention that he had been ill-treated after his first arrest, that the arrest had been unlawful, that he had been repeatedly transferred by the prison authorities in appalling conditions, that he had been denied medical treatment during his detention, that his detention on remand between 15 May and 23 December 2003 had been unlawful, that he had been unable to appeal against the decision of 30 January 2004, that some third persons had disseminated alleged falsehoods about him to his neighbours, that the criminal proceedings against him (the period referred to lasted between 2002 and early 2004) had been too lengthy and generally unfair and that he had been unable to participate in person in the detention hearings (raised for the first time in his observations of 21 March 2009). 131.", "However, having regard to all the material in its possession and in so far as the matters complained of are within its competence, the Court finds that the applicant’s complaints are unsubstantiated and do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 132. 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 133. The applicant claimed compensation of 613,884 euros (EUR) in respect of his alleged pecuniary losses and EUR 66,567 in respect of non-pecuniary damage. 134. The Government submitted that this claim was unfounded and generally excessive. 135.", "The Court does not find any causal link between the alleged pecuniary losses and the violations found. It therefore dismisses the applicant’s pecuniary claim. As regard his claim in respect of non-pecuniary damage, the Court considers that the applicant must have sustained stress and frustration as a result of the violations found. Making an assessment on an equitable basis, the Court awards the applicant EUR 12,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. B.", "Costs and expenses 136. The applicant also claimed EUR 5,973 for the legal and various other costs incurred in the domestic proceedings and also before this Court. 137. The Government submitted that the lawyer’s fees were excessive and that in any event it had not been demonstrated that the fees in question had actually been paid. 138.", "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. Having regard to the material in its possession, the Court considers it reasonable to award the applicant the sum of EUR 1,000 for the legal and other expenses incurred in relation to the proceedings before the Court, plus any tax that may be chargeable to the applicant on that amount. C. Default interest 139. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaint concerning the allegedly appalling conditions of the applicant’s detention between 24 July 2003 and 16 January 2006 and from 8 February to 12 April 2006 as well as the applicant’s inability to attend the hearings in his criminal case in person admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in the remand facilities between 24 July 2003 and 16 January 2006 and from 8 February to 12 April 2006; 3. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention on account of the applicant’s inability to participate in the proceedings against him; 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 12,000 (twelwe thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, and EUR 1,000 (one thousand euros) in respect of legal and other costs, plus any tax that may be chargeable to the applicant, both sums to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 30 October 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenNina VajićRegistrarPresident" ]
[ "SECOND SECTION CASE OF ALBERGAS AND ARLAUSKAS v. LITHUANIA (Application no. 17978/05) JUDGMENT STRASBOURG 27 May 2014 FINAL 27/08/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Albergas and Arlauskas v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,András Sajó,Nebojša Vučinić,Helen Keller,Paul Lemmens,Egidijus Kūris,Jon Fridrik Kjølbro, judges,and Abel Campos, Deputy Section Registrar, Having deliberated in private on 6 May 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "17978/05) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Lithuanian nationals, Mr Eduardas Albergas (“the first applicant”) and Mr Jurijus Arlauskas (“the second applicant”), on 4 May 2005. 2. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė. 3. The applicants alleged that they had been deprived of their property by a decision of a domestic court and had not received adequate compensation, in breach of Article 1 of Protocol No.", "1 to the Convention. 4. On 29 June 2012 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The first applicant was born in 1949 and lives in Vilnius. The second applicant was born in 1955 and according to the most recently available data, also lives in Vilnius. 6. In 1994 the Vilnius City municipality assigned a plot of land measuring 0.08 hectares to the first applicant for the construction of an individual house. At the same time similar plots were assigned to other private persons.", "In accordance with the provisions of the domestic law in force and because of his status as a deportee’s family member, the first applicant was entitled to acquire the plot of land. 7. On 5 September 1995 the first applicant and the Vilnius Region Administration signed a contract by which he purchased the plot of land from the State. He paid 422 Lithuanian litai (LTL; approximately 122 euros (EUR)) and 423 “single-use investment vouchers” (investiciniai čekiai). 8.", "Subsequently, the first applicant registered the plot of land in his name in the land registry. 9. In 10 April 1997 the first applicant sold the plot for LTL 6,000 (about EUR 1,740) to the second applicant, who then registered the plot of land in his own name. 1. Civil proceedings concerning the annulment of the contracts 10.", "On an unspecified date the second applicant brought a claim before the courts against a private person, R.A., alleging that his right to peaceful enjoyment of his possession had been breached. The second applicant claimed that he had been unable to use his land because R.A., who lived next to the plot of land, had unlawfully put a fence around it. 11. R.A. lodged a counterclaim against both applicants, requesting the annulment of the land sale contracts of 1995 and 1997 (see paragraphs 7 and 9 above), together with the decisions of the authorities. R.A. claimed restoration in natura of her ownership rights to the disputed plot of land, as it was part of her father’s land which had been nationalised by the Soviet authorities.", "R.A. had requested the restoration of her property rights in 1991, and in 1999 her rights had been restored in natura, but only to a part of her father’s plot of land. 12. The courts at two instances granted the second applicant’s claim and dismissed R.A.’s counterclaim, noting that under the Law on the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property (įstatymas “Dėl piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atstatymo tvarkos ir sąlygų”; hereinafter “Law on Restitution I”) in 1994, R.A. had been entitled to restitution in natura of not more than 0.2 hectares of land. The local authorities had taken this circumstance into consideration when assigning the plot of land to the first applicant. The fact that under the new Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property (Piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atkūrimo įstatymas; hereinafter “Law on Restitution II”) in force after 1 July 1997 R.A. was entitled to restoration in natura of up to 1 hectare of land was not considered as meaning that the decisions adopted by the local authorities in 1994-95 were automatically invalid.", "13. R.A. appealed against those court decisions to the cassation court. By a final decision of 27 November 2002 the Supreme Court overturned the decisions of the lower courts. By applying the principle of priority for former owners’ rights that had been developed in the civil case P. Roževičienė v. Panevėžio miesto valdyba and others, no. 3K-3-384/1999, the Supreme Court concluded that the local authorities in 1994-95 had not been allowed to sell plots of land to third persons before ownership rights had been restored.", "The court also indicated that the applicants had acted in “bad faith” (nesąžiningai) when purchasing the disputed plot of land; however, the court decision did not substantiate the first applicant’s “bad faith”. As concerns the second applicant’s “bad faith”, the Supreme Court assumed that he had known about the third persons’ rights to the land. 14. By the above-mentioned decision of the Supreme Court the contracts of 1995 and 1997, together with the decision of 1994 to assign the disputed plot, were annulled and the plot was returned to the State. The first applicant had to return LTL 6,000 to the second applicant, the amount which he had received from the latter for the plot.", "The State had to return LTL 422 to the first applicant; none of the “single-use investment vouchers” were returned to him, as they no longer had any pecuniary value at the time of the Supreme Court’s decision. 2. Administrative and civil proceedings for redress 15. Alleging that they had incurred a loss following the decision of the Supreme Court, the applicants applied to the National Land Service (Nacionalinė žemės tarnyba) in 2004 with requests to be assigned a new plot of land of the same size and value. Their requests were dismissed.", "16. The applicants applied to the administrative courts. They argued that they had acquired the plot of land in good faith. The applicants had been deprived of the property by a decision of the Supreme Court, and the sums that had been awarded had not adequately compensated for the damage sustained. In particular, the first applicant alleged that the court had not awarded the full value of the property, given that part of the price had been paid in “single-use investment vouchers”.", "To compensate for their loss, the applicants asked to be assigned a new plot of land. 17. On 1 October 2004 the Vilnius Regional Administrative Court dismissed the claim. On 19 January 2005 the Supreme Administrative Court upheld that decision. The courts noted that the provisions of the domestic law under which the first applicant had been assigned the plot of land were no longer in force.", "As concerned the second applicant, he was not eligible under the domestic law to be assigned a plot of land either. 18. On 15 August 2005 the first applicant complied with the Supreme Court’s decision of 27 November 2002 and paid the second applicant LTL 6,000. 19. The applicants subsequently applied to the civil courts with a claim for damages against the Vilnius City municipality.", "20. On 29 September 2005 the Vilnius City First District Court dismissed the applicants’ claim having reiterated that the applicants had purchased the plot of land in “bad faith”. It appears that the applicants did not appeal against that decision. II. RELEVANT DOMESTIC LAW AND PRACTICE 1.", "Statutory provisions 21. The Constitution of the Republic of Lithuania provides: Article 23 “Property shall be inviolable. Rights of ownership shall be protected by law. Property may be taken over only for the needs of society according to the procedure established by law and shall be justly compensated for.” Article 30 “The person whose constitutional rights or freedoms are violated shall have the right to apply to court. Compensation for material and moral damage inflicted upon a person shall be established by law.” 22.", "The Law on Restitution I, enacted on 18 June 1991 and amended on numerous occasions, provided that, in restoring property rights, priority would be given to restitution in natura. The State retained the right to purchase a property from the previous owners if the current social conditions and relations so required. In particular, Article 12 § 1 (3) of the Law on Restitution I provided that the land is considered to be reserved by the State in the public interest (valstybės išperkama žemė) if it had been allocated, pursuant to the existing laws, to persons building individual houses. 23. On 9 July 1997, after the Law on Restitution I had been annulled, the Law on Restitution II entered into force.", "Provisions of the new law continued to ensure the principle of priority of restitution of property rights in natura. With regard to the land which had been allocated to persons for building of individual houses, Article 12 (2) of the new law provided that such land was still considered to be the land reserved by the State in the public interest, thus the provision of Article 12 § 1 (3) of the Law on Restitution I has been maintained in the new law. 24. It is established in the Preamble to the Law on Restitution II that “the rights of ownership acquired by the citizens of the Republic of Lithuania before the occupation are not revoked and have continuity”, that “the Constitution of the Republic of Lithuania adopted by the will of the citizens of the Republic of Lithuania in 1992, guarantees and defends the rights and property of the State and its citizens”, that “the continuing restoration of the rights of ownership is based on the provisions of the 18 June 1991 Law of the Republic of Lithuania “On the Procedure and Conditions of Restoration of the Rights of Ownership to the Existing Real Property” – the existing real property shall be returned to citizens of the Republic of Lithuania, and in the event it is impossible to do so, they shall be compensated justly.” 25. Article 6.271 of the Civil Code, as in force from 1 July 2001, provides that damage caused by the unlawful acts of a public authority must be compensated for by the State, irrespective of any error by a particular public servant or other employee of the public authority.", "2. Lithuanian courts’ practice 26. In its ruling of 27 May 1994 the Constitutional Court held, inter alia, that possessions which had been nationalised by the Soviet authorities since 1940 should be considered as “property under the de facto control of the State”. The Constitutional Court also stated that, if possible, property rights should be restored in natura. 27.", "In rulings of 15 June and 19 October 1994, the Constitutional Court noted that the authorities of Lithuania, as a re-established State in 1990, were not responsible for the Soviet occupation half a century earlier, nor were they responsible for the consequences of that occupation. The Constitutional Court held that since the 1940s many private individuals had bought, in accordance with the legislation applicable at the material time, property which had previously been nationalised. It was impossible to ignore those factual and legal aspects, and the domestic legislation on restitution of property rights duly took into account the interests not only of the former owners, but also of the private persons who had occupied or purchased the property under lawful contracts. 28. In a ruling of 4 March 2003 the Constitutional Court reaffirmed that in the process of the restoration of the rights of ownership, one must coordinate the interests of both the former owners and society.", "It further reiterated the principle of a “restricted restitution”: “The State of Lithuania, while striving to restore justice in part at least, i.e. to restore the violated rights of ownership, chose restricted restitution but not restitutio in integrum. The restoration of justice when the owners are compensated for the existing real property which has not been returned in natura has two sides: it is justice in respect of the owner as well as the entire society. The unlawful actions of the occupation government inflicted enormous damage not only on the owners whose rights of ownership were denied but also on the whole society and the entire State. While restoring justice in respect of the owners, one cannot ignore justice in respect of the entire society whose members are also the owners as well.", "... It has been mentioned that the State chose restricted restitution but not restitutio in integrum. The rights of ownership of citizens are restored not to the entire property which was unlawfully nationalised and expropriated by other unlawful ways, but to the existing real property.” 29. As concerns Article 30 of the Constitution and the right of persons to apply to court to defend their interests from interferences by the State, the Constitutional Court stated that the State authorities and their officials must act in conformity with the Constitution and law. They are obliged to protect human rights and freedoms and shall not themselves violate them.", "Public service should function so that not only is liability established for violations committed by the authorities but the persons who committed violations while in the public service would also be brought to justice. Otherwise, the confidence of people in the power of the State and the law would be ruined and “legal nihilism would flourish” (the rulings of 30 June 2000, 13 December 2004 and 19 August 2006). 30. Furthermore, the Constitutional Court has held that the laws must establish such legal regulation where a person who had incurred damage by unlawful actions would be able to claim just redress for that damage and to receive compensation which is in conformity with the principles of adequacy and proportionality (the ruling of 27 March 2009). 31.", "With regard to the status of an acquirer in good faith, the Constitutional Court held that, under the Constitution, the rights of a person who had sought to acquire property lawfully and in good faith, but who had acquired it without knowing that the owner had lost that property as a result of a crime committed by another person (or other persons), must be defended (ruling of 30 October 2008): “While regulating the protection of the rights of ownership, the legislator must ensure the balance of values defended in and protected by the Constitution. The fact that the ownership rights of a person who has lost his property as a result of a crime committed by another person (other persons) must be defended does not mean that one does not also have to defend the rights of a person who sought to acquire property lawfully and in good faith but who acquired it without knowing that the owner had lost that property as a result of a crime committed by another person (other persons). The requirement to defend the rights of such a person stems from the Constitution, inter alia, the constitutional principle of a State under the rule of law and the constitutional principle of compensation for damage, which is enshrined in Article 30 of the Constitution. This constitutional principle is inseparable from the principle of justice inherent in the Constitution: all the necessary legal preconditions must be created by laws in order to justly compensate for the inflicted damage (Constitutional Court ruling of 19 August 2006).” 32. On numerous occasions in its jurisprudence the Constitutional Court emphasized the importance of protection of legitimate expectations which implied the duty of the State and its institutions to observe the obligations undertaken.", "In this connection it was concluded that “persons have the right to reasonably believe that their rights acquired under valid laws or other legal acts which are not in conflict with the Constitution will be retained for the established time and it will be possible to implement them in reality” and that a person could “reasonably expect that if he obeys law, and fulfils the requirements of the laws, his expectations will be held legitimate by the State and will be defended and protected”. The Constitutional Court also held that it is necessary to respect the norms and principles of the Constitution while changing the legal regulation, and inter alia the principle of lex retro non agit, and that the rights and legitimate expectations that had been acquired by a person may not be denied by changes in legal regulation (the rulings of 4 March 2003, 4 July 2003 and 13 December 2004). 33. On the issue of the lawfulness of the sale of previously nationalised property, in its decisions nos. 3K-3-384/1999 of 6 September 1999 and 3K‑3‑698/2003 of 16 June 2003, the Supreme Court held that as long as the question of the restoration of the former owner’s property rights was pending and had not been definitively resolved, that property had to be considered as disputed.", "Accordingly, such properties could not be transferred to third parties, because this could result in successive violations of the former owner’s ownership rights. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 34. The applicants complained that the State had unlawfully deprived them of their property and had not provided them with adequate compensation, in the form of either land or money.", "They relied on Article 1 of Protocol No. 1, which reads as follows: “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 ...” 35. By a decision of the Supreme Court of 27 November 2002 the second applicant had to return to the State the plot of land which he had owned since 1997, and in exchange received 6,000 LTL (the price he had paid for the plot in 1997). At the same time the first applicant was ordered to pay 6,000 LTL, while receiving 423 LTL from the State.", "A. As concerns the second applicant 36. The Court considers that it is unnecessary to continue the examination of the present case in respect of the second applicant for the reasons outlined below. 37. Having communicated the application to the respondent Government and received their observations, on 6 December 2012 the Court invited the second applicant to respond and to submit his claims for just satisfaction before 17 January 2013.", "The letter was sent to the applicant’s home address in Vilnius, which he had indicated as his address for correspondence. 38. As no reply was received, on 14 February 2013 the Court advised the second applicant, by a letter sent by registered mail that the deadline for submission of his observations had expired, but no observations from him had reached the Court. He was informed that in accordance with Article 37 § 1 (a) of the Convention, his failure to reply might lead the Court to conclude that he was no longer interested in pursuing his application and the Court could thus strike the case out of its list of cases. He received the letter on 25 February 2013.", "However, no response has been received from him. 39. The Court considers that, in the above circumstances, the second applicant may be regarded as no longer wishing to pursue his application, within the meaning of Article 37 § 1 (a) of the Convention (see Vainorius v. Lithuania (dec.), no. 15568/08, 12 February 2013). Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights, as defined in the Convention and its Protocols, which require the continued examination of the case.", "40. Having regard to the above, the case in respect of the second applicant must be struck out of the list. B. As concerns the first applicant 1. Admissibility 41.", "The Government submitted that the applicants had not exhausted all the effective domestic remedies. He had not instituted new separate judicial proceedings, under Article 6.271 of the Civil Code, against the State to seek redress for the allegedly unlawful actions of the authorities and inadequate compensation. In this connection, the Government noted that the applicants had failed to appeal against the Vilnius City First District Court’s decision of 29 September 2005 with regard to their claim for redress. 42. The first applicant did not comment on that argument.", "43. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for breaches alleged to have taken place. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see Vernillo v. France, 20 February 1991, § 27, Series A no. 198, and Aksoy v. Turkey, no. 21987/93, §§ 51-52, Reports of Judgments and Decisions 1996-VI).", "44. It should be noted that the Supreme Court, in its decision of 27 November 2002, had already addressed the issue of payments between the parties and the State after the land sale contracts had been annulled. Moreover, the applicants’ new civil claim against the City of Vilnius for pecuniary damage in separate judicial proceedings was dismissed as unfounded by the first-instance court on 29 September 2005. The Court does not see how those new proceedings could effectively have offered a more favourable outcome to the first applicant, in particular, given that the Supreme Court had declared that the applicants acted in “bad faith”. Thus, it has not been demonstrated by the respondent Government that a claim under Article 6.271 of the Civil Code would have been an effective remedy in the first applicant’s case and would have had any prospect of success (see, mutatis mutandis, Beshiri and Others v. Albania, no.", "7352/03, § 55, 22 August 2006, and Pyrantienė v. Lithuania, no. 45092/07, §§ 24-28, 12 November 2013). 45. Furthermore, the applicants instituted administrative proceedings for redress against the State, which ended unsuccessfully for them with the delivery of the decision by the Supreme Administrative Court on 19 January 2005. Although the applicants claimed the right to be assigned a new plot of land and not pecuniary compensation as such, the aim of the claim was to cover the damage incurred because the sums awarded by the Supreme Court had not compensated for their alleged loss (see paragraphs 15-16 above).", "46. Having regard to the above circumstances, the Court dismisses the Government’s objection that the first applicant failed to exhaust domestic remedies. 47. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. 2. Merits (a) The parties’ observations 48. The first applicant alleged that the sum of LTL 422 awarded to him by the Supreme Court was unfair and inadequate compensation, as it did not cover his loss. The domestic court had not taken into consideration that in 1995 part of the price for the plot had been paid in single-use investment vouchers; in addition, he had been ordered to return LTL 6,000 to the second applicant, which he did in August 2005.", "49. Mr Albergas further stressed that he had acted in good faith when purchasing the plot from the State in 1995 and had not been aware of any third person’s rights to that property. Given that land sale procedures were carried out by public authorities and civil servants in accordance with the domestic regulations, he should not have had to bear the negative consequences of the land sale contract being declared unlawful. 50. The Government admitted that the first applicant had been deprived of his property, but argued that such deprivation was in compliance with Article 1 of Protocol No.", "1 to the Convention. The interference by the State had been justified as being “in the public interest”, namely in defence of the rights of the former owners, who had lost their title to the land during the communist regime. The decision of the court to declare the relevant administrative procedures and land sale contracts of 1994-97 unlawful was taken in accordance with the Restitution Act and the well-established practice of the Supreme Court and of the Constitutional Court of Lithuania. In the process of restoration of property rights, priority is given to the return of previously nationalised property to its former owners in natura; therefore, nationalised property cannot be transferred to other individuals if the question of the restoration of ownership rights of the former owners is still pending. 51.", "Furthermore, the Government maintained that the first applicant had paid an advantageous price when acquiring the disputed plot from the State. He had enjoyed his property for less than two years before selling it to the second applicant, and no major improvements had been made to the plot. 52. Lastly, the Government argued that the above-mentioned errors by the domestic authorities had occurred in the context of land reform, which was linked to the process of restoration of former owners’ rights to the property that had been previously nationalised by the Soviet regime. Therefore, according to the Court’s case-law in the context of central and eastern European States, the circumstances concerning the transition from a totalitarian regime to a democracy and the specific circumstances of each case have to be taken into account.", "(b) The Court’s assessment (i) General principles 53. The relevant general principles are set out in paragraphs 37-40 of Pyrantienė, cited above. (ii) Application of the above principles in the present case (α) Whether there has been an interference 54. The Court notes that when the Supreme Court adopted its decision of 27 November 2002, the first applicant was no longer the owner of the plot of land; he had sold it in 1997. However, by the same court decision a restitution transaction between the parties to the invalidated land sale contracts was applied and the first applicant was ordered to repay LTL 6,000 to the second applicant; he complied with that obligation in August 2005.", "55. The Court finds that the decision of the domestic court clearly had the effect of depriving the first applicant of his property within the meaning of the second sentence of Article 1 of Protocol No. 1. (β) Whether the interference has been prescribed by law 56. The decision of the Supreme Court to annul the administrative act and the land sale contracts was prescribed by law, as it was based on provisions of the Law on Restitution II and the Civil Code, and the jurisprudence of the Supreme Court (as interpreted by the Supreme Court in its decisions of 27 November 2002, and also of 6 September 1999 and 16 June 2003) that had established the priority of the rights of former owners in the event of disputes over nationalised property.", "The Court observes that although the Law on Restitution II did not explicitly intend to declare an earlier sale of the State’s land as invalid, there already existed the established practice of the Supreme Court (see paragraphs 13 and 33 above). The Court therefore finds that the deprivation was in accordance with the law, as required by Article 1 of Protocol No. 1. (γ) Legitimate aim 57. As in Pyrantienė, the measure complained of was designed to correct the authorities’ mistake and to protect the interests of the former owners by restoring their ownership rights to the plot of land in natura.", "The Court thus considers that this interference pursued a legitimate aim (see ibid., §§ 44-48, and Bečvář and Bečvářová v. the Czech Republic, no. 58358/00, § 67, 14 December 2004). (δ) Proportionality 58. The Court reiterates that any interference with property must, in addition to being lawful and pursuing a legitimate aim, also satisfy the requirement of proportionality. A fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights, the search for such a fair balance being inherent in the whole of the Convention.", "The requisite balance will not be struck where the person concerned bears an individual and excessive burden (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74, Series A no. 52; and Brumărescu v. Romania [GC], no. 28342/95, § 78, ECHR 1999-VII). 59. On several occasions in similar cases that concerned, as in the present case, the correction of mistakes made by the State authorities in the process of restitution, the Court has emphasised the necessity of ensuring that the remedying of old injuries does not create disproportionate new wrongs (see Velikovi and Others v. Bulgaria, nos.", "43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01 and 194/02, § 178, 15 March 2007). To that end, the legislation should make it possible to take into account the particular circumstances of each case, so that individuals who have acquired their possessions in good faith are not made to bear the burden of responsibility, which is rightfully that of the State which confiscated those possessions. In other words, the risk of any mistake made by the State authority must be borne by the State, and errors must not be remedied at the expense of the individual concerned (see Gladysheva v. Russia, no. 7097/10, § 80, 6 December 2011; and Pyrantienė, cited above, § 70). Moreover, those mistakes must be revealed and corrected in a due process of law.", "60. In order to assess the burden borne by an applicant, the Court must take into consideration the particular circumstances of each case, namely the conditions under which the disputed property was acquired and the compensation that was received by the applicant in exchange for the property, as well as the applicant’s personal and social situation (see Pyrantienė, cited above, § 51). 61. The Court reiterates that the present case concerns the deprivation of the first applicant’s property, which took place in 2002 when the decision of the Supreme Court was delivered. The unlawful acts of the public administration in transferring the land from the State to the first applicant had taken place in 1994-95.", "Therefore, all of the above-mentioned acts are attributable to the authorities of the present State, and not those of the Soviet regime (see, mutatis mutandis, Gashi v. Croatia, no. 32457/05, §§ 27-34, 13 December 2007, and Pyrantienė, cited above, § 52). 62. The Government argued that the above-mentioned errors by the domestic authorities had occurred in the context of land reform, which was linked to the complex process of restoration of former owners’ property rights in Lithuania. In the Court’s view, although it is true that the State faces complex legal and factual issues when resolving such questions, in the present case the hindrance to the peaceful enjoyment of the property is attributable exclusively to the respondent State, and the existence of any justifying exceptional circumstances has not been demonstrated by the Government (see, Nekvedavičius v. Lithuania, no.", "1471/05, § 88, 10 December 2013). 63. In examining the conformity with the Convention of the events indicated by the first applicant, the Court stresses the particular importance of the principle of good governance. It requires that where an issue pertaining to the general interest is at stake, especially when it affects fundamental human rights, including property rights, the public authorities must act promptly and in an appropriate and above all consistent manner (see Beyeler v. Italy [GC], no. 33202/96, § 120, ECHR 2000‑I, and Rysovskyy v. Ukraine, no.", "29979/04, § 71, 20 October 2011). 64. The land sale contracts of 1995 and 1997 were declared null and void after the former owner lodged a civil claim, which was finally allowed by the Supreme Court. It was established that the local authorities had not been entitled to transfer the disputed property to the first applicant before the question of restoration of the rights of the former owners had been resolved. The procedures for the sale of the land were conducted by official bodies exercising the authority of the State (see paragraphs 6-7 above) and the land sale contract was signed between the first applicant and the Vilnius Region Administration under the standard conditions.", "65. The Court considers that the first applicant had very limited opportunities, if any, to influence the terms of the contract or the purchase price, as this was within the State’s exclusive competence (see, mutatis mutandis, Gladysheva, cited above, § 79). Therefore, the authorities should have verified the applicant’s eligibility for allocation of the land and the conformity of the land sale with the procedures and laws in force. 66. In this connection, it should be noted that the Supreme Court indicated that the applicants had acted in “bad faith” when purchasing the disputed plot of land, although no reasons were given in the decision to explain the first applicant’s “bad faith”.", "The Court finds the Supreme Court’s assertion even more surprising given that the lower courts at two instances had accepted that the applicants had acted in good faith and in accordance with the laws applicable at the material time. 67. The Court reiterates that, according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based (see Suominen v. Finland, no. 37801/97, § 34, 1 July 2003). That was not the case with the above-mentioned assertion by the Supreme Court.", "The Government have not put forward any reasons or substantiation as to the first applicant’s “bad faith” either, although it falls within the Government’s responsibility to prove that the first applicant, who presumably had had trust and legitimate expectation that the authorities would take all measures to avoid mistakes in application of legislation, was not acting in good faith. 68. The first applicant in the present case was an ordinary citizen and the purchase was based on laws which were applicable to all persons having the same status. Thus, the Court is of the opinion that his situation must be distinguished from those of individuals who have taken advantage of their privileged position or have otherwise acted unlawfully to acquire property. 69.", "In view of the above considerations and in the absence of any arguments to the contrary, the Court is satisfied that the first applicant acquired the property in good faith. It thus accepts that he was unaware that the State’s land had been sold to him in breach of the law and did not know that this was the result of omissions on the part of the administration; the unlawfulness of the land sale was not established until 27 November 2002 by the Supreme Court. The Court concludes that the first applicant was a bona fide owner and his proprietary interest in the enjoyment of the land had been sufficiently established before he sold it to the second applicant in 1997 (see Pyrantienė, cited above, § 60). For the Court, the fact that the first applicant paid for the disputed plot of land with investment vouchers is immaterial in terms of his rights of ownership (see, mutatis mutandis, Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 121, 25 October 2012).", "70. As to the first applicant’s legitimate expectations, those have to be examined with regard to his situation at the time when the disputed decision of 27 November 2002 was adopted. 71. After the first applicant had transferred his title to the plot in 1997 for the price of LTL 6,000, he became the owner of that sum of money. It has been stated above that he could not reasonably have anticipated the annulment of the land sale contract, which had even been registered with the Land Registry.", "Thus, the first applicant had a legitimate expectation of being able to continue to enjoy that possession. 72. The Court further observes that the first applicant was deprived of that amount to his detriment, given that in exchange he was awarded only LTL 422, that is, only a part of the price he had paid to the State in 1995. The Supreme Court did not take into consideration the entirety of the first applicant’s loss of property and did not award compensation for the remainder of the sum paid. 73.", "Compensation terms under the relevant legislation are material to the assessment of whether the contested measure respects the requisite fair balance and, notably, whether it imposes a disproportionate burden on the applicant. In this connection, the Court has already found that the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference (see The Holy Monasteries v. Greece, 9 December 1994, § 71, Series A no. 301‑A; Former King of Greece and Others v. Greece [GC], no. 25701/94, § 89, ECHR 2000‑XII; Zvolský and Zvolská v. the Czech Republic, no. 46129/99, § 70, ECHR 2002‑IX; and, Vistiņš and Perepjolkins, cited above, § 110).", "74. Turning to the case at hand, the Court holds that not only was the compensation awarded to the first applicant clearly disproportionate to his actual pecuniary loss, but the error made by the State authorities was remedied at the expense of the applicant, who appeared to be the victim of that omission (see paragraph 59 above). 75. The foregoing considerations are sufficient to enable the Court to conclude that an individual and excessive burden was imposed on the first applicant and that the authorities failed to strike a fair balance between the demands of the public interest on the one hand and the first applicant’s right to the peaceful enjoyment of his possessions on the other. 76.", "There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 77. 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 78. The first applicant claimed 19,769 Lithuanian litai (LTL) (approximately 5,730 euros (EUR)) in respect of pecuniary damage and LTL 50,000 (approximately EUR 14,480) in respect of non-pecuniary damage. 79. The Government contested those claims as unsubstantiated and excessive. 80.", "The Court notes that the first applicant was deprived of his property in connection with the violation found. Among the matters which the Court takes into account when assessing compensation are pecuniary damage, that is, the loss actually suffered as a direct result of the alleged violation, and non-pecuniary damage, that is, reparation for the anxiety, inconvenience and uncertainty caused by the violation, and other non-pecuniary loss (see, among other authorities, Ernestina Zullo v. Italy, no. 64897/01, § 25, 10 November 2004). 81. In addition, if one or more heads of damage cannot be calculated precisely or if the distinction between pecuniary and non-pecuniary damage proves difficult, the Court may decide to make a global assessment (see Comingersoll S.A. v. Portugal [GC], no.", "35382/97, § 29, ECHR 2000-IV). 82. The Court considers that the first applicant suffered certain pecuniary loss in connection with the failure of the State to award him adequate compensation for deprivation of his property. 83. Moreover, the Court also finds that the first applicant must have suffered uncertainty and frustration as a result of the violation found.", "84. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the first applicant a lump sum of EUR 8,000 in respect of pecuniary and non-pecuniary damage. B. Costs and expenses 85. The first applicant also claimed LTL 668 (approximately EUR 190) for the costs and expenses incurred before the domestic courts.", "86. The Government contested that claim as unsubstantiated. 87. 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 190 for costs and expenses in the domestic proceedings.", "C. Default interest 88. 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. Decides to strike the application out of its list of cases in so far as it concerns the complaint of the second applicant; 2. Declares the remainder of the application admissible; 3.", "Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention in respect of the first applicant; 4. Holds (a) that the respondent State is to pay the first 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 Lithuanian litai at the rate applicable at the date of settlement: (i) EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage; (ii) EUR 190 (one hundred and ninety euros), plus any tax that may be chargeable to the first applicant, in respect of costs and expenses; (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. Done in English, and notified in writing on 27 May 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposGuido RaimondiDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Lemmens is annexed to this judgment.", "G.R.A.A.C. CONCURRING OPINION OF JUDGE LEMMENS I agree with my colleagues that there has been a violation of Article 1 of Protocol No. 1. However, I would have preferred a different reasoning. I think that the reasoning in our judgment unnecessarily discusses a number of questions of fact and domestic law, both of which are, in principle, not a matter for the Court.", "In my opinion, the issue in this case is relatively simple. The Supreme Court found in 2002 that the City of Vilnius and the Region of Vilnius had taken decisions, in 1994 and 1995, that were unlawful under domestic law. As a result, the Supreme Court ordered that the plot of land be returned by the second applicant to the State, that the first applicant return to the second applicant the sum he had received from the latter (LTL 6,000), and that the State reimburse the first applicant for part (LTL 422) of the sum it had received from him (LTL 422, plus 423 “single-use investment vouchers”). The first applicant was not compensated for the 423 vouchers he had transferred to the State. Nor was he compensated for the loss of the profit that he had made in 1997, when he managed to sell the land to the second applicant at a much higher price than that at which he himself had bought it from the State.", "The first applicant complained that he had been deprived of his “property” without receiving adequate compensation. I agree with the majority that, while the interference in the first applicant’s right to peaceful enjoyment of his possessions was in compliance with the conditions provided for by law and was in the public interest (see the conditions explicitly set out in Article 1, first paragraph, second sentence, of Protocol No. 1), it did not strike a fair balance between the demands of the public interest and the applicant’s individual right. The majority arrives at that conclusion after explicitly disagreeing with the Supreme Court that the first applicant had bought the plot of land in bad faith (see paragraphs 66-69). The majority may be right, but I would have preferred that our Court did not enter into an assessment of the applicant’s conduct in 1995 and did not substitute its own assessment for that of the Supreme Court.", "Indeed, I am not sure that we are in possession of all the relevant elements that would allow this Court to come to a conclusion on this issue, in one sense or another. Moreover, the majority considers that, when the Supreme Court handed down its decision in 2002, the first applicant had a “legitimate expectation” of being able to continue to enjoy the sum of money he had received in 1997 when he sold the land to the second applicant (see paragraph 71). I see no need to make a factual assessment of this nature. And again, I wonder whether we have available all the necessary elements to pronounce on what expectations were “legitimate” in 2002. I am afraid that by including these findings in its reasoning, the majority is acting more like a domestic court than a supervisory European court.", "In my opinion, it would have been sufficient simply to note that, because of the unlawful acts committed by the local and regional authorities (in 1994 and 1995), the first applicant had to return a sum of LTL 6,000 to the second applicant, while being reimbursed by the State only up to LTL 422. The compensation thus received for the consequences of mistakes committed by the public authorities was not in a reasonable relationship of proportionality with the loss suffered by the first applicant. Even if the applicant could legitimately be required to make a sacrifice “in the public interest”, the individual burden actually placed on him was, as the Court finds, excessive (see paragraph 75). The interference was therefore not proportionate to the aim pursued." ]
[ "SECOND SECTION CASE OF GÜLER AND ÖNGEL v. TURKEY (Applications nos. 29612/05 and 30668/05) JUDGMENT STRASBOURG 4 October 2011 FINAL 04/01/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Güler and Öngel v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Danutė Jočienė,David Thór Björgvinsson,Dragoljub Popović,András Sajó,Işıl Karakaş,Guido Raimondi, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 14 September 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos.", "29612/05 and 30668/05) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Serdar Güler and Mr Savaş Kurtuluş Öngel (“the applicants”), on 3 August 2005. 2. The applicants were represented by Mrs Y. Yeşilyurt, a lawyer practising in İstanbul. The Turkish Government (“the Government”) were represented by their Agent. 3.", "On 15 September 2009 the President of the Second Section decided to give notice of the applications to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1977 and 1979 respectively.", "5. On 29 June 2004 a large group of demonstrators, including the applicants, gathered in Istiklal Street in front of the Galatasaray High School in Istanbul to attend the reading out of a statement to the press in protest against the NATO summit which was being held in Istanbul on 28-29 June 2004. The demonstration was organised by KESK (Kamu Emekçileri Sendikaları Konfederasyonu – The Confederation of Public Employees’ Trade Unions). A large group of police officers, all wearing helmets and gas masks and equipped with the necessary material, was also deployed to the area. Nearly 500 demonstrators took part in the demonstration and slogans were chanted against NATO.", "After the statement was read out by the representative of KESK, the demonstrators started to disperse. A small group of demonstrators, carrying the flags of their non-governmental organisation Halkevleri Derneği (Peoples’ Houses), walked towards the police officers who had blocked Istiklal Street to prevent the group from approaching Taksim Square. The demonstrators attacked the police officers with sticks and stones and the police officers used tear gas and truncheons to disperse the group. Some of the nearby shops and vehicles were damaged during the incident. According to the incident report, six police officers were wounded during the incident.", "6. The applicants, who had listened to the press statement, were arrested during this incident. According to the applicants, they were beaten and insulted during and after their arrest. The same day, they were taken to the Bayrampaşa Health Clinic for a medical examination. According to the applicants, the doctor examined them in the presence of the police officers.", "A copy of the medical report is not included in the case file. 7. On 30 June 2004 the applicants were taken to the Beyoğlu Forensic Medicine Institute for a further medical examination. The doctor who examined the applicants concluded that both of them were unfit to work for seven days. The following findings were noted in the medical report: – Serdar Güler: Large bruises on the back of the upper left arm, bruises on the back, bruises on the shoulders and on the waist, bruises on the right shoulder, bruises on the left gluteal region, tenderness of the left leg.", "– Savaş Kurtuluş Öngel: Several bruises on the back of the left shoulder, bruise on the upper side of the right shoulder blade, bruises on the left and right sides of the back, a bleeding wound on the left elbow, a bruise on the right knee, bruises on the left knee. The doctor also noted that the applicant had a nose bleed. 8. The same day, the applicants were released upon the order of the Beyoğlu Public Prosecutor. 9.", "On 18 July 2004 the applicants filed a petition with the Beyoğlu public prosecutor against the police officers who had carried out their arrest. In their petition, the applicants complained, inter alia, that their arrest had been unlawful and that the police officers had used excessive force during and after the arrest. 10. On 2 November 2004 the Beyoğlu public prosecutor issued a decision of non-prosecution in respect of the police officers who had been on duty at the relevant time. In his decision, the public prosecutor considered that the force used by the security forces had been in line with Article 16 of Law no.", "2559 on the Duties and Powers of the Police and had not been excessive. In the public prosecutor’s opinion, the injuries sustained by the applicants had been caused by a use of force which was proportionate. In delivering this decision, the public prosecutor had regard to the fact that after the press statement had been read out, a group of seventy people had not dispersed and had attacked the police officers with sticks and stones, also causing damage to nearby shops and vehicles. In the public prosecutor’s opinion, the force used by the police had therefore been proportionate. 11.", "On 29 December 2004 the applicants filed an objection against the public prosecutor’s decision. 12. On 13 December 2005 the Istanbul Assize Court dismissed the applicants’ objection. 13. In the meantime, on 30 June 2004, the Beyoğlu public prosecutor filed a bill of indictment against eighteen accused, including the applicants, with the Beyoğlu Criminal Court and accused them under Article 32 of Law no.", "2911 of taking part in an illegal demonstration without prior authorisation and of not dispersing despite the police officers’ warning. Five police officers, who had been wounded during the incident, joined the proceedings as intervening parties. 14. On 7 March 2006 the Beyoğlu Criminal Court acquitted the applicants of the charges against them. In delivering its decision, the Criminal Court had regard to a video recording of the incident, to witness statements and to the submissions of the intervening parties.", "The court found it established that the applicants were not amongst the demonstrators who had been carrying “Halkevleri” flags and had attacked the police officers. The court accordingly stated that there was no evidence in the file to support a finding that the applicants had violated Law no. 2911 or resisted the police officers as alleged. II. RELEVANT DOMESTIC LAW 15.", "Article 16 of Law no. 2559 on the Duties and Powers of the Police provides: “The police may use firearms: (a) In self defence, ...; (h) if a person or a group resists the police and prevents them from carrying out their duties or if there is an attack against the police.” Additional Article 6 (dated 16 June 1985) “In cases of resistance by persons whose arrest is necessary or by groups whose dispersal is necessary, threat of attack or an attack, the police may use force to subdue these actions. Use of force refers to the use of bodily force, physical force and all types of weapons specified in the law and may gradually increase according to the nature and level of resistance or attack with a view to restoring calm. In cases of intervention by group forces, the extent of the use of force and the equipment and instruments to be used shall be determined by the commander of the intervening force.” THE LAW I. JOINDER 16. Given the similarity of the applications, as regards both fact and law, the Court deems it appropriate to join them.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 17. The applicants complained that they had been subjected to police brutality, which had caused them physical suffering. In this respect, they relied on Article 3 of the Convention, which reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 18. The Government maintained that the applicants’ allegations were unsubstantiated and that the force used against the applicants by the police had been proportionate.", "A. Admissibility 19. The Government contended that the applicants had failed to exhaust the domestic remedies available to them under domestic law. In the first place, they submitted that the application had been lodged with the Court on 3 August 2005, while the domestic proceedings were still pending before the Istanbul Assize Court. The Government further submitted, in the alternative, that the applicants could also have initiated compensation proceedings before the administrative courts. 20.", "As regards the first limb of the Government’s objections, the Court reiterates that applicants are required, in principle, to exhaust the different domestic remedies available to them before they apply to the Court. However, the last stage in the exhaustion of these remedies may be reached after the lodging of the application but before the Court is called upon to pronounce on the issue of admissibility (see Mehmet Emin Yüksel v. Turkey (dec.), no. 40154/98, 2 December 2003). The Court notes that the final decision in the prosecution of the accused police officers was delivered on 13 December 2005, which is before the Court had decided on admissibility. The Government’s first objection must accordingly be dismissed.", "21. As regards the second objection, the Court reiterates that it has already examined and rejected the Government’s similar preliminary objections in previous cases (see, in particular, Karayiğit v. Turkey (dec.), no. 63181/00, 5 October 2004; Balçık and Others v. Turkey, no. 25/02, § 22, 29 November 2007; and Biçici v. Turkey, no. 30357/05, § 22, 27 May 2010).", "It finds no particular circumstances in the instant case which would require it to depart from its findings in the above-mentioned applications. Consequently, it rejects this part of the Government’s preliminary objection as well. 22. The Court further notes that this part of 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 23. The applicants maintained that they had participated in the demonstration organised in protest against NATO and that following the reading of a statement to the press the police had used excessive force to disperse the crowd. In support of their submissions, the applicants relied on medical reports, which stated that both applicants had several bruises on their bodies and that they were unfit to work for seven days.", "24. The Government denied the allegations and maintained that the use of force in the instant case had been proportionate and necessary. 25. As the Court has underlined on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and victim’s behaviour (see Labita v. Italy [GC], no.", "26772/95, § 119, ECHR 2000‑IV). In this connection, it also notes that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. 26. Furthermore, in assessing evidence, the standard of proof “beyond reasonable doubt” is generally applied. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.", "Further, where allegations are made under Articles 2 and 3 of the Convention, the Court must apply a particularly thorough scrutiny (see Saya and Others v. Turkey, no. 4327/02, § 19, 7 October 2008). 27. The Court observes that in the instant case there is no dispute between the parties that the applicants were injured during a demonstration due to the use of force by the police in order to disperse the protestors. According to the medical reports, the applicants had several bruises on their bodies and were found unfit to work for seven days.", "The Court is therefore convinced that these injuries are sufficient to bring the applicants’ complaints within the scope of Article 3. 28. The Court reiterates that Article 3 does not prohibit the use of force in certain well-defined circumstances. However, such force may be used only if indispensable and must not be excessive (see Rehbock v. Slovenia, no. 29462/95, §§ 66-78, ECHR 2000‑XII).", "29. The Court observes from the submissions of the Government and from the video recording of the incident that following the reading of the statement to the press, the demonstrators had started to disperse of their own accord without a forceful intervention on the part of the authorities. It is also noted that at this time a small group of demonstrators, carrying the flags of the NGO Halkevleri Derneği (Peoples’ Houses), had a confrontation with the police. While they attacked the police officers with sticks and stones, the police used force to disperse them. The Court notes at this point that it has been established by the Beyoğlu Criminal Court that the applicants were not among the demonstrators who had attacked and resisted the police officers.", "In this connection, the Court also observes from the video recording of the incident that a very large group of police officers, all equipped with helmets, gas masks and other necessary equipment, had been deployed to the area prior to the demonstration. It is therefore not possible to conclude that the security forces were called upon to react without prior preparation (see Balçık and Others, cited above, § 32). Furthermore, the Government have not provided any information showing that the intervention of the security forces was properly regulated and organised in such a way as to minimise to the greatest extent possible any risk of bodily harm to the demonstrators. The Court concludes therefore that although a small group of demonstrators attacked the police officers after the press statement had been read out, it is not possible to conclude that the force used by the police against the applicants, who were not among the resisting demonstrators, was justified. 30.", "In these circumstances, the Court finds that the injuries sustained by the applicants were the result of treatment for which the State bears responsibility. 31. There has therefore been a violation of Article 3 of the Convention on account of the inhuman and degrading treatment to which the applicants were subjected. III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 32.", "The applicants complained under Article 5 § 1 (c) of the Convention that their placement in police custody had been illegal. 33. The Court notes that the applicants were released from police custody on 30 June 2004, whereas the present applications were lodged with the Court on 3 August 2005. Consequently, this part of the application should be rejected for non-compliance with the six-month time-limit pursuant to Article 35 §§ 3 and 4 of the Convention. IV.", "ALLEGED VIOLATION OF ARTICLES 10 and 11 OF THE CONVENTION 34. Relying on Articles 10 and 11 of the Convention, the applicants complained that, as they had been arrested during a demonstration, their right to freedom of expression and assembly had been breached. 35. The Government denied that claim. 36.", "The Court notes that these complaints are linked to the ones examined above and must likewise be declared admissible. 37. However, having regard to the facts of the case, the submissions of the parties and its finding of a violation of Article 3 above, the Court considers that it has examined the main legal question raised in the present applications. It concludes, therefore, that there is no need to give a separate ruling on the remaining part of the application (see, for example, Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007; K.Ö.", "v. Turkey, no. 71795/01, § 50, 11 December 2007; Juhnke v. Turkey, no. 52515/99, § 99, 13 May 2008; Çelik v. Turkey (no. 1), no. 39324/02, § 44, 20 January 2009; and Yananer v. Turkey, no.", "6291/05, § 47, 16 July 2009). V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 38. The applicants each requested 10,000 euros (EUR) in respect of compensation for pecuniary damage and EUR 20,000 in respect of compensation for non-pecuniary damage. Referring to the Istanbul Bar Association’s scale of legal fees, the applicant’s representative further claimed EUR 8,170 covering seventeen hours’ legal work spent on the presentation of the present case before the Court. 39.", "The Government contested the claims. 40. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. As regards non-pecuniary damage, the Court finds that the applicants must have suffered pain and distress which cannot be compensated for solely by the Court’s finding of a violation. Having regard to the nature of the violation found and ruling on an equitable basis, it awards the applicants EUR 9,000 each in respect of non-pecuniary damage.", "41. Finally, as regards legal fees, according to the Court’s case-law, an applicant is entitled to 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 3,000 jointly to the applicants under this head. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join the applications; 2.", "Declares the applicants’ complaints concerning their alleged ill-treatment and their right to freedom of expression and assembly admissible; and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 3 of the Convention on account of the inhuman and degrading treatment to which the applicants were subjected; 4. Holds that there is no need to examine separately the applicants’ complaints under Articles 10 and 11 of the Convention; 5. Holds (a) that the respondent State is to pay the applicants, 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 Turkish liras at the rate applicable at the date of settlement: (i) EUR 9,000 (nine thousand euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 3,000 (three thousand euros) jointly, plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicants’ claim for just satisfaction.", "Done in English, and notified in writing on 4 October 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithFrançoise TulkensRegistrarPresident" ]
[ "SECOND SECTION CASE OF TALABÉR v. HUNGARY (Application no. 37376/05) JUDGMENT STRASBOURG 29 September 2009 FINAL 29/12/2009 This judgment may be subject to editorial revision. In the case of Talabér v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Vladimiro Zagrebelsky,Danutė Jočienė,Dragoljub Popović,András Sajó,Nona Tsotsoria, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 8 September 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 37376/05) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Attila József Talabér (“the applicant”), on 6 October 2005.", "2. The applicant was represented by Mr Á. Békés, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement. 3. The applicant alleged that his conviction had been upheld without him or his lawyer attending the session in the appellate court, in breach of Article 6 §§ 1 and 3 of the Convention.", "4. On 24 April 2008 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1953 and lives in Budapest. A. The circumstances of the case 6. In November 2003 the Budapest I/XII District Public Prosecutor charged the applicant with disorderly conduct and vandalism, punishable by three years of imprisonment. 7.", "The Budapest Central District Court held hearings on 22 January, 28 March and 28 April 2004. On the latter date it found the applicant guilty of vandalism and fined him 90,000 Hungarian forints (HUF) (approximately 337 euros (EUR)). The District Court relied on documentary evidence, the opinion of an expert, and the testimony of witnesses and the applicant. 8. The applicant appealed, seeking acquittal on the ground that the judgment was ill-founded, and requested the court to hold a public hearing.", "The Budapest Chief prosecutor also appealed, and requested the court to quash the first-instance judgment and remit the case to the District Court because of shortcomings in the finding of facts. 9. The Budapest Regional Court notified the applicant’s lawyer that it would determine the appeal sitting in camera. In reply, the lawyer put forward supplementary arguments and again requested the court to hold a public hearing. 10.", "On 7 April 2005 the Regional Court held a session in camera and upheld the applicant’s conviction. The applicant, his lawyer and the prosecutor were absent. 11. The Regional Court reviewed the entirety of the proceedings and established their lawfulness. Furthermore, it considered that the findings of fact by the first-instance court were not ill-founded within the meaning of section 351(2) of the New Code of Criminal Procedure, and were thus suitable for an appellate review without taking further evidence.", "12. However, the Regional Court, relying on the existing case file, modified the findings of fact as established by the first-instance court. When delivering its judgement, it relied on the modified facts. B. Relevant domestic law 13.", "Act no. XIX of 1998 on the [New] Code of Criminal Procedure provides, in so far as relevant, as follows: Section 346 “... (3) An appeal may concern questions of fact or law.” Section 351 “(1) The second-instance court shall base its decision on the facts as established by the first-instance court unless the first-instance judgment is ill-founded.... (2) The first-instance judgment is ill-founded if: a) the facts have not been explored; b) the first-instance court has failed to establish the facts or the findings of fact are deficient; c) the findings of fact are in contradiction with the contents of the documents; d) the first-instance court has drawn incorrect conclusions from the findings of fact in regard to a further fact.” Section 353 “... (2) In order to eliminate the ill-foundedness of the first-instance judgment, evidence may be taken if the findings of fact have not been established or are deficient. Evidence shall be taken ... at a hearing.” Section 360 (as in force until 26 May 2005[1]) “(1) Within 30 days of receiving the file, the president of the panel in charge shall schedule, in order to deal with an appeal, deliberations in camera (tanácsülés), a public session (nyilvános ülés) or a hearing (tárgyalás). ...” Section 361 “(1) The second-instance court shall hold a public session, if – the first-instance judgment being ill-founded – the complete and/or correct findings of fact may be established from the contents of the file or through drawing factual conclusions, or if the defendant must be heard in order to clarify the circumstances relevant for imposing the sentence. (2) The second-instance court shall summon to the public session those persons whose hearing it deems necessary ...” Section 362 “(1) The second-instance court shall notify the public prosecutor and – if they are not summoned -– ... the defendant and his lawyer of the public session.", "...” Section 363 “(2) In order to take evidence, a hearing (tárgyalás) ... shall be scheduled.” Section 405 “(1) The court’s final decision on the merits is susceptible to a [Supreme Court] review (felülvizsgálat) if ... c) the decision has been adopted amidst procedural irregularities within the meaning of section 373(1) subparagraphs II to IV.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION (ABSENCE OF A PUBLIC HEARING) 14. The applicant complained that his conviction had been upheld by the appellate court sitting in camera without him or his lawyer being present, in violation of his defence rights guaranteed by Article 6 §§ 1 and 3 of the Convention. Article 6 provides, in so far as relevant: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by a ... tribunal.", "... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” 15. The Government contested that argument. A. Admissibility 16. The Court notes that the 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 17. The applicant stressed that his right to a fair trial had been impaired by the fact that the second-instance court had upheld his conviction sitting in camera.", "18. The Government maintained that both the principle of adversarial procedure and that of ‘equality of arms’ had been observed in the case, since the applicant and his defence counsel had had the opportunity to study the statements and evidence submitted by the public prosecutor and to address the witnesses and the experts. All in all, he was not deprived of the procedural means which were also available to the prosecution. 19. Referring in particular to the Constantinescu v. Romania judgment (no.", "28871/95, § 55, ECHR 2000-VIII), the Government emphasised that the first issue to be addressed was whether the Regional Court was to try questions of law or fact, that is whether it was to review the case against the applicant in its entirety. In this connection, it is to be noted that the appellate court’s reformatory powers are very limited, in that it decides on the basis of the facts as established by the first-instance court and does not take evidence, unless the first-instance judgment is ill-founded and its factual shortcomings can be remedied without extensive evidence being taken. If, however, the latter is necessary, the appellate court quashes the first-instance judgment and instructs the lower court to resume the proceedings and complete the findings of fact, or take evidence anew. 20. The Government emphasised that, in the present case, the Regional Court had neither considered the first-instance judgment ill-founded nor had found it necessary to take evidence or to hear the applicant.", "The applicant’s case had not presented special circumstances requiring the defendant to be heard by the appellate court, unlike other cases which the Court has dealt with (cf. Constantinescu v. Romania, op. cit., § 58; Botten v. Norway, judgment of 19 February 1996, Reports of Judgments and Decisions 1996-I, § 50). Neither the character of the offence nor the nature of the evidence had imperatively required the applicant to be heard by the appellate court: his credibility had not been decisive in assessing the evidence. Lastly, the Government pointed out that the appellate court, unlike the above-mentioned cases where the second-instance court had found the defendants guilty the first time, had simply reviewed the first-instance judgment which had already convicted the applicant.", "In these circumstances, holding a public hearing had not been necessary. 21. The applicant maintained that even if ‘equality of arms’ had been observed in the case in that neither he nor the prosecution had been present in the second-instance proceedings, this did not render the proceedings fair as a whole, since a court may dispense with a hearing only if the defendant waives this right. Since in the instant case he had requested a hearing and the Regional Court was entitled to decide on questions of both facts and law, a public hearing should have been held in order for the requirements of Article 6 to be met. 22.", "The applicant also stressed that the judgment of the Regional Court upholding the first-instance verdict was a decision on the merits. Since it was delivered in camera, it in fact reduced the trial to a single-instance proceeding. Lastly, the applicant referred to the Court’s case-law requiring the same safeguards to be implemented during the appellate trial as during the first-instance proceedings, in particular the obligation to hold public hearings. 23. The Court constantly held that an oral and public hearing constitutes a fundamental principle enshrined in Article 6 § 1.", "This principle is particularly important in the criminal context, where generally there must be at first instance a tribunal which fully meets the requirements of Article 6 (see Findlay v. the United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997‑I, § 79) and where an applicant has an entitlement to have his case “heard”, with the opportunity inter alia to give evidence in his own defence, hear the evidence against him and examine and cross-examine the witnesses. 24. The Court would not exclude that in the criminal sphere the nature of the issues to be dealt with before the tribunal or court may not require an oral hearing. Notwithstanding the consideration that a certain gravity attaches to criminal proceedings, which are concerned with the allocation of criminal responsibility and the imposition of a punitive and deterrent sanction, it is self-evident that there are criminal cases which do not carry any significant degree of stigma (see Jussila v. Finland [GC], no. 73053/01, § 43, ECHR 2006‑...).", "25. However, the Court is of the view that, in the determination of criminal charges, the hearing of the defendant in person should nevertheless be the general rule. Any derogation from this principle should be exceptional and subjected to restrictive interpretation. The absence of an oral hearing at second instance has led to violations in several criminal cases (see Ekbatani v. Sweden, 26 May 1988, § 25, Series A no. 134; Helmers v. Sweden, judgment of 29 October 1991, Series A no.", "212-A, §§ 31–32; Kremzow v. Austria, judgment of 21 September 1993, Series A no. 268‑B, §§ 58–59; Botten v. Norway, cited above, § 39; Belziuk v. Poland, judgment of 25 March 1998, Reports 1998‑II, §§ 38 to 40; Constantinescu, cited above; Sigurþór Arnarsson v. Iceland, no. 44671/98, § 30, 15 July 2003; and Csikós v. Hungary, no. 37251/04, ECHR 2006‑... (extracts)). 26.", "It is true that in the case of Fejde v. Sweden (judgment of 29 October 1991, Series A no. 212‑C, § 33), no violation of the applicant’s defence rights was found, although no oral hearing had taken place before the appellate court. However, in the Court’s view, this was a justified exception from the above general rule, considering the minor character of the offence with which he had been charged and the prohibition against increasing his sentence on appeal. 27. The Court is however convinced that the present application does not concern the exceptions set out in the cases of Fejde and Jussila and that the general rule obliging the second-instance courts to hold a hearing must be applied.", "It takes this view notably because the charges against the applicant – disorderly conduct and vandalism – indisputably belong to the core criminal law. Furthermore, what was at stake for the applicant was imprisonment, even if the actual sentence was only a fine; therefore it carried a significant degree of stigma. 28. Moreover, since on appeal the applicant had sought his acquittal, for the Court the importance of credibility also arose in view of the nature of the offences in question. Consequently, the considerations relied on by the Regional Court were capable of raising issues including such matters as the applicant’s personality and character, therefore, he should have been heard directly (see Kremzow, cited above, § 67).", "The Court also notes that the applicant expressly requested that a public, oral hearing be held before the appellate court. 29. The Court notes that the Regional Court conducted a full review and determined the applicant’s guilt anew. It draws special attention to the fact that the appellate court modified the finding of facts of the first-instance court and relied on a new factual basis. It is irrelevant in this respect that, as a result of this complete reconsideration, the Regional Court came to the same conclusion as the first-instance court and upheld its judgment without changing it on the merits.", "In sum, the Court is not persuaded that dispensing with a hearing at second instance had been in compliance with the requirements of a fair trial. 30. Accordingly, there has been a violation of Article 6 § 1 read in conjunction with Article 6 § 3 (c) of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 31.", "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 32. The applicant claimed HUF 90,000 for pecuniary damage (the amount of the fine imposed on him) and HUF 300,000 (approximately EUR 1,125) for non-pecuniary damage as just satisfaction. 33. The Government considered the applicant’s claims excessive.", "34. The Court rejects the claim for pecuniary damage but considers that the applicant must have suffered some non-pecuniary damage. Accordingly, on the basis of equity, it awards him EUR 1,000 under this head. Moreover, it notes that where an individual, as in the instant case, has been convicted by a court in proceedings which did not meet the Convention requirement of fairness, a retrial, a reopening or a review of the case, if requested, represents in principle an appropriate way of redressing the violation (see, mutatis mutandis, Öcalan v. Turkey [GC], no. 46221/99, §§ 207-210, ECHR 2005-IV).", "B. Costs and expenses 35. The applicant claimed HUF 360,000 (approximately EUR 1,350) for the costs and expenses incurred before the Court. He submitted a detailed statement of the hours billable by his lawyer, corresponding to 13.5 hours of work (3 hours for client consultations, 1.5 hours for studying the file, 2.5 hours for case-law research and 6.5 hours for the preparation of submissions) spent by his lawyer on the case, charged at an hourly rate of the equivalent of EUR 100 in Hungarian forints. 36.", "The Government contested the claim. 37. 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 were 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 claimed in full. C. Default interest 38.", "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 read in conjunction with Article 6 § 3 (c) 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, the following amounts, to be converted into Hungarian forints at the rate applicable at the date of settlement: (i) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,350 (one thousand three hundred and fifty euros) plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (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.", "Done in English, and notified in writing on 29 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosFrançoise Tulkens Deputy RegistrarPresident [1] On that date the Constitutional Court annulled this provision as being unconstitutional." ]
[ "THIRD SECTION CASE OF RÖSSLHUBER v. AUSTRIA (Application no. 32869/96) JUDGMENT STRASBOURG 28 November 2000 FINAL 04/04/2001 In the case of RÖSSLHUBER v. Austria, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrW. Fuhrmann,MrL. Loucaides,MrP. Kūris,SirNicolas Bratza,MrsH.S.", "Greve,MrK. Traja, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 12 October 1999, 11 July and 7 November 2000. Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 32869/96) against the Republic of Austria 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 an Austrian national, Mr Dietrich Rösslhuber (“the applicant”), on 10 May 1996.", "2. The applicant was represented by Mr H. Asenbauer, a lawyer practising in Vienna (Austria). The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs. 3. The applicant alleged that the criminal proceedings against him lasted unreasonably long.", "4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5.", "The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. 6. By a decision of 12 October 1999 the Chamber declared the application admissible and requested the parties to submit further observations. 7.", "Thereupon the applicant and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS I.THE CIRCUMSTANCES OF THE CASE 8. The applicant is a certified accountant and tax consultant, residing in Salzburg. 9. On 29 June 1989 the Salzburg Regional Court (Landesgericht) started preliminary investigations against the applicant and thirty-four other suspects on suspicion of large-scale fraud and breach of trust in the context of investments in a real estate fund.", "They were suspected of having sold so called “partial house ownership certificates” to several thousand investors with the assurance that their value was secured by real property, but in fact they had sold the real property in 1986 and misappropriated the proceeds of the sale. 10. On 31 January 1990 the Review Chamber (Ratskammer) of the Salzburg Regional Court dismissed the applicant’s appeal against the opening of preliminary proceedings. On 14 March 1990 the Linz Court of Appeal (Oberlandesgericht) rejected the applicant’s further appeal. 11.", "As of the beginning of 1990 the investigating judge was relieved of all other business and two junior judges completing their training period (Richteramtsanwärter) were assigned to assist him. In May 1990 one of them took over as the new investigating judge. 12. During the preliminary investigations, which concerned a network of more than 300 firms, about 1,800 bank accounts were examined and about 8,000 volumes of documents were seized and studied. A special computer programme was designed in order to cope with the large volume of data.", "Most of the time was consumed by the preparation of an expert opinion, whereby the team of accounting experts first had to clear the balance sheets of the companies, most of which were intertwined. A change in the team of experts became necessary in 1990 due to the potential bias of some of its members. According to the applicant, the team was restructured again in 1993. In April 1995 the experts delivered their opinion. 13.", "On 4 August 1995 the Salzburg Public Prosecutor’s Office (Staatsanwaltschaft) preferred the indictment (Anklageschrift) of 441 pages against the applicant and eight of his co-accused. On 7 November 1995 the Linz Court of Appeal dismissed the applicant’s objection to the indictment. At that time the file comprised 166 volumes with about 83,000 pages. 14. Both professional judges who were to deal with the case were relieved from all other business as of December 1995.", "In preparation for the trial, the court room at the Salzburg Regional Court was adapted with the installation of computer desks, in order to give the judges, the prosecution and the defence access to the data-base. 15. On 30 July 1996 the applicant filed a motion challenging the accounting experts for bias. This motion was dismissed on 26 August 1996. His further request to postpone the beginning of the trial was dismissed on 12 September 1996.", "16. On 16 September 1996 the trial started before the Salzburg Regional Court sitting with two professional and two lay judges. A motion brought by the applicant and his co-accused challenging the two professional judges for bias was dismissed, as was their further motion challenging the experts for bias. The applicant challenged single members of the expert team on three further occasions, namely on 11 December 1996, 13 January 1997 and 3 May 1999. Further motions challenging the two professional judges for bias were brought by his co-accused.", "17. The hearings lasted 186 days, at a rhythm of two or three days per week. 46 days were dedicated to hearing the accounting experts. According to the applicant, he put questions to the experts on twenty occasions, sometimes only a few and sometimes many. According to the Government, the applicant made excessive use of his right to question the experts, submitting ever changing calculations which necessitated time-consuming replies by the experts.", "According to the applicant, he only made one request for the taking of evidence, while the Government state that he made seven such requests. According to both parties, a large number of witnesses were heard. On 19 January 1998 a hearing had to be held in a hospital in Vienna due to the applicant’s illness. 18. On 14 June 1999 the Salzburg Regional Court gave its judgment orally.", "It convicted the applicant of breach of trust and sentenced him to six years’ imprisonment. The applicant announced that he would file a plea of nullity and an appeal (Nichtigkeitsbeschwerde und Berufung). 19. On 16 June 2000 the written version of the judgment, comprising about 1,100 pages, was served on the applicant. 20.", "Meanwhile, on 16 March 2000, the Constitutional Court (Verfassungsgerichtshof) had, upon a motion filed by two of the applicant’s co-accused, given a judgment to the effect that the four-weeks time-limit provided for in the Code of Criminal Procedure for lodging a plea of nullity and an appeal which - though being sufficient in the vast majority of cases - could not be extended in cases of an extraordinary scope such as the present, was contrary to Article 6 § 3 (b) of the European Convention on Human Rights. This time-limit was, therefore, not to be applied in the present case. 21. On 14 July 2000 the applicant lodged an appeal. The last information received by the Court concerning the applicant was that he was preparing his plea of nullity, to be filed by 16 November 2000, a time-limit set by the Salzburg Regional Court.", "THE LAW I.ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 22. The applicant complained about the length of the criminal proceedings against him. He relied on Article 6 § 1, which so far as relevant, reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 23. The applicant contended that the duration of the proceedings was not caused by their complexity but rather by the conduct of the authorities. He alleged in particular that the case had important political implications and that the preliminary investigations were delayed deliberately.", "He pointed out that for most of the six years of preliminary investigation a young judge, who had been appointed immediately after her training period, served as the investigating judge but left the conduct of the proceedings entirely to the team of experts. The applicant further contended that the trial was not conducted with reasonable diligence and that the trial court took a year to hand down the written version of its judgment. As to his own conduct, the applicant submits that he did not cause any particular delays. 24. The Government asserted that the proceedings were of unprecedented complexity.", "This was the biggest criminal case ever to be dealt with by the Austrian courts. As to the duration of the preliminary investigation, they pointed in particular to the large number of suspects, the volume of documents seized, the numerous bank accounts to be examined and the difficulties encountered by the team of experts in clearing the balance sheets of the large number of companies involved. Moreover, the Government contended that the investigating judge was relieved from all other duties and two junior lawyers were appointed to assist in the preparation of the case. At the trial stage too, the professional judges were relieved from all other duties. The Government maintained that, despite their complexity, the main reason for the duration of the proceedings lay in the delaying tactics of the applicant and his co-accused, who filed a multitude of motions for bias and requests for the taking of evidence.", "They asserted in particular that, at the trial, the applicant made excessive use of his right to question the experts, submitting ever new calculations to which the experts had to reply in a time consuming exercise. 25. The Court notes that the proceedings started on 29 June 1989, when the preliminary investigations were opened against the applicant. The first instance judgment was served on 16 June 2000, that is almost eleven years later. To date, the proceedings are still pending at second instance.", "26. The Court recalls that the reasonableness of the length of proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the applicant’s conduct and the conduct of the competent authorities (see among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). 27. The Court considers that the proceedings at issue were of an exceptional complexity, which is demonstrated by the number of suspects and companies involved, the volume of the file, the need to create a special computer programme and, not least, by the Constitutional Court’s decision that the usual time-limit for appealing against the judgment was insufficient in the circumstances of the case (see paragraph 20 above).", "However, the complexity of the proceedings does not in itself suffice to justify such a substantial duration. 28. As to the conduct of the authorities, the Court notes in particular that there is no satisfactory explanation for the six year duration of the preliminary investigation, even if some allowance is made for the difficulties encountered by the team of experts in untangling the balance sheets of the companies involved. Unlike the preliminary investigation, the trial, which took 186 hearing days, was conducted with reasonable diligence. However, the delay of one year between the oral pronouncement of the judgment and the service of the written version is considerable, even if allowances are made for of its volume (1,100 pages).", "29. As to the conduct of the applicant, the Court notes that he did not file any motions during the preliminary proceedings. At the trial stage he filed a number of motions challenging the professional judges and the experts for bias. There is disagreement between the parties as to the number of the applicant’s requests for the taking of evidence and the extent to which he made use of his right to put questions to the experts. However, given that the trial was on the whole conducted with reasonable speed, it cannot be said that the applicant contributed substantially to the length of the proceedings.", "30. The Court is aware of the difficulties States may encounter in conducting criminal proceedings relating to white-collar crime with reasonable diligence, as such cases often involve very complex facts and a large number of suspects. However, for the reasons set out above, the Court finds that the duration of the present proceedings, which have so far lasted eleven years and four months and are still pending at second instance, cannot be regarded as reasonable for the purposes of Article 6 § 1. There has, thus, been a violation of Article 6 § 1 of the Convention. II.APPLICATION OF ARTICLE 41 OF THE CONVENTION 31.", "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 32. Under the head of pecuniary damage, the applicant requested 10 million Austrian schillings (ATS) for loss of earnings suffered as a result of a loss of clientele due to the criminal proceedings against him. Further, he claimed ATS 10 million in non-pecuniary damage for anxiety suffered on account of the duration of the proceedings. 33. The Government asserted that there was no causal link between the length of the proceedings and the alleged pecuniary damage.", "As to non-pecuniary damage, the finding of a violation would be sufficient just satisfaction. 34. As to the applicant’s claim for pecuniary damage, the Court, like the Government, finds that there is no causal link between the duration of the proceedings and the damage allegedly suffered by the applicant. Therefore, it makes no award under this head. 35.", "As to non-pecuniary damage, the Court considers that the applicant has lived and is still living in uncertainty and anxiety due to the duration of the proceedings, which cannot be compensated by the finding of a violation. Having regard to the circumstances of the case and making an assessment on an equitable basis, it awards ATS 100,000 under this head. B.Costs and expenses 36. The applicant claimed a total amount of 20 million ATS for costs and expensed incurred in the domestic proceedings. He did not make a claim as regards the Convention proceedings.", "The Government observed that the applicant has not provided any proof of his claim, such as counsel’s bill of fees or documentation of any payments made. 37. The Court considers that the costs of the domestic proceedings were not incurred in order to redress the violation found. It therefore makes no award under this head. C.Default interest 38.", "According to the information available to the Court, the statutory rate of interest applicable in Austria at the date of adoption of the present judgment is 4% per annum. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.Holds that there has been a violation of Article 6 § 1 of the Convention; 2.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, 100,000 (one hundred thousand) Austrian schillings in respect of non-pecuniary damage; (b)that simple interest at an annual rate of 4% shall be payable from the expiry of the above-mentioned three months until settlement; 3.Dismisses the remainder of the applicant’s claims for just satisfaction. Done in English, and notified in writing on 28 November 2000, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléJ.-P. CostaRegistrarPresident" ]
[ "THIRD SECTION CASE OF HELSINKI COMMITTEE OF ARMENIA v. ARMENIA (Application no. 59109/08) JUDGMENT STRASBOURG 31 March 2015 FINAL 30/06/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Helsinki Committee of Armenia v. Armenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Luis López Guerra,Ján Šikuta,Dragoljub Popović,Kristina Pardalos,Johannes Silvis,Iulia Antoanella Motoc, judges,and Marialena Tsirli, Deputy Section Registrar, Having deliberated in private on 10 March 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "59109/08) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a non-governmental organisation based in Armenia, the Helsinki Committee of Armenia (“the applicant organisation”), on 10 November 2008. 2. The applicant organisation was represented by Mr R. Revazyan, a lawyer practising in Yerevan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. 3.", "The applicant organisation alleged, in particular, that the Mayor’s decision of 8 May 2008 had violated its right to freedom of assembly and that it did not have an effective remedy. 4. On 21 January 2010 the application was communicated to the Government. The seat of judge in respect of Armenia being currently vacant, the President of the Court decided to appoint Judge Johannes Silvis to sit as an ad hoc judge (Rule 29 § 2 (a) of the Rules of Court). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant organisation is a non-governmental human rights organisation based in Yerevan. 6. On 12 May 2007 a third person, L.G., who was apparently a witness in a murder investigation, died while at a police station. According to the official version, L.G.", "died in an attempt to escape by jumping out of a second-floor window of the police station. It appears that this event provoked an outcry among Armenian human rights groups and civil society. 7. On 19 February 2008 a presidential election was held in Armenia, which was followed by mass post-election rallies and protests and an intense standoff between the authorities and the supporters of the opposition, resulting in clashes and at least ten persons being killed. 8.", "On 1 March 2008 a state of emergency was declared by the President of Armenia for a period of 20 days, during which all public assemblies were banned. 9. On 6 May 2008 the applicant organisation applied to the Mayor of Yerevan, notifying its intention to hold a mourning march on the first anniversary of L.G.’s death. The march was to take place on 12 May from 8 p.m. to 9.30 p.m. It was to start at Republic Square and continue through Nalbandyan Street in the direction of the police station.", "10. On 8 May 2008 the Mayor decided to ban the planned event, with reference to Sections 9 § 4 (3) and 13 § 1 (3) of the Assemblies, Rallies, Marches and Demonstrations Act (“the Act”), finding: “According to the official opinion of the Police ... of 8 May 2008 ..., the mass public event held on 1 March 2008 turned into mass disorder resulting in human casualties and not all the circumstances of the crime and offenders have been disclosed, and not all weapons and ammunition used [at that event], whose circulation may pose danger to the lives and health of citizens, have been found in the course of the investigation into the criminal case instituted in connection with that fact by the Special Investigative Service of Armenia[. H]ence, it will be impossible to prevent new crimes, if the mass public event [in question] is held. According to the official opinion of the National Security Service ... of 7 May 2008 ..., the National Security Service of Armenia has credible and verified data which show that the mass public event in question, if allowed, will result in undermining national security, public order, and the health and morality of society, in encroachments on constitutional rights and freedoms and in disorder and [new] crimes.” 11. By a letter of 12 May 2008 this decision was posted to the applicant organisation.", "On the same date the police, who had apparently been informed of the decision of 8 May 2008, prevented the organisers from holding the planned event. 12. On 13 May 2008 the applicant organisation received the letter of 12 May 2008. II. RELEVANT DOMESTIC LAW A.", "The Assemblies, Rallies, Marches and Demonstrations Act (as in force at the material time) 13. According to Section 9 § 4 (3), the competent authority may ban the holding of a public event if, according to credible data, it is aimed at forcibly overthrowing the constitutional order, or inflaming ethnic, racial or religious hatred, or campaigning for violence or war, or may lead to mass disorder and crime, or to undermining national security, public order and the health and morality of society, or to encroachments on the constitutional rights and freedoms of others. Such data may be considered credible, if the Police or the National Security Service under the Government of Armenia have issued an official opinion on the data. In the same manner, the aforementioned authorities issue an opinion if such grounds cease to exist. Such an opinion is also issued in cases envisaged by Section 9 § 6.", "14. According to Section 9 § 6, in cases where mass public events have turned into mass disorder resulting in human casualties, the competent authority, in order to prevent new crimes, given that other means of prevention have been exhausted, may temporarily ban the holding of mass public events until the circumstances of the crime and the identity of the offenders have been disclosed. 15. According to Section 10 § 1, mass public events may be held only after notifying the competent authority in writing. 16.", "According to Section 10 § 4, the organisers shall send written notification of the intention to hold a mass public event to the head of the local authority where the event is to be organised or to the Mayor of Yerevan, if the public event is to be held in Yerevan, not later than five working days and not earlier than twenty days before the planned date of the event. 17. According to Section 12 § 1, the competent authority shall examine the notification within 72 hours of receipt, in the order in which notifications have been received. 18. According to Section 12 § 6, as a result of examination of the notification, in the absence of the circumstances mentioned in Section 13, the notification of the mass public event shall be taken into consideration and the event shall be held in the place and at the time indicated in the notification.", "In the presence of the circumstances mentioned in Section 13, a decision shall be taken banning the mass public event. 19. According to Section 12 § 7, the competent authority shall immediately inform the organisers and the police of its decision taken as a result of examination of the notification, as well as post up the decision on its premises in a specially designated spot, accessible and visible to the public. The decision of the competent authority shall remain posted up in that spot until 6 p.m. on the planned date of the mass public event indicated in the notification. 20.", "According to Section 12 § 8, should the competent authority not take a decision banning the mass public event, the organisers shall have the right to hold the mass public event on the terms and conditions set forth in the notification. 21. According to Section 13 § 1 (3), a mass public event may be banned only when, inter alia, there exist grounds stipulated by Section 9 of this Act. 22. According to Section 13 § 2, a decision banning a mass public event shall contain a reasoned and clear explanation of the grounds on which the mass public event is banned.", "23. According to Section 13 § 3, a decision banning a mass public event may be contested before the courts. The court shall adopt a judgment within 24 hours. A court judgment annulling a decision banning a mass public event shall enter into force from the moment of its delivery. B.", "The Code of Administrative Procedure 24. According to Articles 66-69, four types of application may be lodged with the Administrative Court: an application to challenge, seeking the annulment in part or in whole of the administrative act constituting an interference (Article 66); an application to oblige, seeking the adoption of a favourable administrative act (Article 67); an application to perform an action, seeking the performance of certain actions or refraining from certain actions (Article 68); and an application to recognise, seeking the recognition of existence or absence of a legal relationship (Article 69). An application to recognise may be lodged only if it is impossible to lodge an application under Articles 66-68. Such application may seek to recognise the invalidity of an administrative act, as well as to recognise the unlawfulness of the interfering administrative act, which is no longer in force, or of actions or inaction, if the applicant has a justified interest in doing so, namely: (a) if there is a risk of adoption of a similar act or of performance of similar actions or inaction; (b) if the applicant intends to claim pecuniary damage or (c) if the applicant seeks to restore his honour, dignity or reputation. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 25. The applicant organisation complained that the Mayor’s ban on holding a mourning march had been in violation of its right to freedom of assembly as provided in Article 11 of the Convention, which reads as follows: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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.", "This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” A. Admissibility 1. The parties’ submissions 26. The Government submitted that the applicant organisation had failed to exhaust domestic remedies since it had not applied to the Administrative Court seeking a recognition of a violation of its rights. In particular, the actions or inaction of the Mayor’s Office could be contested before the courts under Article 68 of the Administrative Code. Therefore, the applicant organisation, with reference to Section 12 § 7 of the Act, could have challenged the inaction of the Mayor’s Office, namely its failure to inform immediately the organisers about its decision of 8 May 2008 and the fact that the Mayor’s decision was served on it after the date of the planned event.", "This appeal mechanism constituted an effective remedy capable of resulting in the recognition of a violation of the applicant organisation’s rights. The applicant organisation, however, failed to pursue this procedure. 27. The applicant organisation submitted that, according to the domestic practice, applications filed against a public authority seeking to acknowledge a violation of the right to freedom of assembly had been regularly declared inadmissible by the Administrative Court as not falling into any of the categories listed in Articles 66-69 of the Code of Administrative Procedure. Had the applicant organisation been notified of the decision of 8 May 2008 in due time, it would have had a possibility to challenge that decision before the Administrative Court under the provisions of the Act and that court would have been obliged to take a decision within 24 hours, thereby providing an effective remedy.", "But since the decision was received after the planned event, a post-hoc application could not have provided an effective remedy. 28. As regards contesting the inaction of the Mayor’s Office, such an application would not have been admitted for examination either, since claims against the inaction of an administrative body, if such inaction was demonstrated in the process of adopting a final administrative act, could not be the subject of a standalone challenge. 2. The Court’s assessment 29.", "The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against the State before an international judicial body to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see Assenov and Others v. Bulgaria, no. 24760/94, § 85, ECHR 1999-VIII). 30. Furthermore, under Article 35 the existence of remedies which are available and sufficient must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, among other authorities, De Jong, Baljet and Van den Brink v. the Netherlands, 22 May 1984, § 39, Series A no.", "77, and Vernillo v. France, 20 February 1991, § 27, Series A no. 198). It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996‑IV). 31. In the present case, the Government suggested that the applicant organisation should have contested before the Administrative Court the failure of the Mayor’s Office to notify it of its decision of 8 May 2008 and to serve a copy of that decision in due time.", "It had failed to do so and thereby had failed to exhaust the domestic remedies. The Court notes, however, that the applicant organisation’s grievances in essence concern the Mayor’s Office’s ban on holding a march, that is the decision of 8 May 2008 itself, rather than the failure to provide a copy of that decision in due time. Thus, it is not clear how an application contesting the inaction of the Mayor’s Office could have provided a remedy in respect of the applicant organisation’s grievances. 32. As regards the available remedies, the Court notes that under Armenian law the applicant organisation was entitled to contest the Mayor’s ban before the courts.", "According to Sections 12 §§ 1 and 7 and 13 § 3 of the Act the Mayor had a maximum of 72 hours to take a decision on the applicant organisation’s request to hold a march. This decision was to be served on the applicant organisation “immediately” and, if contested before the courts, the latter had a maximum of 24 hours to adopt a judgment either annulling or upholding the decision. Thus, it appears that in theory the applicant organisation had at its disposal a remedy which was capable of providing sufficient redress by overruling the Mayor’s ban in due time. 33. In practice, however, the applicant organisation was deprived of this remedy.", "In particular, the request to hold a march on 12 May 2008 was filed by the applicant organisation with the Mayor’s Office on 6 May 2008, that is within the permissible time limits (see paragraph 16 above). The Mayor, similarly in compliance with the relevant time limits, took his decision on 8 May 2008, namely four days before the date of the planned event. However, a copy of that decision was sent to the applicant organisation only on 12 May 2008, namely on the very day of the planned event, and was received by it the day after. Such a belated service of the Mayor’s decision, which could hardly be considered as “immediate” within the meaning of Section 12 § 7 of the Act, effectively deprived the applicant organisation of the opportunity of overturning the ban prior to the date of the planned event, which would have allowed it to proceed with the march. 34.", "As regards the possibility of overturning the ban post factum, even assuming that the domestic law provided for such a possibility, the Court reiterates that in certain circumstances when the timing of rallies is crucial for their organisers and participants and when the organisers had given timely notice to the competent authorities, the notion of an effective remedy implies the possibility to obtain a ruling before the time of the planned events. Such is the nature of democratic debate that the timing of public meetings held in order to voice certain opinions may be crucial for the political and social weight of such meetings. If a public assembly is organised after a given social issue loses its relevance or importance in a current social or political debate, the impact of the meeting may be seriously diminished. Freedom of assembly – if prevented from being exercised at a propitious time – can well be rendered meaningless (see Bączkowski and Others v. Poland, no. 1543/06, §§ 81-82, 3 May 2007).", "35. In the present case, the Court cannot overlook the importance of the chosen date for the event planned by the applicant organisation. It was not a random date but the first anniversary of a tragic event, namely the death of a third person, L.G., while in a police station, which the applicant organisation was planning to mark with a mourning march held on that anniversary. Thus, the event had a special temporal significance and the applicant organisation should have been able to obtain a ruling before the time of the planned event (see, mutatis mutandis, ibid., § 83). 36.", "Lastly, the Government did not suggest – or even contest the applicant organisation’s argument in that connection – that any of the procedures provided by the Administrative Code could have provided redress of a post-hoc nature in respect of the applicant organisation’s grievances, such as an acknowledgement of a violation of the applicant organisation’s right to freedom of peaceful assembly and, if necessary, payment of a compensation. Nor does any material before the Court suggest that such remedies existed at the material time. 37. In the light of the above, the Court rejects the Government’s claim of non-exhaustion. 38.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions 39. The Government submitted that there had been no violation of the applicant organisation’s right to freedom of assembly. Since the applicant organisation had not been informed of the Mayor’s decision within the 72 hours prescribed by law, it automatically acquired the right to conduct the planned event by virtue of Section 12 §§ 1, 7 and 8 of the Act. Being unaware of that decision on the date of the event, they had a legal right to conduct the rally as planned. The applicant organisation, however, had decided not to avail itself of this right.", "40. The applicant organisation submitted that not having received any decision from the Mayor’s Office by the date of the planned event did not mean that it had acquired by default the right to conduct the event. The applicant organisation had to be in possession of a decision to be sure that the event had been authorised. Furthermore, the Government’s claim that the applicant organisation had opted not to attempt to hold the planned event did not correspond to reality. In fact, having not received any decision, it did wish to hold the march on 12 May 2008 as planned but the police officers, who had been informed of the Mayor’s ban, prohibited the applicant organisation and the assembled persons from doing so.", "2. The Court’s assessment (a) Whether there was an interference with the exercise of the freedom of peaceful assembly 41. The Government appear to have suggested that there was no interference with the applicant organisation’s right to freedom of peaceful assembly because, not having received a copy of the Mayor’s decision of 8 May 2008, it was entitled to proceed with the planned event. The Court does not, however, accept the Government’s line of reasoning. The decision in question banned the applicant organisation from holding the event and the fact that a copy of it had not been served on the applicant organisation did not in any way nullify that decision.", "Furthermore, the applicant organisation was prevented by the police from holding the planned march, apparently on the basis of the Mayor’s ban. 42. There has therefore been an interference with the applicant organisation’s right to freedom of peaceful assembly. (b) Whether the interference was justified 43. An interference will constitute a breach of Article 11 unless it is “prescribed by law”, pursues one or more legitimate aims under paragraph 2 and is “necessary in a democratic society” for the achievement of those aims.", "44. The Court notes that nothing suggests that the interference was not prescribed by law. Furthermore, it can accept that the interference pursued the legitimate aim of preventing disorder or crime. 45. As regards the third requirement, the Court reiterates that the right of peaceful assembly enshrined in Article 11 is a fundamental right in a democratic society and, like the right to freedom of expression, one of the foundations of such a society (see Christian Democratic People’s Party v. Moldova, no.", "28793/02, § 62, ECHR 2006‑II). 46. States must not only safeguard the right to assemble peacefully but also refrain from applying unreasonable indirect restrictions upon that right. In view of the essential nature of freedom of assembly and its close relationship with democracy there must be convincing and compelling reasons to justify an interference with this right (see Ouranio Toxo and Others v. Greece, no. 74989/01, § 36, ECHR 2005‑X (extracts)).", "47. In carrying out its scrutiny of the impugned interference, the Court has to ascertain whether the respondent State exercised its discretion reasonably, carefully and in good faith. It must also look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 87, ECHR 2001‑IX, and Makhmudov v. Russia, no.", "35082/04, § 65, 26 July 2007). 48. In the present case, the Court notes that the reason for banning the march in question was that the post-election rallies had resulted in clashes and human casualties, there was still an on-going investigation and not all the offenders had been identified or weapons found. The Court, however, doubts whether these could be considered as relevant or sufficient reasons for banning the march in question. 49.", "First, the march was supposed to take place more than two months after the post-election clashes and more than a month after the expiry of the state of emergency declared by the President of Armenia (see paragraphs 7 and 8 above). 50. Second, there is no evidence to suggest that the organisers or the participants of the planned march were in any way involved or implicated in the post-election disorder or violence. 51. Third, nothing suggests that the organisers or the participants of the planned march had violent intentions or that the march might for any other reason degenerate into mass disorder.", "The Court notes in this respect that the purpose of the planned march had nothing to do with politics, elections or the confrontation between the opposition and the government and was instead to raise awareness on a matter of public concern, namely the death of a person while in a police station. According to the applicant organisation, this was supposed to be a quiet march marking the anniversary of a tragic event and not posing any threats to security. The Court has no reason to doubt this allegation. It notes that the Mayor’s reference to the official opinion of the National Security Service alleging that the march posed a danger is couched in general terms (see paragraph 10 above). It is not even clear whether the “credible and verified data” referred to were ever presented to the Mayor or what such data were or whether such data even existed.", "The Mayor’s finding in this respect therefore appears not to be supported by any concrete, clear and convincing evidence. 52. The foregoing considerations are sufficient to enable the Court to conclude that the interference with the applicant organisation’s right to freedom of peaceful assembly was not “necessary in a democratic society”. 53. There has accordingly been a violation of Article 11 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 54. The applicant organisation complained that it had been deprived of an effective remedy in violation of Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 55. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties’ submissions 56. The Government submitted that the Armenian law, namely Sections 10 § 4, 12 § 1 and 13 § 3 of the Act, envisaged a procedure that obliged the authorities to reach a decision on a request to hold a mass public event within such a time limit that would allow an applicant to lodge an appeal with the Administrative Court against an unfavourable decision before the date of the planned event.", "Thus, the applicant organisation had an effective remedy at its disposal. 57. The applicant organisation submitted that the Government had limited themselves to a theoretical analysis of the relevant domestic law, while disregarding the particular circumstances of the case and the fact that the arbitrary application of that law had deprived it of an effective remedy. For the applicant organisation to have been able to contest the merits of the Mayor’s ban before the Administrative Court and for such an appeal to have been effective, it would have been necessary at the very least for the Mayor’s decision to be served on it 24 hours prior to the planned event. An appeal against a decision received after the time of the planned event would have been not only ineffective, but also completely meaningless.", "2. The Court’s assessment 58. The Court reiterates that the effect of Article 13 is to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their obligations under this provision (see, among other authorities, Chahal v. the United Kingdom, 15 November 1996, § 145, Reports of Judgments and Decisions 1996‑V). 59. In the present case, the Court found that the applicant organisation’s rights under Article 11 had been infringed (see paragraph 53 above).", "Therefore, it had an arguable claim within the meaning of the Court’s case law and was thus entitled to a remedy satisfying the requirements of Article 13. 60. The Court is mindful of its finding above that the applicant organisation was deprived in practice of a remedy which was capable of providing sufficient and adequate redress in the particular circumstances of the case and that there were no other effective remedies shown to exist (see paragraphs 32-36 above). It follows that the applicant organisation has been denied an effective domestic remedy in respect of its complaint concerning a breach of its right to freedom of assembly. 61.", "There has accordingly been a violation of Article 13 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 62. 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.” 63. The applicant organisation did not submit a claim for just satisfaction.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 11 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention. Done in English, and notified in writing on 31 March 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Marialena TsirliJosep CasadevallDeputy RegistrarPresident" ]
[ "FOURTH SECTION CASE OF E.G. v. THE UNITED KINGDOM (Application no. 41178/08) JUDGMENT STRASBOURG 31 May 2011 FINAL 28/11/2011 This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of E.G.", "v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Lech Garlicki, President,Nicolas Bratza,Ljiljana Mijović,Sverre Erik Jebens,Zdravka Kalaydjieva,Nebojša Vučinić,Vincent A. De Gaetano, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 10 May 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 41178/08) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Sri Lankan national, E.G. (“the applicant”), on 29 August 2008.", "2. The applicant was represented by Mr S. Satha, a lawyer practising in London with Satha & Co. Solicitors. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office. 3. On 28 April 2008, the Acting President of the Fourth Section decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled to Sri Lanka pending the Court’s decision.", "On 3 September 2008 the Acting President 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). It was subsequently decided to grant the applicant anonymity (Rule 47 § 3 of the Rules of Court). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant is a Tamil who was born in 1976 in northern Sri Lanka. He arrived in the United Kingdom on 7 November 2000 and on that date claimed asylum on the ground that he feared persecution by the Sri Lankan army on account of his involvement with the Liberation Tigers of Tamil Eelam (“the LTTE”). He submitted that he had been arrested in 1996, after he had left the LTTE, in a round-up and identified as an LTTE member by a masked man.", "He was severely tortured during the five days of his detention. He was released after the village headman and his mother intervened, but as a condition of his release he was required to sign on regularly at an army camp. 6. On 7 March 2001 the Secretary of State for the Home Department refused the applicant’s asylum claim. He did not accept that the applicant had been arrested and tortured in 1996 or that he genuinely feared that he would be arrested by the army.", "7. The applicant subsequently obtained a medical report which confirmed that he had a number of scars on his scalp, his elbows and his legs caused by shell fragments. 8. On 17 April 2002 the applicant’s appeal against the Secretary of State’s decision was dismissed by an Adjudicator. With no Home Office representative present at the hearing to cross-examine the applicant, his evidence was unchallenged.", "The Adjudicator therefore accepted that the applicant had been a member of the LTTE and that he had been detained and ill-treated by the army in 1996. The Adjudicator also accepted that the scars were caused by shell fragments as the applicant claimed. She noted, however, that the applicant’s scars were not readily visible and would not cause the applicant to stand out; this was evidenced by the fact that the applicant was able to leave Sri Lanka without difficulty, despite having to travel across the country and through checkpoints, which indicated that he was of no interest to the authorities. With regard to the applicant’s Article 8 rights, the Adjudicator noted that although the applicant had a brother and sister in the United Kingdom, he had been separated from them for eight and twelve years respectively; neither had been present at the hearing; and they could visit the applicant in Sri Lanka should they so wish. 9.", "On 28 May 2002 the applicant was refused permission to appeal to the then Immigration Appeal Tribunal. 10. The applicant subsequently made further representations to the Home Office, which, in a decision dated 11 May 2006, the Secretary of State refused to treat as a fresh asylum claim. On 9 October 2006 permission to apply for judicial review was refused. Permission was again refused on 19 February 2007 following an oral hearing.", "On 5 February 2007 the applicant once again submitted further representations. On 16 February 2007 the Secretary of State decided not to treat those representations as a fresh asylum claim. On 21 February 2007 a further application for permission to apply for judicial review was refused. 11. On 10 January 2008 the applicant submitted fresh representations requesting that his case be reconsidered in light of the country guidance determination of LP (LTTE area – Tamils – Colombo – risk?)", "Sri Lanka CG [2007] UKAIT 00076 (see paragraph 13 below). The Secretary of State responded in a letter dated 27 August 2008 stating that: “It is accepted that your client is of Tamil ethnicity as claimed. It is not believed that your client was tortured and as such it is doubtful he was a member of the LTTE as claimed”. 12. This reasoning led to the conclusion that the applicant’s only risk factors were his Tamil ethnicity and scarring, which the Secretary of State pointed out only had significance if combined with other factors likely to bring the applicant to the attention of the authorities.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 13. In LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 (“LP”), the Asylum and Immigration Tribunal considered the case of a Tamil, LP, from Jaffna in the north of Sri Lanka. He had experienced problems with the LTTE and the Sri Lankan authorities and had fled Sri Lanka on 29 December 1999 but had been refused asylum in the United Kingdom by the Secretary of State.", "In dismissing LP’s appeal on asylum grounds but allowing it on the basis of Article 3 of the Convention, the Tribunal gave the following guidance in the headnote to its determination: “(1) Tamils are not per se at risk of serious harm from the Sri Lankan authorities in Colombo. A number of factors may increase the risk, including but not limited to: a previous record as a suspected or actual LTTE member; a previous criminal record and/or outstanding arrest warrant; bail jumping and/or escaping from custody; having signed a confession or similar document; having been asked by the security forces to become an informer; the presence of scarring; return from London or other centre of LTTE fundraising; illegal departure from Sri Lanka; lack of an ID card or other documentation; having made an asylum claim abroad; having relatives in the LTTE. In every case, those factors and the weight to be ascribed to them, individually and cumulatively, must be considered in the light of the facts of each case but they are not intended to be a check list. (2) If a person is actively wanted by the police and/or named on a Watched or Wanted list held at Colombo airport, they may be at risk of detention at the airport. (3) Otherwise, the majority of returning failed asylum seekers are processed relatively quickly and with no difficulty beyond some possible harassment.", "(4) Tamils in Colombo are at increased risk of being stopped at checkpoints, in a cordon and search operation, or of being the subject of a raid on a Lodge where they are staying. In general, the risk again is no more than harassment and should not cause any lasting difficulty, but Tamils who have recently returned to Sri Lanka and have not yet renewed their Sri Lankan identity documents will be subject to more investigation and the factors listed above may then come into play. (5) Returning Tamils should be able to establish the fact of their recent return during the short period necessary for new identity documents to be procured. (6) A person who cannot establish that he is at real risk of persecution in his home area is not a refugee; but his appeal may succeed under article 3 of the ECHR, or he may be entitled to humanitarian protection if he can establish he would be at risk in the part of the country to which he will be returned. (7) The weight to be given to expert evidence (individual or country) and country background evidence is dependent upon the quality of the raw data from which it is drawn and the quality of the filtering process to which that data has been subjected.", "Sources should be given whenever possible. (8) The determinations about Sri Lanka listed in para 229 [of the determination – see below] are replaced as country guidance by this determination. They continue to be reported cases.” 14. Following the Court’s judgment in NA. v. the United Kingdom, application no.", "25904/07, 17 July 2008 (see paragraph 67 below), the Asylum and Immigration Tribunal issued two further Country Guideline determinations. The first, AN & SS (Tamils – Colombo – risk?) Sri Lanka CG [2008] UKAIT 00063 (“AN & SS”), was published shortly after NA. and the Tribunal did not have the benefit of the Court’s decision in reaching its conclusions. The Tribunal gave the following guidance in the head note to the determination: “Since the breakdown of the ceasefire, heightened security in the capital has restricted the operations there of the LTTE, who are focusing on ‘high-profile’ targets.", "The background evidence does not show that Tamils in Colombo who have stopped supporting the Tigers, or who support parties opposed to them, are at real risk of reprisals, absent some feature bringing them to prominence. The conclusion to that effect in PS (LTTE – internal flight – sufficiency of protection) Sri Lanka CG [2004] UKIAT 297, which this determination updates and supersedes, is thus affirmed. There is no good evidence that the LTTE maintain a computerized database of their opponents, such that new arrivals in Colombo can be checked against it. Checks are, on the other hand, run on a computerized database by immigration officers when passengers arrive at Bandaranaike International Airport, or by members of the security forces when people are detained, but there is no good evidence to show that everyone who has in the past been detained and questioned about possible involvement with the LTTE is on that database. On the contrary, it is likely to contain the names only of those who are of serious interest to the authorities.", "The twelve ‘risk factors’ listed in LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 76 can usefully be divided into risk factors per se, one or more of which are likely to make a person of adverse interest to the authorities, and ‘background factors’, which neither singly nor in combination are likely to create a real risk, but which in conjunction with risk factors per se will intensify the risk. A failed asylum seeker who hails from the north or east of Sri Lanka and who has no relatives or friends to turn to in Colombo will generally be able to relocate there in safety and without undue harshness. Those arriving without their National Identity Card should be able to get a replacement without too much difficulty, while the great majority of those detained at checkpoints and in cordon-and-search operations are released within a short time. A generous support package is available for five years from the International Organisation for Migration to those who return voluntarily.", "Those who refuse to do so cannot pray in aid the prospect of being destitute in Colombo. PR (medical facilities) Sri Lanka CG [2002] UKIAT 4269 is, owing to its antiquity, no longer to be treated as country guidance on the availability of medical treatment for returnees. The guidance in PS and LP, however, has been considered and approved by the European Court of Human Rights in NA v United Kingdom, handed down on 17th July 2008.” 15. In the case of Veerasingham v Secretary of State for the Home Department [2008] EWHC 3044 (Admin), however, the High Court Judge noted that: “Without seeking to throw any doubt on the decision in AN on its own facts, I reject the defendant’s submission that it forms a general assessment of the factual background dispositive of the outcome in this case, or that a future tribunal would be bound to apply that case as opposed to the assessment of the European Court of Human Rights. The tribunal in AN did not have the benefit of the Strasbourg court’s assessment of risk in such circumstances and the continuity of risk properly assessed in the light of the criteria used in adjudicating Article 3 claims.", "I am unaware of any tribunal decision that has done so since the AN decision.” 16. In the second, TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049 (“TK”), the Tribunal found that the risk factors identified in LP and AN and SS (both cited above) were still relevant but that a subsequent country guidance case was necessary to take account of the recent major changes to the country situation in Sri Lanka. In TK, the Tribunal held that: “The risk categories identified in LP (LTTE area – Tamils - Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 and approved by the European Court of Human Rights (ECtHR) in NA v UK, App.no. 25904/07, remain valid.", "Events since the military defeat of the LTTE in May 2009 have not aggravated the likely approach of the Sri Lankan authorities to returned failed asylum seekers who are Tamils; if anything the level of interest in them has decreased. The principal focus of the authorities continues to be, not Tamils from the north (or east) as such, but persons considered to be either LTTE members, fighters or operatives or persons who have played an active role in the international procurement network responsible for financing the LTTE and ensuring it was supplied with arms. The records the Sri Lanka authorities keep on persons with some history of arrest and detention have become increasingly sophisticated; their greater accuracy is likely to reduce substantially the risk that a person of no real interest to the authorities would be arrested or detained. The practice of immigration judges and others of referring to “objective country evidence”, when all they mean is background country evidence, should cease, since it obscures the need for the decision-maker to subject such evidence to scrutiny to see if it conforms to legal standards for assessing the quality of Country of Origin Information (COI) as identified by the ECtHR in NA and as set out in the Refugee Qualification Directive (2004/83/EC), Article 4(1), 4(3)(a), 4(5),4(5)(a) and 4(5)(c) and the Procedures Directive (2005)85/EC), Article 8(2)(a)and (b) and 8(3).” III. COUNTRY INFORMATION A.", "Events occurring after the cessation of hostilities in May 2009 17. Extensive information about Sri Lanka can be found in NA., cited above, §§ 53-83. The information set out below concerns events occurring after the delivery of the said judgment on 17 July 2008 and, in particular, after the cessation of hostilities in May 2009. 18. Fighting between the Sri Lankan army and the LTTE intensified in early 2009, with the army taking a number of rebel strongholds in the north and east of the country.", "On 19 May 2009, in an address to the country’s parliament, the President of Sri Lanka announced the end of hostilities and the death of the leader of the LTTE, Velupillai Prabhakaran. It was also reported that most, if not all, of the LTTE’s leadership had been killed. 19. The previous day, the United Nations Office for the Coordination of Humanitarian Affairs had estimated that around 220,000 people had already reached internally displaced persons’ camps, including 20,000 in the last two or three days. In addition, it was believed that another 40,000-60,000 people were on their way to the camps through the crossing point at Omanthai, in the northern district of Vavuniya.", "20. In July 2009, the South Asia Terrorism Portal reported that the number of killings in Sri Lanka in the previous three years (including deaths of civilians, security forces and members of the LTTE) was: 4,126 in 2006; 4,377 in 2007; 11,144 in 2008 and 15,549 between 1 January 2009 and 15 June 2009. An estimated 75-80,000 people were reported to have been killed in total over the course of the 26 year conflict. 21. In July 2009, in a Note on the Applicability of the 2009 Sri Lanka Guidelines, the United Nations High Commissioner for Refugees (“UNHCR”) observed that: “Notwithstanding the cessation of the hostilities, the current protection and humanitarian environment in Sri Lanka remains extremely challenging.", "In the North, nearly the entire population from the territory formerly held by the LTTE in the North (285,000 Tamils) has been confined to heavily militarized camps in the Northern region. Although the government has gradually reduced the military presence in the camps and has pledged to start the progressive return to their villages of origin of the majority of those in the camps, it is clear that this may take a considerable amount of time. The lack of freedom of movement remains the overriding concern for this population restricting its ability to reunite with family members outside the camps, access employment, attend regular schools, and ultimately choose their place of residence.” 22. A Human Rights Watch (“HRW”) press release, dated 28 July 2009, reported that: “The government has effectively sealed off the detention camps from outside scrutiny. Human rights organizations, journalists, and other independent observers are not allowed inside, and humanitarian organizations with access have been forced to sign a statement that they will not disclose information about the conditions in the camps without government permission.", "On several occasions, the government expelled foreign journalists and aid workers who had collected and publicized information about camp conditions, or did not renew their visas.” 23. A further HRW press release dated 26 August 2009 set out concerns that more than 260,000 Tamil civilians remained in detention camps without the freedom to leave. 24. In August 2009, the first post-war local elections were held in northern Sri Lanka. The BBC reported that voter turn-out was low due to the number of people who were still displaced.", "The governing party, the United People’s Freedom Alliance, took the majority of seats in the biggest city in the region, Jaffna. However, the Tamil National Alliance, a party sympathetic to the defeated LTTE, took the majority of seats in Vavuniya, the other town where polling took place. 25. On 7 September 2009, James Elder, the official spokesman for the United Nations Children’s Fund in Sri Lanka was ordered to leave Sri Lanka because of adverse remarks that he had made to the media about the plight of Tamils in the government-run camps. 26.", "On 10 September 2009 the Sri Lankan Official Government News Portal announced that the motion to extend the State of Emergency (under which the authorities have extensive anti-terrorism powers and heightened levels of security including checkpoints and road blocks) by a further month had been passed by Parliament with a majority of 87 votes. 27. In a report dated 22 October 2009, the United States of America State Department published a report entitled “Report to Congress on Incidents During the Recent Conflict in Sri Lanka”, which compiled incidents from January 2009, when the fighting intensified, until the end of May 2009. Without reaching any conclusions as to whether they had occurred or would constitute violations of international law, it set out extensive reports of enforced child soldiers, the killing of captives or combatants trying to surrender, enforced disappearances and severe humanitarian conditions during the hostilities. 28.", "On 21 November 2009, the Sri Lankan Government announced their decision that all internally displaced persons would be given freedom of movement and allowed to leave the detention camps from 1 December 2009. 29. In its Global Appeal 2010-2011, the UNHCR reported that: “The Government-led military operations in northern Sri Lanka which ended in May 2009 displaced some 280,000 people, most of whom fled their homes in the last few months of the fighting. The majority of these internally displaced persons (IDPs) now live in closed camps in Vavuniya district, as well as in camps in Mannar, Jaffna and Trincomalee. An additional 300,000 IDPs, some of whom have been displaced since 1990, are also in need of durable solutions.", "The IDPs originate mainly from the Mannar, Vavuniya, Kilinochchi, Mullaitivu and Jaffna districts in northern Sri Lanka, as well as from some areas in the east of the country. Though the end of hostilities has paved the way for the voluntary return of displaced people, some key obstacles to return remain. For instance, many of the areas of return are riddled with mines and unexploded ordnance. Not all are considered to be of high risk, particularly those away from former frontlines, but mine-risk surveys and the demarcation of no-go areas are urgently needed. Other key obstacles to return include the need to re-establish administrative structures in areas formerly held by the Liberation Tigers of Tamil Eelam; the destruction or damaged condition of public infrastructure and private homes; and the breakdown of the economy - including agriculture and fisheries.", "The Government of Sri Lanka is planning the return framework, and it has called on UNHCR for support with return transport, non-food items, return shelter, livelihoods support and assistance in building the capacity of local authorities. With some progress having been recently achieved, it is hoped that a substantial number of IDPs will be able to return to their places of origin in the latter half of 2009, but a large portion of new IDPs are also likely to remain in the camps and with host families until well into 2010.” 30. In a Human Rights Report 2009, dated 11 March 2010, the United States of America State Department stated that the Sri-Lankan Government accepted assistance from NGOs and international actors for the IDP camps but management of the camps and control of assistance were under the military rather than civilian authorities. Food, water, and medical care were all insufficient in the first few weeks after the end of the war, but by July the situation had stabilised and observers reported that basic needs were being met. In June the military withdrew from inside the camps but continued to provide security around the barbed wire-enclosed perimeter.", "The IDPs in the largest camp, Manik Farm, were not given freedom of movement until December, when a system of temporary exit passes was implemented for those who had not yet been returned to their districts of origin. Some observers said that this exit system still did not qualify as freedom of movement. 31. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 11 November 2010 (“the November 2010 COI Report”) stated as follows: “4.23 The International Crisis Group (ICG) report Sri Lanka: A Bitter Peace, 11 January 2010, also referred to ‘extra-legal detention centres’ maintained by the military and observed: ‘These detained have had no access to lawyers, their families, ICRC or any other protection agency, and it is unclear what is happening inside the centres. In addition, the grounds on which the ex-combatants have been identified and the legal basis on which they are detained are totally unclear and arbitrary’.", "Given the well-established practice of torture, enforced disappearance and extra-judicial killing of LTTE suspects under the current and previous Sri Lankan governments, there are grounds for grave concerns about the fate of the detained. The government has announced that of those alleged ex-combatants currently detained, only 200 will be put on the trial; most will be detained for a further period of ‘rehabilitation’ and then released.” ... 4.25 Referring to the ‘at least 11,000 people’ detained ‘in so-called ‘rehabilitation centers’ because of their alleged association with the LTTE, the HRW document Legal Limbo, The Uncertain Fate of Detained LTTE Suspects in Sri Lanka, released on 29 January 2010, observed: “The government has routinely violated the detainees’ fundamental human rights, including the right to be informed of specific reasons for arrest, the right to challenge the lawfulness of the detention before an independent judicial authority, and the right of access to legal counsel and family members. The authorities’ consistent failure to inform families of the basis for the detainees’ arrest and their whereabouts raises serious concerns that some detainees may have been victims of torture and ill-treatment, which are more likely to take place where due process of law is lacking and which have long been serious problems in Sri Lanka. Given the lack of information about some detainees, there is also a risk that some may have been ‘disappeared’.” 4.31 The UNHCR ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka’, 5 July 2010 reported that ‘In the wake of the conflict, almost 11,000 persons suspected of LTTE links were arrested and detained in high-security camps’ adding that ‘According to a Government survey, as of 1 March 2010, 10,781 LTTE cadres were being held at 17 centres. Among the detainees were 8,791 males and 1,990 females,’ and noted that ‘Some of the adult detainees have...been released after completing rehabilitation programmes or because they were no longer deemed to present a risk, including some persons with physical disabilities.’” 32.", "The November 2010 COI Report also set out: “4.09 The EIU (The Economist Intelligence Unit), Country Report, Sri Lanka, July 2010 reported: ‘The EU has warned that Sri Lanka faces losing trade advantages under the Generalised System of Preferences-Plus (GSP-Plus) scheme from August 15th, unless the Government commits itself in writing to improving its human rights record. The EU has put forward 15 conditions that it says the Government needs to promise to meet within the next six months. These include: ensuring that the 17th amendment to the constitution, which requires that appointments to public positions be impartial and reflect the country’s ethnic and religious mix, is enforced; repealing parts of the Prevention of Terrorism Act that are incompatible with Sri Lanka’s covenants on political and human rights; reforming the criminal code to allow suspects immediate access to a lawyer on arrest; and allowing journalists to carry out their professional duties without harassment. However, the Government has rebuffed the EU, stressing that the issues that it has raised are internal political matters that should not be linked to trade. The EU is not the only international body currently putting pressure on the government.", "Sri Lanka has also rejected the UN’s appointment of a three-member panel to examine possible human rights violations during the island’s civil war. The Sri Lankan authorities have warned that they will not provide visas for panel members to enter the country.’” ... 4.11 The EIU, Country Report, Sri Lanka, August 2010 noted that: ‘The decision by the UN secretary-general, Ban Ki-moon [on 22 June 2010], to appoint a panel to examine accountability issues stemming from the final stages of the island’s civil war, which ended in May 2009, has prompted a strong reaction in Sri Lanka ...’ 4.12 On 17 September 2010 the UN News Service reported that ‘Secretary-General Ban Ki‑moon has held his first meeting with the panel of experts set up to advise him on accountability issues relating to alleged violations of international humanitarian and human rights law during the final stages last year of the conflict in Sri Lanka.’ The source also noted that the role of the experts was to examine “the modalities, applicable international standards and comparative experience with regard to accountability processes, taking into account the nature and scope of any alleged violations in Sri Lanka.” B. The treatment of returned failed asylum seekers at Colombo airport 1. United Kingdom Government Reports 33. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 18 February 2009 (“the February 2009 COI Report”) sets out a series of letters from the British High Commission, Colombo, (“BHC”) on arrival procedures at Colombo airport.", "In its letter of 28 August 2008, the BHC observed: “(T)he correct procedure for (Department of Immigration and Emigration (DIE)) officers is to record the arrival of these persons manually in a logbook held in the adjacent Chief Immigration Officer’s office. The name, date and time of arrival and arriving flight details are written into the log. It records why the person has come to their attention and how the case was disposed of. I have had the opportunity to look at the log, and it appears that the only two ways of disposal are to be passed to the Criminal Investigations Department (CID), or allowed to proceed. The office of the State Intelligence Service (SIS) is in the immigration arrivals hall and an officer from SIS usually patrols the arrivals area during each incoming flight.", "Invariably, if they notice a person being apprehended they approach IED (Immigration and Emigration Department) and take details in order to ascertain in (sic) the person may be of interest to them. Their office contains three computer terminals, one belonging to the airport containing flight information and two stand-alone terminals. If an apprehended person is considered suitable to be passed to CID, they are physically walked across the terminal building to the CID offices. A CID officer should then manually record the arrival of the person in a logbook held in their office...often persons shown in the DIE logbook to have been handed to CID are never actually recorded as being received in the CID logbook. It is believed that CID has allowed these persons to proceed and no action has been taken against them.” 34.", "The same letter also noted that CID offices at the airport contained two computers, which were not linked to any national database. Any checks on persons detained or apprehended were conducted over the phone with colleagues in central Colombo. There were no fingerprint records at the airport. One computer contained records of suspects who had been arrested and charged with offences, and court reference numbers. It continued as follows: “Were a Sri Lankan national to arrive at Colombo Airport having been removed or deported from the United Kingdom, they would be in possession of either a valid national Sri Lankan passport, or an emergency travel document/temporary passport, issued by the Sri Lankan High Commission in London.", "The holder of a valid passport would have the document endorsed by the immigration officer on arrival and handed back to him/her. A national passport contains the national ID card number on the laminated details page. I have made enquiries with the DIE at Colombo Airport, and with the International Organisation for Migration who meet certain returnees at the airport, and both have confirmed that a person travelling on an emergency travel document is dealt with similarly. They too have the document endorsed by the immigration officer on arrival and returned to them. Before issuing an emergency travel document, the Sri Lankan High Commission in London will have details of an applicant confirmed against records held in Colombo and will thus satisfactorily confirm the holder’s nationality and identity.", "If a returnee subsequently wishes to obtain a national identity card, they have to follow the normal procedures.” 35. In a letter dated 22 January 2009, the BHC reported that an official had spent several hours observing the return of failed asylum seekers from the United Kingdom, including those who were in possession of emergency travel documents, issued by the Sri Lankan High Commission in London. In the official’s opinion, the fact that certain returnees had been issued with emergency travel documents by the Sri Lankan High Commission in London did not seem to make any difference to their treatment upon arrival. 36. The Report of Information Gathering Visit to Colombo on 23 to 29 August 2009, conducted jointly by the Foreign and Commonwealth Office Migration Directorate and United Kingdom Border Agency Country of Origin Information Service (“the Report of Information Gathering Visit, August 2009”), concluded that all enforced returns (of whatever ethnicity) were referred to the CID at the airport for nationality and criminal record checks, which could take more than 24 hours.", "All enforced returns were wet-fingerprinted. Depending on the case, the individual could also be referred to the SIS and/or the Terrorist Investigation Department for questioning. Anyone who was wanted for an offence would be arrested. 37. The report set out that those with a criminal record or LTTE connections would face additional questioning and might be detained.", "In general, non-government and international sources agreed that Tamils from the north and east of the country were likely to receive greater scrutiny than others, and that the presence of the factors below would increase the risk that an individual could encounter difficulties with the authorities, including possible detention: -Outstanding arrest warrant -Criminal record -Connection with the LTTE -Bail jumping/escape from custody -Illegal departure from Sri Lanka -Scarring -Involvement with media or NGOs -Lack of an ID card or other documentation 38. The November 2010 COI report set out the following: “33.20 The BHC letter of 30 August 2010 went on to observe that: ‘At the beginning of 2010, partly due to the large numbers of Sri Lankans being returned from around the world and causing logistical problems, CID procedures were relaxed in that they no longer had to detain returnees until written confirmation was received from the local police. All returnees are still interviewed, photographed and wet fingerprinted. The main objective of these interviews is to establish if the returnee has a criminal record, or if they are wanted or suspected of committing any criminal offences by the police. The photographs are stored on a standalone computer in the CID office at the airport.", "The fingerprints remain amongst paper records also in the CID office at the airport. Checks are initiated with local police, but returnees are released to a friend or relative, whom CID refers to as a surety. This surety must provide evidence of who they are, and must sign for the returnee. They are not required to lodge any money with CID. The main CID offices at Colombo Airport, which are housed on the ground floor adjacent to the DIE embarkation control, are currently undergoing a complete refurbishment funded by the Australian government.", "The one completed office suite has three purpose built interview rooms, and facilities where returnees can relax and eat meals.’ ... 33.22 A British High Commission letter of 14 September 2010 reported: ‘There is strong anecdotal evidence that scarring has been used in the past to identify suspects. Previous conversations with the police and in the media, the authorities have openly referred to physical examinations being used to identify whether suspects have undergone military style training. More recent claims from contacts in government ministries suggest that this practice has either ceased or is used less frequently. At the very least it appears that the security forces only conduct these when there is another reason to suspect an individual, and are not looking for particular scars as such, but anything that may indicate the suspect has been involved in fighting and/or military training. There is no recent evidence to suggest that these examinations are routinely carried out on immigration returnees.’” 2.", "Other Sources 39. On 19 October 2009, Tamilnet reported that twenty-nine Tamil youths were taken into custody by the State Intelligence Unit of the Sri Lanka Police at the International Airport in two separate incidents whilst trying to leave Sri Lanka. It was also reported that since July 2009, special teams of the State Intelligence Unit and police had been deployed in the airport to monitor the movement of Tamils who try to go abroad. C. The treatment of Tamils in Colombo 40. The Report of Information Gathering Visit, August 2009, stated that the frequency of cordon and search operations had not reduced significantly in recent months, though there were fewer large-scale operations than in previous years.", "In general, young male Tamils originating from the north and east of the country were most at risk of being detained following cordon and search operations, with the presence of the risk factors set out above increasing that risk. Those without employment or legitimate purpose for being in Colombo were also likely to be seen as suspect. The same report also noted that most sources agreed that there had been few, if any, abductions or disappearances since June 2009. There was not a great deal of available information about the profile of Tamils targeted for abduction, although it appeared that people linked to the media might be more vulnerable. Police did not generally carry out effective investigations.", "It went on to note that most sources agreed that there had not been any significant reduction in the number of checkpoints in Colombo, whose stated purpose remained to detect and prevent terrorist activity. In general those most likely to be questioned were young Tamils from the north and east; those without ID; those not resident or employed in Colombo; and those recently returned from the West. However, most sources said that arrests at checkpoints were rare and none had been reported since June 2009. It was reportedly fairly likely that someone would be stopped at a checkpoint en route from the airport to Colombo city. Finally, it clarified that people who wished to live in Colombo but did not originate from there were required to register with the local police station with a national ID card or full passport, and give details of planned length and purpose of stay.", "In theory, whilst anyone was entitled to register to stay in Colombo, some sources suggested that young Tamil men originally from the north or east of the country could encounter difficulties and face closer scrutiny. The presence of any of the risk factors set out above would also attract greater attention from the police. D. The treatment of Tamils in general 1. United Nations Reports 41. The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, April 2009 (“the April 2009 Guidelines”) observed that: “The significant majority of reported cases of human rights violations in Sri Lanka involve persons of Tamil ethnicity who originate from the North and East...In Government-controlled areas, Tamils who originate from the North and the East, which are, or have been under LTTE control, are frequently suspected as being associated with the LTTE.", "For this reason, Tamils from the North and the East are at heightened risk of human rights violations related to the implementation of anti-terrorism and anti-insurgency measures. While this risk exists in all parts of Sri Lanka, it is greatest in areas in which the LTTE remains active, and where security measures are heaviest, in particular the North and parts of the East, and in and around Colombo.” 42. The Guidelines also noted that the Government had been heavily criticised for the high number of Tamils who have been subjected to arrest and security detention, particularly on the basis of information gathered in registration exercises and questioning at cordons and road checkpoints in and around the capital. 43. The UNHCR Note on the Applicability of the 2009 Sri Lanka Guidelines, (see paragraph 21 above) observed: “The country of origin information that UNHCR has considered indicates that Tamils from the North of Sri Lanka continue to face a significant risk of suffering serious human rights violations in the region (and elsewhere in the country) because of their race (ethnicity) or (imputed) political opinion.", "Tamils in the North are still heavily targeted in the security and anti-terrorism measures described in the Guidelines. Wide scale detention and confinement of Tamils from the North remains a serious concern. Pro-Government paramilitary elements also continue to operate with impunity against Tamils in the North.” 44. The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka of 5 July 2010 (“the July 2010 Guidelines”), which superseded the April 2009 Guidelines, contained information on the particular profiles for which international protection needs may arise in the current context. It was stated that: “Given the cessation of hostilities, Sri Lankans originating from the north of the country are no longer in need of international protection under broader refugee criteria or complementary forms of protection solely on the basis of risk of indiscriminate harm.", "In light of the improved human rights and security situation in Sri Lanka, there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country. It is important to bear in mind that the situation is still evolving, which has made the drafting of these Guidelines particularly complex.” 45. In summary, the following were UNHCR’s recommendations: all claims by asylum seekers from Sri Lanka should be considered on the basis of their individual merits according to fair and efficient refugee status determination procedures and up-to-date and relevant country of origin information. UNHCR considered that, depending on the particular circumstances of the case, some individuals with profiles similar to those outlined in the Guidelines require a particularly careful examination of possible risk. These risk profiles, while not necessarily exhaustive, are set out below: (i) persons suspected of having links with the Liberation Tigers of Tamil Eelam (LTTE); (ii) journalists and other media professionals; (iii) civil society and human rights activists; (iv) women and children with certain profiles; and (v) lesbian, gay, bisexual and transgender (LGBT) individuals.", "2. Other Sources 46. A report commissioned by the applicant’s representatives from Dr Chris Smith (“Dr Smith’s report”) and dated 5 February 2007, includes the following relevant paragraphs: “Given the treatment of Tamils, the authorities would question as to why any Tamil would want to come back and a significant exodus from the North is anticipated. The authorities may well conclude that, given their second class status, the only reason to return would be to lend support to the LTTE or whatever comes in its place. As such, returnees are likely to face a difficult time, especially at the airport.", "The applicant was held for 5 days and the severity of his ill-treatment indicates that he was of adverse interest to the authorities who detained him. As such, his record will most likely have been included on the central database, particularly since he was released on reporting conditions which he subsequently violated. He has visible scars which could trigger adverse interest at the airport and, furthermore, the fact that he left Sri Lanka using false documentation will further contribute to risk and vulnerability at the airport. As such, it is very likely that the applicant will be detained on arrival and this will place him at considerable risk of ill-treatment, torture and, even, sexual abuse.” THE LAW I. ALLEGED VIOLATION OF ARTICLES 2 and 3 OF THE CONVENTION 47.", "The applicant complained that his removal to Sri Lanka would violate his rights under Articles 2 and 3 of the Convention. Article 2 of the Convention provides that: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.", "Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” 48. Article 3 of the Convention provides that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 49. The Government contested that argument. A. Admissibility 50. The Court finds that it is more appropriate to deal with the complaint under Article 2 in the context of its examination of the related complaint under Article 3 and will proceed on this basis (see NA., cited above, § 95).", "It notes that the 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. a) The applicant’s submissions 51. The applicant submitted that there were substantial grounds for believing that he would be at risk of being detained and ill-treated by the authorities at the airport or in Colombo such as to constitute a breach of Article 3 if he were returned to Sri Lanka.", "52. In particular, he submitted that the situation in Sri Lanka had deteriorated since the Court’s judgment in NA., cited above. In support, he referred to the April 2009 Guidelines (see paragraph 41 above). He submitted that these highlighted the fact that the armed conflict had escalated from mid-2008 until the date of the report; that conditions in high security camps were not consistent with international standards for the treatment of displaced persons; that in those camps there was a screening process to identify LTTE suspects; and that Tamils from the north suspected of affiliation to the LTTE were at high risk of harassment, arrest, detention, torture, abduction or killing. The April 2009 Guidelines therefore supported his contention that he would be at risk of treatment contrary to Article 3 of the Convention if he were to be returned.", "53. The applicant further relied on Dr Smith’s report (see paragraph 46 above), which indicated that as Tamils had become second-class citizens in their own country, the authorities may conclude that the only reason to return would be to lend support to the LTTE. As such, they were likely to face a difficult time, especially at the airport. 54. In relation to the risk factors identified in LP and NA., both cited above, the applicant submitted that there were clearly substantial grounds for believing that he would be detained and ill-treated at the airport given his record of past detention; his departure from Sri Lanka in breach of reporting conditions; his past membership of the LTTE; his scarring; and the fact that he was a Tamil from the north, who had left Sri Lanka illegally and was returning from London as a failed asylum seeker.", "55. In relation to his LTTE membership, the applicant submitted that the fact that he had been an LTTE member of rank and had been released on reporting conditions pointed to his detention being one that would be on record and which was clearly formal. The applicant further submitted that a breach of reporting conditions should be treated in the same way as bail jumping in the assessment of risk. 56. With regard to the scarring, the applicant argued that his record of past detention would increase the risk that he would be arrested and detained at the airport.", "While his scars would not be readily visible when covered by clothing, they would be apparent if he were to be checked or strip searched by the authorities. 57. Should it be concluded that the applicant would not be at risk at the airport itself, he submitted that he would be at risk in Colombo. In particular, he submitted that there was a real risk that he would be arrested either at a check point or in a round-up at a lodge. That risk would be further increased while the applicant was without an ID card, as this was the only acceptable evidence of identity and must be carried at all times.", "If arrested there was a real risk that the applicant’s records would be checked and his history of detention and breach of reporting conditions would come to light. It was also likely that at that stage his scars would be seen by the police and viewed as confirmation of past involvement with the LTTE. b) The Government’s submissions 58. The Government accepted, for the purposes of the proceedings before the Court, that the applicant had been detained by the army for five days in April 1996 and ill-treated in the manner described. They maintained, however, that he was not of sufficient interest to the Sri Lankan authorities to warrant his arrest and detention on return and, consequently, that there would be no risk of ill-treatment contrary to Article 3 of the Convention.", "59. The Government challenged the country information relied on by the applicant. They indicated that the situation in Sri Lanka had developed to such an extent since the publication of the April 2009 Guidelines, that the UNHCR had published a note on their applicability (see paragraph 21 above). The Government argued that, insofar as UNHCR recommended that Tamil asylum-seekers from the north should be granted asylum, that recommendation was based on information about the risk to Tamils “in the region” and there was no indication that the Note had in any way considered the risk in Colombo generally. Moreover, they submitted that, following NA., little weight should be attached to the UNHCR’s assessment as its comments were not focused on the question of whether there was a risk of ill-treatment contrary to Article 3 of the Convention.", "Consequently, it provided no support for the applicant’s assertion that there was a real risk he would be subjected to treatment contrary to Article 3 of the Convention if he were returned to Colombo. Instead, the Government relied on the then most recent Country of Origin Information report, published by the United Kingdom Border Agency on 13 October 2009, which contained the most up-to-date publicly available information. 60. The Government further observed that Dr Smith’s evidence had been criticised by the Asylum and Immigration Tribunal in LP (cited above). In particular, the Tribunal had noted that, “some of the evidence given by Dr Smith appeared to be simply wrong” and, “there are a number of places where he demonstrably exaggerated the risk to the appellant”.", "In AN & SS (cited above), the Tribunal was again critical of Dr Smith’s evidence, fearing that Dr Smith was “going beyond his expertise and simply speculating”. Dr Smith’s report in the present application suffered from the same defects as his evidence before the Tribunal, according to the Government, as it drew largely on material that pre-dated the evidence in both LP and AN & SS, and it focused more on the general humanitarian situation than on the possibility of the applicant being exposed to a real risk of treatment contrary to Article 3. 61. The Government submitted that, following NA., cited above, in order to establish a breach of Article 3 of the Convention, the applicant would have to show that there were serious reasons to believe that he was of sufficient interest to the authorities to warrant his detention and interrogation, either because he was likely to be detained and interrogated at Colombo airport, or because he had such a high profile as an opposition activist or as someone viewed by the LTTE as a renegade or traitor so as to be at risk more generally in Colombo. The Government argued that it was clear from the evidence before the Court that the applicant did not fall into the second category.", "In particular, they noted that he had been allowed to leave the LTTE and return home, and that he had subsequently led a normal life until his detention in 1996. The question of whether the applicant was likely to be detained and interrogated at the airport had to be assessed by reference to the risk factors identified by the Asylum and Immigration Tribunal in LP and approved by the Court in NA (cited above, § 13). 62. Although the Government accepted that the applicant had been detained and tortured, they submitted that this had taken place over thirteen years ago and, unlike in the case of the applicant in NA., there was no evidence that there would be any record of that detention. In particular, there was no evidence of an arrest warrant or a criminal record, and there was no evidence that the applicant had been photographed or fingerprinted.", "Moreover, the Adjudicator had found that even though the applicant had breached his reporting condition by leaving the country, he had been able to travel through checkpoints without difficulty, which he could not have done had he been of interest to the authorities. The Government further submitted that the applicant did not fall into the risk category of “bail jumping” or “escaping from custody”. On the available evidence it was much more likely that the applicant had been released without any requirement for bail as appeared to be “common practice” outside Colombo. Furthermore, the fact that he had not complied with his reporting requirement did not appear to have led to the creation of any formal record. 63.", "In relation to the applicant’s scars, the Government submitted that the Court could not go behind the Adjudicator’s findings that they were not readily visible and would not bring the applicant to the attention of the authorities. The Adjudicator had had the benefit of seeing the applicant give evidence and of examining the scars, and the applicant had not submitted any evidence to undermine the Adjudicator’s clear finding of fact. 64. With regard to the risk factors of returning from London; having made an asylum claim abroad; illegal departure from Sri Lanka; and lack of an ID card, the Government relied on the Court’s finding in NA. that these would be “contributing factors” which would need other, perhaps more compelling, factors before a real risk could be established.", "a) General principles 65. The Court reiterates that Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006‑....). However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country (Saadi v. Italy [GC], no.", "37201/06, § 125, ECHR 2008-...). The assessment of whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires that the Court assess the conditions in the receiving country against the standards of Article 3 of the Convention (Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005‑I). These standards imply that the ill‑treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case (Hilal v. the United Kingdom, no.", "45276/99, § 60, ECHR 2001‑II). 66. In order to determine whether there is a real risk of ill-treatment in this case, the Court must examine the foreseeable consequences of sending the applicant to Sri Lanka, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 108 in fine, Series A no. 215). If an applicant has not yet been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Saadi v. Italy, cited above, § 133).", "A full and ex nunc assessment is called for as the situation in a country of destination may change over the course of time. Even though the historical position is of interest insofar as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive and it is therefore necessary to take into account information that has come to light since the final decision taken by the domestic authorities (see Salah Sheekh v. the Netherlands, no. 1948/04, § 136, ECHR 2007‑I (extracts)). 67. The Court also recalls its findings in NA., cited above: “128.", "It follows that both the assessment of the risk to Tamils of ‘certain profiles’ and the assessment of whether individual acts of harassment cumulatively amount to a serious violation of human rights can only be done on an individual basis. Thus, while account must be taken of the general situation of violence in Sri Lanka at the present time, the Court is satisfied that it would not render illusory the protection offered by Article 3 to require Tamils challenging their removal to Sri Lanka to demonstrate the existence of further special distinguishing features which would place them at real risk of ill-treatment contrary to that Article (see Salah Sheekh, cited above, § 148 and paragraphs 116–117 above). 129. The Court therefore considers that it is in principle legitimate, when assessing the individual risk to returnees, to carry out that assessment on the basis of the list of ‘risk factors’, which the domestic authorities, with the benefit of direct access to objective information and expert evidence, have drawn up. The Court also notes that the AIT in LP considered all the relevant risk factors identified and put before it by the appellant in that case and that the AIT itself was careful to avoid the impression that these risk factors were a ‘check list’ or exhaustive.", "It further notes that in the present case, the parties’ observations as to the individual risk to the applicant are made with reference to the same risk factors considered in LP. Furthermore, the applicant has not identified any further risk factors which were not considered in LP but which would assist the Court in its assessment. As it has recalled, the Court’s own assessment must be full and ex nunc (paragraph 112 above) but on the basis of the objective evidence before it, the Court itself does not consider it necessary to identify any additional risk factors which have not been duly considered by the domestic authorities or raised by the parties in their observations. 130. Despite this conclusion, the Court emphasises that the assessment of whether there is a real risk must be made on the basis of all relevant factors which may increase the risk of ill-treatment.", "In its view, due regard should also be given to the possibility that a number of individual factors may not, when considered separately, constitute a real risk; but when taken cumulatively and when considered in a situation of general violence and heightened security, the same factors may give rise to a real risk. Both the need to consider all relevant factors cumulatively and the need to give appropriate weight to the general situation in the country of destination derive from the obligation to consider all the relevant circumstances of the case (see the Hilal judgment, cited above, § 60).” b) Relevant considerations 68. The Court further recalls its recent findings in T.N. v. Denmark, application no. 20594/08, § 93, 14 December 2010 that, although the situation in Sri Lanka has altered since NA., with the end of hostilities and consequent changes, the principles set down in NA.", "are still entirely relevant in determining whether a Tamil returned to Sri Lanka will or will not face a real risk. 69. The Court also finds that, in the light of the various sources of background country evidence on Sri Lanka, the current situation in the country has been accurately set out in the Country Guidance case of TK, cited above. The Court recognises the comprehensive review of background and expert evidence carried out by the Asylum and Immigration Tribunal which heard TK. The Court also takes note of the background evidence set out above which has been issued since TK was handed down, such as the November 2010 COI report, which details the relaxation of certain procedures at Colombo airport (see paragraph 38 above) and the July 2010 Guidelines, which state that only Tamils with particular profiles will be in need of international protection (see paragraphs 44-45 above).", "The Court notes in particular that the July 2010 Guidelines represent the most recent guidance issued by the UNHCR and state that, given the improved situation in Sri Lanka, group-based protection is no longer necessary and each case should be assessed on its individual merits, having regard to the risk profiles. Drawing on all these sources, the Court finds that the risk factors identified in LP and endorsed by this Court in NA. are still applicable but, given the end of hostilities, the likelihood of a Tamil returning to Colombo being the subject of adverse interest on the part of the Sri Lankan authorities has, if anything, declined (see TK, cited above). 70. The Court finally notes that the expert report obtained by the present applicant from Dr Smith (see paragraph 46 above) differs greatly from the rest of the background evidence, in finding that the situation in Sri Lanka is likely to be worse than before for Tamil returnees.", "However, given that his views are highly discrepant to the preponderance of the country evidence, and given that his opinions have been criticised by the Asylum and Immigration Tribunal, the Court shares the Government’s view that Dr Smith’s report in this case carries limited weight. The Court attaches far more weight to the other background evidence cited above and to the principles elaborated by the Tribunal which has had the benefit of examining in detail this background evidence and reports from other experts, in the series of relevant cases which began with LP. c) Application to the facts of the case 71. In considering whether the applicant has established that he would be at real risk of ill-treatment in Sri Lanka, the Court observes as a preliminary matter that the Government propose to remove him to Colombo. In the light of this, the Court does not consider it necessary to examine the risk to Tamils in any other part of the country outside Colombo and will proceed to examine the risk to Tamils returning to Sri Lanka on this basis.", "72. The Court notes that for the purposes of this case, the Government have accepted that the applicant was detained by the army and ill-treated in 1996 as he alleged. The applicant’s version of events was also accepted by the Adjudicator who heard his appeal in 2002. However, when the Secretary of State refused to treat the applicant’s representations as a fresh claim on 27 August 2008, it was explicitly stated that it was not accepted that the applicant had been tortured as he claimed. The Secretary of State doubted that the applicant had been involved with the LTTE as he alleged.", "Thus, while the applicant’s case was considered in the light of LP, this consideration was carried out on the basis that the applicant did not possess certain risk factors, such as a record as a former LTTE member, which the Adjudicator had already accepted that the applicant possessed. The Court does not therefore consider that the applicant’s case was properly assessed in the light of the relevant case extant at the time. It is unfortunate, in the Court’s view, that the Secretary of State did not consider the findings of the Adjudicator who had had the opportunity to see the applicant give evidence in person. In so doing, the Secretary of State does not appear to have had regard to risk factors which, it is accepted, applied to the applicant and which were of relevance to the consideration of his claim in the light of the then-recent and still relevant case-law. 73.", "The Court now turns to its examination of the likely risk to the applicant, having regard to all his personal circumstances, if returned to Sri Lanka at the present time. The applicant’s case can be interpreted in the light of the NA. risk factors as follows. He possesses various factors which, as the Asylum and Immigration Tribunal observed in AN and SS (cited above), can be construed as “background factors” in that they would not suffice to give rise to a real risk when taken alone, but may increase the risk to the applicant when taken in conjunction with other, more specific risk factors. The background factors which apply to this applicant include Tamil ethnicity, having made an asylum claim abroad, and return from London.", "It is not clear from the documents submitted to the Court whether the applicant possesses an identity document or not; though it would appear likely that, given the length of time that he has been absent from Sri Lanka, he does not. 74. Regarding the applicant’s previous record, the Court notes that the Adjudicator accepted that the applicant had been a member of the LTTE and that the Government have not disputed this claim. The Court therefore takes as its starting point the fact that the applicant was an active member of the LTTE and was arrested in a round-up. The Sri Lankan authorities have therefore, in the past at least, been aware or suspicious that the applicant was involved with the LTTE.", "The Court takes the view that, given that the manner of the applicant’s release from custody is highly indicative of the authorities’ level of interest in him, the risk factor of his previous record as an LTTE member is best considered alongside the next risk factor. 75. The Court notes that, in LP (cited above), the Asylum and Immigration Tribunal found that having jumped bail or escaped from custody represented a further possible risk factor for Tamils returning to Sri Lanka. The Court is of the view that this risk factor is best construed as a specific, rather than background, factor. However, the Court also notes that, in the case of the applicant, this risk factor does not apply.", "The applicant did not jump bail or escape from custody but was released on the condition that he report regularly at the army camp. The Court does not consider that the duty to report following release is comparable to being subject to bail, which is granted in the context of pending criminal proceedings. The fact that the applicant was released from custody, albeit conditionally, indicates that the authorities did not have a continuing strong level of interest in him. If he were considered still to be dangerous or to have further information to divulge, he would have been kept in custody. The Court further notes that, even after reneging on his duty to report, the applicant was able to travel through Sri Lanka and pass various checkpoints in order to leave the country, which he did through normal channels.", "This ability to travel and to leave the country corroborates the finding that the applicant was no longer of such interest to the authorities that he would be re-arrested. It also indicates that no record of the applicant’s detention had been kept and indeed, the Court notes that there is no evidence in this case that the applicant’s detention was recorded. This differentiates this applicant from the applicant in NA. v. the United Kingdom, cited above, in respect of whom it was accepted that a record had been made of at least his last detention. The Court therefore finds that, although this applicant had been identified as an LTTE member, following his detention and prior to his departure from Sri Lanka, he was not of continuing interest to the authorities.", "76. Furthermore, the Court takes the view that nothing that has transpired since the applicant’s arrival in the United Kingdom would serve to heighten the level of interest or suspicion that he holds for the authorities in Sri Lanka. As observed in TK (cited above), the conflict between the Sri Lankan Government and the LTTE has now ended, and the level of adverse interest in failed Tamil asylum seekers who return to the country has, if anything, decreased. The general country situation is not, therefore, conducive to any increased interest in the applicant. Furthermore, the applicant has been absent from his country of origin for ten years and has not at any stage raised any suggestion that he has maintained links with the LTTE in any way.", "In particular, he has not sought to argue that he has been involved in fund-raising for the LTTE or has supported the organisation in any other way from the United Kingdom, such as might have brought him to the attention of the authorities. There is therefore no reason specific to the applicant for the authorities’ interest in him to have intensified during his absence from Sri Lanka. 77. The Court notes that the applicant has some scarring to his scalp, legs and elbows. This was accepted by the Adjudicator, who had sight of the scars at the applicant’s hearing, and has been confirmed in medical evidence submitted to this Court.", "The accepted position, therefore, is that the applicant has a number of scars which were sustained during a shell attack. 78. The Court notes that, on the one hand, the Adjudicator, who inspected the applicant’s scars at his hearing, found that his scars were not readily visible; would not be on display during the course of day to day living; and would not cause the applicant to stand out or bring him to the attention of the authorities. On the other hand, Dr Smith at paragraphs 108-118 of his report (see paragraph 46 above) states that the applicant’s scars are visible and significant and that members of the Sri Lankan security forces take a special interest in those who either arrive in Sri Lanka with visible scarring or whose scars are revealed during a strip search. He also noted that the applicant’s scars on his elbows would be visible if he were to dress in normal Sri Lankan attire of a short-sleeved shirt.", "The scars on his legs would be visible if he were to wear shorts. The scars on his head were at present covered by his hair but would be revealed if the applicant were to go bald. The Court reiterates that it has attached limited weight to Dr Smith’s report and prefers the findings of the Adjudicator for this reason. 79. The Court takes the view that the crucial question is whether the applicant is likely to come to the attention of the authorities as he passes through the airport (see NA., cited above, § 134).", "His scars, as described by the Adjudicator who, unlike this Court, had the opportunity of seeing the applicant in person, do not appear to be such as would attract special attention. The Court does not, therefore, consider that the applicant’s scarring alone, even taken in conjunction with the background risk factors discussed above and even whilst the applicant is passing through the airport and thus subject to a greater degree of scrutiny and control by the Sri Lankan authorities, would attract sufficient attention to render him at risk of detention, interrogation and ill-treatment. 80. The applicant would be returned to Sri Lanka as a failed asylum seeker from the United Kingdom, who has in the past been known to the authorities as a former LTTE member but who was released from custody as being of no further interest. He was arrested on only one occasion, unlike the applicant in NA.", "v. the United Kingdom, cited above, who had been arrested six times. This applicant has scars which would be seen if he were to be strip searched as he passed through the airport; however, the Court is of the view that the risk of strip searching is slight given that the applicant is not actively “wanted” by the authorities and his name will not appear on any list of those who are wanted, who have jumped bail or who have escaped from prison or army custody. In any event, the applicant’s scarring was in large part sustained from a shelling incident and cannot therefore be described as characteristic of having undergone LTTE training or having been tortured in custody, which are the types of scarring most likely to rouse suspicion. 81. Upon an overall examination of the applicant’s case, the Court is of the view that the combination of risk factors which apply to him, of which the predominant factors are his previous record as an LTTE member and his scarring, are not sufficient to put him at real risk of detention and ill-treatment should he be returned to Sri Lanka.", "Accordingly, the applicant’s removal to Sri Lanka would not give rise to a violation of Article 3 of the Convention. II. RULE 39 OF THE RULES OF COURT 82. The Court recalls that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention. 83.", "It considers that the indication made to the Government under Rule 39 of the Rules of Court (see above § 3) must continue in force until the present judgment becomes final or until the Panel of the Grand Chamber of the Court accepts any request by one or both of the parties to refer the case to the Grand Chamber under Article 43 of the Convention. FOR THESE REASONS, THE COURT 1. Declares the application admissible unanimously; 2. Holds by five votes to two that there would be no violation of Article 3 of the Convention in the event of the applicant’s removal to Sri Lanka; and 3. Decides unanimously to continue to indicate to the Government under Rule 39 of the Rules of Court that it is desirable in the interests of the proper conduct of the proceedings not to remove the applicant until such time as the present judgment becomes final or further order.", "Done in English, and notified in writing on 31 May 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyLech Garlicki RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Judges Garlicki and Kalaydjieva is annexed to this judgment. L.G.T.L.E. JOINT DISSENTING OPINION OF JUDGES GARLICKI AND KALAYDJIEVA 1. It is with regret that we cannot follow the position of the majority in this case.", "We do not challenge the general finding that, given the evolution of the situation in Sri Lanka, group-based protection may no longer be necessary. However, we are of the opinion that the applicant’s personal situation does not allow his deportation to this country without a risk of exposing him to treatment contrary to Article 3 of the Convention. 2. The majority identified (see paragraphs 73-77) eight “risk factors” in the applicant’s case: (1) Tamil ethnicity; (2) asylum claim abroad; (3) return from London; (4) probable lack of identity documents; (5) previous membership of the LTTE; (6) active nature of that membership; (7) previous arrest because of the LTTE involvement; (8) scarring on scalp, legs and elbows. It may be added that while the applicant did not jump bail or escape from custody, one of the conditions of his release was to report regularly to the army camp.", "It seems that he never complied with that condition and, therefore, his situation is, at least to some extent, analogous to the two above-mentioned factors. The position of the majority seems to be based on two assumptions: (1) that no record of the applicant’s previous arrest had been kept (paragraph 75); and (2) that the applicant’s scarring would not cause him to stand out or bring him to the attention of the authorities. As to the latter, we would like, however, to draw attention to Dr Smith’s report, which described the applicant’s scars as “visible and significant” (paragraph 78). We agree that, with some luck, the applicant may avoid arrest and detailed investigation on his arrival at Colombo airport. We are not sure, however, that our understanding of human rights allows us to make someone’s fate contingent on being lucky in relation to the authorities rather than on a reliable assessment of the probability of the risk faced in the specific individual circumstances.", "3. We are convinced that the cumulative assessment of the risk factors mentioned above suggests that the applicant may be exposed to a clear and genuine danger of ill-treatment if returned to Sri Lanka. Of course, any assessment of the risks and consequences of deportation is speculative. That is why, a “lesser evil / lesser risk” approach may be proposed. If the applicant is not deported, even if there is no genuine risk of ill-treatment, the United Kingdom would be compelled to tolerate an illegal immigrant it does not want to keep on its soil.", "If the applicant is deported and if the risk of ill-treatment is genuine, he would at best be exposed to inhuman and degrading treatment by the Sri Lankan authorities. In both situations an error of assessment would have negative consequences. The only difference is that if the former scenario materialises, the United Kingdom is likely to survive our mistake; whereas if the latter scenario comes true, the applicant may not survive. This difference leads us to the conclusion that we cannot afford any experimentation in this case." ]
[ "THIRD SECTION CASE OF KHAYBULLAYEVA AND OTHERS v. RUSSIA (Applications nos. 24787/05, 25245/07, 22334/08, 23795/08, 41202/08 and 4045/09) JUDGMENT STRASBOURG 21 July 2016 This judgment is final but it may be subject to editorial revision. In the case of Khaybullayeva and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helena Jäderblom, President,Dmitry Dedov,Branko Lubarda, judges,and Hasan Bakırcı Deputy Section Registrar, Having deliberated in private on 30 June 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of criminal proceedings.", "The applicants also raised other complaints under the provisions of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. THE GOVERNMENT’S OBJECTIONS REGARDING THE APPLICANTS’ COMPLIANCE WITH ARTICLE 35 OF THE CONVENTION (EXHAUSTION OF DOMESTIC REMEDIES) 6.", "In some cases the Government claimed that the applicants had failed to exhaust domestic remedies available to them before and after the adoption of the pilot judgement Burdov v. Russia (no. 2) (no. 33509/04, ECHR 2009). 7. As regards the domestic remedies existing prior to the adoption of the aforementioned pilot judgment, the Court reiterates its previous finding that at the time when the applicants brought their applications to Strasbourg there was no effective remedy under Russian law capable of affording redress for the unreasonable length of criminal proceedings (see Borzhonov v. Russia, no.", "18274/04, §§ 36, 22 January 2009). 8. As regards the domestic remedy introduced in response to the aforementioned pilot judgment, the Court reiterates its position that it would be unfair to request the applicants whose cases have already been pending for many years in the domestic system and who have come to seek relief at the Court to bring again their claims before domestic tribunals (see, for similar reasoning, Fateyenkov and Others v. Russia, no. 44099/04 et al., 18 February 2016, with further references). In line with this principle, the Court decides to proceed with the examination of the present cases (see, mutatis mutandis, Utyuzhnikova v. Russia, no.", "25957/03, §§ 48-52, 7 October 2010; compare with Fakhretdinov and Others v. Russia (dec.), no. 26716/09, § 32, 23 September 2010) and, accordingly, dismisses the Government’s non-exhaustion objection. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 9. The applicants complained principally that the length of the criminal proceedings in question had been incompatible with the “reasonable time” requirement.", "They relied on Article 6 § 1 of the Convention, which reads 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 ...” 10. 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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II, and Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII). 11.", "In the leading case of Nakhmanovich v. Russia, no. 55669/00, 2 March 2006, the Court already found a violation in respect of issues similar to those in the present case. 12. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the admissibility and merits of these complaints. 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.", "13. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention. IV. REMAINING COMPLAINTS 14. The applicants also raised other complaints under various Articles of the Convention.", "15. The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. 16. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 17.", "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.” 18. Regard being had to the documents in its possession and to its case‑law (see, in particular, Kulida v. Russia, no. 44049/09, 17 June 2014, Dimov v. Russia, no. 7427/06, 23 September 2014 and Skrylev and Others v. Russia, no. 15754/06, 15 April 2014), the Court finds it reasonable to award the sums indicated in the appended table.", "19. 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. Decides to join the applications; 2. Declares the complaints concerning the excessive length of criminal proceedings admissible, and the remainder of the applications inadmissible; 3.", "Holds that these complaints disclose a breach of Article 6 § 1 of the Convention concerning the excessive length of criminal proceedings; 4. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, 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. Done in English, and notified in writing on 21 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıHelena JäderblomDeputy RegistrarPresident APPENDIX List of applications raising complaints under Article 6 § 1 of the Convention (excessive length of criminal proceedings) No. Application no.", "Date of introduction Applicant name Date of birth / Date of registration Representative name and location Start of proceedings End of proceedings Total length Levels of jurisdiction Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 24787/05 19/05/2005 Ragimat Khaybullayevna KHAYBULLAYEVA 02/10/2000 05/02/2004 01/10/2002 29/03/2006 2 year(s) 3 level(s) of jurisdiction 2 year(s) and 1 month(s) and 25 day(s) 3 level(s) of jurisdiction 1,250 25245/07 28/04/2007 Mikhail Mikhaylovich LITVINOV 01/01/1954 Liptser Yelena Lvovna Moscow 23/08/1999 02/11/2006 7 year(s) and 2 month(s) and 11 day(s) 2 level(s) of jurisdiction 3,000 22334/08 11/03/2008 Aleksandr Anatolyevich SAVVIN 31/01/1962 05/05/2004 02/06/2008 4 year(s) and 29 day(s) 2 level(s) of jurisdiction 1,300 23795/08 09/04/2008 Aleksey Vladimirovich ZAVYALOV 30/04/1957 Davydov Petr Alekseyevich Astrakhan 12/02/2001 25/10/2007 6 year(s) and 8 month(s) and 14 day(s) 2 level(s) of jurisdiction 3,000 41202/08 11/06/2008 Igor Dmitriyevich BURTASOV 07/03/1969 Dalekorey Maksim Vasilyevich Naberezhnyye Chelny 27/09/2001 12/12/2007 6 year(s) and 2 month(s) and 16 day(s) 2 level(s) of jurisdiction 2,500 4045/09 26/12/2008 Vadim Vladimirovich TUGOLUKOV 04/05/1947 Karpukhin Aleksandr Dmitriyevich Lyubertsy 03/12/2004 28/08/2010 5 year(s) and 8 month(s) and 26 day(s) 2 level(s) of jurisdiction 2,500 [1] Plus any tax that may be chargeable to the applicants." ]
[ "THIRD SECTION CASE OF ZDRAVKOVIĆ v. SERBIA (Application no. 28181/11) JUDGMENT STRASBOURG 20 September 2016 FINAL 20/12/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zdravković v. Serbia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Helena Jäderblom,Johannes Silvis,Branko Lubarda,Pere Pastor Vilanova,Alena Poláčková,Georgios A. Serghides, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 23 August 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "28181/11) against the Republic of Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Serbian national, Ms Nataša Zdravković (the applicant changed the name in the course of the proceedings), on 21 April 2011. 2. The applicant was represented by Ms D. Jovanović, a lawyer practising in Beograd. The Serbian Government (“the Government”) were represented by Ms V. Rodić, their Agent at the time. 3.", "The applicant alleged that Serbian authorities did not do enough to enforce two separate interim court orders awarding her access rights and custody over her minor child. She also complained about the alleged protracted length of the custody proceedings. 4. On 18 November 2013 the complaints concerning the length of the custody proceedings and the non-enforcement of the interim orders were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE A. Introduction 5. The applicant was born in 1973 and lives in Belgrade. 6. The applicant and S.S. (“the respondent”) married in 1998.", "Their son V.S. was born in August 1999. They lived in the respondent’s parents’ house in a neighbourhood of Belgrade. 7. In May 2008 the applicant moved to her parents’ house in the same neighbourhood.", "V.S. continued living with his father and his paternal grandparents. B. The applicant’s interim access rights 8. On 19 May 2008 the applicant filed a request for interim custody with the competent first-instance court.", "9. On 8 July 2008 the first-instance court rejected the applicant’s request for interim custody, but granted her extensive access rights in respect of the child pending the final outcome of the custody proceedings. This interim access order was immediately enforceable. 10. It appears that the interim access order was respected, with some resistance on the part of the child, until 13 August 2008, when the child ran away from the applicant during a visit and went back to the respondent’s house.", "11. On 22 September 2008 the enforcement judge ordered enforcement of the said access order. After several failed attempts by the applicant to spend time with the child in accordance with the order, the enforcement judge sent a bailiff on 18 and 20 November 2008 to make an unannounced visit to monitor the applicant’s attempt to make contact with the child. During the visit, the bailiff informed the enforcement judge that the respondent had brought the child to the front gate of the house, but the child had refused to leave with the applicant, even after the respondent tried to persuade him, and had gone back inside. After receiving the report, the enforcement judge scheduled an enforcement hearing for 5 December 2008.", "12. On 5 December 2008 the enforcement judge ordered a child support team from V.S.’s school to implement a system of psychological preparation to assist the child’s acceptance of contact with his mother. 13. On 9 January 2009 the enforcement judge asked the Social Care Centre to contemplate initiating corrective monitoring of the respondent’s exercise of parental rights in the light of the respondent’s substantial influence on the child’s hostility toward his mother. 14.", "On 7 April 2009 the Social Care Centre placed the respondent under formal corrective supervision (korektivni nadzor nad vršenjem roditeljskog prava). On 19 June 2009 the Social Care Centre, with the approval of the enforcement judge, applied the same measure to the applicant so as to enhance the parents’ collaboration with a view to satisfying the child’s emotional needs. 15. In the meantime, on 5 June 2009, the enforcement judge heard a psychologist working with the child. The psychologist advised the judge that interviewing the child within the proceedings would not be in his best interest.", "16. Due to the respondent’s failure to prepare the child appropriately for the contact with his mother, on 4 May 2009 the enforcement judge ordered the respondent to pay a fine in the amount of 10,000 Serbian dinars (RSD) and on 6 June 2009 a fine in the amount of 150,000 RSD, both within three days. On 5 October 2009 the competent second-instance court rejected the respondent’s appeals against the fines. On 19 February and 10 May 2010, after the failure of the applicant to pay the fines, the enforcement judge ordered their mandatory enforcement. 17.", "On 26 November 2009 the Social Care Centre asked the enforcement judge to postpone enforcement of the access order for three months in view of the pending parental therapy. The Centre further asked for, and the judge approved, a further three months of therapy, stating that an improvement in the child’s attitude as well as in the parents’ relationship had been achieved. The Centre also proposed to the applicant and the respondent to stay the ongoing court proceedings until the therapy had ended. They observed that the court proceedings, in which the parents acted as opponents, jeopardised the progress achieved to date. It would appear that the applicant and the respondent did not accept this recommendation.", "18. The parental therapy, which at that time had already lasted for six months, included 23 sessions in which the Social Care Centre’s professionals continuously and intensively worked with the applicant, the respondent, the child and the paternal grandparents to reach mutually acceptable arrangements and enforce the interim measures in line with the best interest of the child. 19. On 13 July 2010 the custody judgment of 24 November 2009 became final (see paragraph 33 below) and the decision on interim custody rights came to an end. The enforcement proceedings were later formally terminated by the enforcement judge on 28 February 2011.", "The enforcement judge, however, explicitly ordered continuation of the enforcement in respect of the fine of June 2009. C. The applicant’s interim custody rights 20. On 25 October 2008 the applicant lodged a new request for interim custody after the Mental Care Institute (Institut za mentalno zdravlje, hereafter “MCI”) conducted an examination of the parental capacity of both parties at the request of the first-instance court. The MCI report recommended that custody be awarded to the applicant. 21.", "On 11 November 2008 the first-instance court granted interim custody to the applicant and ordered the respondent immediately to surrender the child to her. It also quashed the part of the interim order of 8 July 2008 containing its decision not to grant custody to the applicant. The rest of the interim access order remained in force. 22. On 4 December 2008 the enforcement court ordered enforcement of the interim custody order.", "The respondent appealed on 26 December 2008, claiming that the child himself did not want to live with the applicant. The appeal was rejected on 29 September 2009. 23. The first attempt to reunite the applicant with the child took place on 22 December 2008. The enforcement judge, a bailiff, several representatives of the Social Care Centre, two uniformed policemen, three plain clothes policemen, the applicant and her lawyer all entered the courtyard of the respondent’s house, expecting that the child would be surrendered.", "The judge and the Centre’s representatives explained to the child in front of the others that he should leave and go with his mother to her house, but the child rejected the planned reunion and went back inside. The respondent allegedly would not allow the enforcement to take place in the house. He maintained that he had informed the child that various officials would come, but had not prepared him for reunion. The applicant refused forceful removal of the child. The enforcement judge noted that the child was not yet prepared for a transfer of custody and postponed the enforcement until January 2009 at the Social Care Centre’s premises.", "The enforcement judge asked the parties and the Social Care Centre’s representative to prepare the child adequately for the next reunion. 24. On 15 January and 4 February 2009 the enforcement judge adjourned the custody transfer scheduled for those dates as it was awaiting an opinion from the Social Care Centre regarding the formal corrective supervision of the respondent, as requested in the interim access enforcement proceedings (see paragraph 14 above). 25. The enforcement judge re-scheduled the transfer of custody for 1 April 2009 at the Social Care Centre’s premises.", "The attempt of transfer was conducted in the presence of the enforcement judge, the psychologist, the psychiatrist and the lawyer from the Social Care Centre and police officers. The child again refused to be separated from his father. The police explained that they could not forcefully remove the respondent from the premises to enable the social experts and the judge to facilitate a conversation with the child in his absence, since the child was clinging on the father, crying and refusing to let him go. It appears that the applicant was also against the use of force (according to a report to the enforcement judge by the Social Care Centre of 31 March 2010, the applicant refused the possibility of the use of force throughout the proceedings). The Social Care Centre recommended that psychotherapeutic support be provided for the child.", "The enforcement of the custody transfer was postponed. Shortly afterwards, the respondent was placed under the corrective supervision of the Social Care Centre (see para. 14 above). 26. On 5 June 2009 the enforcement judge held a hearing which appears to have been the last one within these enforcement proceedings.", "27. The applicant petitioned the enforcement judge to fine the respondent for obstructing her contact with the child, hoping that this would compel him to surrender the child. 28. On 26 June 2009 the enforcement judge imposed on the respondent a fine in the amount of 150,000 RSD for failing to appropriately psychologically prepare the child for the reunification. It would appear that the fine has been paid.", "29. On 12 February and 31 March 2010 the Social Care Centre informed the enforcement judge that its psychological therapies in respect of the family in question had produced no results (see paragraphs 17-18 above). According to their reports, it became clear that the respondent had cooperated in form only and had in fact failed to take steps to encourage the child to have substantive contact with the applicant. 30. On 13 July 2010 the custody judgment of 24 November 2009 became final and the decision on interim custody rights came to an end.", "From that moment, efforts to enforce the final custody judgment commenced (see paragraphs 38-42 below). On 25 March 2011 the enforcement judge formally terminated the enforcement proceedings. D. Civil proceedings (divorce, custody and child maintenance) 31. On 19 May 2008 the applicant lodged a civil claim requesting the dissolution of her marriage with S.S., sole custody of V.S. and maintenance.", "32. On 24 November 2009 the first-instance court dissolved the applicant’s marriage, granted her sole custody of V.S. and specified the respondent’s access rights. 33. On 13 July 2010 and 18 January 2011 the second-instance court and the Supreme Court of Cassation, respectively, upheld this judgment.", "E. The constitutional appeal proceedings 34. On 28 December 2009 the applicant filed a constitutional appeal with the Constitutional Court of Serbia (Ustavni sud Republike Srbije). She relied on various Articles of the Constitution, Articles 6, 8 and 13 of the Convention and Articles 3 and 9 the UN Convention on the Rights of the Child. She sought redress for the protracted length of the custody and subsequent criminal proceedings and the non-enforcement of the judicial interim access and custody decisions in her favour which, she claimed, violated her rights to a fair trial and to family life. She also complained that she had not had any legal avenue available to expedite those proceedings.", "35. On 22 July 2010 the Constitutional Court rejected the applicant’s appeal. 36. As regards the protracted length of the custody proceedings, the Constitutional Court considered that the first-instance court had acted diligently, without any substantial periods of inactivity. It found the case to have been particularly complex, as the expert findings regarding the best interests of the child had conflicted with the latter’s own wish as to who to live with.", "37. It also found that the non-enforcement of the interim access and custody orders during the same period had been attributable to the particular complexity of the case, as the child had objected to being reunited with the applicant. It found that the enforcement court had undertaken, without any delay, all necessary measures, including fining the respondent, for the purpose of enforcing effectively the applicant’s rights. F. Other relevant facts as submitted by the parties 1. Enforcement of the final custody judgment 38.", "The judgment of 24 November 2009 became enforceable on 27 September 2010 and the enforcement order was issued on 29 November 2010. 39. The first forcible transfer of custody was scheduled for 9 March 2011, but the child refused any kind of contact with the applicant. The court noted that the respondent had failed to prepare the child for reunion. The applicant explicitly refused to countenance the use of force against the respondent and the child as the means of enforcement.", "The enforcement was therefore adjourned. 40. On 23 March 2011, upon the initiative of the Social Care Centre, the applicant and the respondent signed an Agreement on Access Rights designed to assist the re-establishing of contact between the applicant and V.S. in order to facilitate the enforcement of the custody judgment. 41.", "Despite this agreement, on 25 March 2011 the enforcement court imposed a fine on the respondent in the amount of RSD 100,000 because of his failure to comply with the judgment of 24 November 2009. It also ruled that the respondent was to be given three days from the date of receipt of that order to surrender the child voluntarily to the applicant and with the added condition that, should he fail to do so, he would have to pay a further fine of RSD 150,000. The respondent did not comply with the order and it seems that the fine in the amount of 100.000 RSD was subsequently imposed and paid. 42. The court scheduled a new forcible transfer of custody for 9 March 2011.", "In preparation for the enforcement, the Social Care Centre’s psychologist drew up a detailed plan of action. The psychologist’s assessment, after working with the child, was that such a transfer would be impossible or highly traumatic for the child and the enforcement was postponed once again. 2. Revision of the custody judgment of 24 November 2009 43. On 9 February 2011 the respondent filed a claim for revision of the judgment of 24 November 2009, seeking sole custody of V.S.", "He also requested an interim custody order to the same effect. 44. On 24 June 2011 the Social Care Centre provided the first-instance court with an expert opinion. The Social Care Centre acknowledged that there had been no mechanisms available to facilitate a forcible physical transfer of child custody to the applicant in view of the respondent’s refusal. According to the report, the only feasible proposal would be for the child to continue living with his father.", "Even though, taking into account the chronology of events, parental capacity, justice and equity, the opposite proposal would be more appropriate, it could propose only this arrangement “not as an expression of their wish, but as the sole solution which is possible to impose and enforce in practice”. A change of residence would in any event have a negative impact on the child’s development. 45. On 20 June 2012 the first-instance court granted sole custody to the respondent, ordered the applicant to pay child maintenance and specified the applicant’s access rights as eight hours every weekend, as well as specified periods of school holidays. 3.", "Criminal proceedings against the respondent 46. On 29 August 2008 and 23 June 2009 the applicant filed criminal complaints against the respondent for parental child abduction and continuous non-compliance with the interim access and custody orders. On 2 June 2009 and 28 September 2010 the competent prosecutor’s office charged the applicant with those crimes. None of the scheduled hearings was held. In September 2011 the first-instance court stayed the criminal proceedings as the prosecutor’s office had dropped the charges.", "The applicant subsequently took over the prosecution as subsidiary prosecutor. On 20 June 2012 the first-instance court, in a reasoned judgment, acquitted the respondent. It found, on the basis of numerous testimonies, three expert opinions, four expert reports from the civil proceedings case-file and other documentary evidence that the respondent always made the child available for enforcement, that he never physically or verbally, actively or passively obstructed enforcement at any point, and that there were no indications that the child ever showed signs that he was under pressure or undue influence not to have contact with his mother. On 25 October 2012 the second-instance court upheld this judgment. 4.", "Contact between the child and the applicant 47. It would appear that the applicant and her son have re-established contact with each other since the signing of the Agreement on Access Rights of 23 March 2011 and the revision of the custody judgment of 20 June 2012. It would appear that they have been meeting every weekend for at least an hour without supervision. The child still lives with the respondent. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. The Enforcement Procedure Act (Zakon o izvršnom postupku published in the Official Gazette of the Republic of Serbia – OG RS – no. 125/2004) 48. Article 45 provides for fines of up to 150,000 RSD which the enforcement court can impose on the enforcement debtor in case of non-compliance with any of the court’s instructions or orders within the enforcement proceedings. Article 224 provides that the enforcement court must take particular care concerning the interests of the child when conducting enforcement proceedings.", "It also sets a deadline of three days for voluntary compliance with the enforcement order and authorises the enforcement courts to impose fines should the debtor fail to comply. In the event of failure to persuade the debtor to comply even after the imposition of the fines, paragraph four provides for the possibility of physical removal. Article 226 provides that the enforcement of the decisions related to the parental access or custody rights must be conducted with the assistance of the Social Care Centre’s team of experts. B. Family Act (Porodični zakon published in the OG RS no.", "18/2005) 49. Article 80 regulates the authority of the Social Care Centre to conduct corrective supervision of parental duties. Article 204 establishes that proceedings relating to family disputes which involve a child are urgent. Article 230 provides for the compulsory mediation and conciliation proceedings which must be conducted in parallel with divorce proceedings if the latter were not initiated by mutual agreement of the marital partners. It further provides that mediation and conciliation are conducted with the expert assistance of the Social Care Centre.", "Article 270 provides that civil courts, when deciding about awarding or retracting parental rights, must obtain the opinion from the Social Care Centre’s experts. C. Criminal Code (Krivični zakonik published in the OG RS no. 85/2005, 88/2005, 107/2005, 72/2009 and 111/2009) Abduction of Minor Article 191 “1. Whoever unlawfully detains or abducts a minor from a parent, adoptive parent, guardian or other person or institution entrusted with care of the minor or whoever prevents enforcement of decision granting custody of a minor to a particular person, shall be punished with a fine or imprisonment up to two years. 2.", "Whoever prevents enforcement of the decision of a competent authority setting out the manner of maintaining of personal relationships of a minor with parent or other relative, shall be punished with a fine or imprisonment up to one year.” THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 6 AND 8 OF THE CONVENTION 50. The applicant complained under Articles 6 § 1 and 8 of the Convention about the non-enforcement of the interim custody and access orders. She further complained, relying on Article 6 § 1 of the Convention, of the protracted length of the custody proceedings. 51.", "The relevant provisions of the said Articles read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” Article 8 “1. Everyone has the right to respect for his [or her] private and family life,.... 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... for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 52. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. Regarding the non-enforcement of the interim access and custody orders, both considered under Article 6 § 1 of the Convention 53. The Government argued firstly that the impugned proceedings had involved particularly complex and sensitive issues, further complicated by the fact that the applicant’s child had consistently refused to go to live with the applicant.", "Secondly, the domestic authorities had made every effort to enforce the two interim orders in question whilst trying to protect the best interests of the child. Finally, the applicant had been resolute in rejecting a forcible transfer of custody in situations where such a transfer would have been possible, and instead favoured a gradual process of reunification through the imposition of fines and the assistance of the Social Care Centre. The applicant reaffirmed her complaints. 54. The Court refers to its settled case-law to the effect that Article 6, inter alia, protects the implementation of final, binding judicial decisions which, in States that accept the rule of law, cannot remain inoperative to the detriment of one party.", "Accordingly, the execution of a judicial decision cannot be prevented, invalidated or unduly delayed (see, among other authorities, Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, pp. 510-11, § 40; Burdov v. Russia, no. 59498/00, § 34, ECHR 2002-III; Jasiūnienė v. Lithuania, no. 41510/98, § 27, 6 March 2003; and Damnjanović v. Serbia, no. 5222/07, § 67, 18 November 2008).", "55. The Court also notes that, irrespective of whether enforcement is to be carried out against a private or State actor, it is up to the State to take all necessary steps to execute a final court judgment as well as, in so doing, ensuring effective participation of its entire apparatus, failing which it will fall short of the requirements laid down in Article 6 § 1 (see, mutatis mutandis, in the child custody context, Damnjanović, cited above, § 68, and Pini and Others v. Romania, nos. 78028/01 and 78030/01, §§ 174-189, ECHR 2004-V). 56. The Court notes that the interim access order had remained unenforced from 22 September 2008, when its execution was ordered, until 13 July 2010 when it came to an end.", "The interim custody order remained unenforced from 4 December 2008 until 13 July 2010 when it came to an end. They, therefore, lasted approximately one year and ten months in relation to the applicant’s interim access rights and approximately one year and eight months in relation to the applicant’s interim custody rights. Secondly, these two sets of enforcement proceedings ran concurrently, since the domestic courts took the view that maintaining the interim access order would be an effective measure enhancing the likelihood of re‑establishing contact between the child and the applicant before their reunion, given the circumstances of the case. Thirdly, the child, between nine and twelve years old at the time, had been unwilling to spend time with the applicant and had made it clear that he wanted to continue living with the respondent. Fourthly, the respondent himself had, for the most part, been uncooperative.", "Fifthly, the Social Care Centre, itself a State body which works closely with the civil and the enforcement courts, had played a constructive role in the proceedings. Sixthly, the domestic courts had imposed fines on several occasions in an attempt to secure the respondent’s compliance. Lastly, the enforcement judge had ordered the physical transfer of custody to the applicant on several occasions, but the applicant, although she had acted with much diligence throughout the proceedings, had ultimately been unable physically to assume custody of the child in the absence of his explicit consent to this effect and the applicant’s consistent refusal of the forcible measures. 57. In view of the above, the Court concludes that the State has taken all necessary steps to enforce the final custody judgment in her favour.", "There has, accordingly, been no violation of Article 6 § 1 of the Convention. 2. Regarding the non-enforcement of the interim access and custody orders, both considered under Article 8 of the Convention 58. The Government maintained that there had been no violation of Article 8. They contended that the domestic courts had done everything in their power to have the decisions on interim access and custody rights enforced.", "They emphasised the active and constructive role of the courts and the Social Care Centre, which had finally led to regular meetings, at least, between the applicant and the child. They further maintained that the domestic authorities had had to strike a careful balance between the applicant’s undisputed right to have a connection with her child and the best interests of the child, who was refusing any contact with her. They also maintained that the applicant’s explicit and consistent refusal of the use of force against the respondent and the child expressed both during the enforcement attempts and during the parental therapy sessions, while understandable and commendable under the circumstances, had contributed to the inability of the domestic authorities to enforce the decisions. In any event, the child was strongly opposed to living with the applicant and the applicant’s contact with the child improved only after the threat of a transfer of custody ceased following the 2011 Agreement on Access Rights and the revision of the 2009 judgment. 59.", "The applicant reaffirmed her complaints. She furthermore asserted that the child had been systematically manipulated by the respondent into refusing contact with her and argued that the authorities should have taken more preparatory steps in order to secure the re-establishment of meaningful contact and the transfer of custody. 60. The Court notes that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, among other authorities, Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005).", "61. Moreover, even though the primary object of Article 8 is to protect the individual against arbitrary action by public authorities, there are, in addition, positive obligations inherent in an effective “respect” for family life. In both contexts, regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole; in both contexts the State enjoys a certain margin of appreciation (see Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49). 62.", "In relation to the State’s obligation to implement positive measures, the Court has held that Article 8 includes for parents a right that steps be taken to reunite them with their children and an obligation on the national authorities to facilitate such reunions (see, among other authorities, Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I; Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000-VIII; and Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 49, ECHR 2003-V).", "63. What is decisive is whether the national authorities have taken all such necessary steps to facilitate the execution as can reasonably be demanded in the specific circumstances of each case (see, mutatis mutandis, Hokkanen v. Finland, 23 September 1994, § 58, Series A no. 299‑A; Ignaccolo-Zenide, cited above, § 96; Nuutinen, cited above, § 128; and Sylvester v. Austria, nos. 36812/97 and 40104/98, § 59, 24 April 2003). 64.", "In this context, the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent who do not cohabit (see Ignaccolo-Zenide, cited above, § 102). 65. Finally, the Court has held that, although coercive measures against children are not desirable in this sensitive area, the use of sanctions cannot be ruled out in the event of unlawful behaviour by the parent with whom the child lives (see Ignaccolo-Zenide, cited above, § 106). 66. It was common ground that the bond between the applicant and her child fell within the scope of “family life” within the meaning of Article 8 of the Convention.", "67. The Court notes that the interim access order had remained unenforced from 22 September 2008, when its execution was ordered, until 13 July 2010 when it came to an end. The interim custody order remained unenforced from 4 December 2008 until 13 July 2010 when it came to an end. Secondly, the Court notes the constructive approach taken by the domestic courts in deciding to run the two sets of proceedings concurrently in order to facilitate re-establishment of the contact between the applicant and the child which was intended to result in their reunion. This also provided the domestic authorities with additional possibilities, such as in-school counselling of the child, corrective supervision of parental rights, supervised meetings between the applicant and the child and parental therapy, all of which were implemented in a diligent and timely manner.", "Thirdly, the domestic courts had resorted to fining the respondent on several occasions in an attempt to secure his compliance. Fourthly, while the domestic courts were unable to enforce all the aspects of the access order because of the respondent’s lack of cooperation and the child’s refusal to be alone with the applicant, they gradually re-established the contact between them. Lastly, but most importantly, on at least two occasions ‒ on 22 December 2008 and 1 April 2009 ‒ the authorities attempted a physical transfer of custody under threat of the use of force, but the applicant was unable to physically assume custody of the child as he refused to leave the respondent and on one occasion ran away. 68. In view of the above, the Court finds that the State has taken the necessary steps to enforce the interim custody order in question.", "There has, accordingly, been no violation of Article 8 of the Convention. 3. Regarding the length of the custody proceedings, considered under Article 6 § 1 of the Convention 69. The Government reiterated their argument that the impugned proceedings had involved particularly complex issues since the child did not want to live with the applicant. They further maintained that the domestic courts had acted diligently, that the first-instance judgment had been delivered one year and six months after the initiation of the proceedings, that the second‑instance court had taken less than seven months to decide on appeal ‒ after which the custody judgment had become final and enforceable ‒ and that the Supreme Court had delivered its decision within six months of the delivery of the second-instance judgment.", "70. The applicant reaffirmed her complaints. 71. According to the Court’s case-law, the reasonableness of the length of proceedings has to be assessed, in particular, in the light of the complexity of the case and of the conduct of the applicant and of the relevant authorities. In cases relating to civil status, what is at stake for the applicant is also a relevant consideration and special diligence is required in view of the possible consequences which excessively lengthy proceedings may have, notably on enjoyment of the right to respect for family life (see, among other authorities, Laino v. Italy [GC], no.", "33158/96, § 18, ECHR 1999‑I; Maciariello v. Italy, 27 February 1992, § 18, Series A no. 230‑A; and M.C. v. Finland (dec.), no. 28460/95, 25 January 2001). 72.", "Turning to the present case, the Court notes that the impugned proceedings commenced on 19 May 2008, that the final judgment was delivered by the second-instance court on 13 July 2010 and that the Supreme Court of Cassation, acting as a court of third instance, delivered its judgment on 18 January 2011. The overall length of these proceedings, which were conducted before three levels of jurisdiction was, therefore, one day short of two years and eight months. The Court further notes that the first-instance court swiftly issued the orders on interim measures that were immediately enforceable, that no significant delays imputable to authorities have been detected in the conduct of the proceedings, and that the case was of some complexity, given the child’s refusal to live with the applicant or even to maintain contact with her. 73. In the overall circumstances, whilst taking into account what was at stake for the applicant and her son, the Court does not find that the length of the proceedings was excessive.", "There has, accordingly, been no violation of Article 6 § 1 of the Convention. FOR THESE REASONS, THE COURT 1. Declares, unanimously, the application admissible; 2. Holds, by five votes to two, that there has been no violation of Article 6 § 1 of the Convention; 3. Holds, by five votes to two, that there has been no violation of Article 8 of the Convention.", "Done in English, and notified in writing on 20 September 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıLuis López GuerraDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinions of Judges Pastor Vilanova and Serghides are annexed to this judgment. L.L.G.F.A. DISSENTING OPINION OF JUDGE PASTOR VILANOVA The Court has concluded, by a large majority (five votes to two), that there has been no violation of Articles 6 and 8 of the Convention in the present case. To my regret, I cannot agree with this decision.", "Our case-law has acknowledged the right to the execution of final binding judicial decisions (see, among other authorities, Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997‑II), but has also found that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” (see Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005). In the present case, the Serbian courts granted the applicant sole custody of her nine-year-old son on two occasions (the order of 11 November 2008 and the judgment of 24 November 2009 in which she was also granted a divorce) and, prior to that, she had been granted extensive access rights (order of 8 July 2008). Nevertheless, these judicial decisions have never been effectively executed, because of obstructive manoeuvres on the part of the child’s father. Proof of the facts mentioned above is to be found in the remarkable reports by the Social Care Centre issued on 12 February and 31 March 2010 (see paragraph 29 of the judgment), according to which the father had cooperated in form only, failing to take any steps to encourage any contact between the child and the applicant.", "Currently, the applicant visits her child for only an hour per week (see paragraph 47) after the domestic courts granted custody to the father in the judgment of 20 June 2012 ... The Court dismissed the applicant’s complaints on the grounds that the Serbian authorities had done everything in their power to enforce the judicial decisions. More specifically, the majority of the Court reached this result by finding that: (a) the domestic courts had imposed fines on the child’s father; (b) the applicant had refused the use of forcible measures to get her son back; (c) contact between the applicant and her son had been restored gradually; (d) supervisory measures had been adopted to rebuild ties; and (e) the child wanted to remain with his father. To my regret, I am unable to agree with that solution. The Court’s case-law is well established regarding the positive obligation of States to reunite children with their parents by taking all necessary steps (see Ignaccolo-Zenide v. Romania, no.", "31679/96, § 94, ECHR 2000-I, and Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 49, ECHR 2003-V). On that subject the Court has in the past noted that “the adequacy of the measures is to be judged by the swiftness of their implementation” (see Karadžić v. Croatia, no. 35030/04, § 62, 15 December 2005), with a view to avoiding the possible harmful effects that the passage of time can have on the relationship between the parent and the child (see H.N.", "v. Poland, no. 77710/01, § 73, 11 September 2005). Notwithstanding the margin of appreciation enjoyed by States, what is relevant is the suitability of the decisions carried out by national authorities when exercising their power of appreciation (see Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299-A). In my humble opinion, these procedural requirements have not been met on this occasion.", "It is true that the judge imposed two fines amounting to 1,000 euros (EUR) and EUR 1,500 on the applicant’s former husband. It can be said that these measures have failed. The fines were not dissuasive, as is shown by the fact that the father decided to pay them rather than making any effort to return the child to his mother, who actually had legal custody of him. Besides, the economic capabilities of the father are not known to the Court. Regardless of this, the fines came very late (I deduce that the sums were paid, at the earliest, during the first half of 2010, whereas the order was supposed to be executed on 8 July 2008).", "Furthermore, despite the reluctance of the father to voluntarily execute the civil decisions adopted against him, the civil judge did not even consider initiating any criminal proceedings against him. By contrast, it was left to the applicant to institute criminal proceedings herself. The fact that the mother rejected the use of force (in her child’s interests) did not exempt the judge from fulfilling the positive obligations within the meaning of Articles 6 and 8. In the light of the non-voluntary execution of the judicial decisions by the father, it was the responsibility of the judge to properly exercise the functions emanating from his authority. However, he failed to intervene properly, as he had no personal involvement in the settlement of this conflict other than an unsuccessful journey to the child’s (and father’s) home (on 22 December 2008) and to the Social Care Centre’s premises (on 1 April 2009).", "A new forcible transfer was planned to take place on 9 March 2011. We do not know the details of that last unsuccessful attempt. It is relevant to highlight that during a period of two and a half years the Serbian authorities scheduled only three dates for delivering effective justice to the applicant. As for the argument concerning the gradual restoration of contact between mother and son, it lacks any convincing evidence. The Court’s judgment says that the Serbian authorities have done their best to execute the domestic court decisions in favour of the applicant.", "It turns out, however, that even the Serbian Ombudsman reminded the appropriate Social Care Centre officials “of their actual powers under domestic law and of measures that they could have envisaged to enable such a reunion” (see the report of 21 April 2011 communicating the application to the Government, paragraph 44). In the same vein, I consider that there has been a breach of Article 6 owing to the non-execution of enforceable judgments and the slowness that characterised the decision-making process in the present case. The majority of the Court consider that the overall length of the proceedings, almost three years, was due to their complexity as a result of the child’s refusal to live with the applicant (see paragraph 72 of the judgment). I take the opposite view, especially considering the nature of the family interests in conflict and the experts’ conclusions (see the Mental Care Institute’s report of 27 May 2009, mentioned in the report communicating the application) emphasising the psychological pressure exerted by the child’s father that made the statement by the infant pointless. Consequently, the dismissal of the applicant’s complaints amounts to legitimising the father’s wrongdoing, discrediting the authority of res judicata and, more importantly, penalising the child, all of which factors raise a serious question affecting the interpretation of the Convention.", "DISSENTING OPINION OF JUDGE SERGHIDES 1. With great respect to the majority I disagree with their finding that there has been no violation of Article 6 § 1 and Article 8 of the Convention in the present case, for the following reasons. 2. Under Article 6 § 1 and Article 8 of the Convention, especially read in conjunction with Article 1, the State has an inherent positive obligation to find ways and take all necessary preparatory, preventive, corrective or repressive steps or actions to enforce custody or access orders issued by its courts. Unlike any of the other provisions of the Convention that employ the terms “right” or “freedom”, Article 8 employs the phrase “right to respect” with regard to family relations.", "This is due to the nature of family relations, which makes them so important and at the same time so delicate and sensitive, and, which should therefore be treated accordingly by the State when exercising its inherent negative and positive obligations to protect the rights arising from or concerning these relations. As has been held in Iglesias Gil and A.U.I. v. Spain (no. 56673/00, § 48, ECHR 2003-V), there are positive obligations inherent under Article 8 “in an effective ‘respect’ for family life”, which are in addition to the essential object of this provision, namely to protect the individual against arbitrary actions by public authorities. 3.", "With regard to the above obligation, the majority pertinently remark in paragraph 62 of the judgment: “In relation to the State’s obligation to implement positive measures the Court has held that Article 8 includes for parents the right that steps be taken to reunite them with their children and an obligation on the national authorities to facilitate such reunions ...” Similarly, in Kosmopoulou v. Greece (no. 60457/00, § 44, 5 February 2004) the Court held: “As to the State’s obligation to take positive measures, the Court has repeatedly held that Article 8 includes a right for parents to have measures taken with a view to their being reunited with their children, and an obligation for the national authorities to take such measures. This applies not only to cases dealing with the compulsory taking of children into public care and the implementation of care measures, but also to cases where contact and residence disputes concerning children arise between parents and/or other members of the children’s family (Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299, p. 20, § 55).” Furthermore, in Sahin v. Germany ([GC], no. 30943/96, §§ 39 and 41, ECHR 2003-VIII) the Court held: “The human rights of children and the standards to which all States must aspire in realising these rights for all children are set out in the United Nations Convention on the Rights of the Child.", "The convention entered into force on 2 September 1990 and has been ratified by 191 countries, including Germany. ... ... Moreover, States parties have to ensure that a child is not separated from his or her parents against their will unless such separation is necessary for the best interests of the child, and respect the right of a child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests (Article 9).” On 12 March 2001 Serbia ratified the United Nations Convention on the Rights of the Child, to which reference is made by the Court in Sahin. 4. In paragraph 55 of the judgment in the present case, the majority refer to the obligation for the State to take all necessary steps to execute national judgments: “The Court also notes that, irrespective of whether enforcement is to be carried out against a private or State actor, it is up to the State to take all necessary steps to execute a final judgment as well as, in so doing, ensuring effective participation of its entire apparatus, failing which it will fall short of the requirements laid down in Article 6 § 1 (see, mutatis mutandis, in the child custody context, Damnjanović, cited above, § 68, and Pini and Others v. Romania, nos.", "78028/01 and 78030/01, §§ 174-189, ECHR 2004-V).” In Yuriy Nikolayevich Ivanov v. Ukraine (no. 40450/04, § 51, 15 October 2009) the Court reiterated that “the right to a court protected by Article 6 would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party”. I believe that the above obligation of the State does not apply only to final judgments, but also to all orders of the national courts of a positive character, whether final or interim, since the rule of law is indivisible and observance of it is mandatory. Besides, the majority seem to have taken it for granted that the efficiency of a legal system extends to the execution of binding interim orders granting access and custody. It is to be noted that on 24 November 2009 the first-instance Serbian court granted sole custody of the child to the applicant.", "This judgment, of a permanent character, replaced and repealed the interim access and custody orders of 8 July 2008 and 11 November 2008, respectively. On 13 July 2010 and 18 January 2011 the second-instance Court and the Supreme Court of Cassation, respectively, upheld the judgment of 24 November 2009. In the present proceedings the applicant complained about the non-enforcement not only of the interim access and custody orders, but also of the final custody judgment in her favour. This complaint, however, was rejected at the admissibility stage, under Article 35 §§ 1 and 4 of the Convention, for non-exhaustion of domestic remedies. Although it has been rejected and cannot be examined and determined again, that does not prevent the Court at this stage from looking at what happened after the judgment became final, which may shed light on what happened before, as regards the issue of non-compliance with the interim orders.", "This is justified, since usually there is continuity in family matters and issues, which can better be apprehended if seen in the context of the Aristotelian notion of time, as motion in respect of “before” and “after” (Aristotle, Physics, Book IV, Part 11). It should be noted that the majority also refer to the subsequent events mentioned above. 5. As was held in Guzzardi v. Italy (6 November 1980, § 106, Series A no. 39), “... the Court may take cognisance of all questions of fact or of law arising in the course of the proceedings instituted before it; the only matter falling outside its jurisdiction is the examination of complaints held ... to be inadmissible...”.", "This ex officio approach of the Court, which I fully endorse for the purposes of this opinion, is in conformity with the objective character of the Convention. The Court “has to examine in the light of the Convention as a whole the situation impugned by an applicant” and “in the performance of this task”, it is “notably free to give to the facts of the case, as found to be established by the material” before it “a characterisation in law different from that given to them by the applicant” (see Leo Zwaak in P. Van Dijk et al. (eds. ), Theory and Practice of the European Convention on Human Rights, 4th edn., Antwerp-Oxford, 2006, p. 192 and note 394, referring to Guzzardi). 6.", "Based on the principle of the rule of law and that of the effectiveness of the Convention provisions, the positive obligation of the State to protect children is imposed not only on the judicial authority (judiciary), but also on the other two branches of State authority, the legislative and the executive, each one within the ambit of their powers, respecting each other. The preamble of the European Convention on the Exercise of Children’s Rights provides: “Having regard to the United Nations Convention on the rights of the child and in particular Article 4 which requires States Parties to undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the said Convention.” The rule of law, to which the preamble to the European Convention on Human Rights refers, together with the principle of democracy, incorporates not only the rules of domestic substantive law and procedure and the decisions of the national courts, but also the provisions of the Convention and the case-law of this Court. 7. In its decision to communicate the application in the present case to the Government, the Court put additional questions to them, one of which was a request to “... explain the procedural and other measures available to the judicial, social welfare and law enforcement authorities in domestic law at the material time for enforcing custody arrangement such as the present one, i.e. in cases in which a parent allegedly refuses to cooperate or obstructs the enforcement of the custody decision in favour of the other parent or where the child/ren object/s [sic] to being reunited with the parent who has been awarded custody?”.", "The Government were further invited “to submit relevant legislation demonstrating that the judicial and the social/children care systems were organised in such a way as to enable the domestic courts/competent authorities to comply with the positive obligations inherent in effective ‘respect’ for family life before and after 2005”. Having examined the answer given by the Government, I am of the view that the Serbian legal framework failed as a whole, in relation to the facts of the case, to provide deterrent machinery or methods for enforcing access and custody orders and punishing non-compliance with or disobedience of such orders. 8. On four occasions, namely on 4 May 2009, 6 June 2009, 26 June 2009 and 25 March 2011, the Serbian civil enforcement court, on the basis of Articles 45 and 224 of the Enforcement Procedure Act, ordered the child’s father (from now on referred to as “the respondent”) to pay a fine on account of his failure to prepare the child in appropriate psychological terms for contact with his mother. On 5 October 2009 the competent second-instance Court rejected the respondent’s appeals against the fines.", "It is to be noted that the power of the civil enforcement court to impose fines is quasi-criminal, because this penalty is comparable to a criminal-law punishment, although it is not of a particularly deterrent nature. 9. As is stated in paragraph 29 of the majority’s judgment: “On 12 February and 31 March 2010 the Social Care Centre informed the enforcement judge that its psychological therapies in respect of the family in question had produced no results ... According to their reports, it became clear that the respondent had cooperated in form only and had in fact failed to take steps to encourage the child to have substantive contact with the applicant”. Only after the applicant had unsuccessfully exhausted all legal procedures for enforcing the orders in her favour, and only after she had signed an agreement on access and later on accepted the revision of the custody order, which had been in her favour, did she eventually re-establish some contact with her child.", "As the majority find in the judgment, there was a lack of cooperation on the part of the respondent (see paragraphs 56 and 67) “and the applicant’s contact with the child improved only after the threat of the transfer of custody ceased, following the 2011 Agreement on Access Rights and the revision of the 2009 judgment” (see paragraphs 47 and 58). The above observations by the majority show the influence the father had on his child, as well as his passive resistance towards the enforcement of the courts’ orders. The judicial ascertainment of a person’s subjective interest or of the purpose motivating actions or omissions on his part is frequently difficult and it is not the task of this Court to decide on such matters. But the above observations by the majority are well justified, especially having regard to the following facts: (a) the national court granted the applicant custody of the child, considering her the most suitable parent to have custody; (b) the respondent did not encourage the child to have contact with his mother and because of this omission, or passive conduct or inaction, was repeatedly found to be in contempt and was punished by the civil enforcement court; and (c) the child started having contact with his mother only after the father had obtained what he wanted. So, the maxim that facts are sometimes more powerful than words (facta sunt potentiora verbis) may be relevant here, as may the maxim that outward acts or actions sometimes indicate the thoughts and the intention hidden therein (acta exteriora indicant interiora secreta, 8 Coke’s Reports 146).", "The fact that the applicant lodged her application with the European Court of Human Rights is a clear indication or proof that she signed the above-mentioned agreement not out of her free choice, but only when she realised that all of her requests for enforcement of the access and custody orders in her favour had proved unsuccessful, and that the only way for her to see her child was to sign the said agreement. It may not be irrelevant at all, here, while dealing with how the applicant was feeling when she signed the above-mentioned agreement, to refer to an allegation she made in the statement of facts set out in her application (especially in paragraphs 4-7), to the effect that the respondent was threatening her with physical and mental violence, which led her to live the matrimonial home. Similarly, it is mentioned in the statement of facts in the Court’s decision to communicate the application to the Government (§ 4) that “[t]he applicant allegedly did not dare to take her son with her because of the threats made by the respondent, of which the police had been informed”. Of course, it is not the duty of this Court to decide on the validity of these allegations. 10.", "Under Serbian civil law, the enforcement court could not order the imprisonment of the respondent (whether as an immediate or a suspended penalty) or impose any other custodial sentence, even of the smallest duration, since such penalties are not provided for by the civil law. It is true, therefore, that the same court which issued the access and custody orders did not have the effective means to enforce them. Since no other domestic legal or other measures proved effective, this omission or gap in the Serbian civil legal framework deprived the applicant, having regard to all the circumstances of the case, of a substantive method of securing the enforcement of decisions in her favour, which could have acted as a preventive, repressive or corrective measure or a deterrent to ensure that the father did not intentionally continue failing to prepare the child for reunification with his mother, and, in so doing, continue refusing to abide by the orders of the court. The issue here is not whether or not there is a consensus in the member States as to the penalties required for civil or criminal contempt of court. The issue is the examination of the effectiveness of the Serbian legal system in pursuing the State’s positive obligation in relation to the facts of the case to protect the rights under Article 6 § 1 and Article 8 of the Convention, and it is only in this respect that the efficiency of all the measures taken and the available legal provisions may be relevant.", "11. Article 224 of the Enforcement Procedure Act contains a very interesting and substantive method of enforcing access orders: “... If enforcement could not be accomplished by issuing and enforcing the decision on the fine, enforcement shall be conducted by taking the child away from the person who has custody of the child, and handing the child over to the other parent ...” In the present case, however, the guardianship authority failed to bring an action against the father on the basis of the above provision as it had the power to do, but on 11 November 2008 the first-instance court granted custody to the applicant and ordered the father immediately to surrender the child to her. Thus, in effect the method provided for in Article 224 was followed, but it did not work, despite the best efforts of the enforcement judge and the Social Care Centre. This can be explained because the father was present during the attempt to hand the child to the mother, and, by his very presence, was in a position to exert a negative psychological influence or pressure on the child.", "Unless this method of enforcement were to be to combined with a custodial sentence, even of a very short duration, or unless there was a threat of imprisonment or any other deterrent measure in the event of systematic manipulation of the child against his mother – as the applicant alleged had happened in the present case – it could be very difficult, if not impossible, for such behaviour, which may be characterised as a bad or inappropriate exercise of parental authority, to cease to exist. Without an arrest warrant or the fear of being imprisoned, there was nothing to deter the respondent from abiding by the court orders, even on 22 December 2008, when, among other people, the enforcement judge, a bailiff, two uniformed policemen and three plain-clothes policemen, all entered the courtyard of his house, expecting that the child would be surrendered (see also paragraph 23 of the judgment). What he did instead was to remain inactive and uncooperative. Two of the four fines imposed on him were at the highest level permissible by the legislature, namely 150,000 Serbian dinars (RSD) (around 1,217 euros), and on the fourth occasion, when a fine was imposed on him in the amount of RSD 100,000, an added condition was made by the Judge that should the respondent fail to surrender the child voluntarily to the applicant within three days from the date of the receipt of the order, he would have to pay a further fine of RSD 150,000. No penalty, however, of such a monetary character, irrespective of the amount involved, deterred the respondent from disobeying the orders.", "Had the penalty been custodial, instead, even with suspended application, the results might have been quite different. What is most strikingly disappointing is that the fines imposed were not paid by the respondent (at least by the time the decision to communicate the application to the Government was taken) and have not been enforced by the State, through the institution of proceedings against the respondent entailing a penalty of imprisonment, a remedy available under the domestic law. That was a serious failure on the part of the State regarding the issue of effective enforcement of the orders in question. That the fines were not paid and enforced is a fact that was included in the statement of facts of the decision of the Court to communicate the application (§§ 30 and 37) and was accepted by the respondent State, since in its written observations (§ 5), it states that “... it deems that the Statement of Facts provided by the Court is sufficiently detailed” and that “[o]n this occasion it will only indicate certain facts not mentioned by the Court”. 12.", "It is, of course, within the margin of appreciation of every State to decide how to deal with offences for civil contempt in relation to a court’s orders. However, it is to be noted that a violation of a court order regarding family relations is an offence with a negative impact not only on the harmonious administration of justice, but also on the interests of the children and their parents. Non-compliance with such an order may lead to the end of family life – in the present case, the end of family life for the applicant with her child and vice versa, with probably detrimental and traumatic results for both of them, especially the child. So the penalties for such violations should be strict with a deterrent effect. As regards Article 2 of the Convention concerning the right to life, the Court stated the following in Osman v. the United Kingdom (28 October 1998, § 115, Reports of Judgments and Decisions 1998-VIII): “It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions.” (See also Mustafa Tunç and Fecire Tunç v. Turkey [GC], no.", "24014/05, § 171, 14 April 2015). What was said above in relation to Article 2 can also apply, by analogy and bearing in mind that the Convention is a living instrument, to situations coming under Article 8, like the present one, where without effective deterrent provisions and law-enforcement machinery, family life may end. It is the task of this Court to exercise its supervisory jurisdiction and to afford international protection when a State exceeds its margin of appreciation and fails to provide an effective mechanism and legal system – civil and criminal, substantive and procedural – to protect the human rights guaranteed by the Convention. It is also the task of this Court to exercise its jurisdiction when the national legal procedures are unable to protect a child from being victimised, as in the present case. The role of this Court is to interpret and apply the provisions of the Convention (Article 32), always ensuring the observance of the engagements undertaken by the High Contracting Parties (Article 19).", "13. Though there were four decisions of the civil court (not reversed on appeal) imposing fines on the respondent and finding that he had consistently failed to prepare the child appropriately for having contact with his mother, that was apparently not sufficient for the prosecutor’s office, which dropped the charges against the respondent, and for the criminal courts at first and second instance, which acquitted him, finding that he had “never physically or verbally, actively or passively obstructed enforcement at any point” (see paragraph 46 of the judgment). 14. Article 191 § 1 of the Serbian Criminal Code provides that “[w]hoever unlawfully detains or abducts a minor from a parent ... entrusted with the care of the minor or whoever prevents enforcement of [a] decision granting custody of a minor to a particular person, shall be punished with a fine or imprisonment of two years”. Furthermore, Article 191 § 2 of the same Code provides that “[w]hoever prevents enforcement of the decision of a competent authority setting out the manner of maintaining of personal relationships of a minor with parent ... shall be punished with a fine or imprisonment up to one year”.", "However, the provisions of Article 192, though of a deterrent nature, did not actually deter the respondent, since the prosecutor dropped the charges against him, and the applicant was left to conduct the prosecution herself, with the result that the respondent was acquitted by the criminal court, even though he had never surrendered the child to the mother, as he had been obliged to do so by the relevant court orders, and even though he had been found by the civil courts (at first instance and on appeal) to have failed to comply with the access and custody orders by not appropriately preparing the child to meet his mother. 15. In paragraph 46 of the judgment, the majority observe that the first-instance criminal court acquitted the respondent. They further observe that that court: “[f]ound, on the basis of ... four expert reports from the civil proceedings case-file ...that the respondent always made the child available for enforcement, that he never physically or verbally, actively or passively obstructed enforcement at any point, and that there were no indications that the child ever showed signs that he was under pressure or undue influence not to have contact with his mother.” However, the finding of the criminal court that the respondent “never physically or verbally, actively or passively obstructed enforcement at any point” does not coincide with the condemnatory decisions of the civil enforcement court, or of the civil appeal court, to which reference was made above. It also does not coincide with what the enforcement judge did on 9 January 2009 in asking “the Social Care Centre to contemplate initiating corrective monitoring of the respondent’s exercise of parental rights in the light of the respondent’s substantial influence on the child’s hostility toward his mother” (see paragraph 13 of the judgment), nor is it compatible with the reports of the Social Care Centre mentioned in the majority’s judgment (see paragraph 9 above of this opinion), clearly indicating that “the respondent had cooperated in form only and had in fact failed to take steps to encourage the child to have substantive contact with the applicant”.", "The statement of facts in the decision to communicate the application (§ 14) – which, as has been said before, was accepted by the Government in their observations as sufficient – includes the following passage, which shows that the behaviour of the respondent was not only passively but also actively negative towards the orders of the court, actually alienating the child from his mother: “On 27 May 2009 the MCI submitted a fresh report, following the court’s request, finding that the child’s emotional development was highly jeopardised by his father directly disqualifying the applicant as mother in order to alienate the child from her. The child was constantly in fear and a conflict of loyalties. In view of the psychological pressure to which the child was being subjected by his father and the child’s development, the experts concluded that his own statement should not be relevant for determination of the parties’ parental capacities and what would be in his best interests.” One may wonder why the same failure or inaction by the respondent to abide by the orders of the court, if accompanied by mens rea, could be regarded by one court (the civil court) but not by another (the criminal court) as disobedience of court orders. But what the Social Care Centre noted in its above-mentioned report was more than a mere failure to act on the part of the respondent; it was rather an attempt by him to alienate the child from his mother. 16.", "The above difference, or rather inconsistency, between the criminal and the civil courts’ approaches to the issue of contempt‚ and especially to the behaviour of the respondent, as described in the Social Care Centre reports, should have nothing to do with whether or not the burden or standard of proof or judicial assessment in the two types of proceedings is or may be different‚ and so this divergence cannot be justified on such a basis. In any event, the Social Care Centre reports seem absolutely clear, as has been shown above. 17. According to the case-law of the Court, the execution of a judgment given by a court must be regarded as a part of the “trial” for the purposes of Article 6 (see Hornsby v. Greece, 19 March 1997, § 40, Reports 1997-II), and a delay in the execution of a judgment may be justified in particular circumstances‚ but it may not be such as to impair the essence of the right protected under Article 6 § 1 of the Convention (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 74, ECHR 1999-V).", "As clearly held in Yuriy Nikolayevich Ivanov (cited above, § 51), making reference to Immobiliare Saffi, “[t]he effective access to court includes the right to have a court decision enforced without undue delay”. In M. and M. v. Croatia (no. 10161/13, § 179, 3 September 2015), the Court reiterated “[t]hat the ineffective, and in particular delayed, conduct of custody proceedings may give rise to a breach of positive obligations under Article 8 of the Convention ...”. The non-compliance by the respondent with the court orders began on 8 July 2008‚ when the interim access order was issued, and lasted until 20 June 2012, when custody was given to him, that is, for a period of almost four years. However, the relevant period for the issues under examination lasted until 13 July 2010, when the custody order in favour of the applicant became final.", "Again, this period of two years without the applicant seeing her child was too long. I consider that this delay and the protraction of proceedings, through no fault on the applicant’s part, was too long and unreasonable, thus impairing her rights under Article 6 § 1. The enforcement measures taken were bound to be futile, under the circumstances, without the availability of strict deterrent provisions on civil contempt and without any attempt to enforce the fines or to initiate the procedure under Article 224 of the Enforcement Procedure Act. As regards the criminal procedure, it took the first-instance criminal court about four and three years respectively to reach a final decision on 20 June 2012 on the criminal complaints filed by the applicant on 29 August 2008 and 23 June 2009 against the respondent for: (a) parental child abduction, and (b) continuous non-compliance with the interim access and custody orders. It is a remarkable coincidence that on the same date the first-instance criminal court acquitted the respondent (20 June 2012), the first-instance civil court granted the respondent custody of the child, following the agreement made by the parties on 23 March 2011 for the revision of the judgment of 24 November 2009, which, after a hearing, had granted the applicant custody.", "The decision of the Constitutional Court dated 22 July 2010 finding that there had been no delay in the criminal proceedings was given almost two years before the decision of the first-instance criminal court was taken, and thus did not consider this further delay of two years, which, however, cannot be taken into account for the purposes of the present proceedings, since domestic remedies have not been exhausted in relation to this delay. Even without taking into account this further delay of two years, the original two-year delay was in itself lengthy and unreasonable, violating Article 6 § 1, especially having regard to the nature of the complaints and the interests affected, as well as the fact that the enforcement of the access and custody orders remained unsuccessful, despite the repeated decisions requiring the respondent to pay fines. 18. Since the access and custody orders were positive (and not declaratory) orders, thus ordering the respondent to surrender the child to the applicant, it should have been the duty of the respondent to find a proper means of preparing the child and of obeying the orders. Though it may have been a defence to show that compliance with the orders was impossible, the burden of proving such impossibility should have been on the respondent and on the respondent State in accordance with the positive obligation it has to fulfil, irrespective of whether the proceedings for contempt were civil or criminal.", "Any other approach, I believe, would have led to the undesirable results encountered in the present case: (a) making the orders ineffective and letting them be disregarded; (b) damaging the interests of the child to whom the orders related, as well as the relations between mother and child; and (c) endorsing, in effect, the respondent’s above-mentioned unacceptable behaviour in manipulating the child. Here, it should be borne in mind that according to the Court’s case-law, the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see paragraph 60 of the judgment). No evidence was provided that contact between the child and his mother was impossible because of any inappropriate behaviour by the mother towards the child. On the contrary, the civil court decided on 24 November 2009 that it was for the benefit of the child to grant custody to the mother‚ finding her to be the most suitable parent in that respect. In addition, before the separation of the parents, the child did not appear to have had any problem with his mother.", "This shows that it was not impossible for the child to have contact with his mother, unless, of course, the father did not wish this to happen and influenced the child in this direction or displayed apathy in that regard. The fact that the enforceability of the order was solely or mainly dependent on the will of the respondent does not make the issue objectively impossible or complex, but rather necessitates the imposition of strict sanctions on him. The Government admitted in their observations that the respondent “certainly contributed to such an attitude of the child to a great extent” (§ 13). Even more importantly, when dealing with the “measures available to domestic authorities”, they accepted (see the observations, § 33) that the passive behaviour of the parent the child was with – in the present case, the respondent – “implies behaviour that may be qualified as disturbance or aggravation or prevention of enforcement ... which should be sanctioned”: “The parent the child is with, in the instant case the father, shall be obliged to prepare the child for his/her transfer to the mother, as the parent the child had been committed to by the court decision, and his non-acting in this sense implies behaviour that may be qualified as disturbance or aggravation or prevention of enforcement having the elements of conduct contrary to the law, which should be sanctioned.” Having regard to the facts of the case, what else could this extremely important admission mean – supporting this opinion – other than that the Serbian legal system has failed on the issue of enforcement? Especially in view of this admission, and without, of course, taking on the role of a national court, one may wonder whether such passive behaviour in relation to compliance with a positive order by a court could not, by itself, be sufficient to constitute mens rea in any contempt proceedings, whether civil or criminal.", "One may also wonder whether any other approach would not run the risk of indirectly impairing the essence of the rights guaranteed by Article 6 § 1 and Article 8 of the Convention, by leaving behaviour which violates these rights unpunished indefinitely. The domestic rule of law as a whole should promote and not suppress the human rights protected by the Convention. 19. The Court is very outcome-orientated, especially in protecting the right to respect for family life, and the principle that the State has a margin of appreciation in choosing the means or measures it will use to enforce a decision should always be applied together with, and having due regard to, the principle of effectiveness and practical application of the provisions of the Convention. Otherwise, there would be a serious and unjustified reduction of the level of human rights protection, and in the present case an unjustified reduction of human rights in the field of family relations.", "20. In examining whether the State’s obligation to take all necessary steps to facilitate the execution of its courts’ orders, or to find ways or means to enforce them, has been fulfilled, it must always be ascertained whether any alleged inability to enforce such orders is real or not, objective or subjective‚ or is due to the will or behaviour of the adult persons involved (parents and grandparents, and so on), and whether the situation can easily be changed if the will or behaviour of these persons changes. 21. Since, as regards the enforceability of the courts’ orders in the present case, the applicant had obtained four civil decisions against the respondent, it is quite unclear why the prosecutor’s office dropped the charges against the respondent and why none of the scheduled hearings was held (for these facts, see paragraph 46 of the judgment). It is obvious that the criminal-law enforcement machinery, by dropping the charges against the respondent, did not assist, even indirectly, in ensuring that the court orders were complied with and that the applicant’s right to respect for her family life was secured.", "22. The Ombudsperson reminded the Social Care Centre’s officials of their powers under domestic law and of measures that they could have envisaged to enable such a reunion (see the decision to communicate the application, § 44), without, however, any positive result. Unfortunately, there was (and there still is) no Children’s Commissioner in Serbia who could have been appointed as the special representative of the child in the present case so as to assist in the unification of the family and to make sure that the child’s rights were implemented correctly at all times. 23. Obedience is the essence of the rule of law (“obedientia est legis essentia”, 11 Coke’s Reports 100) and the effect of the rule of law consists in its execution (“juris effectus in executione consistit”, Coke on Littleton 289).", "I believe, without taking on the role of a first-instance court, that the disobedience by the respondent of the two interim orders, a finding which the civil court had already made, undermined the very administration of justice and the rule of law. It rendered the orders literally nugatory and totally deprived the applicant – the most suitable parent to have custody of the child – of her rights guaranteed under Article 6 § 1 and Article 8 of the Convention. Such behaviour, by any parent, is very serious and should entail strict sanctions, provided for in both civil and criminal contempt proceedings, with the aim not only of punishing the offender, but also of operating as a means of coercion ensuring compliance with such orders, while at the same time promoting, or preventing undue interference with, the administration of justice. It is totally unacceptable to allow a situation, as in the present case, where a parent who, despite having been found in a court judgment to be unsuitable or not the most suitable parent to have custody of the child, was actually left to enjoy sole custody, making the child not wish to have any contact at all with the other parent, who had nevertheless been deemed the most suitable parent to have custody. And eventually, this bad or unsuitable parent, who was in continuous civil contempt of court, managed not only to be left unpunished by the criminal court, but also to be given custody of the child.", "The rule of law and the administration of justice lose their authority and validity if they are left, or appear to be left, at the whim of any person, as in the present case, who refuses to abide by the orders of a court. 24. It is to be noted that punishment or coercion in respect of a parent who does not comply with an access or custody order, thus acting against the interests of his or her child, differs from, and should not be confused with, coercion of a child, which should be avoided in all circumstances. Quite appropriately, the majority note (in paragraph 65 of the judgment) that, according to the Court’s case-law, “although coercive measures against children are not desirable in this sensitive area, the use of sanctions cannot be ruled out in the event of unlawful behaviour by the parent with whom the child lives”. But for such sanctions to be imposed, it would be necessary first for them to be provided for by law.", "It should also be clarified that the enforcement of a court’s access or custody orders should not be taken as a measure contrary to the idea of child-friendly justice, the most appropriate form of justice in the interests of children. 25. The principle of proportionality, which is inherent in all the Convention provisions securing human rights, including Articles 6 and 8, should be employed in almost every family case which comes before the Court. A fair balance must be struck between the competing interests of the individuals (child and parents) and the community as a whole, which demands that the rule of law must be maintained. In the present case, however, the rights of the individuals were regulated by the domestic courts’ orders; all that remained was to enforce those orders and maintain the rule of law.", "The rule of law should be respected not only by the parties concerned but by all the authorities of the State, which in the present case had the positive duty to enforce the courts’ orders and reunite the applicant with her child. 26. Referring to previous case-law, the majority rightly acknowledge in the judgment (see paragraph 64) that “the adequacy of a measure is to be judged by the swiftness of its implementation, as passage of time can have irremediable consequences for relations between the child and the parent who do not cohabit”. This observation, however, with which I fully agree, is particularly important when the Court finds a violation of Article 8, as I have done in the present case. Family relations are continuous and sensitive human relations and cannot be repaired retrospectively.", "Any obstruction to their continuity by one parent not abiding by a court order regulating family relations may destroy these relations, and may also flagrantly violate the right to respect for family life and the human dignity of the child and the parent whose contact with his or her child has been seriously damaged. The guarantees afforded by Article 6 § 1 of the Convention would be illusory if a Contracting State’s national legal system allowed court orders granting access and custody to remain inoperative to the detriment of a child and his mother, as happened in the present case. 27. Ιn Malec v. Poland (no. 28623/12, 28 June 2016), as in the present case, fines were imposed against a parent who did not comply with contact orders (including interim orders).", "In that case, the Court stated the following, which supports the present opinion, especially in showing that the State’s positive obligations under Article 8 have to be fulfilled, even in the most difficult situations, and that lack of cooperation between separated parents is not a circumstance which can of itself exempt the authorities from these obligations: “71. In that connection, the Court observes that the applicant has never been considered as being unsuitable to maintain contact with N. or to take care of her during her visits. On the contrary, it has been found by the experts involved in the case that such contact was in N.’s interests and should be maintained ... 72. The difficulties in arranging contact were admittedly due in large measure to the animosity between E. and the applicant. The Court also notes the growing reluctance of the child to meet with her father.", "It is further mindful of the fact that contact and residence disputes are by their very nature extremely sensitive for all the parties concerned, and it is not necessarily an easy task for the domestic authorities to ensure enforcement of a court order where the behaviour of one or both parents is less than constructive. However, a lack of cooperation between parents who have separated is not a circumstance which can of itself exempt the authorities from their positive obligations under Article 8. It rather imposes on the authorities an obligation to take measures that would reconcile the conflicting interests of the parties, keeping in mind the paramount interests of the child ... 73. In that regard, the Court observes that when the applicant’s former wife failed to comply with the contact orders, the applicant began to file enforcement claims with the District Court. He has filed over 50 such requests ... and they eventually resulted in District Court ordering the mother to comply with the access arrangements and to the imposition of fines on two occasions ... 74.", "However, the Court reiterates that in cases of this kind the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent who do not cohabit ... Firstly, as regards the swiftness of the enforcement proceedings, the Court notes that the domestic court examined the request of 7 March 2011 on 28 October 2011, when it ordered the mother to comply with the contact order ... Since she continued to prevent the applicant having any contact with N., the court eventually imposed a fine on her on 15 March 2012, that is, one year later ... Secondly, the Court points out that the enforcement proceedings initiated by the applicant on 23 August 2011, after several procedural decisions, were eventually discontinued more than two and a half years later, on 24 April 2013 .... Thirdly, the proceedings instituted by the applicant on 20 February 2012, in so far as the applicant alleged that the mother failed to comply with the interim contact order, were discontinued a year later, on 28 February 2013 ... 75. Apart from noting the general difficulties resulting from the fact that the proceedings took place before three different courts ..., the Government did not submit any explanation for the particular delays in the examination of the applicant’s requests. The Court finds that even though the applicant’s enforcement requests led eventually to two decisions imposing a fine on the mother, the protracted examination of those requests and the obstruction to his contact resulted, as noted by the experts, in a further deterioration of the emotional bond with his daughter ... 76. The Court acknowledges that the task of the domestic courts was rendered difficult by the particularly strained relationship between the applicant and his former wife.", "However, while the Government referred in general terms to the conflict between the applicant and the child’s mother as the source of the applicant’s problems in maintaining contact with N. ..., there are no indications that this conflict affected the course of the enforcement proceedings or was the reason for the delays therein and their lack of effectiveness ... 78. Having regard to the facts of the case, in particular the passage of time, and the criteria laid down in its own case-law, the Court concludes that, notwithstanding the State’s margin of appreciation, the Polish authorities failed to make adequate and effective efforts to enforce the applicant’s parental rights and his right to contact with his child. 79. There has accordingly been a violation of Article 8 of the Convention.” 28. In view of all the above, I conclude that the Serbian legal system or framework as a whole, faced with the issue of enforcement of the orders in question, was not effective, as it failed to provide an adequate and timely response consonant with the State’s obligation under Article 6 § 1 and Article 8 of the Convention.", "In particular, the respondent State failed to provide an effective legal system and mechanism and to undertake all necessary measures to protect the rights of the applicant and the child under the above Convention provisions. I therefore find that there has been a violation of those provisions. Since I am in the minority, it would only be theoretical to assess the amount to which the applicant should have been entitled in respect of non-pecuniary damage on the basis of my findings." ]
[ "THIRD SECTION CASE OF TIMOFEYEV v. RUSSIA (Application no. 58263/00) JUDGMENT STRASBOURG 23 October 2003 FINAL 23/01/2004 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Timofeyev v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of MrG. Ress, President,MrI.", "Cabral Barreto,MrP. Kuris,MrB. Zupancic,MrsM. Tsatsa-Nikolovska,MrK. Traja,MrA.", "Kovler, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 2 October 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 58263/00) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Nikolay Vasilyevich Timofeyev (“the applicant”), on 17 March 2000. 2. The Russian Government (“the Government”) were represented by their Agent, Mr P. A. Laptev, the Representative of the Russian Federation in the European Court of Human Rights.", "3. The applicant alleged, in particular, that the failure to execute a final judgment in his favour was incompatible with the Convention. 4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.", "5. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section (Rule 52 § 1). 6. By a decision of 5 September 2002, the Court declared the application partly admissible.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1948 and lives in Orsk. 1. Persecution by the Soviet regime and subsequent rehabilitation 8.", "In 1981 criminal charges were brought against the applicant for dissemination of anti-Soviet propaganda. On 30 July 1981 the police searched his home and confiscated certain items – a radio, audio records, books, newspaper clippings and manuscripts – which he had allegedly used in his unlawful activity. 9. On 7 April 1982 the Orenburg Regional Court held that the applicant was not guilty on the ground of insanity and ordered him to be placed in a mental asylum. 10.", "On 23 April 1986 the Oktyabrskiy District Court of Orsk found that the applicant's mental health had improved and that he could be released. 11. On 15 September 1992 the Orenburg Regional Public Prosecutor's Office issued a statement to acknowledge that the applicant had been unlawfully persecuted by the State. The applicant was reinstated in his rights. 2.", "Claim for compensation and enforcement 12. In the course of 1995 to 1997 the applicant made several unsuccessful attempts to recover the property that had been confiscated in 1981. His requests to prosecutors' offices and the organisations then in possession of the property were rejected. 13. On 28 June 1996 the applicant brought a claim for repossession against the Orenburg Regional Public Prosecutor's Office and the Orsk City Committee of the Voluntary Society for Assistance to the Army, Air Force and Navy.", "He also brought a claim for damages against the Orsk City Council. 14. On 22 July 1998 the Leninskiy District Court of Orsk granted the applicant's claims in part and ordered the Federal Treasury Department to pay the applicant 2,570.92 Russian roubles (RUR) compensation and RUR 200 by way of legal costs. On appeal, the judgment was upheld by the Civil Chamber of the Orenburg Regional Court on 8 December 1998. 15.", "On 5 February 1999 the applicant submitted a writ of execution in respect of the judgment of 22 July 1998 to the registry of the Oktyabrskiy District Court. 16. He was not notified in time whether enforcement proceedings had been opened, or what action had been taken to execute the judgment. For this reason, he issued proceedings against the bailiff in charge of the execution. On 14 May 1999 the Oktyabrskiy Court found in the applicant's favour, holding that the bailiff had acted unlawfully.", "The applicant was also informed that responsibility for enforcement of the judgment had been passed to a different bailiff's service – the Leninskoye Bailiff's Service of Orenburg. 17. On 25 May 1999 the Leninskiy Court issued clarification on how its judgment of 22 July 1998 was to be enforced. It confirmed that, even though the Ministry of Finance was the defendant in the case, the compensation should be recovered from the Treasury Department – the authority liable for debts of the Ministry. The applicant appealed, insisting that the debtor's bank account details should be included in the operative part of the judgment to make the enforcement easier.", "The appeal was dismissed on 8 July 1999. 18. As no progress was made in the enforcement proceedings, on an unspecified date the applicant issued fresh professional negligence proceedings against the bailiff. On 28 July 1999 the Leninskiy District Court of Orenburg examined the complaint and dismissed it. It found that the bailiff had lawfully stayed the enforcement proceedings because an acting Public Prosecutor of the Orenburg Region had initiated supervisory-review of the judgment of 22 July 1998.", "The court stated that under national law, enforcement could be stayed pending supervisory review. The applicant's appeal was dismissed on 23 September 1999 by the Regional Court. 19. On 3 February 2000 the bailiff attempted to attach the accounts of the Federal Treasury Department. The Department challenged the bailiff's actions in court.", "The complaint was granted by the Central District Court of Orenburg on 23 March 2000. The court concluded that the seizure of the Department's assets had been unlawful because, according to the clarifications provided on 25 May 1999 concerning the enforcement, the debt should have been recovered from the Treasury of the Russian Federation. The applicant had not been aware of these proceedings, and was not summoned to the hearing. He successfully raised this point on appeal to the Orenburg Court. The decision of 23 March was quashed and a fresh examination of the case was ordered.", "20. On 9 February 2000 the Leninskiy Court refused the applicant's application to have the judgment enforced in a different way. His appeal against that decision was dismissed on 21 March 2000. 21. On 10 and 21 February 2000 the bailiff stayed the enforcement proceedings because the Treasury Department had requested supervisory-review of the judgment of 22 July 1998.", "22. In March 2000 the applicant learned that the President of the Regional Court had stayed the execution because the supervisory-review of the judgment of 22 July 1998 had been in progress. The applicant lodged a complaint against the President, which was dismissed on 12 April 2000 by the Sovetskiy District Court of Orsk as not amenable to judicial review. The applicant was later informed that the stay of execution had been lifted. 23.", "On 27 September 2000 the Senior Bailiff of the Leninskoye Bailiff's Service decided that the execution should be stopped as the writ of execution did not unequivocally identify the debtor. The applicant successfully appealed against this decision: on 16 November 2000 the Central District Court of Orenburg held that the Senior Bailiff had exceeded her authority when she closed the enforcement proceedings. 24. On 30 November 2000 the bailiff responsible for the applicant's file revoked her decision of 9 April 1999 commencing the enforcement since the writ of execution did not clearly identify the debtor and its address. The applicant successfully complained to the Central Court about this decision: on 1 March 2001 the court ordered the bailiff to proceed with the execution of the judgment.", "25. On 14 December 2000 the same court ruled that the stay of execution pending the supervisory review was unlawful and ordered the bailiff to continue the execution. 26. On 21 March 2001 the bailiff applied to the Leninskiy District Court for clarification as to how the judgment should be enforced, what legislation should be applied and which accounts of which branch of the Treasury Department should be charged. The court did not satisfy the bailiff's request as the writ of execution was sufficiently clear, and the court had no competence to advise the bailiff on possible modes of enforcement.", "27. On 4 April 2001 the acting Public Prosecutor of the Orenburg Region lodged an application for supervisory review of the judgment of 22 July 1998 on the ground that the compensation should have been awarded against the Regional Authority and not against the Treasury Department. On 16 April 2001 the Presidium of the Orenburg Regional Court granted the prosecutor's application and quashed the judgments of 22 July 1998 and 8 December 1998. The case was remitted for a new examination. 28.", "On 15 May 2001 the Central District Court of Orenburg refused the Treasury Department's application to lift the attachment of its accounts. Instead, the court ordered that the execution should cease since the judgment debt had been quashed on 16 April 2001. 29. On 29 June 2001 the Lenisnkiy District Court gave a new judgment in the case. The applicant was awarded RUR 2,869.50 in compensation for the property and RUR 1,000 in legal costs.", "The compensation was to be paid by the financial department of the Orsk City Council. The claims for repossession and non-pecuniary damages were dismissed. The applicant's appeal against the judgment was disallowed by the Orenburg Regional Court on 14 August 2001. 30. On 18 December 2001 the bailiff closed the enforcement proceedings because the award had been credited to the applicant's bank account on 30 November 2001.", "The applicant challenged this decision in court claiming that he had not received the money. On 15 February 2002 the Leninskiy District Court established that there was insufficient evidence that the award had indeed been paid to the applicant and annulled the bailiff's decision to close the enforcement. 31. By letter of 31 October 2002 the Government informed the Court that the award of 29 June 2001 had been paid to the applicant on 30 November 2001. 32.", "By letter of 18 October 2002 the applicant informed the Court that he had not received the money awarded. II. RELEVANT DOMESTIC LAW 33. Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff's order on the institution of enforcement proceedings must fix a time-limit for the defendant's voluntary compliance with a writ of execution. The time-limit may not exceed five days.", "The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit. 34. Under section 13 of the Law, the enforcement proceedings should be completed within two months of the receipt of the writ of enforcement by the bailiff. THE LAW I. THE APPLICANT'S STATUS AS A VICTIM 35.", "Before turning to the substance of the complaints, the Court must ascertain whether, and to what degree, the applicant continues to be a victim of the alleged breaches of the Convention. 36. The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, with further references, Burdov v. Russia, no. 589498/00, § 31, ECHR 2002-III). 37.", "According to the information submitted by the Government – but disputed by the applicant – the authorities have paid to the applicant the money awarded by the judgment of 28 June 2001. Even if the applicant has indeed received the money, the Court does not consider this payment as an acknowledgement of, still less redress for the breach of applicant's right to benefit from the judgment debt as soon as it became enforceable. 38. The applicant therefore may still claim to be a victim of a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 39. Article 6 § 1 of the Convention reads: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” 40. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State's domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party.", "It would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see Burdov, cited above, § 34). 41. The Court notes that the judgment of 22 July 1998, which became final on 8 December 1998, remained unenforced at least until 30 November 2001, that is for almost three years. 42.", "It appears that the delays in the execution were caused by the bailiffs' unlawful actions, numerous adjournments due to interference of supervisory-review authorities, and the obscurity of the judgment. The Court considers that the applicant should not pay the price of these omissions of the State (see, with necessary changes made, Burdov, cited above, § 35). The Court finds it unacceptable that a judgment debt against the State is not honoured for such a long period of time. 43. There has accordingly been a violation of Article 6 § 1.", "III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 44. Article 1 of Protocol No. 1 provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 45. The Court reiterates that a “claim” can constitute a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention if it is sufficiently established to be enforceable (see, with further references, Burdov, cited above, § 40). 46.", "The judgment of the Leninskiy District Court of Orsk of 22 July 1998 became final on 8 December 1998. But the applicant did not receive from the State the judgment debt as soon as it became enforceable or, at least, within the time-limit set in the domestic law. 47. By failing to comply with the judgment of the Leninskiy District Court of Orsk the national authorities prevented the applicant from receiving the money he could reasonably have expected to receive. The Government have not advanced any justification for this interference.", "48. There has accordingly been a violation of Article 1 of Protocol No. 1. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 49.", "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.” 50. The Court points out that under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, “failing which the Chamber may reject the claim in whole or in part”. 51. In the instant case, on 16 September 2002, after the application was declared admissible, the applicant was invited to submit his claims for just satisfaction. He did not submit any such claims within the required time-limits.", "52. In these circumstances, the Court makes no award under Article 41. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that the applicant may claim to be a “victim” for the purposes of Article 34 of the Convention; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds that there has been a violation of Article 1 of Protocol No. 1. Done in English, and notified in writing on 23 October 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerGeorg RessRegistrarPresident" ]
[ "FIRST SECTION CASE OF YEMELIN v. RUSSIA (Application no. 41038/07) JUDGMENT STRASBOURG 10 October 2013 FINAL 10/01/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Yemelin v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President, Elisabeth Steiner, Khanlar Hajiyev, Linos-Alexandre Sicilianos, Erik Møse, Ksenija Turković, Dmitry Dedov, judges, and André Wampach, Deputy Section Registrar, Having deliberated in private on 17 September 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "41038/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Aleksey Alekseyevich Yemelin (“the applicant”), on 6 August 2007. 2. The applicant, who had been granted legal aid, was represented by Mr T. Misakyan, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicant alleged, in particular, that he had been detained in conditions incompatible with the standards set forth in Article 3 of the Convention and that the judgment in his favour had not been enforced. 4. On 27 May 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1971 and lives in Alicante, Spain. A. Criminal proceedings against the applicant 6. On 7 July 2004 the applicant, a police officer at the time, lent 20,000 Russian roubles (RUB) to M. The latter failed to repay the loan.", "On an unspecified date, in order to make her pay the debt, the applicant tricked M. into giving him her travel passport. 7. On 14 January 2007 M. let K., a friend of the applicant’s, into her flat. K. asked her to repay the loan, which she could not do. Then the applicant broke into M.’s flat and beat her up.", "M. sustained a closed head injury and fractured ribs, and received treatment in hospital. 8. On 15 January 2007 M. complained about the beating to the local department of the interior where the applicant was serving as a police officer. On 19 January 2007 she lodged a complaint with the prosecutor’s office, alleging that on 14 January 2007 the applicant had entered her flat against her will. 9.", "On 1 February 2007 the prosecutor’s office opened a criminal investigation into M.’s complaint. 10. On 5 February 2007 the applicant made an undertaking not to leave town. 11. On 9 February 2007 the Volsk Town Court ordered that the applicant be temporarily removed from office.", "The applicant did not appeal. 12. On 10 February 2007 the applicant was indicted on charges of unlawful entry and assault with bodily injuries. 13. On 19 April 2007 the applicant was indicted on a charge of abuse of power.", "14. On 26 April 2007 the Volsk Town Court received the case-file. 15. On 31 May 2007 the applicant gave an interview to the local newspaper alleging that one of the prosecutor’s witnesses had a grudge against him and had testified against him out of revenge. B. Applicant’s pre-trial detention and the verdict 16.", "On 15 June 2007 the Volsk Town Court established that the applicant had made threats to M. and other witnesses with intent to intimidate them and ordered that the applicant be detained pending trial. On 2 July 2007 the Saratov Regional Court upheld the decision of 15 June 2007 on appeal. 17. On 17 August 2007 the Town Court found the applicant guilty of unlawful entry, assault with bodily injuries and misappropriation of M.’s passport, and sentenced him to two years’ suspended imprisonment and a fine. He was released in the courtroom.", "18. On 1 November 2007 the Saratov Regional Court upheld the applicant’s conviction on appeal. C. Conditions of detention and transport 19. From 15 June to 17 August 2007 the applicant was detained alternately at the temporary detention centre in Volsk and in remand prison no. IZ-64/1 in Saratov.", "1. Temporary detention centre in Volsk 20. The applicant was detained in cell no. 6 at the temporary detention centre in Volsk from 15 to 16 June, 27 June to 3 July, 11 to 19 July and 27 July to 17 August 2007. (a) Description provided by the Government 21.", "According to the Government, the cell where the applicant was detained measured 5.85 sq. m and contained two beds. During the first two periods of detention the applicant was held in the cell alone. During the second two periods another inmate was held there with the applicant. The cell had no windows and was lit with a 200-watt electric bulb.", "Nor was the cell equipped with a toilet; the inmates had to use a bucket, which was placed some 1.5 metres from the beds and 3.5 metres from the dining table. There was no screen separating the “toilet zone” from the rest of the cell. The temporary detention centre had no exercise yard and inmates detained there had to stay in their cells all the time. (b) Description provided by the applicant 22. According to the applicant, he was detained in a windowless cell measuring 1.3 sq.", "m. The cell was not equipped with a toilet or running water. The applicant had to use a bucket placed in the cell as both a toilet and a sink. He was allowed to empty the bucket once a day. The mattress and a pillow given to him were dirty and smelt foul. No bed linen was provided.", "The cell was infested with rats. The ventilation system was on for no more than forty minutes a day. The constant fetid smell in the cell made the applicant sick and gave him headaches. When it rained, water leaked into one of the corners and flooded the cell. The concrete floors were always damp.", "The walls were covered with mould. Because of the dampness of the cell, the applicant developed painful breathing. 23. There was no access to natural light. The cell was lit with a 40-watt electric bulb.", "The temporary detention centre had no outdoor exercise area and the applicant was confined to the cell for twenty-four hours a day. Breakfast consisted of hot water only. For dinner the inmates received cold leftovers from lunch. The food served for dinner often turned sour owing to the lack of refrigerators in the temporary detention centre. 2.", "Remand prison no. IZ-64/1 in Saratov (a) Description provided by the Government 24. The Government’s submissions as regards the conditions of the applicant’s detention in remand prison no. IZ-64/1 in Saratov can be summarised as follows: Period of detention Cell no. Surface area (in square metres) Number of inmates Number of beds From 16 to 18 June 18 21.2 4-5 5 From 19 to 26 June 117 8.1 2 2 From 4 to 10 July 18 21.2 4-5 5 20 July 18 21.2 4-5 5 From 21 to 24 July 207 8.05 2 2 From 24 to 26 July 138 8.05 2 2 25.", "Each cell had one window which ensured access to daylight. The windows were covered with metal bars with 200-sq. cm openings. All the cells in the remand prison were equipped with a ventilation system in good working order. The electric lighting was constantly on.", "From 6 a.m. to 10 p.m. the cells were lit with a 100-watt bulb and from 10 p.m. to 6 a.m. with a 40-watt bulb for safety and surveillance purposes. 26. Each cell had a water closet separated from the living area with a 1.5-metre high partition. The distance between the toilet and the beds/dining table was at least 2 metres. The inmates had the right to daily outdoor exercise lasting at least an hour.", "(b) Description provided by the applicant 27. The applicant did not dispute the Government’s submissions as regards the periods of his detention in the remand prison and the numbering of the cells where he had been detained. He provided the following additional data regarding the size of the cells and the number of inmates: Cell no. Surface area (in square metres) Number of inmates 18 21.2 10 117 8 3 207 7 3-4 138 7 2 28. Each cell had a window covered with three layers of metal bars with 100-sq.", "cm openings. The window ensured access to daylight. The electric light was constantly on. There was no dining table in cell no. 117.", "The toilet was located in the corner of the cell no more than 1.5 m from the dining table and no more than 2 m from the nearest bed. The toilet was separated with brick walls without a door and offered no privacy. The ventilation system was not effective enough to evacuate the smell emanating from the toilet. No hot water was supplied; nor was there cold running water between 5.45 a.m. and noon. The inmates were allowed one hour’s outdoor exercise per day, which was cancelled in the event of rain.", "The food was of very poor quality and scarce. The pickled cabbage was rancid and smelled bad, the potatoes were black and rotten. The milk turned sour immediately or contained grey residue. The fish was rotten. No fruit or vegetables were served.", "29. According to the applicant, all the letters he sent to his family and friends were opened and censored. 3. Conditions of transport (a) Description provided by the Government 30. According to the Government, on the days of the applicant’s transfer between the remand prison and the temporary detention centre, he was provided with a dry food ration.", "He received 300 grams of biscuits, 30 grams of soup concentrate, 168 grams of main-course concentrate, 40 grams of sugar and 2 grams of tea. The inmates were placed in special vans and taken to the railway station. Being a former police officer, the applicant was placed in a van compartment alone. The travel time did not exceed twenty minutes. Upon arrival at the station, the inmates were placed in railway carriages.", "At all times, the applicant had an individual sleeping place. The train journey lasted from six to eight hours. The applicant was provided with hot water to be used with the food concentrates and drinking water. He was allowed to use the toilet. At the destination railway station, the inmates were again placed in vans and taken to the respective detention facility.", "(b) Description provided by the applicant 31. According to the applicant, on the days on which he was transported between the remand prison and temporary detention centre, notably 27 June, 3, 11, 19 and 27 July 2007, the journey lasted from eight to sixteen hours. No food was provided. The inmates were placed in compartments measuring 1.2 to 2 square metres. During the first four transfers there were three inmates in the compartment, including the applicant, and during the fifth transfer there were four inmates, including the applicant.", "There were three berths in the compartment measuring 1.2 square metres and the applicant had to share his sleeping place with another inmate. During the journey, the detainees were given water once and were allowed to use the toilet once. For the rest of the time they had to use plastic bags or bottles in the compartment to answer calls of nature. The toilet in the railway carriage had no sink. 32.", "The applicant submitted two statements from inmates V. and N. who had been transported with him on 3 and 11 July 2007 respectively. Both V. and N. confirmed the applicant’s description of the conditions in which they had been transported. In particular, V. submitted as follows: “... on 3 July 2007 [the applicant] and myself were placed in a railway carriage ... to be transferred to remand prison no. IZ-64/1 in Saratov. We arrived at Saratov at around 2 a.m. (the journey lasted sixteen hours).", "During the trip we were allowed to use the toilet once and we received water once. We were held in a compartment measuring 2 square metres equipped with three berths. Other amenities, food or hot water were not available.” D. Civil proceedings initiated by the applicant and enforcement of the judgment in his favour 33. Following his removal from office pending criminal proceedings (see paragraph 11 above), the applicant brought a claim against the local department of the interior for lost earnings. 34.", "On 26 September 2007 the Frunzenskiy District Court of Saratov granted the applicant’s claim and ordered the local department of the interior to pay to the applicant a monthly allowance in the amount of RUB 7,806.70 during his temporary removal from office, and for court and legal expenses. 35. On 23 October 2007 the District Court amended the operative part of the judgment of 26 September 2007 and ruled that the local department of the interior should pay the applicant RUB 36,833.14 for unlawful temporary removal from office for the period between 1 July and 1 November 2007. 36. On 15 November 2007 the Saratov Regional Court upheld the judgment of 26 September 2007 on appeal.", "37. On 13 December 2007 the bailiff received the writ of execution. 38. It appears that there were certain technical errors in the text of the writ of execution and on 27 February 2008 the applicant asked the District Court to rectify them. 39.", "On 18 March 2008 the District Court ordered the local department of the interior to pay the applicant arrears totalling RUB 36,833.17 in connection with the authorities’ failure to execute the judgment of 26 September 2007. On an unspecified date the applicant forwarded the relevant writ of execution to the bailiff’s office. 40. On 21 April 2008 the bailiff closed the enforcement proceedings and returned both writs of execution to the applicant, noting that the execution of the judgments in the applicant’s favour was not within the competence of the bailiff’s office. 41.", "On 25 September 2009 the District Court clarified the content of the judgment of 26 September 2007 and ordered the local department of the interior to pay the applicant arrears in the amount of RUB 68,059.90 for the period from 9 February to 1 November 2007. 42. On an unspecified date the applicant asked the court to adjust the amount of the award in view of the lengthy period of non-enforcement of the judgments in his favour and to award him RUB 83,901.53 for lost earnings, RUB 1,248 for court expenses and RUB 1,000 for legal expenses. 43. On 28 October 2009 the District Court granted the applicant’s claim and awarded him RUB 84,846.45, broken down as follows: RUB 82,597 for lost wages; RUB 1,248 for reimbursement of court expenses (travel and postage); and RUB 1,000 for reimbursement of legal expenses.", "44. On 22 April 2010 the applicant sent the writ of execution to a federal treasury department. On 18 May 2010 the sum of the award was transferred to his account. E. Criminal proceedings against M. 1. Libel 45.", "On 5 February 2008 the applicant instituted criminal proceedings against M., accusing her of libel. 46. On 22 May 2007 the justice of the peace delivered a not-guilty verdict. On an unspecified date the verdict was upheld on appeal. On 9 October 2008 the Saratov Regional Court held a cassation hearing and upheld the verdict and the appeal judgment.", "2. Perjury 47. On 21 January 2009 the prosecutor’s office refused to prosecute M. on perjury charges. II. RELEVANT DOMESTIC LAW A.", "Conditions of detention 48. The Federal Law on Detention of Suspects and Defendants charged with Criminal Offences, as amended (“the Detention of Suspects Act”), in force since 21 June 1995, provides that suspects and defendants detained pending investigation and trial are held in remand prisons (section 8). They may be transferred to temporary detention centres if so required for the purposes of investigation or trial and if transportation between a remand prison and a police station or courthouse is not feasible because of the distance between them. Such detention at a temporary detention centre may not exceed ten days per month (section 13). Temporary detention centres at police stations are designated for the detention of persons arrested on suspicion of a criminal offence (section 9).", "49. According to the Internal Regulations of Temporary Detention Facilities, approved by Order No. 41 of the Ministry of the Interior of the Russian Federation on 26 January 1996, as amended (in force at the time of the applicant’s detention), the living space per detainee should be 4 square metres (paragraph 3.3 of the regulations). It also made provision for cells in a temporary detention centre to be equipped with a table, toilet, water tap, shelf for toiletries, drinking water tank, radio and refuse bin (paragraph 3.2 of the regulations). Furthermore, the regulations made provision for detainees’ right to outdoor exercise of at least one hour per day in a designated exercise area (paragraphs 6.1, 6.40, and 6.43 of the regulations).", "B. Remedies in respect of non-enforcement of a judgment against the State 50. Federal Law No. 68-FZ of 30 April 2010 (in force as of 4 May 2010) provides that in the event of a violation of the right to enforcement of a final judgment, the person concerned is entitled to seek compensation in respect of non-pecuniary damage. Federal Law No.", "69-FZ adopted on the same day introduced the pertinent changes to the Russian legislation. 51. Section 6.2 of Federal Law No. 68-FZ provides that everyone who has an application pending before the European Court of Human Rights concerning a complaint of the nature described in the law has six months to submit that complaint to the domestic courts. III.", "RELEVANT INTERNATIONAL DOCUMENTS 52. The relevant extract from the 2nd General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) (CPT/Inf (92) 3) reads as follows: “42. Custody by the police is in principle of relatively short duration ... However, certain elementary material requirements should be met. All police cells should be of a reasonable size for the number of persons they are used to accommodate, and have adequate lighting (i.e.", "sufficient to read by, sleeping periods excluded) and ventilation; preferably, cells should enjoy natural light. Further, cells should be equipped with a means of rest (e.g. a fixed chair or bench), and persons obliged to stay overnight in custody should be provided with a clean mattress and blankets. Persons in custody should be allowed to comply with the needs of nature when necessary in clean and decent conditions, and be offered adequate washing facilities. They should be given food at appropriate times, including at least one full meal (i.e.", "something more substantial than a sandwich) every day. 43. The issue of what is a reasonable size for a police cell (or any other type of detainee/prisoner accommodation) is a difficult question. Many factors have to be taken into account when making such an assessment. However, CPT delegations felt the need for a rough guideline in this area.", "The following criterion (seen as a desirable level rather than a minimum standard) is currently being used when assessing police cells intended for single occupancy for stays in excess of a few hours: in the order of 7 square metres, 2 metres or more between walls, 2.5 metres between floor and ceiling.” 53. The CPT reiterated the above conclusions in its 12th General Report (CPT/Inf (2002) 15, § 47). THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 54. The applicant complained about the conditions of his detention in remand prison no.", "IZ-64/1 in Saratov and the temporary detention centre in Volsk from 15 June to 17 August 2007. He also complained about the conditions in which he was transported between the remand prison and temporary detention centre. He referred to Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 55. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. Parties’ submissions 56. The Government did not contest that the conditions of the applicant’s detention in the temporary detention centre in Volsk had fallen short of the requirements of the national standards and the recommendations of the CPT.", "At the same time, the Government considered that the fact that the applicant had been detained in such conditions did not show that there had been a positive intention to humiliate or debase him. They further submitted that there were objective reasons for the domestic authorities’ failure to ensure that the applicant was held in proper conditions at the temporary detention centre in connection with the on-going reform of the detention facilities. Lastly, they argued that the treatment to which the applicant had been subjected as a result of his detention in the temporary detention centre had not gone beyond the threshold of severity set out in Article 3 of the Convention. As regards the conditions of the applicant’s detention in the remand prison and the conditions in which he was transported between those two detention facilities, the Government asserted that they had been in compliance with domestic and international standards. The relied on excerpts from the remand prison population register and statements prepared by the administration of the remand prison in July 2010.", "They also submitted copies of receipts confirming the provision of the applicant with dry food ration on the days of his transfers from one detention facility to the other. 57. The applicant maintained his complaint. He submitted a statement made by V. and N., the inmates detained and transported together with him. In the applicant’s view, the domestic authorities had failed to ensure that his detention during the period in question had been compatible with the requirements set out in Article 3 of the Convention.", "His pre-trial detention and the appalling conditions in which he had been transported had amounted to inhuman and degrading treatment prohibited by the said Article and had resulted in serious damage to his health. 2. Court’s assessment (a) General principles 58. The general principles concerning the conditions of detention are well established in the Court’s case-law and have been summarised as follows (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012): “139.", "The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no.", "25). 140. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see Pretty v. the United Kingdom, no 2346/02, § 52, ECHR 2002-III, with further references). 141.", "In the context of deprivation of liberty the Court has consistently stressed that, to fall under Article 3, the suffering and humiliation involved must in any event go beyond that inevitable element of suffering and humiliation connected with the detention. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła, cited above, §§ 92-94, and Popov v. Russia, no. 26853/04, § 208, 13 July 2006). 142. When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz v. Greece, no.", "40907/98, § 46, ECHR 2001-II). The length of the period during which a person is detained in the particular conditions also has to be considered (see, among other authorities, Alver v. Estonia, no. 64812/01, 8 November 2005).” (b) Temporary detention centre in Volsk 59. The Court notes that it has already examined the conditions of detention in temporary detention centres in various Russian regions and found them to be in breach of Article 3 (see Khristoforov v. Russia, no. 11336/06, §§ 22-29, 29 April 2010; Nedayborshch v. Russia, no.", "42255/04, §§ 27-33, 1 July 2010; Salikhov v. Russia, no. 23880/05, §§ 89-93, 3 May 2012; and Velichko v. Russia, no. 19664/07, §§ 54-60, 15 January 2013). 60. The Government did not challenge the applicant’s account of the conditions of his detention in the temporary detention centre.", "They conceded that those conditions had fallen short of the requirements of national standards and the recommendations of the CPT. 61. On the facts, the Court notes that the cell in which the applicant was repeatedly held lacked basic amenities. It did not have a window and offered no access to natural light or air. There was no toilet or sink.", "If the applicant wished to go to toilet, he had to use a bucket. Lastly, throughout his detention the applicant was confined to his cell for twenty-four hours a day without any opportunity to pursue physical and other out-of-cell activities. 62. The Court observes that the circumstances of the present case are very similar to those examined in the earlier case of Nedayborshch where the applicant was detained during multiple periods lasting from an overnight to four consecutive days totalling thirty-six days in overcrowded cells of a temporary detention centre without a toilet or running water or an opportunity for an outdoor exercise (see Nedayborshch, cited above, §§ 9-16). In Nedayborshch the Court has found such conditions incompatible with the standards set out in Article 3 of the Convention.", "It discerns nothing in the materials before it that would allow it to reach a different finding in the present case. 63. The Court takes into account the Government’s argument that in the present case there was no positive intention to humiliate or debase the applicant. However, the absence of any such intention cannot exclude a finding of a violation of Article 3 of the Convention. Even if there had been no fault on the part of the administration of the temporary detention facility, it should be emphasised that Governments are answerable under the Convention for the acts of any State agency, since what is at issue in all cases before the Court is the international responsibility of the State (see, among other authorities, Novoselov v. Russia, no.", "66460/01, § 45, 2 June 2005). 64. There has accordingly been a violation of Article 3 of the Convention on account of the degrading conditions of the applicant’s detention in the temporary detention facility in Volsk on several occasions between 15 June and 17 August 2007. (c) Remand prison no. IZ-64/1 in Saratov 65.", "The Court observes that the parties agree on the periods of the applicant’s detention in the remand prison, the cell numbers and measurements. The Court further notes that the Government submitted excerpts from the prison population register to substantiate their submissions as regards the number of inmates in the cells where the applicant was detained. The authenticity of the data contained in the excerpts was not disputed by the applicant. Accordingly, the Court accepts as credible the Government’s submissions as regards the population of the cells in the remand prison where the applicant was detained and finds that the personal space afforded to the applicant at all times during his detention in the remand prison exceeded 4 square metres. The Court also takes into account the fact that the applicant did not allege that an individual bed was not provided to him or that he had been unable to move freely around the cell.", "66. The Court further notes that the thrust of the applicant’s complaint was poor hygiene conditions in the cells and the scarcity and poor quality of the food. The Court, however, is unable to determine, on the basis of the material submitted by the parties, that those aspects of the conditions of the applicant’s detention were such as to amount to degrading or inhuman treatment. 67. Thus, on the basis of the materials before it, the Court concludes that there has been no violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in remand prison no.", "IZ-64/1 in Saratov (compare Andrei Georgiev v. Bulgaria, no. 61507/00, §§ 57-62, 26 July 2007). (d) Conditions of transport between the detention facilities 68. As to the conditions in which the applicant was transported, the Court notes that he has endured some distress and hardship during the transfers between the remand prison and the temporary detention centre. However, having examined the parties’ submissions and the available material, and regard being had, in particular, to the number and length of the transfers from one detention facility to the other, the Court does not consider that the conditions endured by the applicant have reached an intensity “exceeding the unavoidable level of suffering inherent in detention”.", "There has therefore been no violation of Article 3 of the Convention on account of the conditions in which the applicant was transported between the detention facilities. II. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 69. The applicant complained that the judgment in his favour had not been enforced in good time.", "He relied on Article 3 of the Convention. The Court will examine the complaint under Articles 6 § 1 of the Convention and Article 1 of Protocol No. 1. The Court also decided, of its own motion, to examine this issue under Article 13 of the Convention. The relevant provisions of the Convention read, in so far as relevant, as follows: Article 6 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... 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.” 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 70. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 71.", "The Government admitted that the judgments in the applicant’s favour had been enforced with two-and-a-half years’ delay. They suggested, however, that the applicant had partially contributed to the excessive length of the enforcement proceedings. In particular, on 27 February 2008 he asked the District Court to forward the writs of execution to the bailiff’s office, whereas he knew that the enforcement of the judgments in his favour was to be carried out by the treasury. Lastly, they conceded that the applicant’s failure to follow the procedure prescribed for execution of the judgments against the State could have been accounted for in part by objective factors, such as the reform of the State system of execution of judgments. 72.", "The applicant considered that the delays in enforcement of the judgments in his favour had amounted to a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. 73. The Court reiterates that an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see Burdov v. Russia, no. 59498/00, ECHR 2002‑III).", "To decide if the delay was reasonable, it will look at the complexity of the enforcement proceedings, the behaviour of the applicant and the authorities, and the nature of the award (see Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007). 74. The Court further reiterates that a person who has obtained a judgment against the State may not be expected to bring separate enforcement proceedings (see Metaxas v. Greece, no. 8415/02, § 19, 27 May 2004).", "Where a judgment is against the State, the defendant State authority must be duly notified thereof and is thus well placed to take all necessary initiatives to comply with it or to transmit it to another competent State authority responsible for compliance (see Akashev v. Russia, no. 30616/05, § 21, 12 June 2008). The complexity of the domestic enforcement procedure or of the State budgetary system cannot relieve the State of its obligation under the Convention to guarantee to everyone the right to have a binding and enforceable judicial decision enforced within a reasonable time (see Burdov v. Russia (no. 2), no. 33509/04, § 70, ECHR 2009).", "Where the creditor’s cooperation is required, it must not go beyond what is strictly necessary and in any case does not relieve the authorities of their obligation under the Convention to take timely and ex officio action, on the basis of the information available to them, with a view to honouring the judgment against the State (see Akashev, cited above, § 22). 75. The Court observes that in the instant case the judgment of 26 September 2007 was enforced only on 18 May 2010. It notes that the enforcement proceedings were not particularly complex, given the nature of the award, and that no significant delays can be attributed to the applicant. On the other hand, the Court does not lose sight of the fact that the execution of the judgment called for clarification and amendment of the original text.", "The Court considers that the delays that resulted from those actions are attributable to the domestic judicial authorities. Furthermore, the fact that the enforcement proceedings at the material time were so complex does not relieve the State of its obligation to act in accordance with the principles cited above. In particular, once the authorities were in possession of the writ of execution, it was open to them to adopt a more practical approach and to forward the document to the responsible body. Consequently, despite the applicant’s failure to indicate properly the State body responsible for the execution of the judgments in his favour, the full responsibility for enforcement of the court judgment rests with the State. 76.", "In view of the above, the Court considers that the authorities failed to comply with their obligation under the Convention and that there has accordingly been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1. 2. Article 13 of the Convention 77. The Government considered that the applicant had had an effective remedy in connection with lengthy non-enforcement of the judgments in his favour.", "In particular, it was open to him to ask the court to adjust the sum of the award. In fact, the applicant’s relevant claim was successful and granted in part by the domestic court. Furthermore, it remained open to the applicant to lodge a civil action seeking non-pecuniary damage resulting from the lengthy non-enforcement of the judgments in his favour as provided for by the applicable legislation. 78. The applicant considered that no effective remedy was available to him at the domestic level.", "79. The Court takes cognisance of the existence of a new remedy introduced by Federal Laws Nos. 68-FZ and 69-FZ in the wake of the pilot judgment adopted in the case of Burdov (no. 2), cited above. Those statutes, which entered into force on 4 May 2010, set up a new remedy enabling those concerned to seek compensation for the damage sustained as a result of excessive delays in the enforcement of court judgments against the State (see paragraph 50 above).", "80. The Court accepts that as from 4 May 2010 and until 4 November 2010 the applicant had a right to use the new remedy (see paragraph 51 above), which, however, he did not pursue. 81. The Court observes that, in the pilot judgment cited above, it stated that it would be unfair to request applicants whose cases have already been pending for many years in the domestic system and who have come to seek relief at the Court, to bring their claims again before the domestic tribunals (see Burdov (no. 2), cited above, § 144).", "In line with that principle, the Court decided to examine the complaint about non-enforcement of the final judgment in the applicant’s favour on its merits and found a violation of the substantive provisions of the Convention. 82. However, the fact of examining the present case on its merits should in no way be interpreted as prejudging the Court’s assessment of the quality of the new remedy. It will examine this question in other cases that are more suitable for such analysis. It does not see fit to do so in the present case, particularly as the parties’ observations were made in relation to the situation that had existed before the introduction of the new remedy.", "83. Having regard to those special circumstances, the Court does not consider it necessary to examine separately the complaint under Article 13 of the Convention in the present case (see, among other authorities, Tkhyegepso and Others v. Russia, nos. 44387/04, 2513/05, 24753/05, 34770/07, 37169/07, 54527/07, 21648/08, 42081/08, 56022/08, 59873/08, 671/09 and 4555/09, §§19-24, 25 October 2011). III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 84.", "Lastly, the applicant complained under Article 3 of the Convention that his unlawful removal from office and his allegedly unfair criminal prosecution had been seriously detrimental to his health. He further complained, under Articles 5 and 6 of the Convention, that his pre-trial detention had been unlawful. He complained under Article 6 of the Convention about the unfairness of his removal from office, the criminal proceedings against him and M.’s acquittal. Referring to Article 8 of the Convention, he alleged that the letters he had sent from prison had been subjected to censorship. Lastly, he submitted, with reference to Article 10 of the Convention, that he had been remanded in custody because of an interview he had given to a local newspaper.", "85. Having regard to all the material in its possession and in so far as it falls within its competence, the Court finds that the evidence discloses no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 86.", "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 87. The applicant claimed 54,475 euros (EUR) in respect of non-pecuniary damage. 88. The Government considered the applicant’s claim excessive.", "89. The Court takes into account that it has found a violation of the applicant’s rights set out in Articles 3 and 6 of the Convention and Article 1 of Protocol No. 1. However, it accepts the Government’s argument that the applicant’s claim appears excessive. Making its assessment on an equitable basis, it awards the applicant EUR 5,000, plus any tax that may be chargeable, in respect of non-pecuniary damage.", "B. Costs and expenses 90. The applicant also claimed 8,833.80 Russian roubles (RUB) for the costs and expenses incurred before the Court. In particular, he had paid (1) RUB 6,000 to a second lawyer he retained to be represented before the Court; (2) RUB 1,004.40 for travel from his place of residence to Moscow and back to meet with Mr T. Misakyan to discuss the case and to sign an authority form, and (3) RUB 1,829.40 for postage. 91.", "The Government considered that, in view of the poor quality of the copies of the relevant receipts submitted by the applicant, such documents could not be accepted as proof that the costs and expenses had actually been incurred. 92. 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, the above criteria and the fact that legal aid has been granted to the applicant, the Court rejects the claim for costs and expenses in the proceedings before the Court. C. Default interest 93.", "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 complaints concerning the conditions of the applicant’s detention in the temporary detention centre in Volsk and remand prison no. IZ-64/1 in Saratov, the conditions in which he was transported between those two detention facilities, and the non-enforcement of the final judgment in his favour admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention on account of the applicant’s detention in the temporary detention centre in Volsk on several occasions between 15 June and 17 August 2007; 3.", "Holds that there has been no violation of Article 3 of the Convention on account of the applicant’s detention in remand prison no. IZ-64/1 in Saratov or the conditions in which he was transported between the temporary detention centre in Volsk and remand prison no. IZ-64/1 in Saratov; 4. Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in respect of the delayed enforcement of the judgment in the applicant’s favour; 5.", "Holds that there is no need to examine the complaint under Article 13 of the Convention; 6. 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 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachIsabelle Berro-Lefèvre Deputy RegistrarPresident" ]
[ "FOURTH SECTION CASE OF SÎRBU AND OTHERS v. MOLDOVA (Applications nos. 73562/01, 73565/01, 73712/01, 73744/01, 73972/01 and 73973/01) JUDGMENT STRASBOURG 15 June 2004 FINAL 10/11/2004 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sirbu v. Moldova, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas bratza, President,MrM. Pellonpää,MrJ.", "Casadevall,MrS. Pavlovschi,MrJ. Borrego Borrego,MrsE. Fura-Sandström,MsL. Mijović, judges,and Mr M. O’Boyle, Section Registrar, Having deliberated in private on 25 May 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in six applications (nos. 73562/01, 73565/01, 73712/01, 73744/01, 73972/01 and 73973/01) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six Moldovan nationals, Mr Pavel Sîrbu, Mr Petru Bragoi, Mr Vitalie Cornovan, Mr Gheorghe Bragoi, Mr Alexandru Usatîi and Mr Iulian Guştiuc (“the applicants”), on 10 April 2001. 2. The applicants were represented by Mr Ştefan Urîtu, of the Moldovan Helsinki Committee. The Moldovan Government (“the Government”) were represented by their Agent, Mr Vitalie Pârlog.", "3. The applicants complained under Article 6 § 1 of the Convention that, because of the non-enforcement of the judgments of 1 August 1997 and 18 August 1997, their right to have their civil rights determined by a court had been violated and that they had been unable to enjoy their possessions, and thus their right to protection of property under Article 1 of Protocol No. 1 to the Convention was violated. The applicants also relied on Article 10 of the Convention. 4.", "The applications were allocated to the Fourth Section. On 4 February 2003 a Chamber of that Section decided to communicate the applications 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. 5. On 20 January 2004 a Chamber of the Fourth Section decided to join the applications in accordance with Rule 42 (1) of the Rules of the Court.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicants, all of whom are Moldovan citizens, live in the Republic of Moldova. 7. The applicants are inspectors of the Chişinău Fire Department attached to the Ministry of Internal Affairs.", "8. On 21 July 1994 the Government passed Decision No. 534-10, classified secret, which concerned the Ministry of Defence, the Ministry of National Security (Intelligence Service) and the Ministry of Internal Affairs. According to that Decision, among other things, the personnel of the above-mentioned institutions were entitled to a monthly allowance of approximately MDL 135 instead of the old allowance of MDL 7.06. This Decision was not published in the Official Gazette (Monitorul Oficial) and accordingly the applicants did not know about it.", "The applicants started to receive the increased allowance on 1 June 1995. They found out that their colleagues from other Ministries had been receiving the higher rate from 1 July 1994. 9. In June 1997 the applicants lodged an action with the Centru District Court against the Ministry of Internal Affairs seeking the payment of the increased allowance for the period July 1994 – June 1995. By a judgment of 1 August 1997 the Centru District Court awarded Mr Gheorghe Bragoi, Mr Alexandru Usatîi and Mr Iulian Guştiuc compensation of MDL 1,407[1] each.", "By another judgment of 18 August 1997 the Centru District Court awarded Mr Pavel Sîrbu and Mr Vitalie Cornovan compensation of MDL 1,407 each and Mr Petru Bragoi compensation of MDL 1,127.02. No appeals were lodged and the judgments became final. Enforcement warrants were issued. 10. On numerous occasions the applicants lodged complaints about the non-enforcement of the judgments of 1 August 1997 and 18 August 1997 with the Ministry of Justice.", "In its replies, the Ministry of Justice informed the applicants that the judgments could not be enforced due to the “lack of funds in the bank account of the Ministry of Internal Affairs”. 11. On 15 May 2003, after the cases were communicated to the Government, the judgments were executed by the Ministry of Internal Affairs. II. RELEVANT DOMESTIC LAW 12.", "The relevant provisions of the Code of Civil Procedure, in force between 26 December 1964 and 12 June 2003, stated: Article 336. The decisions of the courts and other authorities susceptible to enforcement The following are the acts which have to be enforced in accordance with the provisions of the present Code: 1) Civil law judgments, orders and decisions adopted by the courts... Article 338. The issuance of the enforcement warrant The enforcement warrant is issued by the court to the creditor, after the judgment has become final, except for cases of immediate enforcement, when the enforcement warrant is issued immediately after the delivery of the judgment. Article 343.", "The request to start the enforcement procedure The bailiff starts the enforcement procedure at the request of the persons enumerated in Article 5 of the present Code. In cases provided for in the second paragraph of this article, the bailiff starts the enforcement procedure following the judge’s order. Article 349. The supervision of enforcement of judgments The supervision of the correct and prompt enforcement of judgments is conducted by the Department of Judgment Enforcement of the Ministry of Justice. THE LAW 13.", "The applicants complained that their right to have their civil rights determined by a court had been violated by the authorities’ failure to enforce the judgments of 1 August 1997 and 18 August 1997. They relied on Article 6 § 1 of the Convention, which in so far as relevant, reads as follows: “1. In the determination of his civil rights and obligations ... everyone is entitled to a fair hearing ... by a tribunal ....” 14. The applicants further complained that because of the non-enforcement of the judgments in their favour they were unable to enjoy their possessions, and thus that their right to protection of property under Article 1 of Protocol No. 1 to the Convention had been violated.", "Article 1 of Protocol No. 1 reads as follows: “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.” 15. The applicants finally complained under Article 10 of the Convention that by classifying Decision No.", "534-10 of 21 July 1994 as secret, the Government had breached their right to be informed. Article 10 provides: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...” I. ADMISSIBILITY OF THE COMPLAINTS A. Alleged violation of Article 10 of the Convention 16.", "The applicants complained that the secrecy imposed on the Government’s Decision No. 534-10 of 21 July 1994 breached their right to be informed. 17. The Court notes that in cases concerning restrictions on freedom of the press it has on a number of occasions recognised that the public has a right to receive information as a corollary of the specific function of journalists, which is to impart information and ideas on matters of public interest (see, among other authorities, the Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no. 216, p. 30, § 59 (b), and the Thorgeir Thorgeirson v. Iceland judgment of 25 June 1992, Series A no.", "239, p. 27, § 63). The facts of the present case are, however, clearly distinguishable from those of the aforementioned cases since the applicants complained of a failure of the State to make public a Governmental Decision concerning the military, the intelligence service and the Ministry of Internal Affairs. 18. The Court reiterates that freedom to receive information, referred to in paragraph 2 of Article 10 of the Convention, “basically prohibits a government from restricting a person from receiving information that others wish or may be willing to impart to him” (see the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 29, § 74).", "That freedom cannot be construed as imposing on a State, in circumstances such as those of the present case, positive obligations to disclose to the public any secret documents or information concerning its military, intelligence service or police. 19. Therefore, this head of claim must be declared inadmissible as being manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention. B. Other complaints 20.", "The Court considers that the applicants’ complaints under Articles 6 § 1 and under Article 1 of Protocol No. 1 to the Convention raise questions of law which are sufficiently serious that their determination should depend on an examination of the merits, and no other grounds for declaring them inadmissible have been established. The Court therefore declares these complaints admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 4 above), the Court will immediately consider the merits of these complaints. II.", "MERITS A. Alleged violation of Article 6 § 1 of the Convention 21. Under Article 6 § 1 of the Convention, the applicants complained about the refusal of the authorities to execute the judgments of the Centru District Court of 1 and 18 August 1997. 22. The Government did not submit observations on the merits of this complaint.", "23. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see the Hornsby v. Greece judgment of 19 March 1997, Reports 1997-II, p. 510, § 40).", "24. It is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment. Admittedly, a delay in the execution of a judgment may be justified in particular circumstances. But the delay may not be such as to impair the essence of the right protected under Article 6 § 1 of the Convention (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 74, ECHR 1999-V).", "In the instant case, the applicants should not have been prevented from benefiting from the success of the litigation, which concerned the payment of compensation. 25. The Court notes that the Centru District Court’s judgments of 1 and 18 August 1997 remained unenforced for more than five years and a half (until after the cases had been communicated to the Government by the Court, on 15 May 2003). 26. By failing for years to take the necessary measures to comply with the final judgments in the instant case, the Moldovan authorities deprived the provisions of Article 6 § 1 of the Convention of all useful effect.", "27. There has accordingly been a violation of Article 6 § 1 of the Convention. B. Alleged violation of Article 1 of Protocol No. 1 to the Convention 28.", "The applicants further complained that because of the non-enforcement of the judgments in their favour they were unable to enjoy their possessions, and thus their right to protection of property under Article 1 of Protocol No. 1 to the Convention was violated. 29. The Government did not submit observations on the merits of this complaint. 30.", "The Court reiterates that a “claim” can constitute a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention if it is sufficiently established to be enforceable (see the Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301-B, § 59). 31. The Court notes that the applicants had enforceable claims deriving from the judgments of 1 and 18 August 1997.", "It follows that the impossibility for the applicants to obtain the execution of the judgments until 15 May 2003, constituted an interference with their right to peaceful enjoyment of their possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 to the Convention. 32. By failing to comply with the judgments of the Centru District Court the national authorities prevented the applicants from having their compensation paid and from enjoying the possession of their money. The Government have not advanced any justification for this interference and the Court considers that lack of funds cannot justify such an omission (see, mutatis mutandis, Ambruosi v. Italy, no.", "31227/96, §§ 28-34, 19 October 2000). 33. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 34. 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. Pecuniary damage 35. Mr Pavel Sîrbu, Mr Vitalie Cornovan, Mr Gheorghe Bragoi, Mr Alexandru Usatîi and Mr Iulian Guştiuc each claimed EUR 84 for pecuniary damage suffered as a result of the refusal of the authorities to enforce the judgments. Mr Petru Bragoi claimed EUR 67 for pecuniary damage. 36.", "The Government claimed that since the judgments had been executed on 15 May 2003, the applicants were not entitled to any pecuniary damage. 37. The Court considers that the applicants must have suffered pecuniary damage as a result of the non-execution of the judgments of 1 and 18 August 1997. The Court awards Mr Pavel Sîrbu, Mr Vitalie Cornovan, Mr Gheorghe Bragoi, Mr Alexandru Usatîi and Mr Iulian Guştiuc the sum of EUR 84 each and Mr Petru Bragoi the sum of EUR 67. B. Non-pecuniary damage 38.", "The applicants each claimed EUR 10,300 for non-pecuniary damage suffered as a result of the refusal of the authorities to enforce the judgments of 1 and 18 August 1997. 39. The Government disagreed with the amounts claimed by the applicants, arguing that they were excessive in light of the case-law of the Court. They stated that in some cases the mere fact of finding a violation is considered to be just satisfaction. The Government further cited the case of Burdov v. Russia, no.", "59498/00, ECHR 2002-III, where the applicant was awarded EUR 3,000 for non-pecuniary damage. 40. The Court considers that the applicants must have been caused a certain amount of stress and frustration as a result of the non-enforcement of the judgments. It awards them EUR 1000 each for non-pecuniary damage. C. Costs and expenses 41.", "The applicants also claimed EUR 990 each for the costs and expenses incurred before the Court, of which EUR 840 were representation fees and the rest, expenses for transportation and communication. 42. The Government did not agree with the amounts claimed, stating that the applicants had failed to prove the alleged representation expenses. 43. The Court recalls that in order for costs and expenses to be included in an award under Article 41, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Nilsen and Johnsen v. Norway [GC], no.", "23118/93, § 62, ECHR 1999-VIII). 44. In the present case, regard being had to the itemised list submitted by the applicants, the above criteria, and to the fact that this was a relatively straightforward case in which the applicants were all represented by the same lawyer, the Court does not consider that the costs claimed were reasonable as to quantum. It awards the applicants EUR 200 each, plus any tax that may be payable. D. Default interest 45.", "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 inadmissible, the applicants’ complaints concerning Article 10 of the Convention; 2. Declares the rest of the applications admissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4.", "Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 5. Holds unanimously (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 84 each to Mr Pavel Sîrbu, Mr Vitalie Cornovan, Mr Gheorghe Bragoi, Mr Alexandru Usatîi and Mr Iulian Guştiuc and EUR 67 to Mr Petru Bragoi in respect of pecuniary damage; EUR 1000 each in respect of non-pecuniary damage; and EUR 200 each in respect of costs and expenses; (b) that the amounts shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount[s] at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 15 June 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Michael O’BoyleNicolas BratzaRegistrarPresident [1] approx. EUR 286 as of 1 August 1997" ]
[ "FIRST SECTION CASE OF ORR v. NORWAY (Application no. 31283/04) JUDGMENT STRASBOURG 15 May 2008 FINAL 01/12/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Orr v. Norway, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni,George Nicolaou, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 1 April 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "31283/04) against the Kingdom of Norway lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Marcus Orr (“the applicant”), on 16 August 2004. 2. The applicant was represented by Ms S. Zanker, a lawyer practising in London. The Norwegian Government (“the Government”) were represented by their Agent, Mrs F. Platou Amble, Attorney, Attorney General’s Office (Civil Matters). 3.", "The applicant alleged a violation of Article 6 § 2 of the Convention on account of the national court’s decision, despite his acquittal on criminal charges, to order him to pay compensation to the victim. 4. On 19 October 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. On 7 August 2001, the applicant co-piloted a British Airways flight from Newcastle to Gardermoen Airport outside Oslo. There were three other crew members on board, including Ms C. (1st Cabin Crew). All four crew members were to stay overnight at an airport hotel before flying back to the United Kingdom the next day. 6.", "On 1 November 2002 the Eidsvoll District Court (tingrett) convicted the applicant of having raped C and sentenced him to 2 years’ and 6 months’ imprisonment and ordered him to pay her NOK 75,000 for non-pecuniary damage and NOK 160,000 for pecuniary damage. 7. On an appeal by the applicant, the Eidsivating High Court (lagmannsrett), sitting with a jury, held a fresh hearing in the case. The jury answered the questions relating to the charges in the negative (no reasons are given by a jury).The professional judges decided to pass judgment on the basis of the jury’s verdict and acquitted the applicant by a judgment of 20 March 2003. 8.", "Ms C. maintained the claim that the applicant was civilly liable to pay compensation under the Damage Compensation Act 1969. The High Court, consisting of the professional judges, considered the claim the next day. By two votes to one the High Court concluded, in the same judgment, that the applicant was liable and ordered him to pay NOK 74,000 in compensation for pecuniary damage and NOK 25,000 for non-pecuniary damage. 9. The High Court’s judgment included the following account and reasoning: “The High Court jury was asked one main question, which concerned forcible coitus.", "The jury answered the question in the negative. Thereafter the jury was asked one main question as to whether the accused was guilty of obtaining, by gross negligence, sexual relation by violence or threatening behaviour. There was additionally put a supplementary question as to whether the sexual relation mentioned in the main question constituted coitus. The jury answered the main question in the negative. The court bases the judgment on the jury’s verdict.", "[The applicant] is therefore acquitted of the indictment raised against him. The victim’s assistant counsel stated, after the jury’s verdict had been made known, that the compensation claim for pecuniary and non-pecuniary damage would be maintained. The victim has claimed an amount up to NOK 74,000 in compensation for pecuniary damage and up to 75,000 NOK for non-pecuniary damage. The accused has pleaded that he should be released from the claim. Despite the fact that [the applicant] has been acquitted of having, with intent or gross negligence, raped [Ms C.], under Norwegian law, she has not thereby lost her possibility to claim compensation under the civil law on tort for the harmful act that she claims has taken place.", "Because other and weaker requirements of proof apply for establishing that an act has occurred under the civil law on tort than when there is question of imposing criminal liability for the same act, an award of compensation for pecuniary/non-pecuniary damage would not in itself amount to setting aside the acquittal. The compensation issue shall be determined under the Damage Compensation Act 1969. If the victim has been exposed to an infringement or misconduct as described inter alia in Article 192 of the Penal Code, compensation for pecuniary damage resulting from the infringement or misconduct may be awarded under sections 3-1 and 3-3 of the Damage Compensation Act. In section 3-5 it is further stipulated that a person who with intent or gross negligence has “... committed infringement or an act of misconduct as mentioned in section 3-3” may be ordered to pay to the victim such a lump sum as the court deems would constitute reasonable compensation for the pain and suffering and other non-pecuniary caused thereby. Because [Ms C.] alleges that the applicant has been guilty of an aggravated act against her in respect of which he has been acquitted of criminal liability, it is required in the assessment of the evidence that on the balance of probabilities it is clearly probable [klar sannsynlighetsovervekt] that the act has taken place.", "This means that considerably more than ordinary probability is required, albeit not the same strength of evidence being required as for establishing that the perpetrator is guilty in a criminal case. [The applicant] and [Ms C.] spent the night from 7 to 8 August 2001 at SAS Radisson Hotel at Gardermoen. [...] On the basis of [Ms C.]’s evidence and the requirement of clear of probability on the balance of probabilities in order to fulfil the requirement of proof, the High Court finds it established for its decision on compensation that the applicant called her at her hotel room during the night with the pretext that he needed to borrow or to get some drinks as he himself had ‘gone dry’. [Ms C] was lying asleep when the telephone rang and was irritated about the disturbance, but she replied that he could come and get something from her mini-bar. Immediately thereafter he knocked on the door.", "[Ms C.] who was not wearing night clothes did not have the time to get dressed, but covered herself with her quilt, opened the door and let the applicant into the room. She could see that he was intoxicated. He went to the mini-bar and fetched something to drink, but instead of leaving he sat down on her bed and started talking. After a short time he began pulling her quilt in order to remove it. She asked him to leave, but he did not follow her suggestion.", "At a certain point in time he managed to get the quilt off her, but she managed to get up and put it around her again. [The applicant] continued to pull the quilt and drew her towards himself and also got himself undressed. In the end they were both in the bed. The High Court unanimously finds that on the balance of probabilities it is clearly probable that [the applicant] during this night had sexual intercourse with [Ms C.] and that this intercourse was not consensual on her part. As to the question whether the remaining conditions for making an award of compensation have been fulfilled, the High Court is divided in a majority and a minority.", "The majority [...] finds on the evidence that on the balance of probabilities it was clearly probable that [the applicant] understood that [Ms C.] did not want sexual relations with him, but nonetheless forced coitus upon her by exercising such a level of violence [vold] that the act could be accomplished. There was no question of serious use of violence [alvorlig voldsbruk], only of overpowering by holding [Ms C.]’s arms. Even though the victim had different alternatives for escaping the situation, which she for different reasons did not find that she could use, this does not alter the basic character of the act which was wilful violation by the use of violence [vold]. Against the background of the majority’s finding that it has been established that on the balance of probabilities it was clearly probable that [the applicant], by the use of violence [vold] has gained [tiltvunget seg] sexual intercourse with [Ms C.], the conditions for making an award of compensation have been fulfilled. [...] The minority, ..., has found that the conditions for ordering the accused to pay compensation have not been fulfilled.", "The minority does not find it has been made sufficiently probable that [the applicant] understood that the sexual intercourse was not consensual on [Ms C.]’s part or displayed gross negligence in this respect.” 10. On 12 May 2004, on the basis of the High Court’s judgment, the applicant’s appeal within the company against his dismissal from his job as a pilot for British Airways was refused. 11. The applicant appealed to the Supreme Court against the High Court’s procedure, assessment of evidence and application of the law. The appeal on the latter point was on the ground that, contrary to Article 6 § 2 of the Convention, the High Court had failed in its judgment to make it sufficiently clear that the order to pay compensation did not affect his acquittal of the charges.", "By a decision of 9 October 2003 the Appeals Selection Committee of the Supreme Court granted leave to appeal with respect to this ground of appeal, while refusing such leave for the remainder. 12. In support of his appeal against the High Court’s application of the law, the applicant argued, inter alia the following. For a judgment awarding compensation to be rendered after an acquittal, there was a requirement under the European Court’s case law relating to Article 6 § 2 of the Convention that the reasoning stated in the judgement be worded in such a way as not to cast doubt on the correctness of the acquittal. This entailed firstly that the judgment must make a clear distinction between the acquittal on the criminal charge and the decision on compensation.", "It ought to be made clear that the subject-matter for the two issues, respectively criminal and civil liability, are different and that the award of compensation did not weaken the acquittal. In this case, the High Court had failed to create the necessary distance between the two issues, since the reasoning in the judgment went on immediately thereafter to deal with the subject of compensation. Moreover, no express reservation had been stated with regard to the acquittal. Furthermore, the applicant argued, it was necessary to avoid the use of formulations that might serve to raise doubts about the acquittal. In several places, the High Court had used such formulations, including the expressions “guilty”, “the use of force” and “sexual intercourse by force”.", "This came so close to establishing that the conditions for criminal sexual assault had been fulfilled that the presumption of innocence must be deemed to have been violated. Extra care ought to be exercised when formulating the reasoning in a judgment where the questions of criminal liability and civil liability to pay compensation are decided in the same case. In this connection the applicant relied on the Court’s judgment of 11 February 2003 in Y. v. Norway (no. 56568/00, ECHR 2003‑II). The applicant, again referring to the aforementioned Y v. Norway judgment and also to Article 13 of the Convention, submitted that, if the Supreme Court were to find a breach of the Convention in the present case, it would have to quash the lower court’s judgment.", "Where a decision suffered from such defects, due process required that there be an entirely fresh assessment of the evidence. If there was no basis for setting the impugned judgment aside, then at the very least a declaratory judgment ought to be rendered, stating a violation of the Convention. 13. On 24 February 2004 the Supreme Court unanimously rejected the applicant’s appeal against the High Court’s judgment on compensation, finding no breach of Article 6 § 2 of the Convention. The first voting judge, Ms Justice Stabel, gave the following reasons: (23) I have concluded that the reasons given by the High Court do not contravene the presumption of innocence in Article 6 § 2 of the Convention [...] and accordingly that the appeal will not succeed.", "[...] (25) With regard to the details of the provision applied in our case, it is in my view appropriate to base our assessment on the judgment rendered by the Supreme Court on 27 November 2003 in Case No. 2003/227. This judgment was rendered after the guiding judgments by the European Court of 11 February 2003 in Y. v. Norway [cited above] and Ringvold v. Norway [no. 34964/97, ECHR 2003‑II]. Reference is made to the thorough discussion of the decisions – and past case-law of the European Court – contained therein.", "Therein it is stated that Article 6 § 2 protects any person suspected of a criminal offence against any affirmations being made in court decisions on other statements by public authorities that he is guilty of a criminal offence, without his having been convicted in a criminal case. (26) It is accordingly clear – and undisputed – that it is not contrary to the presumption of innocence for a person who has been acquitted of a criminal charge to be ordered to pay compensation in a civil case, even if in terms of content the material facts upon which the claim for compensation is based correspond to the conditions for criminal liability. However, where a person who has been acquitted of a criminal charge is ordered to pay compensation, it is a requirement that the grounds on which the compensation order is based must not be formulated in such a way as to cast doubts over the correctness of the acquittal. Moreover, provided that the compensation order is not formulated in this way, Article 6 § 2 of the Convention [...] does not constitute an obstacle to the person acquitted of the criminal charge being ordered to pay compensation in the same case for the act to which the indictment related. (27) According to Article 3 of the Code of Criminal Procedure, ... a legal claim that the victim or other injured parties have against the accused may be adjudicated in the criminal case, provided that the claim derives from the same act as the criminal case.", "The possibility to review the claim for compensation in the criminal case has clear advantages from the point of view of procedural economy and saves the victim from the financial and emotional burden of undergoing two trials. The evidentiary requirements in civil actions are less stringent than those that apply in criminal cases. An unavoidable consequence of this is that a person who has been acquitted of a criminal charge may be ordered to pay compensation in the same case, based on the finding that he committed the act in respect of which s/he had been acquitted. In order to enable this without creating doubts about the acquittal, strict requirements should apply to the reasoning contained in the judgment awarding compensation. (28) The ground for the appeal is that the reasons given in the High Court’s judgment on this point violated the presumption of innocence.", "In its judgment of 27 November 2003, the Supreme Court found that an appeal lodged on this basis must be regarded as an appeal on the ground of procedural error. This too is my finding. (29) Under Article 144(4) of the Code of Civil Procedure, the reasoning in a judgment in a civil case must ‘state precisely and exhaustively the facts on which the Court bases its decision ...’. In our case the basis for compensation for pecuniary and non-pecuniary damage is sections 3-3 and 3-5(1)(b)of the Damage Compensation Act 1969. It is a condition in both of these provisions that the tortfeasor has inflicted on the victim a violation of the type provided for in Article 192 of the Criminal Code.", "The court must therefore make it clear that it has found proven a fact which from an objective point of view constitutes a breach of this provision. The subjective conditions for liability also coincide to some extent, namely that compensation for pecuniary and non-pecuniary damage requires intent or gross negligence and that Article 192 (4) of the Criminal Code also makes sexual assault by gross negligence a criminal offence. (30) Given the manner the conditions for compensation have been formulated, it is not possible to avoid coming close to a criminal- law assessment. In order to do this, without casting doubt on the acquittal, the court must in my view take as a starting point what inter alia distinguishes the legal consequences, i.e. the requirement of proof that the conditions have been fulfilled.", "The finding that, in objective terms, a breach of Article 192 has occurred cannot be avoided. The same applies to the subjective conditions for compensation. What must be avoided is casting doubt over the correctness of the acquittal, in view of the strict evidentiary requirements that apply in criminal cases. (31) The High Court opens the section of the judgment in which the compensation issue is decided by stating that notwithstanding the acquittal of [the applicant], under Norwegian law [Ms C.] has not forfeited her right to claim compensation for pecuniary and non-pecuniary damage under the rules on civil compensation for the tortuous act which she says has taken place. The Court continues: ‘Because other and weaker requirements of proof apply for establishing that an act has occurred under the civil law on tort than when there is question of imposing criminal liability for the same act, an award of compensation for pecuniary/non-pecuniary damage would not in itself amount to setting aside the acquittal.’ (32) The defence has argued that the interjection ‘in itself’ constitutes a reservation that opens the way for the conclusion that doubt is cast on the judgment.", "I do not agree with this, nor that the High Court, when providing in a subsequent paragraph a further description of the evidentiary requirements, refers to [Ms C.]’s claim that [the applicant] was ‘guilty’ of an aggravated act towards her for which he has been acquitted in terms of criminal law. The expression ‘guilty’, which in fact was a quote from [Ms C.]’s submissions, must be viewed with reference to the evidentiary requirements applicable in compensation cases of this nature and to the other conditions. (33) After having outlined the chain of events that it has found established, the High Court concluded that ‘it is clear on the balance of probabilities that on this night [the applicant] had sexual intercourse with [Ms C.] and that this intercourse was not voluntary on her part’. This cannot in my view be regarded as an attack on the acquittal. Nor does it go any further than what is necessary in order to establish that the conditions for compensation are present.", "The same applies when the majority of the High Court states that on the balance of probabilities it was clearly probable that [the applicant] realised that [Ms C.] did not want sexual intercourse with him and that ‘[the applicant] by the use of violence has gained sexual intercourse with [Ms C.].’ (34) To sum up, I note that the High Court provided a clear account of the differences between the evidentiary requirements for punishment and those applicable to compensation. Moreover, the assessment of the conditions for compensation took place on an independent basis without any reference to the indictment or the written list of questions put to the jury. Furthermore, as I have already noted, I do not find that expressions of a typically criminal- law character were used. Factors of this nature were found to be decisive when the Supreme Court ruled on 27 November 2003 that the presumption of innocence had been violated in that case, see paragraphs 36 and 38 of the decision. In our case, I am accordingly of the view that the High Court marked the necessary distance to the criminal case and that it did not cast doubt on the acquittal in other ways.", "(35) I have concluded on this basis that the appeal must be rejected.” The four other judges agreed with the first voting judge “in the main and the conclusion”. 14. The applicant has submitted a letter of 20 October 2004 from the Compensation Office for Victims of Violent Crime (Kontoret for voldsoffererstatning). It states that by a decision of 24 May 2004 the Office had granted Ms C. NOK 182,313 in compensation, “having found it shown on the balance of probabilities it was clearly probable that she had been inflicted personal injury as a result of a criminal act.” It further notified the applicant that the Office might seek restitution of NOK 124,000 from him. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 15. In so far as relevant, Article 192(1) and (2) of the Penal Code read: “Any person who a) engages in sexual activity by means of violence or threats, [...] shall be guilty of rape and liable to imprisonment for a term not exceeding 10 years. In deciding whether the offender made use of violence or threats or whether the aggrieved person was incapable of resisting the act, importance shall be attached to whether the aggrieved person was under 14 years of age. A penalty of imprisonment for not less than two years shall be imposed if a) the said activity was sexual intercourse, or [...] A person who, due to gross negligence, is guilty of rape according to the first paragraph above shall be punished with minimum five years’ imprisonment. ... ” 16.", "Under Norwegian criminal law there are four basic conditions that must be met in order to establish criminal liability: (1) the accused has committed the proscribed act or omission (actus reus) which is contrary to a provision of the Penal Code or to a special statutory penal provision in force at the time when the act was committed; (2) there are no exonerating circumstances (e.g. self-defence); (3) the accused has acted with intent (mens rea), unless otherwise expressly stated in the relevant penal provision; and (4) the accused was of sound mind at the time of the commission of the offence. As a general rule, the prosecution has to prove these four elements beyond reasonable doubt. Any reasonable doubt shall benefit the accused (in dubio pro reo). 17.", "In so far as is relevant, Article 376A of the Code of Criminal Procedure reads: “If the jury’s verdict is that the person is not guilty, but the court finds that he is undoubtedly guilty, the court may unanimously decide that the case shall be retried before other judges. At the new trial the High Court shall be constituted as a composite court (meddomsrett)...” 18. Article 376 of the same Code provides: “If the jury’s verdict is that the accused is not guilty and if the court does not take a decision pursuant to Article 376A, it shall render a judgement of acquittal.” No reasons are given for an acquittal. 19. Under the Code of Criminal Procedure 1981, a civil claim may be pursued in connection with a criminal trial, provided that the claim arises from the same set of facts.", "The claim is decided by the three professional judges who have taken part in the criminal case, without the participation of the jury. Article 3 reads: “Any legal claim that the aggrieved person or any other injured person has against the person charged may, in accordance with the provisions of Chapter 29, be pursued in connection with such cases as are mentioned in Article 1 or Article 2, provided that the said claim arises from the same act that the case is concerned with... The claims specified in the first and second paragraphs are deemed to be civil claims and shall be dealt with in accordance with the provisions of Chapter 29...”. 20. The court will determine the claim on the basis of the evidence adduced during the trial.", "However, it may receive further evidence. Article 144 of the Code of Civil Procedure, then in force, (tvistemålsloven- Law of 13 August 1915 no. 6; replaced with effect from 1 January 2008 by a new Code) required that the professional judges, precisely and exhaustively, state the facts on which they base their decision on the alleged victim’s civil claim. 21. Other provisions concerning civil compensation claims may be found in Chapter 29 of the Code of Criminal Procedure, notably the following: Article 427 “In a public prosecution, the prosecuting authority may on application pursue such civil legal claims as are specified in Article 3.", "... When civil claims are pursued against a person other than the person charged, the person concerned assumes the position of a party to the case in so far as this issue is concerned. ...” Article 428 “Any person who has any such civil claim as is specified in Article 3 may himself pursue it in connection with a public prosecution if a main hearing is held. ...” Article 435 “A separate appeal against a decision of civil claims shall be brought in accordance with the provisions of the Code of Civil Procedure. The same shall apply to a reopening of the case.” 22.", "Under the Damage Compensation Act 1969, the alleged victim may, regardless of the outcome of the criminal proceedings, claim compensation for pecuniary and non-pecuniary damage. Section 3-5, as in force at the relevant time, read as follows: “Anyone who, with intent or gross negligence has a. Caused personal injury or b. Committed an infringement or an act of misconduct as mentioned in section 3‑3, may ... be obliged to pay the victim such a lump sum as the court deems would constitute reasonable compensation (oppreisning) for the pain and suffering and other non-pecuniary damage caused thereby. ... A person who with intent or gross negligence has caused the death of another person, may be ordered to pay such compensation to the deceased’s ... parents.” 23.", "Section 3-3, referred to in the above provision, expressly applies to misconduct mentioned in, amongst others, Article 192 of the Penal Code. 24. A claim for compensation for non‑pecuniary damage submitted by a victim under section 3-5 of the Act is subject to his or her showing that the alleged perpetrator, with intent or gross negligence, committed the wrongful act. The test is normally the balance of probabilities and the burden of proof lies with the claimant. However, in a landmark ruling of 1996 concerning civil liability for forced sexual intercourse (Norsk Retstidende 1996, p. 864, at p. 876; Ringvold v. Norway, no.", "34964/97, §§ 16-19, ECHR 2003‑II) the Norwegian Supreme Court held that the requirement as to the strength of the evidence had to be stricter than that which applied to the test of the balance of probabilities, bearing in mind the burden which an allegation of reprehensible conduct might have for the defendant and the serious consequences it might have for his or her reputation. In a case of the kind under consideration, the test had to be whether on the balance of probabilities it was clearly probable that the alleged abuse had been committed (“klar sannsynlighetsovervekt”). This burden was heavier where liability may have serious consequences for the respondent’s reputation, though it was less than for criminal liability. 25. The objective constitutive elements of acts which may give rise to both criminal liability and civil liability to pay compensation are not always the same.", "The subjective constitutive elements in principle differ: normally criminal liability requires intent whereas liability to pay compensation requires gross or simple negligence. There may be exonerating circumstances – such as self-defence, necessity, provocation or ignorance – which exclude criminal liability but which do not exclude liability to pay compensation (see Norges Offentlige Utredninger (Official Norwegian Report) 2000:33 “Erstatning til ofrene hvor tiltalte frifinnes for straff” (Compensation to Victims in Cases where the Accused has been Acquitted of the Criminal Charge), study by Mr J. T. Johnsen, Professor of Law, Chapter 1, sub-chapter 1.3.2). 26. The purposes of the criminal law and the law on compensation are not identical. While deterrence and restoration are important considerations in both areas of law, the former places emphasis on retribution and the latter on the spreading of financial loss.", "The two systems also supplement one another in important respects. While criminal law sanctions are particularly designed to deter the actual and potential offenders from committing offences, those of the law of compensation are particularly designed to meet the aggrieved person’s need for economic redress (ibid., Chapter 1, sub‑chapter 1.2.1). 27. The above-mentioned study identified several justifications for maintaining the possibility to award compensation in connection with criminal proceedings even after an acquittal. It may serve the interests of economy of procedure and also psychological stress may be saved by treating criminal charges and compensation claims in joint proceedings.", "In comparison with civil proceedings, such joint proceedings were cheap both for the accused and for the victim who would be able to benefit from free legal aid for the handling of the civil claims. If the compensation proceedings had to await a final outcome in the criminal case (at three levels of jurisdiction), it could take years before they could start. For the victim, and also for the acquitted, this could involve a considerable extra psychological burden. Moreover, in joint proceedings, the demands for thoroughness that were inherent in the criminal process would contribute to increasing the quality of the examination of the civil claim. Furthermore, the exonerating effect of an acquittal was not likely to be greater in split proceedings than in joint ones.", "On the contrary, in view of the problems related to examining the criminal evidence twice, the effect would tend to be more consistent under the latter. Finally, in criminal cases giving rise to more than one civil claim, deciding them all at the same time in connection with the criminal process would ensure a greater degree of “procedural equality” and coherence (ibidem, Chapter 6, sub-chapter 6.3.1 and 6.3.2). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 28. The applicant complained that the High Court’s judgment awarding Ms C. compensation entailed a violation of his right under Article 6 § 2 of the Convention to be presumed innocent until proven guilty of the commission of an offence.", "This provision reads: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 29. The Government invited the Court to declare the application inadmissible and, in any event, to find that Article 6 § 2 was inapplicable and not violated in the instant case. A. Admissibility 30. In connection with his above-mentioned complaint, the applicant submitted that the letter of 20 October 2004 from the Compensation Office for Victims of Violent Crime (see paragraph 14 above) should be seen as an inseparable part of the compensation proceedings or could be seen as part of the enforcement of the High Court’s judgment. 31.", "The Government argued that this part of the application was flawed in substance as this was a separate compensation scheme based on an independent assessment by the Office under the Compensation for Victims of Violent Crime Act 2001. A decision by the Office could be appealed to the Compensation Board for Victims of Violent Crime and a decision by the latter could be challenged before the courts according to Article 435 § 1 of the Code of Civil Procedure. This arrangement should not to be confused with criminal proceedings in the present case. The Government requested the Court to declare this part of the application inadmissible for failure to exhaust domestic remedies. 32.", "As to the remainder of the application, the Government invited the Court to declare it inadmissible as being manifestly ill-founded. 33. The Court considers that, in so far as the applicant complains about the notice of 20 October 2004 from the Compensation Office for Victims of Violent Crime, this appears to constitute a separate matter in respect of which he has not exhausted domestic remedies. 34. As regards the remainder of the application the Court considers that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds.", "This part of the application must therefore be declared admissible. B. Merits 1. The parties’ submissions (i) The applicant 35. The applicant submitted there where clear links between the criminal case and the compensation claim.", "He argued that it is relevant to the applicability of Article 6 § 2 that criminal and victim compensation proceedings were joined. The links created between the criminal case and the compensation claim led to the conclusion that Article 6 § 2 applied to the compensation claim as well. 36. In Norway, the constitutive elements of non-pecuniary compensation for rape were identical to the preconditions for criminal liability for rape. By virtue of section 3-5 of the Damage Compensation Act 1969, a person was entitled to non- pecuniary compensation if he or she could prove the commission of a criminal offence under Article 192 of the Penal Code by wilful or grossly negligent conduct.", "Equally criminal liability for the offence under section 192 required proof of wilful or grossly negligent conduct. 37. In the applicant’s opinion, the High Court did expressly and in substance state that all the conditions for criminal liability had been fulfilled on a clear preponderance of probabilities. Even the Supreme Court had made it clear that the objective and subjective constituent elements for criminal and pecuniary and non-pecuniary civil liability for rape were co‑extensive in the applicant’s case. In this connection he referred to paragraphs 29 to 30 of the Supreme Court’s judgment quoted above.", "38. The applicant was of the view that there were clear links between the criminal acquittal and the reasons in the compensation proceedings, in terms of the same issues, evidence, judges, parties and judgment, in terms of statutory and judicial reference to the positive fulfilment of the conditions for criminal liability, and in terms of time, so as to justify the application of Article 6 § 2 to the latter proceedings. In the circumstances, the High Court had faced the impossible task of seeking to reconcile its compensation reasoning with the criminal acquittal that immediately preceded it, without substantially casting doubt on that criminal acquittal. In the applicant’s opinion, the High Court should not have sought to determine civil liability in the face of the criminal acquittal but should have left that issue to be determined by a separate civil court, at which Article 6 § 2 would not necessarily have applied. 39.", "The High Court had determined criminal and civil liability in the same judgment and appeared to have come to contradictory conclusions on the objective constituent elements and on the subjective constituent element of guilt, thereby giving rise to an issue under Article 6 § 2. The particular aspect of the High Court’s reasoning that had given rise to an issue under the Convention was the majority’s finding that \"on the evidence there was a clear preponderance of probability that [the applicant] understood that [Ms C.] did not want sexual relations with him, but nonetheless forced coitus upon her by exercising such a level of force/ violence that the act could be accomplished ... the basic nature of the act was wilful violation by the application of violence\". Such a finding of intention and bad faith, on the basis of the same evidence and co-extensive objective constituent elements, clearly cast doubt on the acquittal declared by the same court. 40. The applicant submitted that there was no real difference between the standard of proof applied in the criminal case and that applied in the compensation claim.", "Proof beyond reasonable doubt, in whatever form of words expressed, was one standard. Proof on a preponderance of probability was another, lower standard. If there was a third standard of a \"clear preponderance of probabilities\", it was necessary to identify what the standard was and when it applied. The reality was that the standard of proof applied in the compensation claim appeared to be proof to the criminal standard. 41.", "Even if the standard applied was lower than the criminal standard, such a heightened civil standard of proof was incapable of sufficiently distinguishing between criminal and civil liability so as to avoid casting doubt on the acquittal, because the proceedings were joined and the objective and subjective constituent elements of liability were identical for criminal and civil liability. (ii) The Government 42. Initially, the Government pointed out that, in its judgments in Y v. Norway and Ringvold v. Norway (both cited above), the Court had formulated the test to be applied in this type of cases under Article 6 § 2. In the Government’s opinion, the High Court and also the Supreme Court had correctly applied that test in the applicant’s case. In their view, the present case could not be distinguished from other comparable cases in which the Court had found no violation or had declared the application inadmissible as being manifestly ill-founded.", "In its judgment, when read as a whole, the High Court had left no doubt as to the meaning of the judges’ reasoning on the compensation issue and thus complied with the requirements set forth in the Court’s case law. 43. The Government pointed out that while an acquittal from criminal liability ought to be maintained in ensuing civil proceedings, it did not preclude the establishment of civil liability, based on a less strict burden of proof. Furthermore, no issue had arisen under Article 6 § 2 because civil liability had been established in joint proceedings with a criminal case that had resulted in an acquittal. The same system as in Norway had been established in several other states.", "44. The Government underlined that although the objective and subjective conditions for criminal liability and civil liability to a certain degree could overlap, there were nevertheless important differences between the basic conditions for establishing criminal liability and civil liability. Moreover, the purposes of the criminal law and the law on compensation were unlike. Also, the burden of proof required in civil cases, such as the present, was less strong then the burden of proof required in criminal cases, albeit it was somewhat stronger then the ordinary balance of probabilities that applied in civil cases, in order to safeguard the defendant’s reputation. The Court had accepted this burden of proof in previous cases against Norway.", "45. The High Court in the present case had acted under its obligation to give precise and exhaustive reasons in civil judgments. It had refrained from imputing criminal liability to the applicant with regard to the charges of rape in the ensuing compensation proceedings. In the view of the Government, the High Court distinguished sufficiently clearly between criminal and civil liability, so as not to create a link between the cases. 46.", "Thus, the Government could not agree with the applicant’s submission that the High Court appeared to have come to contradictory conclusions on the matter of criminal liability and civil liability. 2. The Court’s assessment 47. The Court will examine the applicant’s complaint in the light of the principles enunciated in its case-law (see Ringvold v. Norway, no. 34964/97, § 36, ECHR 2003‑II; and Y. v. Norway, no.", "56568/00, § 39 ECHR 2003‑II (extracts) and its application of those principles in those cases (see respectively at paragraphs 37-42 and 40-47 of the said judgments). These principles were reiterated in Pamela Kay Reeves v. Norway (dec.) no. 4248/02, 08.07.2004; and Tommy Lundkvist v. Sweden (dec.) 48518/99, 13.11.2003. Accordingly, it will examine whether the compensation proceedings in this case gave rise to a “criminal charge” against the applicant and, in the event that this was not the case, whether the compensation case nevertheless was linked to the criminal trial in such a way as to fall within the scope of Article 6 § 2. 48.", "Turning to the first of the criteria for establishing whether there was a “criminal charge”, namely the classification of the proceedings under national law, the Court notes that the High Court’s decision to award compensation had its legal basis in Chapter 3 of the Damage Compensation Act 1969, which sets out the general principles of the national law on torts applicable to personal injuries. It is clear from both the wording of Article 3-5 and Norwegian case-law that criminal liability is not a prerequisite for liability to pay compensation. Even where, as here, the victim had opted for joining the compensation claim to the criminal trial, pursuant to Article 3 of the Code of Criminal Procedure, the claim would still be considered a “civil” one. Thus the Court finds that the compensation claim was not viewed as a “criminal charge” under the relevant national law (see Y., cited above, § 40). 49.", "As regards the second and third criteria, the nature of the proceedings and the type and severity of the “penalty”, the Court considers that the following considerations relied on in its Ringvold judgment (§ 38, see also the Y. judgment at § 41 and Reeves and Lundkvist, all cited above) are relevant to the compensation decision in the instant case: “...[T]he Court observes that, while the conditions for civil liability could in certain respects overlap, depending on the circumstances, with those for criminal liability, the civil claim was nevertheless to be determined on the basis of the principles that were proper to the civil law of tort. The outcome of the criminal proceedings was not decisive for the compensation case. The victim had a right to claim compensation regardless of whether the defendant was convicted or, as here, acquitted, and the compensation issue was to be the subject of a separate legal assessment based on criteria and evidentiary standards which in several important respects differed from those that applied to criminal liability. .... In the view of the Court, the fact that an act that may give rise to a civil compensation claim under the law of tort is also covered by the objective constitutive elements of a criminal offence cannot, notwithstanding its gravity, provide a sufficient ground for regarding the person allegedly responsible for the act in the context of a tort case as being ‘charged with a criminal offence’.", "Nor can the fact that evidence from the criminal trial is used to determine the civil-law consequences of the act warrant such a characterisation. Otherwise, as rightly pointed out by the Government, Article 6 § 2 would give a criminal acquittal the undesirable effect of pre-empting the victim’s possibilities of claiming compensation under the civil law of tort, entailing an arbitrary and disproportionate limitation on his or her right of access to a court under Article 6 § 1 of the Convention. This again could give a person who was acquitted of a criminal offence but would be considered liable according to the civil burden of proof the undue advantage of avoiding any responsibility for his or her actions. Such an extensive interpretation would not be supported either by the wording of Article 6 § 2 or any common ground in the national legal systems within the Convention community. On the contrary, in a significant number of Contracting States, an acquittal does not preclude the establishment of civil liability in relation to the same facts.", "Thus, the Court considers that, while exoneration from criminal liability ought to stand in the compensation proceedings, it should not preclude the establishment of civil liability to pay compensation arising out of the same facts on the basis of a less strict burden of proof (see, mutatis mutandis, X v. Austria, no. 9295/81, Commission decision of 6 October 1982, Decisions and Reports (DR) 30, p. 227, and C. v. the United Kingdom, no. 11882/85, Commission decision of 7 October 1987, DR 54, p. 162). If the national decision on compensation were to contain a statement imputing criminal liability to the respondent party, this would raise an issue falling within the ambit of Article 6 § 2 of the Convention.” C. Violation of Article 6 § 2 50. The fact that the High Court dealt with the compensation issue in the same judgment as the criminal charges was a natural consequence of the fact that the two matters had been pursued in the course of the same proceedings.", "This could not of itself bring the compensation issue within the ambit of Article 6 § 2 (see Y. and Reeves, both cited above). 51. However, the Court notes that, in its reasoning on compensation, the High Court majority based its finding that the applicant was liable to pay compensation to Ms C. on a description of the facts giving details of such matters as the nature of the sexual contact, the applicant’s awareness of the absence of consent by Ms C., the degree of “violence” (“vold”) used by him to accomplish the act and his intent in this respect. In other words, it covered practically all those constitutive elements, objective as well as subjective, that would normally amount to the criminal offence of rape under Article 192 of the Penal Code. It is true that, as stated in the case-law quoted above, an acquittal from criminal liability does not bar a national court from finding, on the basis of a less strict burden of proof, civil liability to pay compensation in relation to the same facts.", "However, the Court considers that, although the concept of “violence” may not have been exclusively criminal in nature, the use made of it by the High Court in the particular context did confer criminal law features on its reasoning overstepping the bonds of the civil forum (see Y., cited above, § 46). 52. The Court is mindful of the fact that in two clearly distinct parts of its judgment, the High Court dealt respectively with the criminal charges against the applicant, ending in a conclusion of acquittal (a non-guilty verdict by the jury approved by the professional judges), and with the compensation claim made by Ms C., in respect of which it ordered the applicant to pay her compensation. In several places in the compensation part the High Court highlighted that the standard for civil liability to pay compensation was less strict than that for criminal liability. 53.", "However, the Court is not convinced that, even if presented together with such cautionary statements, the impugned reasoning did not “set aside” the applicant’s acquittal or “cast doubt on the correctness of the acquittal” (see respectively Ringvold, § 38, and Y., § 46, both cited above). 54. These shortcomings were not rectified on appeal to the Supreme Court, which upheld the High Court’s reasoning as being consistent with the presumption of innocence under Article 6 § 2 of the Convention (see Y., cited above, § 45). 55. Accordingly, the Court finds that Article 6 § 2 was applicable to the proceedings relating to the compensation claim against the applicant and that this provision was violated in the present case (see Y, cited above, § 47).", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 56. 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 57. The applicant sought (1) “the quashing of the decision of the Eidsivating High Court awarding compensation against the applicant”.", "He further requested (2) sums totalling 61,657.53 pounds sterling (GBP)(approximately 82,000 euros (EUR)) in compensation for pecuniary damage for financial loss which he, because of the High Court judgment, had suffered on the labour market from 14 May 2003, when he had been dismissed from his job in British Airways, until 16 December 2004, when he had obtained a reasonably comparable job with another airline company. This amount included GBP 29,638.96 for loss of earnings in respect of 13 months pay (after deduction of his earnings during that period in other non-comparable jobs), GBP 803.36 in costs for flight simulator training and GBP 28,259.69 for the costs of retraining as a pilot. 58. The applicant in addition requested (3) EUR 30,000 Euros in compensation for non-pecuniary damage. 59.", "The Government did not offer any comments on the above claims. 60. As regards item (1) the Court is not empowered under the Convention to “quash” the High Court’s judgment. In any event, in so far as the applicant’ s claim can be understood as a request for compensation of the award that he was ordered to pay Ms C., the Court does not discern any causal link between the violation found and the pecuniary damage alleged. It cannot speculate on what the outcome before the High Court would have been had its reasoning not violated Article 6 § 2 of the Convention.", "It therefore rejects this claim. For the same reasons, the Court rejects item (2). On the other hand, as regard item (3), it awards the applicant EUR 10,000 in respect of non-pecuniary damage, to be converted into GBP at the rate applicable on the date of settlement. B. Costs and expenses 61.", "The applicant did not make any claim for the reimbursement of legal costs for his legal representation before the national courts and the European Court. On the other hand he claimed GBP 122.20 for translation costs incurred before latter. 62. The Government did not offer any comments on the above claim. 63.", "The Court awards the sum of EUR 160 under this head, to be converted into GBP at the rate applicable on the date of settlement. C. Default interest 64. 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 1. Declares unanimously the complaint that the High Court’s judgment awarding Ms C. compensation entailed a violation of Article 6 § 2 of the Convention admissible and the remainder of the application inadmissible; 2.", "Holds by 4 votes to 3 that there has been a violation of Article 6 § 2 of the Convention; 3. 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 10, 000 (ten thousand Euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, and EUR 160 (one hundred and sixty Euros) for costs and expenses, to be converted into GBP 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[s] at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 15 May 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachChristos RozakisDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following opinions are annexed to this judgment: (a) concurring opinion of Mr Malinverni; (b) dissenting opinion of Mr Jebens; (c) dissenting opinion of Mr Nicolaou joined by Mrs Vajić.", "C.R. A.W. CONCURRING OPINION OF JUDGE MALINVERNI (Translation) I voted with the majority in finding a violation of Article 6 § 2 of the Convention and I agree with all the arguments in favour of that conclusion, as set out in paragraphs 51 to 55 of the judgment. I should like, however, to add the following considerations. While this rule is valid in many situations, I am not persuaded that it can be applied in the present case.", "Admittedly, as the High Court majority affirmed, “other and weaker requirements of proof apply for establishing that an act has occurred under the civil law on tort than when there is question of imposing criminal liability for the same act” (see paragraph 9 of the judgment). However, whilst recognising this, can one and the same court reach such seemingly contradictory conclusions where it rules as a criminal court on the one hand, and as a civil court on the other? I am not convinced, given that the two conclusions reached by the High Court appear so mutually incompatible. DISSENTING OPINION OF JUDGE JEBENS I respectfully disagree with the majority’s finding that Article 6 § 2 was applicable in this case. Consequently, I also disagree that the applicant’s right to be presumed innocent has been violated.", "It follows from the Court’s case law, especially Ringvold and Y. (both cited in paragraph 47 of the judgment), that the questions of applicability and compliance with Article 6 § 2 are closely intertwined in cases concerning criminal acquittal and subsequent civil liability for the same acts. In the following, I will discuss the relevant factors which have been developed in the Court’s case law with respect to the scope of Article 6 § 2 in such situations and apply them to the present case. In the instant case the impugned act in respect of which the applicant was found liable to pay civil compensation was covered essentially by the same objective constitutive elements as the criminal offence of rape set out in Article 192(1) and (2) of the Penal Code (see paragraph 15 of the judgment). There was also an overlap with regard to the subjective constitutive elements in that the establishment of either intent or gross negligence on the part of the perpetrator of the act was a prerequisite both for criminal liability and civil liability to pay compensation.", "However, there were important differences. First of all, the standard of proof that applied in view of the particular seriousness of the act in question (“whether on the balance of probabilities it was clearly probable that the alleged abuse had been committed”), was less strict than the criminal standard of proof beyond reasonable doubt (see paragraph 24 of the judgment). As stated in the case-law quoted in paragraph 49 of the judgment, an acquittal from criminal liability does not bar a national court from finding, on the basis of a less strict burden of proof, civil liability to pay compensation in relation to the same facts. This is necessary in order to safeguard the interests of the victim, namely to avoid to place him or her in a worse position with regard to compensation than injured persons in non-criminal cases. It also follows from the victim’s right of access to a court, which the Court has included in the “fair trial” guarantee in Article 6 § 1.", "Secondly, but equally important, I discern no element in the High Court’s description of the facts in respect of which it found the applicant liable to pay compensation, or in its assessment of those facts, that amounted to the establishment of criminal guilt on his part. The High Court was obliged to discuss factual questions which were relevant for whether or not to hold the applicant civilly responsible, and to describe its findings in the judgment, regardless of whether they coincided with the elements that constituted an offence according to the Criminal Code. As observed by the Supreme Court, no expressions of a typically criminal-law character had been used by the High Court, and there was also no reference to the indictment or the questions to the jury in the criminal case (cf. Y, cited in paragraph 47 of the judgment, § 44). At no point did the High Court’s description of the facts or its reasoning in my opinion go beyond what was necessary in order to present sufficient grounds for establishing civil liability, according to Article 144 of the Code of Civil Procedure, which was then applicable, and also Article 6 § 1 of the Convention.", "The fact that the High Court dealt with the compensation issue in the same judgment as the criminal charges could, according to the Court’s case-law, not of itself bring the compensation issue within the ambit of Article 6 § 2 (see Reeves and also Y., both cited in paragraph 47 of the judgment, where this factor did not lead the Court to find a violation). In this respect, reference is also made to the arguments that might be adduced in favour of maintaining such an arrangement of joint proceedings in Norwegian law (see paragraph 27 of the judgment). Furthermore, in two clearly distinct parts of its judgment, the High Court dealt respectively with the criminal charges against the applicant, ending in a conclusion of acquittal (a non-guilty verdict by the jury approved by the professional judges), and with the compensation claim made by Ms C., in respect of which it ordered the applicant to pay her compensation. In several places in the compensation part the High Court highlighted that civil liability to pay compensation was different from criminal liability. Furthermore, it is significant that the purpose of establishing civil liability to pay compensation was quite different from that of establishing criminal liability, namely primarily to remedy the injury and suffering caused to the victim (see paragraph 26 above).", "Neither the purpose of the award nor its size – NOK 99,000 (NOK 74,000 and NOK 25,000 for respectively pecuniary and non-pecuniary damage), equivalent to EUR 12,500 - conferred on the measure the character of a penal sanction for the purposes of Article 6 § 2 (see Ringvold, § 39; see also Reeves and Lundkvist, all cited in paragraph 47 of the judgment). Against this background, I do not agree with the applicant’s various submissions that the High Court, in the compensation part, established criminal liability anew. The High Court neither stated nor implied that the applicant was criminally responsible for the offences of which he had been acquitted. It cannot be said that the decision and reasoning on compensation were incompatible with, and “set aside” or “cast doubt on the correctness of the acquittal” (see respectively Ringvold § 38, and Y. § 46 and also Reeves and Lundkvist, Ibidem).", "As to the further question of whether there were links between the criminal case and the ensuing compensation case such as to justify extending the scope of the application of Article 6 § 2 to the latter, I reiterate that the outcome of the criminal proceedings was not decisive for the compensation issue. In the case at hand, the situation was reversed: despite the applicant’s acquittal it was legally feasible to award compensation. Regardless of the conclusion reached in the criminal trial against the applicant, the compensation case was therefore not a direct sequel to the former or a consequence and concomitant of it (see Ringvold, § 41; and Lundkvist; cf. Reeves, Ibidem). Summing up, in my opinion, the High Court dealt with the question of “criminal acquittal and civil liability” in a manner which fully complied with the requirements in Article 6 § 2, and the Supreme Court loyally applied the criteria developed in the Court’s case law when deciding the appeal.", "As stated above, I see no reason why our court should arrive at different findings than those made by the national courts in this case. DISSENTING OPINION OF JUDGE NICOLAOUJOINED BY JUDGE VAJIĆ My own view that there has been no violation of Article 6 § 2 of the Convention may perhaps be better explained, in this very simple case, by a short re-statement of the salient facts. The applicant was convicted on a charge of rape and sentenced to a term of imprisonment. Further, a civil claim based on the same facts and pursued by the complainant in connection with the criminal trial, according to Norwegian law, resulted in a compensation order against him. On appeal by the applicant, a re-hearing took place before the High Court consisting of a panel of three judges sitting with a jury.", "A verdict of not guilty was brought in by the jury and accepted by the judges. The applicant was therefore acquitted. The civil claim remained and the High Court then proceeded, in the same judgment, to consider whether it had been proved. Whereas criminal charges have to be proved beyond reasonable doubt, civil liability is established on the balance of probabilities depending on context. The same as in a number of other countries.", "Directing itself specifically on this matter, the High Court said that: “Despite the fact that [the applicant] has been acquitted of having, with intent or gross negligence, raped [Ms C.], under Norwegian law, she has not thereby lost her possibility to claim compensation under the civil law on tort for the harmful act that she claims has taken place. Because other and weaker requirements of proof apply for establishing that an act has occurred under the civil law on tort than when there is question of imposing criminal liability for the same act, an award of compensation for pecuniary/non-pecuniary damage would not in itself amount to setting aside the acquittal... Because [Ms C.] alleges that the applicant has been guilty of an aggravated act against her in respect of which he has been acquitted of criminal liability, it is required in the assessment of the evidence that on the balance of probabilities it is clearly probable [klar sannsynlighetsovervekt] that the act has taken place. This means that considerably more than ordinary probability is required, albeit not the same strength of evidence being required as for establishing that the perpetrator is guilty in a criminal case.” On that basis the High Court unanimously found that on the balance of probabilities it was clearly probable that sexual intercourse had taken place without the complainant’s consent. The unanimity extended no further. The majority went on to find, using the same standard of proof, that the applicant understood that the complainant had not consented and that he overcame her resistance by holding her arms.", "The crucial part of the judgment reads as follows: “The majority ..... finds on the evidence that, on the balance of probabilities, it was clearly probable that [ the applicant] understood that [Ms C.] did not want sexual relations with him, but nonetheless forced coitus upon her by exercising such a level of violence [vold] that the act could be accomplished. There was no question of serious use of violence [alvorlig voldsbruk], only of overpowering by holding [Ms C.]’s arms....Against the background of the majority’s finding that it has been established that on the balance of probabilities it was clearly probable that [the applicant], by the use of violence (vold) has gained [tiltvunget seg] sexual intercourse with [Ms C.], the conditions for making an award of compensation have been fulfilled..” The applicant appealed to the Supreme Court on the ground that the judgment on compensation violated the presumption of innocence laid down in Article 6 § 2 of the Convention. On 24 February 2004 the Supreme Court unanimously dismissed the appeal. In its judgment it adverted to every aspect of the case, including the principles involved. It referred especially to the guiding, as it called them, judgments of this Court in Y v. Norway, (no.", "56568/00, ECHR 2003‑II (extracts)) and Ringvold v. Norway, (no. 34964/97, ECHR 2003‑II), both decided a year earlier, in which it was held that both the procedural and the evidentiary parts of the Norwegian system were not incompatible with Article 6 § 2. Indeed, this system of redress for a civil wrong, where on the same facts the defendant has been acquitted of a criminal charge, was comprehensively reviewed in the above cases which relied, among others, on X v. Austria (dec.) no 2995/81, 6 October 1982 and M.C. v UK (dec.) no 11882/85, 7 October 1987. Those were Commission decisions that stated in no uncertain terms that the difference in the respective standards of proof constitutes a sufficient distinction between a criminal charge on which there has been an acquittal and a civil claim ‘arising out of the same events.’ The same principles were, shortly after Y. and Ringvold (cited above), applied in Lundkvist v. Sweden (dec.) no.", "48518/99, ECHR, 13 November 2003 and Reeves v. Norway (dec.) no. 4248/02, 8 July 2004. The majority in the present case has neither indicated a break, in some way, with past cases nor has it sought to qualify or develop any of the principles further. So the question is not now what view one takes of the system as such, for our case-law has confirmed that it is not tainted by any inherent systemic defect. The question is only whether the High Court was at fault in the language it used.", "In fact all the Norwegian cases finally turned on what the Court thought of the way that the national courts had expressed themselves in their decisions, the Court repeatedly saying that if a decision contained a “statement imputing criminal liability” that would raise an issue under Article 6 § 2. The case of Y. v. Norway (cited above) concerned a finding, on the matter of compensation, that it was clearly probable that the applicant “committed the offences”. Not surprisingly the Court found a violation. But not so in the other two cases even though in Reeves v. Norway (cited above) the impugned decision contained a finding directly connected with the indictment. The question being whether the fire of a house had been started deliberately or whether it was a mere accident, it was stated in the decision regarding civil liability that the defendant was “guilty of setting the fire as described in the indictment” when the defendant had already been acquitted on a criminal charge of arson.", "And yet the Court held that those words, read in context, left no doubt that they were meant to refer only to the question of compensation. In contrast, the decision complained of in the present case does not seem to me to contain anything that might, even remotely, hint at criminal responsibility. The Supreme Court in a meticulous judgment pointed out that since, under Norwegian law, a finding of civil liability had to be fully reasoned and since the act committed was one and the same, whether classified as criminal or as civil (reality being indivisible), civil liability could be differentiated from criminal only by reference to the respective standards of proof. That sounds of course familiar. It was what the Commission decisions had said in the cases I have already cited.", "The Supreme Court stressed in this regard the need for care, so that a judgment on civil liability should not in any way cast doubt on the acquittal. It concluded that: “...the High Court provided a clear account of the differences between the evidentiary requirements for punishment and those applicable to compensation... marked the necessary distance to the criminal case and... did not cast doubt on the acquittal in other ways”. I entirely agree. The views of the Supreme Court were, in my opinion, both pertinent and convincing and its conclusions were quite unavoidable. I regard its judgment as clearly right.", "I also can see no fault, either in substance or in form, in the way that the High Court had dealt with the matter. It is not without significance that the majority judgment in the present case does not contain details of any particular fault. It takes exception to the use by the High Court of the word ‘violence’ but it does not amplify on that in order to explain its view. In fact the High Court appears to have been alive to the risk of misunderstanding and so it circumscribed the use of the word by explaining that what it meant was that the applicant had forced the complainant to have sexual intercourse by holding her arms. I am quite unable to understand how that can be interpreted as signifying or imputing criminal liability.", "I do not know how the violence used could be described in milder terms even if it were necessary to avoid calling things by their proper names. The final general statement of the majority, in its judgment, that it is not convinced that “the impugned reasoning did not ‘set aside’ the applicant’s acquittal or ‘cast doubt on the correctness of the acquittal’” remains, as I read it, totally unexplained. The High Court had, obviously, to perform a delicate task. Being well aware of the pitfalls it managed, with the necessary precision and clarity, to steer clear of any imputation of criminal liability while, at the same time, giving a judgment that was fully reasoned as required by Norwegian law. In my opinion there has been no violation of Article 6 § 2." ]
[ "SECOND SECTION CASE OF ELECTRONSERVICE-NORD S.A. v. THE REPUBLIC OF MOLDOVA (Application no. 12918/12) JUDGMENT (Merits) STRASBOURG 2 July 2019 This judgment is final but it may be subject to editorial revision. In the case of Electronservice-Nord S.A. v. the Republic of Moldova, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Egidijus Kūris, President,Valeriu Griţco,Darian Pavli, judges,and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 11 June 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 12918/12) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 23 December 2011 by a company incorporated in Moldova, Electronservice-Nord S.A. (“the applicant company”).", "2. The applicant company was represented by Ms Pîrău, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol. 3. The applicant company alleged, in particular, that a final judgment in its favour had been quashed as a result of it having been revised in an abuse of process.", "4. On 27 June 2012 notice of the application was given to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. Following judicial proceedings which ended with a final judgment of the Bălţi Court of Appeal of 8 December 2009, the applicant company obtained a final ruling obliging the Cadastral Authority to register immovable property privatised by it in 1999 and in 2004 in its name.", "6. On an unspecified date the defendant in the proceedings lodged a request for a review of the judgment of 8 December 2009, seeking its annulment on the grounds that in a technical report dated 25 May 2009 it had been stated that the immovable property in question did not qualify as immovable property (“the review request”). 7. On 24 August 2010 the Bălţi Court of Appeal dismissed the review request on the grounds that the information contained in the technical report of 25 May 2009 did not qualify as new and relevant information which could not have been obtained before the delivery of the final judgment in the case. 8.", "On 22 December 2010 the Supreme Court quashed the above judgment and ordered a re-examination of the review request. 9. On 16 November 2011 the Chişinău Court of Appeal re-examined the review request and allowed it. The court relied on grounds other than those relied upon by the defendant in framing the request. In particular, the court relied on a Government decision from 2005, in accordance with which the disputed goods had been transferred to the defendant’s control.", "The court quashed the final judgment of 8 December 2009 and ordered a fresh examination of the case. 10. On 16 August 2012, after examining the merits of the case, the Edineţ District Court again found in favour of the applicant company and required the Cadastral Authority to register some of the immovable property privatised by the applicant company in 1999 and in 2004 in its name. The Cadastral Authority challenged that judgment by lodging an appeal and the proceedings are still pending. II.", "RELEVANT DOMESTIC LAW 11. The relevant provisions of the Code of Civil Procedure concerning the review of final judgments read as follows: Article 449 “A request for review shall be granted when: ... (c) after a judgment has been adopted, new documents have been discovered which were withheld by one of the parties to the proceedings or which could not have been submitted to the court during the proceedings because of circumstances beyond the control of the interested party; ....” Article 450 A request for review may be lodged: ... (d) within three months from the date on which the document was discovered – in cases [falling within] Article 449 (c); ....” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 12. The applicant company complained that the quashing of the final judgment given by the Bălţi Court of Appeal on 8 December 2009 had been unjust and had violated Article 6 § 1 of the Convention. The relevant part of Article 6 § 1 reads as follows: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.", "...” A. Admissibility 13. The Court notes that the complaint under Article 6 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 14. The applicant company submitted that the quashing of the judgment of 8 December 2009 had violated its right to a fair trial as guaranteed by Article 6 of the Convention and that the review request had in fact been an appeal in disguise. 15. The Government submitted that the case had been resolved once the Edineţ District Court effectively reinstated, by its judgment of 16 August 2012, the quashed judgment. In the alternative, the Government argued that the review had not been an appeal in disguise but a remedy used in order to correct a judicial error.", "16. The Court reiterates that the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999‑VII, and Roşca v. Moldova, no. 6267/02, § 24, 22 March 2005).", "17. Legal certainty presupposes respect for the principle of res judicata (see Brumarescu, cited above, § 62) – that is, the principle of the finality of judgments. This principle insists that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Higher courts’ power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination. The review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination.", "A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character (see Roşca, cited above, § 25). 18. The above conclusion in Roşca was drawn in connection with the procedure for annulment requests, under which the Prosecutor General’s Office could seek a review of a final judgment with which it disagreed. The Court held that this procedure, although possible under domestic law, was incompatible with the Convention because it resulted in a litigant “losing” a final judgment in his favour. 19.", "As to the reopening of proceedings owing to newly discovered circumstances, the Court observes that this issue was considered in Popov v. Moldova (no. 2) (no. 19960/04, 6 December 2005), where it found a violation of Article 6 § 1 on account of a misuse of such review proceedings. The Court held in that case that reopening was not, as such, incompatible with the Convention. However, decisions to review final judgments must be made in accordance with the relevant statutory criteria and the misuse of such a procedure may well be contrary to the Convention, given that its result – the “loss” of the judgment – is the same as that of a request for annulment.", "The principles of legal certainty and the rule of law require the Court to be vigilant in this area (see Popov (no. 2), cited above, § 46). 20. The Court notes in the first place that the reopened proceedings are still pending. Therefore, the Government’s argument that the case was resolved once the Edineţ District Court had effectively reinstated the quashed judgment, by its judgment of 16 August 2012, cannot be accepted.", "21. The Court further notes that the review procedure provided for by Article 449 of the Code of Civil Procedure does indeed serve the purpose of correcting judicial errors and miscarriages of justice. The Court’s task, as in the case of Popov (no. 2), is to determine whether this procedure was applied in a manner which was compatible with Article 6 of the Convention, and thus ensured respect for the principle of legal certainty. In doing so, the Court must bear in mind that it is in the first place the responsibility of national courts to interpret provisions of national law (see Waite and Kennedy v. Germany [GC], no.", "26083/94, § 54, ECHR 1999-I). 22. The Court notes that, under Article 449 (c) of the Moldovan Code of Civil Procedure, proceedings can be reopened when new and essential facts or circumstances have been discovered that were unknown and could not have been known earlier. Under Article 450 of the same Code, a request for a review can be lodged “within three months from the date on which the person concerned has become aware of essential circumstances or facts of the case which were unknown to him or her earlier and which could not have been known to him or her earlier”. 23.", "The decision of the Chişinău Court of Appeal of 16 November 2011 cited a Government decision of 2005 as the grounds for reopening the proceedings (see paragraph 9 above). 24. The Court notes that there is no indication in the Court of Appeal’s judgment of 16 November 2011 as to whether the Government decision of 2005 contained “information” that could not have been obtained earlier by the defendant. Nor is there any indication that the defendant unsuccessfully tried to obtain such “information” earlier. In such circumstances, the Court considers that it cannot be said that the Government’s decision of 2005 qualified as a “new ... fact or circumstance that [was] unknown and could not have been known earlier” by the parties to the proceedings.", "25. Accordingly, the Court considers that the review proceedings at issue were, in essence, an attempt to relitigate the case on points which the Cadastral Authority could have but apparently did not raise earlier. It was in effect an “appeal in disguise”, the purpose of which was to obtain a fresh examination of the matter, rather than a genuine review as provided for in Articles 449-53 of the Code of Civil Procedure. 26. By granting the review request, the Court of Appeal infringed the principle of legal certainty and the applicant company’s “right to court” under Article 6 § 1 of the Convention (see, mutatis mutandis, Roşca, cited above, § 28).", "In the light of the above, the Court considers that there has been a violation of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 27. The applicant company complained that the Court of Appeal’s judgment of 16 November 2011 had had the effect of infringing its right to peaceful enjoyment of its possessions as secured by Article 1 of Protocol No.", "1 to the Convention which, in so far as relevant, provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law....” A. Admissibility 28. 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 29. The Government argued that there had been no breach of Article 1 of Protocol No. 1 to the Convention. 30.", "The Court reiterates that a judgment debt may be regarded as a “possession” for the purposes of Article 1 of Protocol No. 1 (see, among other authorities, Burdov v. Russia, no. 59498/00, § 40, ECHR 2002-III, and the cases cited therein). Furthermore, quashing such a judgment after it has become final and unappealable will constitute an interference with the judgment beneficiary’s right to the peaceful enjoyment of that possession (see Brumărescu, cited above, § 74). Even assuming that such an interference may be regarded as serving the public interest, the Court finds that in the present case it was not justified since a fair balance was not preserved and the applicant was required to bear an individual and excessive burden (compare Brumărescu, cited above, § 75-80).", "31. It follows that there has been a violation of Article 1 of Protocol No. 1 to the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 32.", "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. Pecuniary damage 33. The applicants claimed 8,682.21 euros (EUR) to cover lost income. 34. The Government submitted, inter alia, that the applicant’s claim was unsubstantiated and asked the Court to reject it. 35.", "The Court considers that the question of the application of Article 41 in respect of pecuniary damage is not ready for decision. The question must accordingly be reserved and a further procedure fixed, with due regard to the possibility of an agreement being reached between the Moldovan Government and the applicant company. B. Non-pecuniary damage 36. The applicant company also claimed EUR 3,000 in respect of non‑pecuniary damage. 37.", "The Government contended that the claim was excessive and asked the Court to dismiss it. 38. Having regard to the violation found above, the Court considers that an award in respect of non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant company EUR 2,000 in respect of non-pecuniary damage. C. Costs and expenses 39.", "The applicant company also claimed EUR 800 for the costs and expenses incurred before the Court. 40. The Government disagreed with the amount claimed by the applicant company and asked the Court to dismiss it. 41. The Court reiterates that in order for costs and expenses to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Mozer v. the Republic of Moldova and Russia [GC], no.", "11138/10, § 240, 23 February 2016. Having regard to all the relevant factors and to Rule 60 § 2 of the Rules of Court, the Court awards the entire amount claimed for costs and expenses. D. Default interest 42. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 4. Holds (a) that the respondent State is to pay the applicant company, within three months, EUR 2,000 (two thousand euros) in respect of non‑pecuniary damage plus any tax that maybe chargeable on this amount and EUR 800 (eight hundred euros) in respect of costs and expenses plus any tax that maybe chargeable on this amount.", "(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Holds that the question of the application of Article 41 of the Convention in respect of pecuniary damage is not ready for decision, and accordingly: (a) reserves the said question; (b) invites the Moldovan Government and the applicant company to submit, within the forthcoming three months, their written observations on the matter and, in particular, to notify the Court of any agreement they may reach; (c) reserves the further procedure and delegates to the President of the Chamber power to fix the same if need be; 6. Dismisses the remainder of the applicant company’s claim for just satisfaction. Done in English, and notified in writing on 2 July 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan Bakırcı Egidijus KūrisDeputy RegistrarPresident" ]
[ "FIRST SECTION CASE OF MIKHEYEV v. RUSSIA (Application no. 77617/01) JUDGMENT STRASBOURG 26 January 2006 FINAL 26/04/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mikheyev v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L.Rozakis, President, MrP. Lorenzen, MrsS.", "Botoucharova, MrA. Kovler, MrK. Hajiyev, MrD. Spielmann, MrS.E. Jebens , judges, and Mr S. Nielsen, Section Registrar, Having deliberated in private on 5 January 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 77617/01) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Aleksey Yevgenyevich Mikheyev (“the applicant”), on 16 November 2001. 2. The applicant, who had been granted legal aid, was represented by Ms O. Shepeleva, Mr Y. Sidorov, lawyers practising in Moscow and Nizhniy Novgorod, and Ms V. Vandova, a lawyer with “Interrights”, the United Kingdom. The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.", "3. The applicant alleged, in particular, that while in detention on remand he had been tortured by police officers in order to extract a confession to the rape and murder of a female minor. As a result, he had jumped out of the window of the police station and broken his spine. He also complained that the investigation into these events had been ineffective. He referred to Articles 3 and 13 of the Convention in this respect.", "4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5. On 24 May 2004 the Court was contacted by a British human-rights NGO, the Redress Trust, seeking leave to submit written comments as a third party.", "The request was refused by the President. At the same time the President drew the attention of the Redress Trust to the possibility of reintroducing the request should the case be declared admissible. 6. On 7 October 2004 the Court declared the application partly admissible. 7.", "The applicant and the Government each filed observations on the merits (Rule 59 § 1). In addition, the Redress Trust reintroduced its request to submit written comments. A request in the same terms was also filed by a group of Russian NGOs, including the Public Verdict Foundation, the Demos Centre, the Yoshkar-Ola NGO Man and Law, and the Kazan Human Rights Centre. In December 2004 these organisations were granted leave by the President to intervene in the written procedure as a third party (Article 36 § 2 of the Convention and Rule 44 § 2). After the third parties’ comments were received, the applicant and the Government filed their observations in reply (Rule 44 § 5).", "8. The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine). THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Proceedings against the applicant 9.", "The applicant was born in 1976 and lives in Nizhniy Novgorod. At the relevant time he was a police officer in the road traffic department. On 8 September 1998, while off duty, he and his friend F met MS, a teenage girl, in Bogorodsk, in the Nizhniy Novgorod region. The applicant gave MS a lift in his car to Nizhniy Novgorod. 10.", "On 10 September 1998 MS’s mother informed the Bogorodsk municipal police of her daughter’s disappearance. At 4 p.m. on the same day, the applicant was arrested. F was also arrested and brought to Bogorodsk police station. The applicant and F were questioned by police officers in relation to the disappearance of MS. However, no charge was brought against them.", "Following the questioning, the police seized the applicant’s identity card and other documents and put him in the detention wing. 11. On the evening of 10 September 1998 the applicant’s superior officer came to the applicant’s cell and forced him to sign a resignation statement backdated to 17 August 1998. 12. On 11 September 1998 the police searched the applicant’s flat, country house, garage and car.", "They found three gun cartridges in his car. 13. On 12 September 1998 three officers from Bogorodsk municipal police, N, T and D, filed an “administrative offence report” with a judge of Bogorodsk Town Court. The report stated that on the evening of 11 September 1998 the applicant and F had committed a “disturbance of the peace” at the railway station. On the same date the judge sentenced the applicant and F to five days’ administrative detention from 11 September 1998.", "14. According to the applicant, while in detention in Bogorodsk police station, he had been repeatedly questioned about the disappearance of MS. He denied any involvement in her disappearance. He said that he had requested a lawyer on many occasions, but that his request had been refused. 15.", "On 16 September 1998 the police opened a criminal investigation relating to the ammunition found by the police during the search of 11 September 1998 (criminal case no. 68205). By this time the term of the applicant’s administrative detention had expired and the applicant had been placed in custody in connection with the criminal case. He was transferred to another detention centre, under the jurisdiction of Leninskiy police department, who were in charge of the case. 16.", "The applicant submitted that after his transfer to the detention centre the questioning had become more intensive and even violent. For instance, on several occasions the police officers had slapped him and threatened him with torture in order to extract a confession that he had killed MS. In particular, they had threatened to apply electric shocks to him or place him in a cell with “hardcore criminals” who would kill him if they learned he was a police officer. 17. On 17 September 1998 the applicant was visited by a lawyer hired by the applicant’s mother several days earlier in connection with criminal case no.", "68205. According to the applicant, during the conversation with the lawyer he had mentioned that the real reason for his detention was the disappearance of MS. However, the lawyer replied that she could not take on another case that she had not been paid for. The next day, according to the applicant, the police investigator banned all visits by the lawyer to the applicant. 18.", "Meanwhile, F testified to the police that he had seen the applicant rape and kill MS. He indicated to the investigators the place where they had allegedly hidden the body of MS. A group of policemen went there, but nothing was found. 19. On 19 September 1998 the applicant was questioned at Leninskiy police station in the presence of several police and prosecution officials, including I (the senior police investigator), S (deputy head of the local office of the Ministry of the Interior), MR (the deputy regional prosecutor), the Bogorodsk town prosecutor, and a number of policemen of the Leninskiy police department. 20.", "The applicant alleged that he had been subjected to torture in order to make him corroborate F’s confession. According to the applicant, while he was sitting handcuffed on a chair, police inspectors K and O had administered electric shocks to his ears through metal clips connected by a wire to a box. The applicant had been tortured several times in this way. The applicant had also been threatened with severe beatings and application of an electric current to his genitals. One of the police officers had told him that the current could cause his tongue to fall back into his throat, from where it could be extracted only by means of a safety pin.", "21. According to the applicant, the officials from the prosecutor’s office had not been present in the room where he had been tortured with electrodes. However, he had twice been brought to another room in the police station, where he had been repeatedly questioned by those officials, notably MR. The applicant had complained to MR about the ill-treatment, but the latter had not reacted, and when the applicant again refused to confess to murdering MS, MR had ordered the police officers to take the applicant “back to where he came from”. 22.", "The applicant submitted that, unable to withstand the torture and left unattended for a moment, he had broken free and jumped out of the window of the second floor of the police station in order to commit suicide. He had fallen on a police motorcycle parked in the courtyard and broken his spine. 23. The applicant, accompanied by inspector K, was immediately taken to Hospital no. 33 of Novgorod Region, where he was examined by Dr M, who established various injuries caused by his fall from the window, affecting in particular his vertebral column and locomotor system.", "24. On the same day the applicant was transferred to Hospital no. 39. His mother arrived at the hospital and asked Dr K to include burns to the applicant’s ears in his medical record. However, her request was refused.", "She also submitted a request to Dr S, who was in charge of the applicant’s case, and to the head doctor of the hospital, asking that the burns be recorded. She received no answer to her requests. 25. On 19 September 1998, the day of the applicant’s fall from the window, MS returned home unharmed. She explained that on the night of 8 September 1998 the applicant had offered her a ride in his car.", "She had agreed. When they had arrived in Nizhniy Novgorod, he had suggested that she could spend the night at his place, but she had refused and the applicant had let her go. MS had gone to friends living in Nizhniy Novgorod, where she had spent several days, without letting her mother know were she was. 26. On 21 September 1998 the applicant’s detention was formally discontinued.", "On 22 September 1998 the applicant underwent spinal surgery. He remained in hospital until 3 February 1999. On 25 September 1998 criminal case no. 22346 concerning the alleged rape and murder of MS was closed. However, the applicant became a suspect in another criminal case – no.", "22414, in which he was charged with the abduction of MS. 27. On 1 March 1999 the criminal investigation into the illegal possession of the gun cartridges was discontinued, on the ground that at the time of their discovery the applicant had been a police officer and, therefore, had had the right to possess the ammunition. On 1 March 2000 (the Government indicated a different date – 10 May 2000), the case concerning the alleged abduction of MS was also discontinued on the ground that the applicant had freed MS at her request. B. Official investigations into the allegations of ill-treatment 28.", "On 21 September 1998 an investigator from the Leninskiy district prosecutor’s office instituted a criminal investigation into the applicant’s fall from the window of the police station on 19 September 1998 (case no. 68241). 29. The investigator questioned five police officers from the Leninskiy district police who had participated in the questioning on 19 September 1998. They stated that they had not ill-treated the applicant or seen him being ill-treated.", "The police officers said that, in the course of the interview, inspector K had told the applicant that his friend F had testified to having seen the applicant rape and murder MS, and that it would be wise for him to confess. The interview had then been interrupted for a tea break. While the officers had been busy preparing tea, the applicant had suddenly jumped out of his chair, run to the window, broken the glass and fallen out. 30. The investigator also questioned F, who submitted that no pressure had been exerted on him to make a false statement about the applicant.", "F stated that he had implicated the applicant out of fear of being accused of bringing about the disappearance of MS. 31. The investigator further questioned Dr K from Hospital no. 39, who had examined the applicant after the accident of 19 September 1998. The doctor confirmed that on the day of the accident the applicant’s mother had mentioned some electrical burns on her son’s ears. However, all the applicant’s injuries had been caused by his fall from the window.", "According to the medical record, the applicant had no electrical burns to his ears. 32. B, the applicant’s ward-mate in Hospital no. 39, was also questioned by the investigator. B spoke of burns and abrasions to the applicant’s ears which may have been caused by an electrical discharge.", "B stated that he had worked as an electrician and therefore knew what burns from an electrical current looked like. 33. The investigator ordered a forensic medical examination of the applicant. The forensic report, drawn up on 26 October 1998, stated that the applicant had wounds on the top of his head, scratches on his forehead and bite marks on his tongue. No burns or other traces of the use of electrical current were recorded.", "34. On 21 December 1998 the investigator discontinued the criminal proceedings against the police officers for lack of evidence of a crime. The investigator found that the applicant had been arrested on 10 September 1998 in connection with the disappearance of MS. On 11 September 1998 the police had carried out a search of the applicant’s car and found three gun cartridges. On the same day the applicant and F had been released. However, shortly after their release inspector N of the Bogorodsk police had identified certain factual gaps in their written submissions.", "Inspectors N and D had followed the applicant and found him at the town’s railway station. The applicant had been disturbing passers-by by addressing them with obscene language. As a result the applicant had been arrested again and on the next day made the subject of an administrative arrest for disturbance of the peace. On 16 September 1998 a new criminal case had been opened against the applicant in relation to the gun cartridges found in his car. On 19 September 1998 a detention order had been issued against the applicant on this new ground.", "On the same day he had been transferred to Leninskiy district police station, where he had been questioned by several police officers, including inspectors K and O. After the interview the applicant had suddenly jumped out of his chair, broken the window and fallen out. He had been brought immediately to Hospital no. 39. On the same day MS had returned home.", "35. The investigator referred further to the testimonies of the police officers and Dr K, the medical records of Hospital no. 39 and the forensic medical report of 26 October 1998. He also referred to the opinion of a medical expert, S, which stated that the application of an electrical current might leave burns on the skin. The investigator disregarded the testimony of B on the basis that the latter “had no specialist medical knowledge”.", "The investigator came to the conclusion that the applicant’s allegations of torture were unsubstantiated, describing them as a “defence mechanism” in response to the situation in which he had attempted suicide. 36. On 25 January 1999 the regional prosecutor’s office reopened the case and handed it to the same investigator for further investigation. On 25 February 1999 the investigator, referring to the same evidence as before and using identical wording, discontinued the proceedings again. He added that the investigative measures referred to by the senior prosecutor in his decision of 25 January 1999 had already been taken in 1998.", "Given the state of the applicant’s health, it was impossible to carry out new investigative measures, such as confrontations or forensic examinations. 37. On 1 December 1999 the same supervising prosecutor reopened the case and ordered certain additional investigative measures, including a medical examination of the applicant and a confrontation between the applicant and the police officers who had allegedly tortured him. The case was transferred to another investigator. On 24 February 2000 the investigator discontinued the proceedings, basing his decision on the same reasoning as in the decision of 21 December 1998.", "38. On 10 March 2000 the same supervising prosecutor reopened the case for the third time and handed over the file to another investigator. 39. This time the applicant’s mother was questioned. She stated that on 19 September 1998 she had arrived at the hospital and had seen that her son’s ears had been injured.", "She had asked that the injuries be recorded but the request had been refused by the hospital doctor, because “they had been given instructions to that effect”. 40. The investigator also questioned a hospital attendant and four doctors from Hospital no. 39, who all denied that the applicant had had injuries other than those caused by his falling out of the window. One of the patients in Hospital no.", "39, where the applicant had been brought after the accident, confirmed that the applicant had told him about the torture with electrodes; however, the patient stated that he had seen no traces of any injuries on the applicant’s ears. F, who had visited the applicant in hospital, stated that the applicant had told him about the torture, but F had seen no signs of torture on him. 41. A further witness, the senior officer of the traffic police department where the applicant had served before his arrest, provided the investigator with a “psychological profile” of the applicant, describing the applicant as having a weak personality. The investigator also obtained the results of a psychological test which the applicant had undergone upon his appointment to the traffic police.", "The test revealed that the applicant “had a tendency to avoid conflict and was a vulnerable person, susceptible to outside influences”. 42. On 21 July 2000 the proceedings were discontinued. The investigator concluded that the applicant had jumped out of the window of his own will, “driven by his personal assessment of the situation, based on specific psychological features of his personality”. 43.", "On 10 November 2000 the case was reopened by another supervising prosecutor. F was questioned anew. This time F testified that while in Bogorodsk police station, he had been beaten by inspector A in an attempt to extract a confession to the murder of MS. Between 16 and 19 September 1998 F had been repeatedly questioned in Leninskiy district police station in Nizhniy Novgorod. In the course of the questioning I, the senior police investigator, had slapped and shaken him.", "I had also mentioned that F would be tortured with electrodes if he did not confess to the impugned crimes. F had also been questioned by MR, the deputy regional prosecutor. On 18 September 1998 F had signed the confession and even located on the map the place where he and the applicant had allegedly hidden the body. 44. After the incident, F had visited the applicant in hospital.", "The applicant had told him about the torture with electrodes. In reply F had described to the applicant the officer who had threatened him with it, and the applicant had confirmed that this was the same officer who had participated in the questioning of 19 September 1998. Later that year he had recounted this to the investigator in charge of case no. 68241; however, it had been decided not to include these statements in the official record. 45.", "On 29 December 2000 the investigation was again discontinued by an investigator from the prosecutor’s office. On an appeal by the applicant on 27 March 2001, the Nizhegorodskiy District Court of Nizhniy Novgorod quashed the decision, ordering the prosecution to carry out a further investigation. The court noted, inter alia, that the applicant’s submissions were consistent and detailed, and that the case should be investigated more thoroughly. The court ordered other patients from the hospital where the applicant had been brought after the accident to be questioned. The court also deemed it necessary for the applicant to be examined by an expert in psychiatry and psychology.", "46. The proceedings were resumed. This time the prosecution investigator questioned Dr M, who had been on duty in Hospital no. 33, where the applicant had been brought immediately after the accident. The doctor stated that he had not noticed or treated any injuries to the applicant’s ears.", "The same evidence was reiterated by Dr K and Dr S. They both confirmed that the applicant’s mother had requested them to re-examine the applicant’s ears on several occasions, but that they had not identified any injuries. Five patients from Hospital no. 39 testified that the applicant had told them about being tortured with electrodes, but that they had seen no signs of any injuries on the applicant’s ears. The same testimony was given by F. 47. The investigator also ordered a psychological and psychiatric examination of the applicant.", "The examination showed that the applicant was mentally sane, but had been traumatised by the accident and had a lasting physical disability as a result of it. At the time of the examination, the applicant’s mental state was characterised by euphoric reactions, amiability, emotionality and dependence on a stronger personality, namely his mother. He did not display any suicidal tendencies. The report stated that it was impossible to draw any conclusions as to the applicant’s mental state at the time of the accident. 48.", "On 19 May 2001 the proceedings were discontinued by the investigator on the same grounds as before. 49. By letter of 5 August 2002 the Nizhniy Novgorod regional prosecutor’s office informed the applicant that the investigation had been reopened and sent to the Leninskiy prosecutor’s office with relevant instructions for additional investigation. The applicant requested that the prosecution service question V, one of the patients in Hospital no. 39.", "50. On 5 September 2002 the prosecution service discontinued the investigation, finding that no criminal offence had been committed and indicating, inter alia, that it had been impossible to find V at his place of residence. The investigator concluded that the applicant’s allegations of torture were supported only by his own submissions, which, in the light of other evidence obtained in the course of the investigation, had been found to be untrue. 51. Knowing that V was disabled and a wheelchair user, the representatives of the applicant contacted V and learned that the execution of the request to question V had been assigned to inspector O, one of the police officers involved in the alleged torture.", "Inspector O reported that on several occasions he had tried to question V, but had been unable to find him at his address. On 26 September 2002 V explained to the applicant’s representatives that someone introducing himself as an investigator had telephoned him once and said that he needed to question him. V had agreed to make a statement, but the person had never called back. 52. On 28 October 2002 the Nizhniy Novgorod regional prosecutor’s office annulled the decision of 5 September 2002.", "On 28 November 2002 the Leninskiy district prosecutor’s office discontinued the investigation yet again on the same grounds. The applicant appealed against the decision to discontinue the investigation. By letter of 24 July 2003 the applicant was informed that the Nizhniy Novgorod regional prosecutor’s office saw no reason to overturn the decision to discontinue the investigation. 53. According to the respondent Government, the regional prosecutor reopened the investigation on 6 November 2003 and transferred the case to the Leninskiy district prosecutor’s office.", "Apparently, by the end of December 2003 the case had been closed again. On 19 January 2004, according to the applicant, the investigation was reopened. On 26 January 2004 the case was transferred from the Leninskiy district prosecutor’s office to the department of the regional prosecutor’s office dealing with investigations into cases of particular importance. 54. F was questioned once more.", "He testified that while being questioned in Leninskiy district police station in connection with the disappearance of MS he had been beaten by the police officers. They had also threatened to torture him with electrodes. 55. On 19 February 2004 the investigator from that department closed the case again, concluding that no evidence of ill-treatment of the applicant had been obtained and that the actions of the police officers had been lawful. On 4 March 2004 the case was reopened, before being closed again on 4 July 2004.", "On 3 August 2004 the case was reopened by the regional prosecutor’s office. On 6 September 2004 the case was closed. It was then reopened, and, according to the Government’s submissions, closed again on 20 October 2004. On 22 November 2004 the regional prosecutor reopened the investigation. According to the Government, the deadline for the new investigation was 2 April 2005.", "56. On an unspecified date in 2005 the prosecutor’s office brought charges against two policemen, K and SM, who had participated in the questioning of the applicant on 19 September 1998. The case file, together with a bill of indictment, was eventually forwarded to the Leninskiy District Court of Nizhniy Novgorod for examination. 57. In the course of the trial the court questioned a large number of witnesses.", "Hence, it questioned K, SM, and fifteen other police officers who had participated in the questioning of 19 September 1998 or had been in Leninskiy police station on that day. They all denied that they had tortured the applicant or had heard of any such torture. The court further questioned VK, a former police investigator, who had been in charge of the applicant’s case but had not taken part in his questioning. She testified that she had heard from her colleagues that the applicant had jumped out of the window because he had been tortured with electrodes. 58.", "The court also heard evidence from the applicant, his mother, F, MS, and the doctors at the hospital where the applicant had been placed after the incident. They confirmed their initial submissions. An expert witness appeared before the court. He testified that in certain conditions electric current might leave no traces on the human body. The court also questioned VZ, who in August 1998 had been brought to Leninskiy police station on suspicion of theft.", "According to VZ, two policemen had questioned him and then tortured him with electrodes in the same way as the applicant described. 59. The court heard other witnesses and examined exhibits and materials collected in the course of the pre-trial investigation. Thus, the court read out the testimonies of B, V, and S, the applicant’s ward-mates in Hospital no. 39, and examined the results of medical and psychiatric expert examinations of the applicant.", "The court also examined a piece of paper which had been found during the search of the office where the applicant had been questioned on 19 September 1998. It contained an unfinished passage describing the events of 10 September 1998, when MS had disappeared, under the title “Voluntary confession”. The whole text had been written by the applicant. 60. On the basis of the above evidence the court established that on 19 September 1998 the applicant had been brought to Leninskiy police station, where he had been questioned by several officials from the police and the prosecutor’s office.", "They had requested him to confess to having raped and murdered MS and to show them where he had buried the corpse. In order to extract a confession from the applicant, police officers K and SM had administered electric shocks to the applicant using a device connected to his ears. The court noted that in his initial submissions the applicant had testified that he had been tortured by inspectors K and O. However, following the identification parade the applicant had identified inspector SM as one of two officers who had tortured him. Unable to withstand the pain, the applicant had agreed to confess, but, left unattended for a moment, had attempted suicide by jumping out of the window.", "He had fallen on a motorbike parked in the courtyard of the police station and broken his spine. 61. On 30 November 2005 the Leninskiy District Court of Nizhniy Novgorod found K and SM guilty under Article 286 § 3 (a) and (в) of the Criminal Code (abuse of official power associated with the use of violence or entailing serious consequences). They were sentenced to four years’ imprisonment with a subsequent three years’ prohibition on serving in the law-enforcement agencies. According to the information available to the Court, the judgment of 30 November 2005 is not yet final.", "C. Unofficial inquiry into the events of 10 - 19 September 1998 62. In the summer of 1999 two activists from a regional human rights NGO (Nizhniy Novgorod Committee against Torture) interviewed several persons about the events of September 1998 complained of by the applicant. Their submissions were recorded on videotape. 63. In those interviews, F stated that he had been arrested on 10 September 1998.", "While in custody, he had been threatened and slapped several times in order to extract a confession to the murder of MS. On 17 September 1998 he had been questioned by a senior police investigator, I, who had kicked him and threatened to place him in an “underground cell” where he would be beaten and tortured with electrodes until his eyes bled. 64. On 18 September 1998 a short confrontation had been arranged between F and the applicant. F submitted that he had seen bruises on the applicant’s neck. In the evening F had been questioned again, this time in the presence of the deputy regional prosecutor MR and the Bogorodsk town prosecutor, as well as several police officers.", "MR had threatened to lock F in a cell with “boy-crazy criminals” who would rape him, or to put him in a cell together with tuberculosis-infected detainees. He had also threatened that if F survived in the cell, he would be sentenced to 25 years’ imprisonment or death row. 65. F had confessed to raping and killing the girl together with the applicant. At MR’s request, F had named the place where they had allegedly hidden the corpse.", "An investigating team had been sent to the place in question, but had found nothing. On 20 September 1998, after the girl had come home, F had been released. 66. According to B, the applicant’s ward-mate in Hospital no. 39, after having been brought to the hospital the applicant had told him about the circumstances of his arrest and, in particular, about the torture with electrodes.", "The applicant had shown B burns on his ears, which looked like “stripped blisters”. According to M, another patient in the hospital, before the applicant had been brought to the hospital the police had warned the personnel that the applicant was a dangerous criminal. The patients had been required to hide all sharp metallic objects. M also recollected that there had been something red on the applicant’s ears, “as if somebody has pulled his ears”. M also remembered that the applicant’s mother had asked the doctors to examine his ears, but that they had replied that everything had been normal.", "V confirmed that, while in the hospital, he had heard from the applicant about the torture and seen the applicant’s mother asking the doctor to examine his ears. V also confirmed that the applicant’s ears had been injured, but said that it did not look like blisters as far as he could remember. 67. The NGO activists also interviewed L and K, witnesses to the search of the applicant’s car. 68.", "In December 2000 the NGO activists questioned F once more with a view to clarifying the discrepancies between his evidence in the course of the official investigation and his statements to the NGO activists and the media. F stated that the investigators, while questioning him as part of the official criminal investigation, had disregarded his statements about the deputy regional prosecutor MR’s involvement in the events of September 1998. D. Other proceedings brought by the applicant with respect to the events of 10 – 19 September 1998 69. On an unspecified date in 1998 a prosecutor filed a request for supervisory review of the judgment of 12 September 1998 whereby the applicant had been sentenced to five days’ administrative detention. On 2 December 1998 the President of the Nizhniy Novgorod Regional Court quashed that judgment.", "The President noted that the judgment had been based on the information from the police officers at Bogorodsk police station, who had alleged that they had arrested the applicant at the railway station on 11 September 1998. However, at that time the applicant had in fact been detained in custody in connection with the disappearance of MS. 70. On 23 March 2000 a prosecutor instituted criminal proceedings against the three Bogorodsk police officers for making false statements in relation to the alleged arrest of the applicant at the railway station (criminal case no. 310503). A prosecution investigator confirmed that the applicant had not been at the railway station on 11 September 1998, having at that time been detained in custody.", "However, on 3 November 2000 the charges against the police officers were dropped following a “change in the situation” in view of the fact that one police officer had been dismissed from his job, while the other two had been transferred to other positions within the Ministry of the Interior. 71. The Government stated that on 25 May 2001 criminal case no. 310503 had been reopened by the prosecution service and transmitted to the Pavlovsk town prosecutor’s office for further investigation. On 20 October 2002 the criminal case was closed owing to expiry of the time-limits for criminal prosecution of the police officers.", "This decision was quashed by the town prosecutor and the case was reopened again. On 1 April 2004 the criminal case against the three police officers was forwarded to the court of first instance together with the bill of indictment. On 27 April 2004 the proceedings were discontinued owing to expiry of the statutory time-limit for criminal prosecution of the defendants. On 19 November 2004 the Nizhniy Novgorod Regional Court quashed that decision and remitted the case to the court of first instance. According to the respondent Government, the proceedings are still pending.", "72. On 19 December 2001 the applicant lodged a civil claim with the Leninskiy District Court of Nizhniy Novgorod, seeking compensation for malicious prosecution, his dismissal from his job, the search of his premises and his detention and ill-treatment by the police. The applicant’s lawyer asked the court to request from the prosecutor’s office case-files nos. 68241, 310503 and 68341. The applicant and his representative maintained that the evidence gathered by the prosecution was necessary to argue the substantive part of the civil suit.", "On 22 April 2002 the Leninskiy District Court of Nizhniy Novgorod requested the files from the respective prosecutor’s offices. On 6 July 2002 case-file no. 68241 was delivered to the court. It was withdrawn three days later by the prosecutor’s office. On 27 July 2002 the case-file was re-submitted to the court.", "On 1 August 2002, at the prosecutor’s request, the case-file was returned to the prosecution. On 23 October 2002 the applicant’s representative asked the court to suspend the civil proceedings. 73. The applicant’s notice of dismissal dated 17 August 1998 was annulled, and the applicant was reinstated in his post. The officers responsible for his backdated dismissal were subjected to disciplinary proceedings.", "However, owing to the applicant’s complete disability, he had to leave the traffic police. E. The applicant’s present situation 74. The applicant is disabled and receives a pension from the State on that basis. The Government indicated that in connection with the accident he also received a lump-sum insurance indemnity from the State in the amount of 60,302 Russian roubles (about 1,740 euros at the current exchange rate). 75.", "The applicant produced a report, drawn up on 29 November 2004 by Dr L. Magnutova, a specialist in forensic medicine. The report stated that the applicant suffered from osteomyelitis, his legs were paralysed, he was unable to work and he suffered from severe dysfunction of the pelvic organs and loss of sexual function. He was confined to bed and was in permanent need of a nurse to help him urinate and empty his bowels. The applicant was at risk of sepsis. He required regular hospital examinations, at least two or three times a year.", "II. RELEVANT DOMESTIC LAW A. Civil-law remedies against illegal acts by public officials 76. The Civil Code of the Russian Federation, which entered into force on 1 March 1996, provides for compensation for damage caused by an act or failure to act on the part of the State (Article 1069). Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that non‑pecuniary damage shall be compensated irrespective of any award for pecuniary damage.", "B. Criminal-law remedies against illegal acts by public officials 77. Article 117 § 2 (f) of the Criminal Code of the Russian Federation makes acts of torture punishable by up to seven years’ imprisonment. Article 110 of the Code makes incitement to suicide liable to a sentence of up to five years’ imprisonment. Under Article 286 § 3 (a) and (в) the abuse of official power associated with the use of violence or entailing serious consequences carries a punishment of up to ten years’ imprisonment. C. Official investigation of crimes 78.", "Under Articles 108 and 125 of the 1960 Code of Criminal Procedure (in force until 2002), a criminal investigation could be initiated by a prosecution investigator at the request of a private individual or of the investigating authorities’ own motion. Article 53 of the Code stated that a person who had suffered damage as a result of a crime was granted the status of victim and could join criminal proceedings as a civil party. During the investigation the victim could submit evidence and lodge applications, and once the investigation was complete the victim had full access to the case-file. 79. Under Articles 210 and 211 of the Code, a prosecutor was responsible for overall supervision of the investigation.", "In particular, the prosecutor could order a specific investigative measure to be carried out, the transfer of the case from one investigator to another, or the reopening of the proceedings. 80. Under Article 209 of the Code, the investigator who carried out the investigation could discontinue the case for lack of evidence of a crime. Such a decision was subject to appeal to the senior prosecutors or the court. The court could order the reopening of a criminal investigation if it deemed that the investigation was incomplete.", "81. Article 210 of the Code provided that the case could be reopened by the prosecutor “if there are grounds” to do so. Only if the time-limit for prosecuting crimes of that kind had expired could the investigation not be reopened. 82. Article 161 of the Code provides that, as a general rule, the information obtained in the course of the investigation file is not public.", "The disclosure of that information may be authorised by the prosecuting authorities if the disclosure does not impede the proper conduct of the investigation or go against the rights and legitimate interests of those involved in the proceedings. The information concerning the private life of the parties to the proceedings cannot be made public without their consent. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 83. The applicant complained of ill-treatment while in police custody, especially during the questioning in Leninskiy police station on 19 September 1998, and of a lack of an effective investigation in that respect.", "He relied on Article 3, which provides: Article 3 - Prohibition of torture “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The Government’s preliminary objection 84. The Government submitted that the investigation into the events of the present case is still being conducted and no final decision has yet been taken at the domestic level. Referring to that, they maintained that the applicant had failed to exhaust domestic remedies in respect of his complaint of ill-treatment. As to his complaint about the alleged ineffectiveness of the investigation, it was, consequently, premature.", "85. The applicant opposed to that view. He maintained that by the time of his first application to the Court the criminal investigation had been discontinued and reopened seven times. No new evidence could be obtained and all further attempts to investigate the case would be absolutely futile. The investigation lasted more than seven years and has finally proven to be ineffective with time.", "Therefore, in the applicant’s submissions, he is not obliged to wait until the completion of the investigation. 86. The Court recalls in this respect that if an individual raises an arguable claim that he has been seriously ill-treated by the police, a criminal law complaint may be regarded as an adequate remedy within the meaning of Article 35 § 1 of the Convention (see Assenov and others v. Bulgaria, no. 24760/94, 27 June 1996, DR 86-B, p. 71). Indeed, as a general rule, the State should be given an opportunity to investigate the case and give answer to the allegations of ill-treatment.", "At the same time “an applicant does not need to exercise remedies which, although theoretically of a nature to constitute remedies, do not in reality offer any chance of redressing the alleged breach” (Yoyler v. Turkey, no. 26973/95, 13 January 1997; see also Akdivar and Others v. Turkey judgment of 30 August 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 68). If the remedy chosen was adequate in theory, but, in course of time, proved to be ineffective, the applicant is no more obliged to exhaust it (see Tepe v. Turkey, 27244/95, Commission decision of 25 November 1996). 87. The Court observes that the circumstances of the applicant’s fall from the window make out an “arguable claim” of ill-treatment, that he made use of the possibility to seek the institution of criminal proceedings against the police officers by putting his complaint in the hands of the authorities, which were competent to pursue the matter, and that the case is still pending.", "On that basis the Court, in its decision on the admissibility of the present application, found that the Government’s objection should be examined together with the merits of the case. 88. The Court considers that the Government’s preliminary objection raises issues which fall to be examined together with the substantive provisions of the Convention relied on by the applicant. This issue will be accordingly dealt with below. 89.", "On 29 December 2005 the Government informed the Court of the judgment of 30 November 2005 adopted by the Leninskiy District Court of Nizhniy Novgorod in the criminal case concerning the ill-treatment of the applicant at the hands of the police (see paragraph 61 above). The Government indicated that the judgment was not yet final and that they would keep the Court informed of any further developments. 90. Although the Government have not relied on it, the Court has examined whether this new development affects the applicant’s status as a victim within the meaning of Article 34 of the Convention. In this respect the Court recalls that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for example, Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36, and Dalban v. Romania [GC], no.", "28114/95, § 44, ECHR 1999-VI). In the present case the Court notes firstly that the judgment of 30 November 2005 is not yet final, and may be reversed on appeal. Secondly, although the fact of ill-treatment was recognised by the first-instance court, the applicant has not been afforded any redress in this respect. Thirdly, the judgment of 30 November 2005 dealt only with the ill-treatment itself and did not examine the alleged flaws in the investigation, which is one of the main concerns of the applicant in the present case. Therefore, although that judgment should be regarded as an integral part of the investigative process, it does not, in the circumstances of the case, affect the applicant’s victim status in respect of the violations alleged by him.", "B. Alleged inadequacy of the investigation 1. The Government 91. The Government did not submit any observations on the merits of this complaint. Furthermore, in reply to the Court’s request for additional information and documents, the Government refused to provide the Court with the materials from the case-file concerning the alleged ill-treatment of the applicant by the police and the incident of 19 September 1998.", "They referred to Article 161 of the Code of Criminal Procedure, which stipulated that the materials from the pre-trial investigation could be made public only with the consent of the investigating authority and only if the disclosure did not interfere with the course of the investigation and with the rights of other participants in the criminal proceedings. 2. The applicant 92. The applicant complained that the State had breached its positive obligation to investigate his case under Article 3. The circumstances of the applicant’s fall from the window amounted, at the very least, to an arguable claim in respect of the alleged ill-treatment.", "It was for the respondent State to carry out an effective and thorough investigation into his allegations. However, little had been done to investigate the case and the measures that had been taken were inadequate and ineffective. 93. The applicant pointed to numerous shortcomings in the official investigation. Thus, his medical examination had been carried out only on 26 October 1998, that is, more than one month after the events.", "Taking into account that the visual signs of such types of torture disappeared very quickly, the examination had been very belated. The invisible injuries to the skin following the application of electrodes could be identified by biological analysis within two weeks of the incident. However, the medical examination of the applicant had been confined to a simple visual examination. 94. Further, the investigator had failed to hold a confrontation between the applicant and the police officers who had ill-treated him.", "An identity parade had taken place about two years after the incident. The only two independent witnesses who had been questioned at the first stage of the proceedings were B and Dr K. For a long period of time (from 21 September 1998 to 24 January 2000) the prosecution had refused to identify and question other personnel and patients of Hospital no. 39. This had been done only after numerous complaints by the applicant and his representatives, by which time the events of September 1998 had nearly disappeared from the memory of the witnesses. 95.", "The applicant drew attention to the lack of independence of the investigation, owing to the dual responsibility of the State prosecutors’ offices for prosecution and oversight of the proper conduct of investigations. In the applicant’s case the situation had been aggravated by the fact that the prosecution official MR, who had supervised the questioning of the applicant on 19 September 1998, performed the role of Nizhniy Novgorod deputy regional prosecutor. Accordingly, the investigators from the district and city prosecutors’ offices had taken their orders from MR. The applicant referred to F’s submissions of 7 December 2000, when he had said that during previous questioning the investigators had disregarded his statements about MR’s involvement in the events of 10-19 September 1998. MR had not been questioned at any stage of the investigation and could no longer be questioned since he had died in the summer of 2002.", "96. In August 2002 the applicant requested the prosecution to question V, one of the patients in Hospital no. 39, but to no avail. On 5 September 2002 the prosecution discontinued the case, indicating, inter alia, that it had been impossible to find V at his place of residence. Knowing that V was disabled and a wheelchair user, the representatives of the applicant contacted V and discovered the following.", "Investigator N, who had been in charge of the applicant’s case, had requested the Leninskiy police to find V. The execution of this request had been assigned to O, one of the police officers allegedly involved in the ill-treatment. O had reported that on several occasions he had tried to question V, but had been unable to find him at his address. On 26 September 2002 V explained to the applicant’s representatives that someone introducing himself as an investigator had in fact telephoned him once and explained that he needed to question him. V had expressed his readiness to be interviewed, but after the telephone conversation the person had never called him back again. 97.", "In the applicant’s opinion the lack of independence had been reflected both in the way in which evidence was collected and in the manner of its assessment by the investigators. Thus, the investigator had disregarded the testimonies of B, the applicant’s hospital ward-mate. He had not given weight to the testimonies of other patients in the hospital. The investigation had not been sufficiently thorough to meet the requirements of Articles 3 and 13 of the Convention and had not reflected any serious effort on the part of the authorities to discover what had really occurred while the applicant was in detention. On the contrary, it appeared to have been directed towards obscuring the wrongs committed and protecting the officials responsible.", "98. Finally, the applicant submitted that the Government’s failure to submit comments on the merits, together with their unwillingness to produce materials from the criminal investigation, should be interpreted as supporting the applicant’s position under both the substantive and the procedural head of Article 3 of the Convention. 3. Third party submissions and the Government’s reply 99. In their written submissions the Redress Trust recalled certain general rules established by the European Court and other international bodies in the field of prohibition of torture and other forms of ill-treatment.", "Further, both the Redress Trust and the group of Russian human-rights NGOs concurred that the Russian system of criminal investigation lacked a number of crucial procedural safeguards which would, first of all, guarantee the rights of those under investigation and, second, protect the interests of victims of torture and alleged ill-treatment by the investigating authorities. They stressed that in practice the effectiveness of official investigations into allegations of ill-treatment committed by law-enforcement officials was very low, mainly because investigations into allegations of torture were often carried out by the same investigating authorities alleged to have been involved in the ill-treatment. They indicated other factors which, in their view, undermined the effectiveness of investigations into allegations of ill-treatment committed in the course of pre-trial investigations. 100. The Government objected to the participation of the above NGOs in the proceedings before the Court as third parties, and asked the Court to reject their conclusions as being abstract and irrelevant.", "The Government further informed the Court that, contrary to what the third parties maintained, legal mechanisms to protect against ill-treatment did exist in Russia and were on the increase. First, the Russian Constitution prohibited any form of ill-treatment. Further, Article 9 of the Code of Criminal Procedure provided that the parties to criminal proceedings should not be subjected to any violence or threat of violence. In addition, the Criminal Code of Russia laid down penalties for torture (Article 117), excessive use of official power (Article 286) and coercion into giving evidence (Article 302). Finally, Article 1070 of the Civil Code provided that damage caused by the illegal arrest, prosecution, or conviction of an individual should be compensated by the State irrespective of the liability of the State authorities involved.", "101. Finally, the Government maintained that existing legal mechanisms were effectively implemented in practice. Thus, in 2003 - 2004 the public prosecutors had disclosed 685 breaches of the law by the law-enforcement agencies, as a result of which 350 officials had been subjected to disciplinary measures. Between 2000 and 2004 the State prosecution service had brought five cases under Article 117 § 2 (d) (torture) against officials of the law-enforcement agencies, four of which had gone before the courts. Within the same period 42 cases under Article 302 of the Code (coercion into giving evidence) had been brought, 25 of which were now before the courts.", "Moreover, 3,388 cases of abuse of power had been brought, resulting in the conviction of 4,204 officials. The Government produced extracts from two judgments, which, in their submission, confirmed the effectiveness of the above remedies. The Government also referred to other cases where police officers had been successfully prosecuted and then convicted by the domestic courts for committing offences amounting to ill-treatment within the meaning of Article 3 of the Convention. 4. The Court’s assessment a) The Court’s evaluation of the evidence in the present case 102.", "The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence (see, mutatis mutandis, Klaas v. Germany, judgment of 22 September 1993, Series A no. 269, pp. 17-18, § 30). To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt”. However, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody (as in the present case), strong presumptions of fact will arise in respect of injuries occurring during such detention.", "In such cases the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). In the absence of such explanation the Court can draw inferences which may be unfavourable for the respondent Government (see Orhan v. Turkey, no. 25656/94, § 274, 18 June 2002). 103.", "In the present case, in order to be able to assess the merits of the applicants’ complaints and in view of the nature of the allegations, the Court requested the respondent Government to submit copies of the criminal investigation files relating, in particular, to criminal case no. 68241. The Government, relying on Article 161 of the Code of Criminal Procedure, cited above, refused to provide the Court with the materials sought. The Government also failed to provide any observations as to the substance of the case. 104.", "The Court observes that Article 161 of the Code of Criminal Procedure, referred to by the Government, leaves the question of public disclosure of an investigation file to the discretion of the investigating authorities. It also establishes that the disclosure should not impede the proper conduct of the investigation or go against the rights and legitimate interests of those involved in the proceedings. The Government did not explain how the disclosure of the materials sought might be prejudicial for the interests of the investigation or the individuals involved. They did not advance any other plausible explanation for their failure to produce relevant documents and information, which were clearly in their possession. 105.", "In these circumstances the Court considers that it can draw inferences from the Government’s conduct and examine the merits of the case on the basis of the applicant’s arguments and existing elements in the file, even though the materials and information submitted by the applicant leave certain facts unclear. The Court will also take into account the evidence given at the hearing of Leninskiy District Court of Nizhniy Novgorod on 30 November 2005. b) Alleged ineffectiveness of the investigation into the incident of 19 September 1998 106. As regards the effectiveness of the investigation, the Court takes note of the third parties’ criticism of the Russian system of criminal investigation, and the Government’s arguments to the contrary. However, it is not the Court’s task to assess the defects of that system in general. It will focus on the particular facts of the case in order to establish whether the flaws of the investigation, complained of by the applicant, made it “ineffective” within the meaning of Article 3 of the Convention.", "i. General principles 107. The Court reiterates, first of all, that the lack of conclusions of any given investigation does not, by itself, mean that it was ineffective: an obligation to investigate “is not an obligation of result, but of means” (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002‑II). Not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant’s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see, mutatis mutandis, Mahmut Kaya v. Turkey, no.", "22535/93, § 124, ECHR 2000‑III). 108. Thus, the investigation into serious allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports 1998‑VIII, § 103 et seq.). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, etc.", "(see, mutatis mutandis, Salman v. Turkey, cited above, § 106, ECHR 2000‑VII; Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV, § 104 et seq. ; and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard.", "109. Further, the investigation must be expedient. In cases under Articles 2 and 3 of the Convention, where the effectiveness of the official investigation was at issue, the Court often assessed whether the authorities reacted promptly to the complaints at the relevant time (see Labita v. Italy [GC], no. 26772/95, § 133 et seq., ECHR 2000‑IV). Consideration was given to the starting of investigations, delays in taking statements (see Timurtaş v. Turkey, no.", "23531/94, § 89, ECHR 2000‑VI; and Tekin v. Turkey, judgment of 9 June 1998, Reports 1998‑IV, § 67), and the length of time taken during the initial investigation (see Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001). 110. Finally, the Court reiterates that for an investigation into alleged ill-treatment by State agents to be effective, it should be independent (see Öğur v. Turkey, [GC], no. 21954/93, ECHR 1999-III, §§ 91-92; see also Mehmet Emin Yüksel v. Turkey, no.", "40154/98, § 37, 20 July 2004). Thus, the investigation lacked independence where members of the same division or detachment as those implicated in the alleged ill-treatment were undertaking the investigation (see Güleç v. Turkey, judgment of 27 July 1998, Reports 1998‑IV, §§ 80-82). The independence of the investigation implies not only the absence of a hierarchical or institutional connection, but also independence in practical terms (see, for example, Ergi v. Turkey, judgment of 28 July 1998, Reports 1998-IV, §§ 83-84, where the public prosecutor investigating the death of a girl during an alleged clash between security forces and the PKK showed a lack of independence through his heavy reliance on the information provided by the gendarmes implicated in the incident). ii. Application of these principles in the present case 111.", "First, it cannot be said that the authorities remained absolutely passive in the present case. Thus, the investigator questioned several officers from Leninskiy district police station and the staff and patients of Hospitals no. 33 and 39 and obtained the applicant’s medical record and the reports of the forensic examination of his physical and mental condition, etc. However, in the absence of the investigation file it is impossible for the Court to assess the quality of the investigative measures performed, that is, to know when and how the evidence was obtained, what were the questions put by the investigator to the witnesses and experts, how accurately their answers were reproduced in the resulting documents of the investigative process, etc. 112.", "Secondly, the materials in the Court’s possession, namely the investigators’ decisions to discontinue the proceedings, disclose a number of significant omissions in the official pre-trial investigation. Thus, it is unclear whether there was an attempt to search the premises where the applicant had allegedly been tortured, and with what result. The fact that such a search was carried out and an important piece of evidence (the confession written by the applicant) was discovered, was mentioned only in the judgment of 30 November 2005. The investigator did not try to find and question individuals who had been detained with the applicant in Bogorodsk and Leninskiy police stations between 10 and 19 September 1998 and who could have possessed useful information about the applicant’s behaviour before the attempted suicide; and it is unclear whether V, one of the applicant’s ward-mates, was ever questioned by the investigator. 113.", "Thirdly, a number of investigative measures were taken very belatedly. The report on the forensic medical examination of the applicant, for instance, was dated 26 October 1998, that is, more than five weeks after the alleged ill-treatment. The police officers suspected of ill-treatment were brought before the applicant for identification only about two years after the incident. The applicant’s mother was questioned only in 2000, and Dr M from Hospital no. 33 not until 2001, despite having been among the first witnesses to see the applicant after the accident.", "The investigator did not question personnel and patients in Hospital no. 39 until January 2000 (with the exception of B and Dr K, who had been questioned during the initial investigation). Finally, the applicant’s psychiatric examination was carried out only in 2001, despite the fact that his mental condition was advanced by the authorities as the main explanation for his attempted suicide, and as the basis for the discontinuation of the proceedings. 114. The Court also notes that all the decisions ordering the reopening of the proceedings referred to the need for further and more thorough investigation.", "However, this direction was not always followed by the investigators in charge of the case. Hence, the decision to discontinue the proceedings dated 25 February 1999 was based on the same grounds as the decision of 21 December 1998. The decision of 24 February 2000 was again based on almost identical evidence and reasoning. Not until 2000, following the transfer of the case-file to another investigator, did the investigation move forward and new arguments and information appear in the investigators’ decisions. However, precious time had been lost, and, in the Court’s view, this could not but have a negative impact on the success of the investigation.", "115. Fourthly, the Court notes that there was an evident link between the officials responsible for the investigation and those allegedly involved in the ill-treatment. The Court recalls that on the day of the incident the applicant was questioned in the police station of the Leninskiy District of Nizhniy Novgorod. The questioning took place in the presence of the senior police investigator, the deputy head of the local branch of the Ministry of the Interior and two prosecution officials – the Bogorodsk town prosecutor and the deputy regional prosecutor, MR. According to the applicant, although MR had not been present in the room where the applicant had been tortured with electrodes, he had not reacted to the applicant’s complaints of ill-treatment.", "Moreover, when the applicant refused to confess to the alleged murder of MS, MR had returned the applicant to the police officers who, according to the applicant, had tortured him. Furthermore, although it was known that MR had participated in the questioning of 19 September 1998, and had allegedly failed to react to the applicant’s complaints of ill-treatment, the investigation of the case was referred to the prosecutor’s office for the Leninskiy District of Nizhniy Novgorod, which came directly under the regional prosecutor’s office where MR occupied an important position. In the years that followed, the investigation remained in the hands of the same district prosecutor’s office, despite being closed and reopened on numerous occasions. Only in 2004 was the case forwarded to the department dealing with investigations into cases of particular importance; however, it still remained within the jurisdiction of the regional prosecutor’s office. 116.", "It also appears that in the course of the investigation the prosecution cooperated closely with the Leninskiy district police. Thus, inspector O, identified by the applicant as one of the officers who had tortured him in 1998, was assigned the task of finding witness V. O reported to the prosecutor’s office that he had visited V at his place of residence, but had been unable to find him. Later V testified that nobody from the police had ever tried to visit him at his home. Hence, an important step in the official investigation was entrusted to one of the two main suspects. 117.", "The Court notes the selective and somewhat inconsistent approach to the assessment and collection of evidence by the prosecutor’s office. The first decision to close the case, dated 21 December 1998, was based mainly on the testimonies of the police officers who had been involved in the questioning of the applicant on 19 September 1998, and who, therefore, could not be regarded as impartial witnesses. The investigator, at the same time, disregarded submissions made by B, the applicant’s ward-mate in the hospital. B’s testimonies were rejected by the investigator because B had no special medical knowledge and, in the investigator’s opinion, could not distinguish electrical burns from the injuries caused by the applicant’s fall from the window. At the same time the investigator referred to the opinion of the applicant’s former superior in the traffic police, who had stated that the applicant had a weak personality.", "This testimony was accepted by the investigator without question, and, moreover, was used as conclusive evidence, although its author was not a professional in the field of psychology or psychiatry. 118. Further, although the medical examination of the applicant on 26 October 1998 did not find any electrical burns on his ears, it nevertheless established that the applicant had bite marks on his tongue. The investigator did not explain how these wounds could have been caused by the applicant’s falling out of the window. In the course of the unofficial inquiry into the incident of 19 September 1998 (see paragraph 62 above), F testified that the investigators had disregarded his statements about deputy regional prosecutor MR’s involvement in the events of September 1998.", "119. The Court is particularly struck by the factual part of the investigator’s report of 21 December 1998. The investigator stated that on 11 September 1998 the applicant had been released from custody, but then arrested again for disturbing the peace at the railway station. However, by that time it had been officially confirmed that the reports of inspectors N, T and D (who had allegedly arrested the applicant at the railway station) had been fabricated, and that at the relevant time the applicant had been in the hands of the police. Nevertheless this account of events was repeated in the decision to discontinue the proceedings of 25 February 1999.", "This fact, in the Court’s view, is such as to discredit the consistency of the official investigation in the eyes of any independent observer. 120. The Court emphasises furthermore that the case did not reach the trial stage until seven years after the events complained of. The pre-trial investigation was closed and then re-opened more than fifteen times, and it is clear that during certain periods the investigative process was no more than a formality with a predictable outcome. Finally, the Court notes that the judgment of 30 November 2005 is not yet final.", "121. In the light of the very serious shortcomings identified above, especially during the course of the investigation, the Court concludes that it was not adequate or sufficiently effective. The Court thus dismisses the Government’s objection based on non-exhaustion of domestic remedies and holds that there has been a violation of Article 3 of the Convention under its procedural limb in that the investigation into the alleged ill-treatment was ineffective. C. Alleged ill-treatment of the applicant 1. The Government 122.", "The Government did not submit any observations in this respect. 2. The applicant 123. The applicant maintained that he had been ill-treated and tortured by the police in breach of Article 3 of the Convention. In support of his assertion he submitted the transcripts of oral submissions of F (the co-suspect in the alleged killing of MS), B, M and V (his ward mate in Hospital no.", "39) taken by two human rights activists in 1999 as part of the unofficial investigation into the events of September 1998 (summarised above in the “Facts” part). Further, the applicant alleged that the statements made by the police officers during the investigation into the allegations of ill-treatment had been fundamentally inconsistent, reflecting the fallacious nature of the version of events advanced by the authorities. In support of his observations the applicant also referred to a number of documents from the official investigation case-file, but to which he had no access at present. 124. The applicant added that there also existed much indirect evidence of the ill-treatment.", "In particular, he indicated that before his arrest his physical and mental condition had been normal. He had not shown signs of any psychological disorder or problems which might have led him to attempt suicide, nor had he borne any physical signs of ill-treatment. Upon entering the traffic police force he had undergone a psychological examination which found him to be stable and mentally well adjusted. However, after a few days in detention he had agreed to confess to the murder and rape of a female minor, a terrible crime which he had not committed (as became clear later when MS turned up alive and unharmed), and then, had attempted to commit suicide. 125.", "Further, the applicant’s account of the events of 10 - 19 September 1998 had not been contested by the respondent Government. The Government had failed to produce the materials from the criminal investigation which might have helped the Court to clarify the circumstances of the case. The Government’s interpretation of Article 161 of the Code of Criminal Procedure had been incorrect, and, moreover, incompatible with their obligations under Article 34 and 38 § 1 (a) of the Convention. 126. The applicant also drew the Court’s attention to the circumstances of his arrest, detention and questioning, which, in his view, revealed a disregard for normal procedures providing safeguards against abuse, such as maintaining a detailed record of the interview, access to a lawyer etc.", "3. The Court’s assessment 127. The Court has held on many occasions that the authorities have an obligation to protect the physical integrity of persons in detention. Where an individual is taken into custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused (see Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, § 34; see also, mutatis mutandis, Salman v. Turkey [GC], no.", "21986/93, § 100, ECHR 2000-VII). Otherwise, torture or ill-treatment may be presumed in favour of the claimant and an issue may arise under Article 3 of the Convention. 128. The Court notes that the parties did not dispute the fact that the applicant had sustained serious injuries by jumping out of the window of the police station, and that he had done it himself. However, differing versions of what had driven the applicant to attempt suicide were put forward by the parties.", "The authorities maintained that the questioning of 19 September 1998 had been lawful, and that the applicant’s own psychological problems had led him to attempt suicide. The applicant opposed that view. He stressed that before the incident he had not shown any signs of mental disorder, and that he had attempted to kill himself solely because he could not withstand the torture and wanted to bring his sufferings to an end. 129. The Court observes in this respect that at all stages of the investigation the applicant presented a consistent and detailed description of who had tortured him and how.", "That fact was also noted by the domestic court on 27 March 2001. Further, the applicant’s allegations were supported by the testimonies of B and the applicant’s mother, who testified that they had seen electrical burns on his ears and head. V and M, other patients at the hospital, also confirmed that the applicant’s ears were injured. Finally, according to the forensic report on the applicant of 26 October 1998, the applicant had bite marks on his tongue – an injury which may indirectly speak for the applicant’s account of events. F testified that while in the hands of the police he had been threatened with the same kind of torture as that described by the applicant.", "F testified further that, while in custody, he had been slapped and threatened with rape and torture with electrodes (see paragraph 58 above). During a short confrontation with the applicant, F saw bruises on the applicant’s neck. 130. On the other hand, the forensic medical examination of the applicant on 26 October 1998 did not reveal any injuries other than those caused by his falling out of the window. Further, the doctors and paramedics who treated the applicant at Hospitals no.", "33 and 39 did not record any marks left by electrodes. Several patients from the hospital testified that they had not noticed any burns on the applicant’s head or ears, although the applicant had mentioned to them that he had been tortured with electrodes. 131. Therefore, on the sole basis of the pre-trial material in the Court’s possession, it is difficult to reach any conclusion “beyond reasonable doubt” as to what exactly happened in Leninskiy district police station on 19 September 1998. At the same time the Court notes that its inability to make any conclusive findings in this respect derives from the failure of the authorities to carry out an effective and adequate investigation and from the Government’s refusal to provide the materials from the investigation.", "132. The Court observes that before the accident the applicant had no apparent mental problems. As to his psychological condition, it is true that one of his former colleagues described him as having a weak personality. In addition, psychological testing at work had shown that the applicant had a tendency to avoid conflict and was a sensitive person. However, these characteristics do not necessarily mean that the applicant was predisposed to suicide, as the authorities suggested.", "On the contrary, a genuine attempt at suicide may require a certain personal resolve. The Court further notes that the forensic examination carried out in 2001 by experts (see paragraph 47 above), failed to reveal any suicidal tendencies at the relevant time. In the absence of any further information from the Government in this respect, the Court draws the conclusion that the applicant did not, before the accident, suffer from any mental deficiency which would influence the outcome of this case. 133. Indeed, the applicant was subjected to a very stressful situation, having been wrongfully suspected of such an appalling crime.", "However, no plausible explanation has been adduced as to why the applicant – who knew he was innocent - would attempt suicide if, as the authorities suggested, no pressure had been put upon him. 134. Furthermore, the Court takes note of the evidence which was produced before the Leninskiy District Court. Thus, the court heard evidence from VZ, who testified that he had been subjected to torture with an electrical device in exactly the same way as the applicant. Further, the court interviewed VK, who confirmed that she had heard from her colleagues that the applicant had attempted suicide because he had been tortured.", "Finally, the court examined the “confession” written by the applicant, which also indirectly confirmed his version of events. 135. In these circumstances, despite the fact that the judgment of 30 November 2005 has not yet become final, the Court is prepared to accept that while in custody the applicant was seriously ill-treated by agents of the State, with the aim of extracting a confession or information about the offences of which he was suspected. The ill-treatment inflicted on him caused such severe physical and mental suffering that the applicant attempted suicide, resulting in a general and permanent physical disability. In view of the Convention case-law in this respect and in particular the criteria of severity and the purpose of the ill-treatment (see, among other authorities, İlhan v. Turkey [GC], no.", "22277/93, § 85, ECHR 2000‑VII), the Court concludes that the ill-treatment at issue amounted to torture within the meaning of Article 3 of the Convention. 136. There has consequently been a violation of Article 3 on that account. D. Other complaints under Article 3 137. The applicant maintained that the ill-treatment at issue became possible, inter alia, because of serious procedural shortcomings in the course of the criminal investigation of which he had been the subject in connection with the disappearance of MS.", "However, in view of its above findings, the Court does not deem it necessary to consider this aspect of the case separately. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 138. The applicant also claimed to have been denied an effective remedy in respect of his Convention complaint of ill-treatment, in breach of Article 13, which states: Article 13 - Right to an effective remedy “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.” He submitted that, in cases of alleged ill-treatment contrary to Article 3, the State authorities were under an obligation under Article 13 to investigate promptly and impartially. 139.", "The Government’s arguments on account of that complaint did not differ from their submissions under Article 3 of the Convention. 140. The Court recalls that Article 13 of the Convention requires that where an arguable breach of one or more of the rights under the Convention is in issue, there should be available to the victim a mechanism for establishing any liability of State officials or bodies for that breach. The Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. As a general rule, if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see, among many other authorities, Kudła v. Poland [GC], no.", "30210/96, § 157, ECHR 2000-XI; see also Čonka v. Belgium, no. 51564/99, § 75, ECHR 2002‑I). 141. However, the scope of the State’s obligation under Article 13 varies depending on the nature of the applicant’s complaint, and in certain situation the Convention requires a particular remedy to be provided. Thus, in cases of suspicious death or ill-treatment, given the fundamental importance of the rights protected by Articles 2 and 3, Article 13 requires (in addition to the payment of compensation where appropriate) a thorough and effective investigation capable of leading to the identification and punishment of those responsible (see Anguelova v. Bulgaria, no.", "38361/97, §§ 161-162, ECHR 2002‑IV; Assenov and Others v. Bulgaria, cited above, § 114 et seq. ; Süheyla Aydın v. Turkey, no. 25660/94, § 208, 24 May 2005). 142. On the basis of the evidence adduced in the present case, the Court has found that the State authorities were responsible under Article 3 of the Convention for the injuries sustained by the applicant on 19 September 1998.", "The applicant’s complaints in this regard were therefore “arguable” for the purposes of Article 13 (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, § 52). The authorities thus had an obligation to carry out an effective investigation into the circumstances applicant’s fall from the window. For the reasons set out above (see the Section I of the “Law” part of the judgment) no sufficiently effective criminal investigation can be considered to have been conducted. The Court finds therefore that the applicant has been denied a sufficiently effective investigation in respect of the ill-treatment by the police and thereby access to any other available remedies at his disposal, including a claim for compensation.", "143. Consequently, there has been a violation of Article 13 of the Convention on that account. III. ALLEGED VIOLATION OF ARTICLES 34 AND 38 OF THE CONVENTION 144. In his post-admissibility observations the applicant also complained that the non-disclosure of the materials of the investigation by the respondent Government was incompatible with their obligations under Articles 34 and 38 § 1 (a) of the Convention.", "Article 34 reads as follows: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” Article 38 § 1 (a) reads as follows: “1. If the Court declares the application admissible, it shall (a) pursue the examination of the case, together with the representatives of the parties, and if need be, undertake an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities”. 145. Having regard to its above reasoning leading to the findings under Articles 3 and 13 of the Convention, the Court considers that it is not necessary to examine these complaints separately under Articles 34 and 38 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 146. 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. The applicant’s claims for just satisfaction 147. First, the applicant claimed pecuniary damages relating to ongoing medical treatment of the ailments resulting from the accident of 19 September 1998.", "He indicated that since 1998 various charitable organisations and private donors had covered the costs of his medical treatment. However, he could not expect them to support him for years to come. Therefore, he needed to find other resources. According to the report of Dr L. Magnutova (see above), the estimated cost of each hospital stay of the applicant, who needed to be admitted at least two or three times a year, was RUR 60,000 . In addition, the applicant had to spend RUR 300 – 500 daily on medicines and personal hygiene items.", "Consequently, the total amount of his expenses for medical purposes was as much as RUR 362,500 annually. Based on this assumption the applicant claims RUR 23,562,500 to cover his future medical expenses up to the age of 65. 148. The applicant further indicated that he had been officially granted first-degree disability status. He was unable to work and earn money, needed constant nursing and, since his family was unable to pay for such services, his mother had had to leave her job to take care of him.", "The loss of her earnings, he argued, should be regarded as a material loss. Further, the applicant claimed the amount of his own lost earnings. Basing his calculation on the official statistical data on the average salary in Russia during the relevant period, the applicant claimed RUR 2,736,384 in compensation for his lost income and RUR 513,072 in compensation for his mother’s lost income. 149. In sum, the applicant claimed RUR 27,351,812 for pecuniary damage (about EUR 794,000 at the current official exchange rate).", "150. The applicant also claimed compensation for non-pecuniary damage. He indicated that he had been subjected to torture with electrodes in the police station, which had caused him severe physical and mental suffering. Moreover, his fall from the window had resulted in a very serious and painful trauma. His legs were paralysed, he could move around only in a wheelchair and would never have children.", "For the rest of his life the applicant would be dependent on other people. He could not work and experience professional development and advancement in his career. The building where he lived had no elevator and he had to undertake strenuous efforts every time he wanted to go out. Most of the public buildings in Russia lacked special access facilities for wheelchair users. As a result, his movements and social contacts were very limited.", "All these factors caused him constant and severe mental anguish. 151. Finally, his sufferings had been aggravated by the authorities’ consistently negative attitude towards him and their refusal to recognise their liability for the accident. He had been labelled humiliatingly as a person of unstable character who had tried to excuse his attempted suicide by accusing police officers. This made the applicant feel miserable, helpless and frustrated.", "152. On the basis of the above the applicant claimed RUR 22,530,000 in respect of non-pecuniary damage (approximately EUR 654,000 at the current official exchange rate). B. The Government’s position on just satisfaction claims 153. In reply to the applicant’s claims for just satisfaction the Government noted that the civil proceedings initiated by the applicant before the Leninskiy District Court of Nizhniy Novgorod were still pending.", "These proceedings had been stayed at the applicant’s own request pending the result of the criminal investigation. The time-limit for completion of the investigation had been extended until 2 April 2005 by the Deputy Prosecutor General. Hence, the Government concluded, since the proceedings at national level had not yet been completed, the applicant had an opportunity to obtain compensation in the domestic courts. Therefore, his claims for just satisfaction were premature. 154.", "Alternatively, the Government regarded the amount claimed by the applicant as excessive and unsubstantiated. C. The Court’s assessment 1. Pecuniary damage 155. At the outset, the Court considers that the fact that the applicant may still receive an award in respect of pecuniary damage under the domestic legal proceedings does not deprive him of his right to claim compensation under Article 41 of the Convention. The Court may examine this issue even if domestic proceedings of a similar nature are still pending; any other interpretation of Article 41 of the Convention would make this provision ineffective (see, mutatis mutandis, De Wilde, Ooms and Versyp v. Belgium (former Article 50), judgment of 10 March 1972, Series A no.", "14, § 14 et seq.). 156. The Court further reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention and that this may, in the appropriate case, include compensation in respect of loss of earnings (see Barberà, Messegué and Jabardo v. Spain (former Article 50), judgment of 13 June 1994, Series A no. 285-C, §§ 16-20). 157.", "The Court has found that the applicant was tortured, as a result of which he attempted suicide. The authorities are thus responsible for the consequences ensuing from the incident of 19 September 1998. The applicant is now unable to work, and a considerable amount of money is required to continue his treatment. Consequently, there is a causal link between the violation found and the reduction in the applicant’s earnings and his future medical expenses (see, by contrast, Berktay v. Turkey, no. 22493/93, § 215, 1 March 2001, where no casual link between the ill-treatment and the current psychological problems of the applicant was established by the Court).", "158. The Court further reiterates that a precise calculation of the sums necessary to make complete reparation (restitutio in integrum) in respect of the pecuniary losses suffered by an applicant may be prevented by the inherently uncertain character of the damage flowing from the violation (see Young, James and Webster v. the United Kingdom (former Article 50), judgment of 18 October 1982, Series A no. 55, § 11). An award may still be made notwithstanding the large number of imponderables involved in the assessment of future losses, though the greater the lapse of time involved the more uncertain the link between the breach and the damage becomes (see Orhan v. Turkey, no. 25656/94, § 426 et seq., 18 June 2002).", "The question to be decided in such cases is the level of just satisfaction, in respect of either past or future pecuniary loss, which it is necessary to award to an applicant, and is to be determined by the Court at its discretion, having regard to what is equitable (see Sunday Times v. the United Kingdom (former Article 50), judgment of 6 November 1989, Series A no. 38, p. 9, § 15, and Lustig-Prean and Beckett v. the United Kingdom (Article 41), nos. 31417/96 and 32377/96, §§ 22-23, ECHR 2000). 159. The Court notes that the applicant’s claim as regards future medical expenses and loss of income was based on the report of Dr L. Magnutova, indicating the estimated annual cost of medical treatment for the applicant, the official data on average salaries in Russia and the assumption that he would have continued working until the age of 60 and that his life expectancy would be 65.", "The Government did not produce any alternative calculation in respect of the alleged future expenses or loss of income. 160. The Court observes that in some previous cases where the loss of future earnings was at issue, the Court based its calculations on the actuarial calculations of capital needed for maintaining a certain level of income, produced by the applicants’ representatives (see Aktaş v. Turkey, no. 24351/94, § 350, ECHR 2003‑V, and Orhan v. Turkey, cited above, § 433). The same approach may be applied to the calculation of future expenses.", "In the present case, however, the overall amount claimed by the applicant was calculated simply by multiplying his annual medical expenses by average life expectancy in Russia. The amount claimed under the head of loss of future income was calculated in the same way. 161. Therefore, even assuming that all the calculations and data supplied by the applicant are correct, the Court considers that the method of calculation applied in the present case is not in line with the Court’s approach to the calculation of future losses. Furthermore, the calculation of his lost income does not include the amount which he collects as a disability pension.", "Therefore, the Court cannot accept the final figure claimed under this head by the applicant. 162. Nonetheless, bearing in mind the uncertainties of the applicant’s situation, and the fact that he will undeniably suffer significant material losses as a result of his complete disability and the need for constant medical treatment, the Court considers it appropriate, in the present case, to make an award in respect of pecuniary damage based on its own assessment of the situation (see, mutatis mutandis, Avşar v. Turkey, no. 25657/94, § 442, ECHR 2001‑VII; Z and Others v. the United Kingdom [GC], no. 29392/95, § 127, ECHR 2001‑V; and Orhan v. Turkey, cited above, § 438).", "Given the seriousness of the applicant’s condition, the need for specialised and continuous medical treatment and his complete inability to work in the future, the Court awards him EUR 130,000 under this head, plus any tax that may be chargeable on this amount. 2. Non-pecuniary damage 163. The Court reiterates that at the time of the accident the applicant was a healthy young man in permanent employment. While in the hands of the police he was subjected to torture, which caused him severe mental and physical suffering.", "Then, after the accident, he underwent several operations on his spine. Now he has lost his mobility and sexual and pelvic function, and is unable to work or have children. He has to undergo regular medical examinations, and the risk of aggravation of his condition persists. Given the exceptionally serious consequences of the incident of 19 September 1998 for the applicant, the Court awards him EUR 120,000 in compensation for non-pecuniary damage, plus any tax that may be chargeable on this amount. D. Default interest 164.", "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. Dismisses the Government’s objection as to the non-exhaustion of domestic remedies and accepts the applicant’s status as a victim of the alleged violation; 2. Holds that there has been a violation of Article 3 of the Convention in respect of the failure to conduct an effective investigation into the applicant’s fall from the window of the police station on 19 September 1998; 3. Holds that there has been a violation of Article 3 of the Convention on account of the ill-treatment inflicted on the applicant while in police custody; 4.", "Holds that, in view of the above findings, it is not necessary to examine the other complaints submitted by the applicant under Article 3 of the Convention; 5. Holds that there has been a violation of Article 13 of the Convention on account of the lack of effective remedies in respect of the ill-treatment complained of; 6. Holds that there is no need to examine separately the applicant’s complaint under Article 34 and 38 § 1 (a); 7. 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 130,000 (one hundred and thirty thousand euros) in respect of pecuniary damage and EUR 120,000 (one hundred and twenty thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable on these amounts; (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; 8. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 26 January 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]
[ "CASE OF ERDOĞDU AND İNCE v. TURKEY (Applications nos. 25067/94 and 25068/94) JUDGMENT STRASBOURG 8 July 1999 In the case of Erdoğdu and İnce v. Turkey, The European Court of Human Rights, sitting, in accordance with Article 27 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), as amended by Protocol No. 11[1], and the relevant provisions of the Rules of Court2, as a Grand Chamber composed of the following judges: MrL. Wildhaber, President,MrsE. Palm,MrA.", "Pastor Ridruejo,MrG. Bonello,MrJ. Makarczyk,MrP. Kūris,MrJ.-P. Costa,MrsF. Tulkens,MrsV.", "Strážnická,MrM. Fischbach,MrV. Butkevych,MrJ. Casadevall,MrsH.S. Greve,MrA.B.", "Baka,MrR. Maruste,MrK. Traja,MrF. Gölcüklü, ad hoc judge, and also of Mr P.J. Mahoney and Mrs M. de Boer-Buquicchio, Deputy Registrars, Having deliberated in private on 4 March and 16 June 1999, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.", "The case was referred to the Court, as established under former Article 19 of the Convention[3], by the European Commission of Human Rights (“the Commission”) on 17 March 1998, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention. It originated in two applications (nos. 25067/94 and 25068/94) against the Republic of Turkey lodged with the Commission under former Article 25 by two Turkish nationals, Mr Ümit Erdoğdu and Mr Selami İnce, on 20 August 1994. The Commission’s request referred to former Articles 44 and 48 and to the declaration whereby Turkey 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 cases disclosed a breach by the respondent State of its obligations under Articles 7 and 10 of the Convention.", "2. In response to the enquiry made in accordance with Rule 33 § 3 (d) of former Rules of Court A[2], the applicants stated that they wished to take part in the proceedings and designated the lawyers who would represent them (former Rule 30). The lawyers were given leave by the President of the Court at the time, Mr R. Bernhardt, to use the Turkish language in the written procedure (former Rule 27 § 3). 3. As President of the Chamber which had originally been constituted (former Article 43 of the Convention and former Rule 21) in order to deal, in particular, with procedural matters that might arise before the entry into force of Protocol No.", "11, Mr Bernhardt, acting through the Registrar, consulted the Agent of the Turkish Government (“the Government”), the applicants’ lawyers and the Delegate of the Commission on the organisation of the written procedure. Pursuant to the order made in consequence, the Registrar received the Government’s and the applicants’ memorials on 24 and 25 August 1998 respectively. On 29 September 1998 the Government filed with the Registry additional information in support of their memorial and on 30 November 1998 the applicants filed details of their claims for just satisfaction. On 1 December 1998 the second applicant, Mr İnce, filed further details of his claims for just satisfaction. On 26 February 1999 the Government filed their observations in reply to both applicants’ claims for just satisfaction.", "4. After the entry into force of Protocol No. 11 on 1 November 1998 and in accordance with the provisions of Article 5 § 5 thereof, the case was referred to the Grand Chamber of the Court. The President of the Court, Mr L.Wildhaber, decided that, in the interests of the proper administration of justice, a single Grand Chamber should be constituted to hear the instant case and twelve other cases against Turkey, namely: Karataş v. Turkey (application no. 23168/94); Arslan v. Turkey (no.", "23462/94); Polat v. Turkey (no. 23500/94); Ceylan v. Turkey (no. 23556/94); Okçuoğlu v. Turkey (no. 24246/94); Gerger v. Turkey (no. 24919/94); Başkaya and Okçuoğlu v. Turkey (nos.", "23536/94 and 24408/94); Sürek and Özdemir v. Turkey (nos. 23927/94 and 24277/94); Sürek v. Turkey (no. 1) (no. 26682/95); Sürek v. Turkey (no. 2) (no.", "24122/94); Sürek v. Turkey (no. 3) (no. 24735/94); and Sürek v. Turkey (no. 4) (no. 24762/94).", "5. The Grand Chamber constituted for that purpose included ex officio Mr R. Türmen, the judge elected in respect of Turkey (Article 27 § 2 of the Convention and Rule 24 § 4 of the Rules of Court), Mr Wildhaber, the President of the Court, Mrs E. Palm, Vice-President of the Court, and Mr J.‑P. Costa and Mr M. Fischbach, Vice-Presidents of Sections (Article 27 § 3 of the Convention and Rule 24 §§ 3 and 5 (a)). The other members appointed to complete the Grand Chamber were Mr A. Pastor Ridruejo, Mr G. Bonello, Mr J. Makarczyk, Mr P. Kūris, Mrs F. Tulkens, Mrs V. Strážnická, Mr V. Butkevych, Mr J. Casadevall, Mrs H.S. Greve, Mr A.B.", "Baka, Mr R. Maruste and Mrs S. Botoucharova (Rule 24 § 3 and Rule 100 § 4). On 19 November 1998 Mr Wildhaber exempted Mr Türmen from sitting after his withdrawal from the case in the light of the decision of the Grand Chamber taken in accordance with Rule 28 § 4 in the case of Oğur v. Turkey. On 16 December 1998 the Government notified the Registry that Mr F. Gölcüklü had been appointed ad hoc judge (Rule 29 § 1). Subsequently Mr K. Traja, substitute judge, replaced Mrs Botoucharova, who was unable to take part in the further consideration of the case (Rule 24 § 5 (b)). 6.", "At the invitation of the Court (Rule 99), the Commission delegated one of its members, Mr D. Šváby, to take part in the proceedings before the Grand Chamber. 7. In accordance with the decision of the President, who had also given the applicants’ lawyers leave to address the Court in Turkish (Rule 34 § 3), a hearing took place in public in the Human Rights Building, Strasbourg, on 1 March 1999, the case being heard simultaneously with that of Gerger v. Turkey. The Court had held a preparatory meeting beforehand and decided to admit the applicants’ late appointment of Mr E. Şansal to represent them at the hearing. There appeared before the Court: (a) for the GovernmentMrD.", "Tezcan,MrM. Özmen,Co-agents,MrB. Çalışkan,MsG. Akyüz,MsA. Günyaktı,MrF.", "Polat,MsA. Emüler,MrsI. Batmaz Keremoğlu,MrB. Yıldız,MrY. Özbek,Advisers; (b) for the applicantsMrE.", "Şansal, of the Ankara Bar,Counsel; (c) for the CommissionMrD. ŠvábyDelegate. The Court heard addresses by Mr Šváby, Mr Şansal and Mr Tezcan. THE FACTS I. the CIRCUMSTANCES OF THE CASE A. The applicants 8.", "At the material time, the first applicant, Mr Ümit Erdoğdu, was the responsible editor of the monthly review Demokrat Muhalefet! (“Democratic Opposition!”), published in Istanbul. In the January 1992 issue of the review, an interview which the second applicant, Mr Selami İnce, had conducted with a Turkish sociologist, Dr İ.B., was published. B. The impugned publication 9.", "A translation of the relevant parts of the interview is as follows: “Q: How and to what extent will Demirel accept the ‘Kurdish reality’? Can his understanding of the ‘reality’ be deemed to represent State policy? A: … The government is forced to accept certain facts now that there is armed resistance in Kurdistan. ... Violence by the Turkish forces could not stop the escalation and progress of the PKK [Workers’ Party of Kurdistan] ... Q: How will the State shape its new official policy on Kurdistan? Which aspects of the official ideology will be changed and how will they be changed?", "What effects can this have on the daily lives of the Kurdish people? A: … In Turkey, the government and the State are two very different things. The State functions through institutions and bodies, members of which are designated by appointment. These institutions and bodies represent the power of the State. The government, i.e.", "the political power, carries very little weight against the power of the State. That is why governments can be overthrown by the State authority so often. Official ideology can only be changed in the long term and the forces which are capable of changing it are non-governmental political and social forces and their struggle. The essence of the ideas and action of the PKK, for example, is such as can change the official ideology, reduce the influence of the appointed bodies of Turkey’s political scene, and increase the weight of parliaments elected by the people. In my opinion, de facto, the influence of the Kurds and, in particular, that of the PKK, will grow further.", "The influence of the PKK in both the Kurdish and the Turkish societies will spread and deepen. And, as that influence grows, more serious steps will be taken by governments in their policies towards recognising the ‘Kurdish reality’. It is evident that the State will try to obstruct the government in that process and will try to distort certain ideas and policies. And it is also manifest that the government will be able to survive so long as it can resist the power of the State and control the appointed institutions and bodies, i.e. so long as it has real power.", "These changes will be reflected in the daily lives of the Kurds. Investigations and research will develop in fields such as the Kurdish language, history and folklore. Kurdish culture will be revived. The specificity of a Kurdish society will be emphasised more amongst the Kurdish masses. National awareness and desire for liberation will become stronger and will spread further.", "The idea and feelings for independence will develop. Q: It is now observed that Kurds who, until now, would never have said ‘I am Kurdish and I am engaging in politics for my present life and for my future’ are now clearly beginning ‘to get into politics for their own interests’ throughout Kurdistan and Turkey. What sort of developments have brought about this situation? Do Kurds need a political subject in the legal sphere? If so, what form should it take?", "A: Without any doubt, the most important cause of these developments has been the armed combat which the PKK has been waging for almost eight years. The guerrilla warfare has brought about major social and political changes in traditional Kurdish society. Traditional values are in turmoil. There has been very widespread support amongst the people for Kurdish guerrilla fighters ever since 15 August 1984. National awareness is now growing in Kurdish society and this process is spreading rapidly.", "And we see that, within this process, the political establishment has been used for Kurdish interests, for the move towards autonomy and independence. Kurds, who have always been engaged in politics for others and in order to serve other nations, are now engaged in politics in order to serve the Kurdish people. Healthy national awareness is now developing in response to Turkish racism and colonialism. It would no doubt be over-simplifying to say that all this began after the onset of Kurdish guerrilla warfare on 15 August. This process has roots that go further back into the past but what has been decisive is the new process launched by the PKK.", "... Who is illegal in Kurdistan? The guerrillas or the special team of the Turkish armed forces? ... Q: What should be done to counteract the wave of chauvinist Turkish nationalism encouraged by the right-wing press and the MCP [Nationalist Workers’ Party]? Is there a possibility of a confrontation between the Turkish and Kurdish peoples? How could that be prevented?", "A: … Kurds are dying for their nation. What are the Turks dying for? What are they doing in Kurdistan? Q: It has been under discussion for some time that the PKK hegemony in Kurdistan has reached a stage where one can now talk of a ‘double power’. Öcalan has mentioned in his writings an orientation towards the ‘formation of a Government-State’ in the Botan-Behdinan region.", "Are there any signs of what the future interventions of the PKK will be in Kurdistan and in Turkish politics? A: … The Turkish State has already withdrawn its soldiers and evacuated police stations in some regions such as Botan. ... This could be perceived as the beginning of the formation of a State ...” C. The measures taken by the authorities 1. The charges against the applicants 10.", "In an indictment dated 23 March 1992 the public prosecutor at the Istanbul National Security Court (İstanbul Devlet Güvenlik Mahkemesi) charged the applicants with having disseminated propaganda against the indivisibility of the State by publishing the above interview. The charges were brought under section 8 of the Prevention of Terrorism Act 1991 (hereinafter “the 1991 Act” – see paragraph 19 below). 2. The proceedings before the National Security Court 11. In the proceedings before the National Security Court, the applicants denied the charges.", "They pleaded that the incriminated interview was a mere transcript of Dr. İ.B.’s statements. They maintained that the publication of an interview could not constitute an offence and that similar views had been expressed by the highest authorities in Turkey. 3. The applicants’ conviction 12. In a judgment dated 12 August 1993 the Istanbul National Security Court found the applicants guilty of offences under section 8 of the 1991 Act.", "The first applicant was sentenced under the second paragraph of section 8 to five months’ imprisonment and a fine of 41,666,666 Turkish liras (TRL). The second applicant was sentenced under the first paragraph of section 8 to one year and eight months’ imprisonment and a fine of TRL 41,666,666. 13. In its reasoning, the court relied on certain extracts from the interviewee’s statements as published. It held that the following phrases amounted to propaganda against the indivisibility of the State: “... the government is forced to accept certain facts now that there is armed resistance in Kurdistan ...”; “... Violence by the Turkish forces could not stop the escalation and progress of the PKK ...”; “...", "The essence of the ideas and action of the PKK ... can change the official ideology ...”; “... the influence of the Kurds and, in particular, that of the PKK, will grow further. The influence of the PKK in both the Kurdish and the Turkish societies will spread and deepen ...”; “... National awareness and desire for liberation will become stronger and will spread further. The idea and feelings for independence will develop ...”; “... the most important cause of these developments has been the armed combat which the PKK has been waging for almost eight years ...”; “... Who is illegal in Kurdistan? The guerrillas or the special team of the Turkish armed forces? ...”; “... Kurds are dying for their nation.", "What are the Turks dying for? What are they doing in Kurdistan? ...”; “... The Turkish State has already withdrawn its soldiers and evacuated police stations in some regions such as Botan ...”; “... This could be perceived as the beginning of the formation of a State ...”.", "4. The applicants’ appeal 14. The applicants appealed against their conviction. On 1 February 1994 the Court of Cassation dismissed the appeals. It upheld the National Security Court’s assessment of the evidence and its reasons for rejecting the applicants’ defence.", "The judgment was served on the applicants on 21 February 1994. 5. Further developments 15. Following the amendments made by Law no. 4126 of 27 October 1995 to the 1991 Act (see paragraphs 19 and 20 below), the Istanbul National Security Court ex officio re-examined the applicants’ cases.", "On 15 December 1995 the court sentenced the first applicant to five months’ imprisonment and a fine of TRL 41,666,666 and the second applicant to one year, one month and ten days’ imprisonment and a fine of TRL 111,111,110. The court ordered that the execution of the sentences be suspended on probation. 16. The applicants appealed against these sentences. On 7 April 1997 the Court of Cassation quashed the National Security Court’s judgment.", "Concerning Mr Erdoğdu, the Court of Cassation pointed out that he had been prosecuted in his capacity as responsible editor and, therefore, the prison sentence imposed on him should have been converted into a fine in default of which the sentence was unlawful. Concerning Mr İnce, the Court of Cassation found that his lawyer had not been properly notified about the date of the hearing before the National Security Court. 17. On 9 September 1997 the National Security Court held a hearing. Having regard to the provisions of Law no.", "4304 which had entered into force on 14 August 1997, the court decided to defer the imposition of a final sentence on Mr Erdoğdu, pursuant to section 1 of that Law. This decision remained subject to the conditions laid down under section 2 (see paragraph 21 below). The court maintained Mr İnce’s conviction and the sentence imposed on him, the execution of which was, however, suspended in the light of his good conduct during the trial. II. relevant domestic law and practice A.", "Criminal law 1. The Press Act (Law no. 5680 of 15 July 1950) 18. The relevant provisions of the Press Act 1950 read as follows: Section 3 “For the purposes of the present Law, the term ‘periodicals’ shall mean newspapers, press agency dispatches and any other printed matter published at regular intervals. ‘Publication’ shall mean the exposure, display, distribution, emission, sale or offer for sale of printed matter on premises to which the public have access where anyone may see it.", "An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place, except where the material in itself is unlawful.” 2. The Prevention of Terrorism Act (Law no. 3713 of 12 April 1991)[3] 19. The relevant provisions of the Prevention of Terrorism Act 1991 read as follows: Section 8 (before amendment by Law no. 4126 of 27 October 1995) “Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention.", "Any person who engages in such an activity shall be sentenced to not less than two and not more than five years’ imprisonment and a fine of from fifty million to one hundred million Turkish liras. Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched[[4]]. However the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.” Section 8 (as amended by Law no.", "4126 of 27 October 1995) “Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine. Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly.", "However, the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment. Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph, those responsible and the owners of the means of mass communication shall be sentenced to not less than six months’ and not more than two years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras … …” Section 13 (before amendment by Law no. 4126 of 27 October 1995) “The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.” Section 13 (as amended by Law no. 4126 of 27 October 1995) “The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.", "However, the provisions of this section shall not apply to convictions pursuant to section 8[[5]].” Section 17 “Persons convicted of the offences contemplated in the present Law who ... have been punished with a custodial sentence shall be granted automatic parole when they have served three-quarters of their sentence, provided they have been of good conduct. … The first and second paragraphs of section 19[[6]] … of the Execution of Sentences Act (Law no. 647) shall not apply to the convicted persons mentioned above.” 3. Law no. 4126 of 27 October 1995 amending sections 8 and 13 of Law no.", "3713 20. The following amendments were made to the Prevention of Terrorism Act 1991 after the enactment of Law no. 4126 of 27 October 1995: Transitional provision relating to section 2 “In the month following the entry into force of the present Law, the court which has given judgment shall re-examine the case of a person convicted pursuant to section 8 of the Prevention of Terrorism Act (Law no. 3713) and, in accordance with the amendment ... to section 8 of Law no. 3713, shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections 4[[7]] and 6[[8]] of Law no.", "647 of 13 July 1965.” 4. Law no. 4304 of 14 August 1997 on the deferment of judgment and of executions of sentences in respect of offences committed by editors before 12 July 1997 21. The following provisions are relevant to sentences in respect of offences under the Press Act: Section 1 “The execution of sentences passed on those who were convicted under the Press Act (Law no. 5680) or other laws as editors for offences committed before 12 July 1997 shall be deferred.", "The provision in the first paragraph shall also apply to editors who are already serving their sentences. The institution of criminal proceedings or delivery of final judgments shall be deferred where proceedings against the editor have not yet been brought, or where a preliminary investigation has been commenced but criminal proceedings have not been instituted, or where the final judicial investigation has been commenced but judgment has not yet been delivered, or where the judgment has still not become final.” Section 2 “If an editor who has benefited under the provisions of the first paragraph of section 1 is convicted as an editor for committing an intentional offence within three years of the date of deferment, he must serve the entirety of the suspended sentence. … Where there has been a deferment, criminal proceedings shall be instituted or judgment delivered if an editor is convicted as such for committing an intentional offence within three years of the date of deferment. Any conviction as an editor for an offence committed before 12 July 1997 shall be deemed a nullity if the aforesaid period of three years expires without any further conviction for an intentional offence. Similarly, if no criminal proceedings have been instituted, it shall no longer be possible to bring any, and, if any have been instituted, they shall be discontinued.” 5.", "The Execution of Sentences Act (Law no. 647 of 13 July 1965) 22. The Execution of Sentences Act provides, inter alia: Section 5 “The term ‘fine’ shall mean payment to the Treasury of a sum fixed within the statutory limits. … If, after service of the order to pay, the convicted person does not pay the fine within the time-limit, he shall be committed to prison for a term of one day for every ten thousand Turkish liras owed, by a decision of the public prosecutor. … The sentence of imprisonment thus substituted for the fine may not exceed three years …” Section 19(1) “… persons who ... have been ordered to serve a custodial sentence shall be granted automatic parole when they have served half of their sentence, provided they have been of good conduct ...” 6.", "The Code of Criminal Procedure (Law no. 1412) 23. The Code of Criminal Procedure contains the following provisions: Article 307 “An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment. Non-application or erroneous application of a legal rule shall constitute unlawfulness[[9]].” Article 308 “Unlawfulness is deemed to be manifest in the following cases: 1- where the court is not established in accordance with the law; 2- where one of the judges who have taken the decision was barred by statute from participating; …” B. Criminal case-law submitted by the Government 24.", "The Government supplied copies of several decisions given by the prosecutor attached to the Istanbul National Security Court withdrawing charges against persons suspected of inciting people to hatred or hostility, especially on religious grounds (Article 312 of the Criminal Code), or of disseminating separatist propaganda against the indivisible unity of the State (section 8 of Law no. 3713 – see paragraph 19 above). In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor’s decision included such considerations as the fact that the proceedings were time-barred, that some of the constituent elements of the offence could not be made out or that there was insufficient evidence. Other grounds included the fact that the publications in issue had not been distributed, that there had been no unlawful intent, that no offence had been committed or that those responsible could not be identified. Furthermore, the Government submitted a number of decisions of the National Security Courts as examples of cases in which defendants accused of the above-mentioned offences had been found not guilty.", "These were the following judgments: 19 November (no. 1996/428) and 27 December 1996 (no. 1996/519); 6 March (no. 1997/33), 3 June (no. 1997/102), 17 October (no.", "1997/527), 24 October (no. 1997/541) and 23 December 1997 (no. 1997/606); 21 January (no. 1998/8), 3 February (no. 1998/14), 19 March (no.", "1998/56), 21 April (no. 1998/87) and 17 June 1998 (no. 1998/133). 25. As regards more particularly proceedings against authors of works dealing with the Kurdish problem, the National Security Courts in these cases reached their decisions on the ground that there had been no dissemination of “propaganda”, one of the constituent elements of the offence, or on account of the objective nature of the words used.", "PROCEEDINGS BEFORE THE COMMISSION 26. Mr Ümit Erdoğdu, the first applicant, and Mr Selami İnce, the second applicant, applied to the Commission on 20 August 1994. They relied on Articles 9, 10 and 7 of the Convention, arguing that their convictions resulting from the publication of the incriminated interview unjustifiably interfered with their freedom of thought and freedom of expression and, moreover, that they had been convicted for an act which had not constituted a criminal offence under national or international law at the time it had been committed given that the relevant provision of the Prevention of Terrorism Act 1991 was so vague that it had not enabled them to distinguish between permissible and prohibited behaviour. 27. The Commission declared the applications (nos.", "25067/94 and 25068/94) admissible on 2 September and 14 October 1996, respectively. On 2 December 1997 the Commission decided to join the applications. In its report of 11 December 1997 (former Article 31 of the Convention), it expressed the opinion that there had been a violation of Article 10 (thirty-one votes to one) and that there had been no violation of Article 7 (unanimously). Extracts from the Commission’s opinion and the partly dissenting opinion contained in the report are reproduced as an annex to this judgment[10]. FINAL SUBMISSIONS TO THE COURT 28.", "In their memorial the applicants requested the Court to find that the respondent State was in breach of its obligations under Articles 7 and 10 of the Convention and to award them just satisfaction under Article 41. The Government for their part submitted that the applicants’ complaints should have been declared inadmissible for non-compliance with the six‑month rule. In the alternative, they requested the Court to find that there had been no violation of the Articles invoked by the applicants. THE LAW i. THE GOVERNMENT’S PRELIMINARY OBJECTION 29.", "The Government maintained that the applications should have been declared inadmissible by the Commission under former Article 26 (now Article 35 § 1) of the Convention for failure to respect the six-month rule. They submitted that the Court of Cassation had examined the applicants’ cases on 1 February 1994. The judgment had been made public on 9 February and served on them on 21 February 1994. However, the applications were received by the Commission only on 24 August 1994, that is to say, more than six months after any of these dates. 30.", "The Court observes that the Court of Cassation’s decision was served on the applicants on 21 February 1994 and that the first communication including all relevant details of the applications was made by the applicants in their letter dated 20 August 1994. Like the Commission, the Court considers that the fact that the applicants’ first letter was received by the Commission only four days after the date indicated in the letter does not suggest that the applicants had back-dated that letter. The Court therefore dismisses the Government’s preliminary objection. II. scope of the case 31.", "The Court notes that the applicants’ lawyer at the hearing asserted that the Istanbul National Security Court which tried and convicted them could not be considered an independent and impartial tribunal and contended that this gave rise to a breach of Article 6 § 1 of the Convention. However, that particular complaint was never raised in the proceedings before the Commission and for that reason it cannot be considered to be within the scope of the case before the Court (see, mutatis mutandis, among other authorities, Janowski v. Poland [GC], no. 25716/94, § 19, ECHR 1999-I). The Court will therefore confine its examination to the applicants’ complaints under Articles 7 and 10 of the Convention. III.", "ALLEGED VIOLATION OF ARTICLEs 9 and 10 OF THE CONVENTION 32. The applicants alleged that the authorities had unjustifiably interfered with their right to freedom of thought and their right to freedom of expression guaranteed respectively under Articles 9 and 10 of the Convention. The Court, like the Commission, considers that the facts of the applicants’ complaint fall to be examined under Article 10 which provides: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.", "This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 33. The Government maintained that the interference with the applicants’ right to freedom of expression was justified under the provisions of the second paragraph of Article 10. The Commission on the other hand accepted the applicants’ allegations.", "A. Existence of an interference 34. The Court notes that it is clear, and this has not been disputed, that there has been an interference with the applicants’ right to freedom of expression on account of their conviction and sentence under section 8 of the Prevention of Terrorism Act 1991 (the “1991 Act”). B. Justification of the interference 35. The above-mentioned interference contravened Article 10 unless it was “prescribed by law”, had one or more of the legitimate aims referred to in paragraph 2 of Article 10 and was “necessary in a democratic society” for achieving such aim or aims.", "The Court will examine each of these criteria in turn. 1. “Prescribed by law” 36. The applicants did not comment on whether there had been compliance with this requirement (see, however, paragraph 57 below). 37.", "The Government pointed out that the measures taken against the applicants were based on section 8 of the 1991 Act. 38. The Commission considered that the wording of section 8 of the 1991 Act, as in force when the offence had been committed, had been sufficiently specific to enable the applicants, if necessary after taking legal advice, to regulate their conduct in the matter and that the requirement of foreseeability had thus been met. The Commission found, therefore, that the interference with the applicants’ rights laid down in Article 10 had been prescribed by law. 39.", "The Court, like the Commission, accepts that since the applicants’ convictions were based on section 8 of the 1991 Act, the resultant interference with their right to freedom of expression could be regarded as “prescribed by law”. 2. Legitimate aim 40. The applicants maintained that the purpose of section 8 of the 1991 Act was to silence all ideas which were incompatible with the official views of the State. For this reason, their conviction could not be said to pursue any legitimate aim.", "The incriminated interview contained the views of a sociologist and a researcher on the situation of Kurds, and did not incite to violence, include any separatist propaganda or express support for any illegal organisation. 41. The Government reiterated that the prohibition of separatist propaganda under section 8 of the 1991 Act was directed at the protection of the territorial integrity and the national unity of the respondent State and, accordingly, in view of the threat posed by terrorism, at the protection of public order and national security. 42. The Commission for its part concluded that the applicants’ convictions were part of the authorities’ efforts to combat illegal terrorist activities and to maintain national security and public safety, which are legitimate aims under Article 10 § 2.", "43. The Court considers that, having regard to the sensitivity of the security situation in south-east Turkey (see the Zana v. Turkey judgment of 25 November 1997, Reports of Judgments and Decisions 1997-VII, p. 2539, § 10) and to the need for the authorities to be alert to acts capable of fuelling additional violence, the measures taken against the applicants can be said to have been in furtherance of certain of the aims mentioned by the Government, namely the protection of national security and territorial integrity and the prevention of disorder and crime. This is certainly true where, as with the situation in south-east Turkey at the time of the circumstances of this case, the separatist movement had recourse to methods which rely on the use of violence. 3. “Necessary in a democratic society” (a) Arguments of those appearing before the Court (i) The applicants 44.", "The applicants stressed that their prosecution and conviction constituted unjustified and disproportionate interferences with their right to freedom of expression. In their submission, press organs which communicated ideas contradicting the official position of the authorities in Turkey were accused of disseminating propaganda in favour of terrorist organisations and were punished on the pretext of protecting national security and territorial integrity. The incriminated interview itself was meant to be part of a file covering a broad spectrum of opinions on the Kurdish question, ranging from those of executives of the parties constituting the governing coalition to those of the military. It contained the opinion of a researcher and sociologist, taking the form of an analysis of the situation of Kurds. Even the 1995 amendment to the 1991 Act fell short of ending the concept of “criminal thought” in Turkey.", "This was clearly shown by the fact that the applicants’ convictions and sentences, although re-examined, were not annulled. (ii) The Government 45. The Government replied that the language used in the impugned interview had appealed to the feelings, intellect and will of citizens of Kurdish origin in a call to Kurds to establish a national assembly. It depicted the PKK (Workers’ Party of Kurdistan) as a liberation army which would undoubtedly win the armed conflict with the Republic of Turkey. The interview was published at a time when the PKK, taking advantage of the disarray created by the Gulf war on the Iraqi border, was carrying out attacks everywhere against both military and civilian targets and was massacring dozens of people daily.", "The interviewee’s opinions therefore constituted support for separatist violence. The phrases used in the interview incited readers of Kurdish origin to engage in armed combat against the Turkish State and offered moral support to separatist violence and acts of “national liberation” committed by citizens of Kurdish origin. This was no mere analysis but a definite encouragement for PKK acts and thus a glorification of the Kurdish independence movement. In a context of virulent terrorism such as perpetrated by the PKK, which systematically engaged in the massacre of women, children, teachers and conscripts, it was not an option but a duty for the Turkish authorities to prohibit any act of disseminating separatist propaganda as such acts were bound to serve as an incitement to violence and enmity among the various constituent parts of Turkish society and endanger human rights and democratic principles and institutions. Accordingly, the applicants’ prosecution and conviction under section 8 of the 1991 Act were within the authorities’ margin of appreciation in this area.", "The interference was accordingly justified under Article 10 § 2 of the Convention. (iii) The Commission 46. The Commission considered that the content of the incriminated interview was mainly of an analytical nature. The interviewee expressed his view of the Kurdish question and related matters in moderate terms and he did not associate himself in any manner with the use of violence in the context of the Kurdish separatist struggle. The Commission observed that the applicants had not added any comment to the interview that would have indicated their adherence to the use of violence.", "In the Commission’s view the effect of the measures taken against the applicants was to deter public discussion on important political issues. For these reasons in particular the Commission found that there had been a violation of Article 10 of the Convention. (b) The Court’s assessment 47. The Court reiterates the fundamental principles underlying its judgments relating to Article 10, as set out, for example, in the Zana judgment (cited above, pp. 2547-48, § 51), and in Fressoz and Roire v. France ([GC], no.", "29183/95, § 45, ECHR 1999-I). (i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.", "(ii) The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10. (iii) In exercising its supervisory jurisdiction, the Court must look at the interference in the light of the case as a whole, including the content of the impugned statements and the context in which they were made. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”.", "In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts. 48. Since the applicants were convicted of disseminating separatist propaganda through the medium of the review of which they were the editor and a journalist respectively, the impugned interference must also be seen in the context of the essential role of the press in ensuring the proper functioning of a political democracy (see, among many other authorities, the Lingens v. Austria judgment of 8 July 1986, Series A no. 103, p. 26, § 41, and Fressoz and Roire cited above, § 45). While the press must not overstep the bounds set, inter alia, for the protection of vital interests of the State such as national security or territorial integrity against the threat of violence or the prevention of disorder or crime, it is nevertheless incumbent on the press to impart information and ideas on political issues, including divisive ones.", "Not only has the press the task of imparting such information and ideas; the public has a right to receive them. Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders (see the Lingens judgment cited above, p. 26, §§ 41-42). 49. The Court notes that the incriminated review published an interview with a Turkish sociologist in which he explained his opinion on potential changes in the Turkish State’s attitude to the Kurdish question. In the light of recent developments in south-east Turkey, he predicted a revival of Kurdish culture in the region.", "The sociologist also presented his views on how the PKK’s guerrilla warfare contributed to a transformation of Kurdish society and stated that the withdrawal of Turkish troops and the evacuation of police stations by the Turkish government in some regions could be perceived as the beginning of the formation of a Kurdish State (see paragraph 9 above). The Istanbul National Security Court found that the charges against both applicants brought under section 8 of the 1991 Act were proved (see paragraphs 12 and 13 above). Relying on various statements made by the interviewee, the court considered that the publication of his opinion amounted to propaganda against the indivisibility of the State. The court made references in particular to the sociologist’s views that there was armed resistance in Kurdistan, that violence by the Turkish forces could not stop the PKK’s escalation and progress whose ideas and actions were capable of changing the “official ideology” and whose influence in Kurdish and Turkish society would grow, that Kurds’ national awareness and their desire for liberation would become stronger and that the PKK’s armed combat had been the most important cause of certain developments including the evacuation of a number of regions by the Turkish government, resulting in the beginning of the formation of a Kurdish State (see paragraph 13 above). 50.", "In assessing the necessity of the interference in the light of the principles set out above (see paragraphs 47 and 48) the Court recalls that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest (see the Wingrove v. the United Kingdom judgment of 25 November 1996, Reports 1996-V, pp. 1957-58, § 58). Furthermore, the limits of permissible criticism are wider with regard to the government than in relation to a private citizen or even a politician. In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion. Moreover, the dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries.", "Nevertheless, it certainly remains open to the competent State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal-law nature, intended to react appropriately and without excess to such remarks (see the Incal v. Turkey judgment of 9 June 1998, Reports 1998-IV, pp. 1567-68, § 54). Finally, where such remarks incite to violence against an individual or a public official or a sector of the population, the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression. 51. The Court will have particular regard to the words used in the interview and to the context in which it was published.", "In this latter respect the Court takes into account the background to cases submitted to it, particularly the problems linked to the prevention of terrorism (see the Incal judgment cited above, pp. 1568-69, § 58). It notes that the incriminated publication was an interview with a Turkish sociologist, whose views, as published, appear to have concerned in the first place the process by which the PKK’s ideology was taking hold in Turkish society and how the roots of a Kurdish State were being formed. Without expressly advocating the PKK’s role in the Kurdish struggle for independence, the interviewee analysed, mainly from a sociological perspective, this situation in the face of the reactions of the Turkish State. 52.", "For the Court, as for the Commission, the content of the interview is in fact of an analytical nature and the text does not contain any passages which could be described as an incitement to violence. The Court is naturally aware of the concern of the authorities about words or deeds which have the potential to exacerbate the security situation in the region, where since approximately 1985 serious disturbances have raged between the security forces and the members of the PKK involving a very heavy loss of life and the imposition of emergency rule in much of the region (see the Zana judgment cited above, p. 2539, § 10). However, it would appear to the Court that the domestic authorities in the instant case failed to have sufficient regard to the public’s right to be informed of a different perspective on the situation in south-east Turkey, irrespective of how unpalatable that perspective may be for them. As noted previously, the views expressed in the interview cannot be read as an incitement to violence; nor could they be construed as liable to incite to violence. In the Court’s view the reasons given by the Istanbul National Security Court for convicting and sentencing the applicants, although relevant, cannot be considered sufficient to justify the interference with their right to freedom of expression (see paragraph 13 above).", "53. The Court also observes that, notwithstanding the fact that the imposition of a final sentence on Mr Erdoğdu was deferred and execution of the sentence imposed on Mr İnce was suspended (see paragraph 17 above), both applicants were nevertheless faced with the threat of heavy penalties. The Court notes in this connection that the nature and severity of the penalties imposed are also factors to be taken into account when assessing the proportionality of the interference. 54. The Court stresses that the “duties and responsibilities” which accompany the exercise of the right to freedom of expression by media professionals assume special significance in situations of conflict and tension.", "Particular caution is called for when consideration is being given to the publication of the views of representatives of organisations which resort to violence against the State lest the media become a vehicle for the dissemination of hate speech and the promotion of violence. At the same time, where such views cannot be categorised as such, Contracting States cannot with reference to the protection of territorial integrity or national security or the prevention of crime or disorder restrict the right of the public to be informed of them by bringing the weight of the criminal law to bear on the media. 55. Having regard to the above considerations, the Court concludes that the conviction and sentencing of the applicants were disproportionate to the aims pursued and therefore not “necessary in a democratic society”. There has accordingly been a violation of Article 10 of the Convention in the particular circumstances of this case.", "Iv.ALLEGED VIOLATION OF ARTICLE 7 § 1 OF THE CONVENTION 56. The applicants submitted that their convictions had contravened Article 7 § 1 of the Convention which in its relevant part provides: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed …” 57. In the applicants’ submission, the offences under the 1991 Act must be directly related to terrorism. Accordingly, acts of mere propaganda cannot constitute an offence under section 8 of that Act unless they incite to terrorist acts. Since the incriminated interview could not be considered to have furthered violence, their conviction on that account was not foreseeable.", "They argued that the concept of the “crime of propaganda” under section 8 of the 1991 Act was not precise enough to enable them to distinguish between permissible and prohibited behaviour. 58. Like the Government, the Commission expressed the view that section 8 of the 1991 Act, as in force at the time when the offence had been committed, had been sufficiently specific to enable the applicants, if necessary after taking legal advice, to regulate their conduct in the matter. For that reason, there had been no infringement of the principle of the statutory nature of offences and penalties, as guaranteed by Article 7. 59.", "The Court recalls that when speaking of “law” Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term (see the S.W. v. the United Kingdom judgment of 22 November 1995, Series A no. 335-B, p. 42, § 35). In view of its conclusion at paragraph 39 above in respect of the “prescribed by law” requirement under Article 10 § 2, the Court finds that there has been no violation of Article 7 of the Convention. V. Application of ARTICLE 41 OF THE CONVENTION 60.", "The applicants claimed compensation for pecuniary and non-pecuniary damage as well as reimbursement of costs and expenses incurred in the domestic and Convention proceedings. 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. Pecuniary damage 61. Mr Erdoğdu claimed the sums of 1,425,000,000 Turkish liras (TRL) and TRL 950,000,000 to compensate him for the delays in the pursuit of his studies and career resulting from his conviction. In addition, he claimed the sums of TRL 41,666,666 by way of compensation for the fine imposed on him and 40,000 German marks in respect of a loan taken to finance his language studies as he was forced into emigration on account of his prosecution in Turkey. Mr İnce claimed the sum of TRL 2,850,000,000 by way of compensation for the loss of his job following his conviction.", "62. The Government maintained that the sums claimed by the applicants were exorbitant having regard to the facts that the imposition of a final sentence on Mr Erdoğdu was deferred and Mr İnce’s sentence was suspended (see paragraph 17 above). 63. The Delegate of the Commission did not comment on the amounts claimed. 64.", "The Court notes that the applicants never actually paid any fines. In the absence of any substantiation of the remainder of their claims under this head, the Court dismisses the applicants’ claims for pecuniary damage. B. Non-pecuniary damage 65. The applicants each claimed TRL 10,000,000,000 in compensation for non-pecuniary damage without specifying its nature. 66.", "The Government contended that the claims should be rejected. In the alternative they argued that should the Court be minded to find a violation of any of the Articles invoked by the applicants that in itself would constitute sufficient just satisfaction. 67. The Delegate of the Commission did not comment on this limb of the applicants’ claims either. 68.", "The Court finds that the applicants may be taken to have suffered a certain amount of distress in the circumstances of the case. Making an assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards each of the applicants in compensation the sum of 30,000 French francs (FRF) under this head. C. Costs and expenses 69. The applicants claimed reimbursement of their legal costs and expenses. Mr Erdoğdu assessed these at TRL 500,000,000 and Mr İnce at TRL 1,050,000,000.", "Mr Erdoğdu submitted to the Court in support of his claim the contract which he had drawn up with his lawyer for the payment of legal fees in connection with his legal representation in the Strasbourg proceedings. 70. The Government stated that the amounts claimed were exaggerated in comparison with fees earned by Turkish lawyers in the domestic courts and had not been properly justified. The case was simple and had not required much effort on the part of the applicants’ lawyers who had dealt with it throughout the proceedings in their own language. They cautioned against the making of an award which would only constitute a source of unjust enrichment having regard to the socio-economic situation in the respondent State.", "71. The Delegate of the Commission did not comment on the sums claimed. 72. The Court notes that in the proceedings before the Commission and in the written procedure before the Court the applicants were represented by Mrs O.E. Ataman and Mr Ş. Sarıhan, respectively.", "At the hearing before the Court, however, their case was pleaded by Mr Şansal (see paragraph 7 above), who had been associated with the preparation of another case before the Court concerning similar facts and complaints. The Court also notes that Mr İnce received FRF 7,996 from the Council of Europe by way of legal aid. Deciding on an equitable basis and according to the criteria laid down in its case-law (see, among many other authorities, Nikolova v. Bulgaria [GC], no. 31119/95, § 79, ECHR 1999-II), the Court awards Mr Erdoğdu the sum of FRF 10,000. As to the costs and expenses incurred by Mr İnce, the Court, applying the same criteria, awards him the sum of FRF 10,000 less the amount already received from the Council of Europe by way of legal aid.", "D. Default interest 73. The Court deems it appropriate to adopt the statutory rate of interest applicable in France at the date of adoption of the present judgment, which is 3.47% per annum. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.Dismisses the Government’s preliminary objection to the admissibility of the case; 2.Holds that there has been a violation of Article 10 of the Convention in respect of both applicants; 3.Holds that there has been no violation of Article 7 of the Convention in respect of either of the applicants; 4.Holds (a)that the respondent State is to pay the applicants, within three months, the following sums, to be converted into Turkish liras at the rate applicable on the date of settlement: (i)30,000 (thirty thousand) French francs to each applicant in respect of non-pecuniary damage; (ii)10,000 (ten thousand) French francs to Mr Erdoğdu in respect of costs and expenses; (iii)10,000 (ten thousand) French francs to Mr İnce in respect of costs and expenses less 7,996 (seven thousand nine hundred and ninety-six) French francs; (b)that simple interest at an annual rate of 3.47% shall be payable on these sums 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 in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 8 July 1999. Luzius WildhaberPresident Paul MahoneyDeputy Registrar In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of Rules of Court, the following separate opinions are annexed to this judgment: (a) joint concurring opinion of Mrs Palm, Mrs Tulkens, Mr Fischbach, Mr Casadevall and Mrs Greve; (b) concurring opinion of Mr Bonello.", "L.W.P.J.M. JOINT concurring opinion of judgeS Palm, Tulkens, Fischbach, Casadevall and greve We share the Court’s conclusion that there has been a violation of Article 10 in the present case although we have reached the same result by a route which employs the more contextual approach set out in the partly dissenting opinion of Judge Palm in Sürek v. Turkey (no. 1) ([GC], no. 26682/95, ECHR 1999-IV). In our opinion the majority assessment of the Article 10 issue in this line of cases against Turkey attaches too much weight to the form of words used in the publication and insufficient attention to the general context in which the words were used and their likely impact.", "Undoubtedly the language in question may be intemperate or even violent. But in a democracy, as our Court has emphasised, even “fighting” words may be protected by Article 10. An approach which is more in keeping with the wide protection afforded to political speech in the Court’s case-law is to focus less on the inflammatory nature of the words employed and more on the different elements of the contextual setting in which the speech was uttered. Was the language intended to inflame or incite to violence? Was there a real and genuine risk that it might actually do so?", "The answer to these questions in turn requires a measured assessment of the many different layers that compose the general context in the circumstances of each case. Other questions must be asked. Did the author of the offending text occupy a position of influence in society of a sort likely to amplify the impact of his words? Was the publication given a degree of prominence either in an important newspaper or through another medium which was likely to enhance the influence of the impugned speech? Were the words far away from the centre of violence or on its doorstep?", "It is only by a careful examination of the context in which the offending words appear that one can draw a meaningful distinction between language which is shocking and offensive – which is protected by Article 10 – and that which forfeits its right to tolerance in a democratic society. concurring opinion of judge bonello I voted with the majority to find a violation of Article 10, but I do not endorse the primary test applied by the Court to determine whether the interference by the domestic authorities with the applicants’ freedom of expression was justifiable in a democratic society. Throughout these, and previous Turkish freedom-of-expression cases in which incitement to violence was an issue, the common test employed by the Court seems to have been this: if the writings published by the applicants supported or instigated the use of violence, then their conviction by the national courts was justifiable in a democratic society. I discard this yardstick as insufficient. I believe that punishment by the national authorities of those encouraging violence would be justifiable in a democratic society only if the incitement were such as to create “a clear and present danger”.", "When the invitation to the use of force is intellectualised, abstract, and removed in time and space from the foci of actual or impending violence, then the fundamental right to freedom of expression should generally prevail. I borrow what one of the mightiest constitutional jurists of all time had to say about words which tend to destabilise law and order: “We should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”[11] The guarantee of freedom of expression does not permit a State to forbid or proscribe advocacy of the use of force except when such advocacy is directed to inciting or producing imminent lawlessness and is likely to incite or produce such action[12]. It is a question of proximity and degree[13]. In order to support a finding of clear and present danger which justifies restricting freedom of expression, it must be shown either that immediate serious violence was expected or was advocated, or that the past conduct of the applicant furnished reason to believe that his advocacy of violence would produce immediate and grievous action[14]. It is not manifest to me that any of the words with which the applicants were charged, however pregnant with mortality they may appear to some, had the potential of imminently threatening dire effects on the national order.", "Nor is it manifest to me that instant suppression of those expressions was indispensable for the salvation of Turkey. They created no peril, let alone a clear and present one. Short of that, the Court would be subsidising the subversion of freedom of expression were it to condone the convictions of the applicants by the criminal courts. In summary “no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose, through discussion, the falsehood and the fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence”[15].", "[1]Notes by the Registry -2. Protocol No. 11 and the Rules of Court came into force on 1 November 1998. [3]3. Since the entry into force of Protocol No.", "11, which amended Article 19, the Court has functioned on a permanent basis. [2]1. Note by the Registry. Rules of Court A applied to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and from then until 31 October 1998 only to cases concerning States not bound by that Protocol.", "[3]1. This law, promulgated with a view to preventing acts of terrorism, refers to a number of offences defined in the Criminal Code which it describes as “acts of terrorism” or “acts perpetrated for the purposes of terrorism” (sections 3 and 4) and to which it applies. [4]. The phrase in italics was deleted by a judgment of the Constitutional Court on 31 March 1992 and went out of force on 27 July 1993. [5].", "See the relevant provision of Law no. 4126, reproduced below. [6]. See paragraph 22 below. [7].", "This provision concerns substitute penalties and measures which may be ordered in connection with offences attracting a prison sentence. [8]. This provision concerns reprieves. [9]. On the question whether the judgment is unlawful, the Court of Cassation is not bound by the arguments submitted to it.", "Moreover, the term “legal rule” refers to any written source of law, to custom and to principles deduced from the spirit of the law. [10]1. Note by the Registry. For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry. [11].", "Justice Oliver Wendell Holmes in Abrahams v. United States 250 U.S. 616 (1919) at 630. [12]. Brandenburg v. Ohio 395 U.S. 444 (1969) at 447. [13]. Schenck v. United States 294 U.S. 47 (1919) at 52.", "[14]. Whitney v. California 274 U.S. 357 (1927) at 376. [15]. Justice Louis D. Brandeis in Whitney v. California 274 U.S. 357 (1927) at 377." ]
[ "SECOND SECTION CASE OF M.E. v. DENMARK (Application no. 58363/10) JUDGMENT STRASBOURG 8 July 2014 FINAL 17/11/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of M.E.", "v. Denmark, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Işıl Karakaş,András Sajó,Nebojša Vučinić,Egidijus Kūris,Robert Spano,Jon Fridrik Kjølbro, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 17 June 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 58363/10) against the Kingdom of Denmark lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a stateless Palestinian, M.E. (“the applicant”), on 8 October 2010. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 3 of the Rules of Court).", "2. The applicant was represented by Ms Marianne Vølund, a lawyer practising in Copenhagen. The Danish Government (“the Government”) were represented by their Agent, Mr Jonas Bering Liisberg, from the Ministry of Foreign Affairs, and their Co-Agent, Mrs Nina Holst‑Christensen, from the Ministry of Justice. 3. The applicant alleged that his expulsion to Syria had been in breach of Articles 3 and 8 of the Convention.", "4. On 6 December 2012 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. The proceedings before the national authorities 5.", "The applicant, M.E., is a stateless Palestinian. It appears that he was born in Syria in 1982. Currently he lives in Sweden. 6. The applicant entered Denmark with his stepmother and two siblings in February 1990, when he was seven years old.", "He was granted asylum in October 1993, the same year his father entered Denmark. The latter was granted a residence permit in 1994. The applicant’s mother, two half-siblings and his paternal uncles live in Syria. 7. It appears that in 1997, when the applicant was fifteen years old, he returned to Syria for six months and worked as a painter.", "According to the Danish Central Office of Civil Registration, he stayed in Syria from 20 December 1998 to 22 February 1999, but that appears to be disputed by the applicant. 8. He returned to Syria for a month in November 2003. 9. In Denmark, the applicant married and divorced twice.", "From each marriage he had a child, a son born in August 2001 and a daughter born in March 2004. 10. The applicant has a criminal record. Among other things, in February 1998 he was convicted of assault, for which he was given a suspended sentence of twenty days’ imprisonment. In August 1998 he was convicted of making threats against witnesses and possession of a weapon, for which he was given a suspended sentenced of five months’ imprisonment.", "In 2002 he was sentenced to thirty days’ imprisonment for theft and human trafficking. 11. On 17 December 2004 the applicant was arrested and charged with drugs offences, and by a judgment of 26 January 2006 the High Court of Eastern Denmark (Østre Landsret, henceforth “the High Court”) convicted the applicant of twenty-six counts of drugs offences relating to 2.68 kg of heroin and cocaine, committed throughout 2004. The High Court considered that the applicant had a leading role and sentenced him to seven years’ imprisonment. A profit of approximately 400,000 Danish kroner (DKK) (equal to approximately 53,700 euros (EUR)) was confiscated.", "In addition, he was expelled from Denmark with a ban on returning. 12. When issuing the expulsion order, the High Court had regard, inter alia, to an opinion which had been obtained from the Immigration Board (Udlændingestyrelsen). The latter had held an interview with the applicant about his personal situation and ties to Denmark and Syria, which included information about schooling, language skills, work, family etc. Before the Immigration Service the applicant stated that he speaks and understands Arabic.", "He does not read or write Arabic. He also stated that he speaks, reads and writes Danish well. However, an interpreter was used in connection with the interview regarding his personal circumstances which was held on 26 April 2005. The Immigration Board also considered the applicant’s submission that he feared being returned to Syria because he had not sorted out the issue of compulsory military service and because he feared being punished by the Syrian authorities if they found out that he had been sentenced for drugs offences in Denmark. The Immigration Board referred to a consultation response of 9 February 2004 from the Ministry of Foreign Affairs, which included an expert opinion of 6 January 2004 obtained by a named professor and former dean at the Faculty of Law of Damascus University, concerning the principle of ne bis in idem set out in Article 27 of the Syrian Penal Code.", "That provision stated that no Syrian or foreigner will be charged in Syria with an offence on Syrian territory, if he has been convicted and has served his sentence abroad or if the punishment has lapsed owing to the limitation legislation of the relevant country or if he has been pardoned. According to Article 28 of the Syrian Penal Code, a judgment delivered abroad did not prevent prosecution for an offence falling under Article 19, which applied to any Syrian or foreign national who breached the law or committed a serious offence outside Syrian territory harming national security or who forged Government stamps or forged or counterfeited Syrian or foreign bank notes or debt instruments, which were lawful means of payment or in general circulation in Syria. 13. The High Court did not find that an expulsion order would contravene Article 8 of the Convention. It stated as follows: “When balancing the considerations mentioned in section 26, subsection 1 of the Aliens Act and the serious drugs offences committed by the applicant in the form of organizing the dealing in hard drugs of which the applicant has been found guilty, the High Court takes into account on the one hand that the applicant must be deemed poorly integrated in Danish society: he never completed lower secondary school and has not at all participated in the labour market.", "[The applicant] has also previously been convicted of assault, making threats against witnesses, human trafficking and theft. The High Court further emphasizes that [the applicant] speaks Arabic and has retained certain ties with Syria, where his mother, two half-siblings and other family members are living, and [the applicant] has also stayed in Syria several times, including a period of six months in 1997 when he worked as a painter. Factors weighing against expulsion are that [the applicant] entered Denmark at the age of seven and has now lawfully resided in Denmark for about fifteen years and has thus had his formative years and schooling here. It must also be taken into account that [the applicant] is married to and cohabits with a Danish national, a former stateless Palestinian, with whom he has a daughter of just under two years. In addition, [the applicant] has been married by an Islamic ceremony to another woman of Lebanese origin living in Denmark, now a Danish national, with whom he has a son of four and a half years.", "[The applicant] has visiting rights to his son, but in reality has only sporadic contact with his son. In view of the gravity of the offences committed and the sentence imposed, the High Court finds on an overall assessment that none of the considerations mentioned in section 26, subsection 1, of the Aliens Act constitutes a decisive argument against expulsion, nor can expulsion of [the applicant] be considered contrary to the considerations of proportionality following from Article 8 of the Convention...” 14. On appeal, on 25 August 2006, the judgment was upheld by the Supreme Court (Højesteret), referring to the reasoning by the High Court. 15. In February 2009, by virtue of section 31 of the Aliens Act, and since the applicant was nearing the end of his sentence, the police requested the relevant immigration authorities to determine whether, and in the affirmative, to which country the applicant could be returned.", "The applicant was interviewed and anew he objected to the expulsion. He maintained, inter alia, that although originally he had stated that he was born in Syria, where he was also registered, in reality he was born in Lebanon. The applicant did not wish to return to Syria, as he did not wish to perform his military service there. He also feared being returned to Syria due to his father’s political past there. Moreover, he was in conflict with a Syrian family, because he had had an affair with their daughter in 1999 and she had subsequently falsely accused him of rape.", "Finally, he was afraid of being sentenced again in Syria for the drugs crime he had committed in Denmark. He added that in December 2007 he had found a new girlfriend, who visited him in prison every week. The applicant said that he would agree to being sent to Germany, where he had an aunt. He had nine siblings in Denmark and two in Sweden. 16.", "By decision of 10 August 2009, the Aliens Service (Udlændingeservice), the former Immigration Board, found that the applicant could be expelled to either Syria or Lebanon. It took into account that the applicant had maintained all along that he was born in Syria, that in the public register in Syria he was recorded as a Palestinian from Homs in Syria, and that he had relied on his fear of being called up for military service there. The fact that, during an interview on 25 May 2009, he had stated that he was born in Lebanon and produced a copy of a birth certificate, could not lead to another assessment. The Aliens Service did not find the applicant’s story about the girl in Syria credible. It noted that he had not provided any information in this respect until the interview held on 25 May 2009, and found it unlikely that the girl’s family would persecute him since allegedly he had ended the relationship in 1999.", "In addition it found that a related document produced by the applicant, allegedly issued by the Syrian authorities, was not authentic. It did not find credible either the applicant’s allegation that he could not return to Syria because of his father’s political activities, notably since the applicant could not give any details about those activities. Finally, the Aliens Service did not find that the fact that the applicant had not performed compulsory military service in Syria or that he had been convicted for a drugs offence in Denmark could bar his expulsion. With regard to the latter, it referred to the consultation response from the Ministry of Foreign Affairs of 4 February 2004 (see paragraph 12). 17.", "The applicant appealed against the decision to the Refugee Appeals Board (Flygtningenævnet), before which he was represented by a lawyer, heard in person and able to submit observations. By decision of 2 December 2009, the Refugee Appeals Board upheld the Aliens Service’s decision, but found that the applicant could be expelled only to Syria, the country where he had lived at least from 1983 to 1988 and which he had visited from December 1998 to February 1999 and again in 2003. 18. In the meantime, on 16 August 2009, in accordance with the provisions of section 50 of the Aliens Act (Udlændingeloven), the applicant had instituted proceedings before the District Court in Svendborg (Retten i Svendborg) claiming that there had been material changes in his circumstances, for which reason he requested the court to review the expulsion order. The applicant relied on Article 8 of the Convention and referred in particular to his two children in Denmark and to his new girlfriend, who had a child from a previous relationship, born in June 2008.", "Before the District Court the latter stated that she would follow the applicant to Syria. 19. On 29 March 2010 the District Court rejected the applicant’s request as it did not find that his situation had changed to such an extent that there was any reason to revoke the expulsion order. Upon appeal, the applicant submitted that he had married his girlfriend according to Arabic tradition, that she was expecting their child, and that she no longer wanted to follow him to Syria. 20.", "On 26 May 2010 the High Court upheld the District Court’s decision and stated: “For the reasons stated by the District Court and because the [applicant’s] present girlfriend, with whom he is married by an Islamic ceremony, no longer wants to accompany him to Syria [even though] she has recently become pregnant and is expecting the [applicant’s] child, the outcome cannot be different. In this regard the High Court has emphasised that the parties’ relationship commenced after the Supreme Court’s judgment of 25 August 2006, for which reason the parties are considered not to have such justified expectations of being able to live together in Denmark that the expulsion can be revoked.” 21. Leave to appeal to the Supreme Court was refused on 19 August 2010. 22. The applicant was deported to Syria on 3 November 2010.", "According to a report procured by the Danish police, the applicant’s father and uncle had travelled to Syria beforehand to meet the applicant upon arrival. Three police officers accompanied the applicant on the plane. They submitted the applicant’s travel documents and a document translated into Arabic, stating that the applicant had fully served his sentence in Denmark, to the security staff on board and the immigration authorities at the airport in Damascus. B. Subsequent events and proceedings before the Court 23.", "Before being deported, on 8 October 2010, the applicant lodged a complaint with the European Court of Human Rights and requested the application of an interim measure pursuant to Rule 39 of the Rules of Court. Since he only relied on Article 8 of the Convention and invoked his separation from his two children, his new wife, her child from a previous marriage, and their future child, his request for a Rule 39 indication was not submitted to the President for a decision, of which fact he and his representative were informed in a letter from the Registry of 12 October 2010. 24. Subsequently, the applicant’s representative informed the Court that upon arrival at Damascus airport, the applicant had allegedly been detained and placed in different prisons, interrogated, notably about his conviction in Denmark, whether he was addicted to drugs and whether there were persons involved in Syria. During this time, the applicant had regularly been subjected to torture.", "25. On 4 December 2010, he was allegedly released in order to commence thirty months’ military service in Homs, but he was exempted after one month because he suffered from heart problems. 26. Allegedly, he was also summoned to appear before the court in Homs to explain about his conviction in Denmark. It appears that that case has been discontinued.", "27. The applicant’s wife and their child went to Syria to visit him. 28. On 12 September 2011, the applicant’s representative informed the Court that the applicant had fled Syria and entered Greece, where he was detained. 29.", "On 21 November 2011, the applicant’s representative informed the Court that the applicant had entered Sweden and requested asylum there. 30. The applicant was granted asylum in Sweden some time during the summer of 2013. II. RELEVANT DOMESTIC LAW AND PRACTICE 31.", "Section 191 of the Penal Code (Straffeloven) applicable at the time of the conviction read as follows: Section 191 (1) Any person who, in contravention of the legislation on euphoriant drugs, supplies such drugs to a considerable number of persons, or in return for a large payment, or in any other particularly aggravating circumstances, shall be liable to imprisonment for any term not exceeding ten years. If the supply relates to a considerable quantity of a particularly dangerous or harmful drug, or if the supply of such drug has otherwise been of a particularly dangerous nature, the penalty may be increased to imprisonment for any term not exceeding 16 years. (2) Similar punishment shall apply to any person who, in contravention of the legislation on euphoriant drugs, imports, exports, buys, distributes, receives, produces, manufactures or possesses such drugs with intention to supply them as mentioned in subsection (1). 32. The pertinent provisions of the Aliens Act (Udlændingeloven) applicable to the case at various relevant times read as follows: Section 7 (1) Upon application, a residence permit will be issued to an alien if the alien falls within the provisions of the Convention Relating to the Status of Refugees (28 July 1951).", "(2) Upon application, a residence permit will be issued to an alien if the alien risks the death penalty or being subjected to torture or inhuman or degrading treatment or punishment in case of return to his country of origin. An application as referred to in the first sentence hereof is also considered an application for a residence permit under subsection (1). (...) Section 22 (1) An alien who has lawfully stayed in Denmark for more than the last seven years and an alien issued with a residence permit under section 7 or 8(1) or (2) may be expelled if: (...) (iv) the alien is sentenced, pursuant to the Act on Euphoriant Drugs or section 191 or 290 of the Penal Code, to imprisonment or other criminal sanction involving or allowing deprivation of liberty for an offence that would have resulted in a punishment of this nature, provided that the proceeds were obtained by violation of the Act on Euphoriant Drugs or section 191 of the Penal Code; (...) Section 26 (1) In deciding on expulsion, regard must be had to the question whether expulsion must be assumed to be particularly burdensome, in particular because of: - (i) the alien’s ties with Danish society; (ii) the alien’s age, health, and other personal circumstances; (iii) the alien’s ties with persons living in Denmark; (iv) the consequences of the expulsion for the alien’s close relatives living in Denmark, including in relation to regard for family unity; (v) the alien’s slight or non-existent ties with his country of origin or any other country in which he may be expected to take up residence; and (vi) the risk that, in cases other than those mentioned in section 7(1) and (2) or section 8(1) and (2), the alien will be ill-treated in his country of origin or any other country in which he may be expected to take up residence. (2) An alien must be expelled under section 22(1 )(iv) to (vii) and section 25 unless the circumstances mentioned in subsection (1) make it conclusively inappropriate. Section 27 (1) The periods referred to in section 11(3), first sentence, section 11(4) and (5), section 17(1), third sentence, and sections 22, 23 and 25a are reckoned from the date of the alien’s registration with the National Register Office or, if his application for a residence permit was submitted in Denmark, from the date of submission of that application or from the date when the conditions for the residence permit are satisfied if such date is after the date of application.", "(2) Regarding aliens who have been issued with a residence permit under section 7(1) and (2), the periods mentioned in subsection (1) are reckoned from the date of the first residence permit. (...) (5) The time the alien has spent in custody prior to conviction or served in prison or been subject to other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in imprisonment is not included in the periods referred to in subsection (1). Section 31 (1) An alien may not be returned to a country where he will be at risk of the death penalty or of being subjected to torture or inhuman or degrading treatment or punishment, or where the alien will not be protected against being sent on to such country. (2) An alien falling within section 7(1) may not be returned to a country where he will risk persecution on the grounds set out in Article 1 A of the Convention Relating to the Status of Refugees (28 July 1951), or where the alien will not be protected against being sent on to such country. This does not apply if the alien must reasonably be deemed a danger to national security or if, after final judgment in respect of a particularly dangerous crime, the alien must be deemed a danger to society, but cf.", "subsection (1). Section 32 (1) As a consequence of a court judgment, court order or decision expelling an alien, the alien’s visa and residence permit will lapse, and the alien will not be allowed to re-enter Denmark and stay in this country without special permission (re-entry ban). A re-entry ban may be time-limited and is reckoned from the first day of the month following departure or return. The re-entry ban is valid from the time of the departure or return. (2) A re-entry ban in connection with expulsion under sections 22 to 24 is given for: (...) (iv) ever if the alien is sentenced to imprisonment for more than two years or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this duration.", "(...) Section 49 When an alien is convicted of an offence, the judgment shall determine, upon the prosecutor’s claim, whether the alien will be expelled pursuant to sections 22-24. If the judgment stipulates expulsion, the judgment must state the period of the re-entry ban, see section 32(1) to (3). Section 49a (1) Prior to the return of an alien who has been issued with a residence permit under section 7 or 8(1) or (2) and who has been expelled by judgment, see section 49(1), the Danish Immigration Service decides whether the alien can be returned, see section 31, unless the alien consents to the return. A decision to the effect that the alien cannot be returned, see section 31, must also include a decision on the issuance or refusal of a residence permit under section 7. Section 50 (1) If expulsion under section 49(1) has not been enforced, an alien claiming that a material change in his circumstances has occurred, see section 26, can demand that the public prosecutor lays before the court the question of revocation of the order for expulsion.", "Petition to this end may be submitted not earlier than 6 months and must be submitted not later than 2 months before the date when enforcement of the expulsion can be expected. If the petition is submitted at a later date, the court may decide to examine the case if it deems it to be excusable that the time limit has been exceeded. (2) Section 59(2) of the Penal Code applies correspondingly. The petition may be dismissed by the court if it is evident that no material change has occurred in the alien’s circumstances. If the petition is not dismissed, counsel must be assigned to the alien on request.", "The court may order that the alien is to be deprived of liberty if it is found necessary to ensure the alien’s attendance during proceedings until a decision on expulsion, if any, can be enforced. Sections 34, 37(3) and (6) and 37a to 37c apply correspondingly. (3) The decision of the court is made by court order subject to interlocutory appeal under the provisions of Part 85 of the Administration of Justice Act. Section 53a (1) Appeals against a decision made by the Danish Immigration Service must be addressed to the Refugee Appeals Board, but see section 53b(l), if the subject matter of the decision is: (...) (iv) return under sections 32b and 49a. III.", "COUNCIL OF EUROPE RECOMMENDATION 33. Recommendation Rec(2000)15 of the Committee of Ministers of the Council of Europe to member States concerning the security of residence of long-term migrants states, inter alia: “4. As regards the protection against expulsion a. Any decision on expulsion of a long-term immigrant should take account, having due regard to the principle of proportionality and in the light of the European Court of Human Rights’ constant case-law, of the following criteria: – the personal behaviour of the immigrant; – the duration of residence; – the consequences for both the immigrant and his or her family; – existing links of the immigrant and his or her family to his or her country of origin. b.", "In application of the principle of proportionality as stated in paragraph 4.a, member States should duly take into consideration the length or type of residence in relation to the seriousness of the crime committed by the long-term immigrant. More particularly, member States may provide that a long-term immigrant should not be expelled: – after five years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of two years’ imprisonment without suspension; – after ten years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of five years’ imprisonment without suspension. After twenty years of residence, a long-term immigrant should no longer be expellable. c. Long-term immigrants born on the territory of the member state or admitted to the member state before the age of ten, who have been lawfully and habitually resident, should not be expellable once they have reached the age of eighteen. Long-term immigrants who are minors may in principle not be expelled.", "d. In any case, each member state should have the option to provide in its internal law that a long-term immigrant may be expelled if he or she constitutes a serious threat to national security or public safety.” IV. RELEVANT INFORMATION ON SYRIA 34. At the time of deportation, namely on 3 November 2010, the Syrian uprising and the ongoing armed conflict in Syria between forces loyal to the Ba’ath Party government and those seeking to oust it, had not yet begun. It commenced around March 2011 with nationwide demonstrations as part of the wider protest movement known as the Arab Spring. 35.", "According to many reliable and objective sources, torture and other forms of ill-treatment have been used extensively and with impunity in police stations and security agencies’ detention centres. The relevant part of the United States Department of State’s 2010 Country Report on Human Rights Practices in Syria reads as follows: “Under article 28 of the constitution, ‘no one may be tortured physically or mentally or treated in a humiliating manner’. Nevertheless, security forces reportedly continued to use torture frequently. Local human rights organizations continued to cite numerous credible cases of security forces allegedly abusing and torturing prisoners and detainees and claimed that many instances of abuse went unreported. Individuals who suffered torture or beatings while detained refused to allow their names or details of their cases to be reported for fear of government reprisal.", "Former prisoners, detainees, and reputable local human rights groups reported that methods of torture and abuse included electrical shocks; pulling out fingernails; burning genitalia; forcing objects into the rectum; beatings while the victim is suspended from the ceiling and on the soles of the feet; alternately dousing victims with freezing water and beating them in extremely cold rooms; hyperextending the spine; bending the body into the frame of a wheel and whipping exposed body parts; using a backward-bending chair to asphyxiate the victim or fracture the spine; and stripping prisoners naked for public view. In previous years Amnesty International documented 38 types of torture and mistreatment used against detainees in the country. Amnesty International reported that torture was most likely to occur while detainees were held at one of the many detention centers operated by the various security services in the country, particularly while authorities attempted to extract a confession or information. Courts systematically used ‘confessions’ extracted under duress as evidence, and defendants’ claims of torture were almost never investigated.” 36. The relevant part of the concluding observations on Syria of the United Nations Committee against Torture reads as follows (document CAT/C/SYR/CO/1 of 25 May 2010, §§ 7 and 15): “The Committee is deeply concerned about numerous, ongoing and consistent allegations concerning the routine use of torture by law enforcement and investigative officials, at their instigation or with their consent, in particular in detention facilities.", "It is also concerned at credible reports that such acts commonly occur before formal charges are laid, as well as during the pre-trial detention period, when the detainee is deprived of fundamental legal safeguards, in particular access to legal counsel.” “The Committee is also concerned at reports that the State has established secret detention facilities under the command of intelligence services, such as the Military Intelligence service, the Political Security Directorate, the Directorate General of Intelligence Services and the Directorate of Air Force Intelligence Services. The centres controlled by these services are not accessible by independent monitoring and inspection bodies, and are not subject to review by the authorities. The Committee is further concerned that detainees are deprived of fundamental legal safeguards, including an oversight mechanism in regard to their treatment and review procedures in respect to their detention. The Committee is also concerned at allegations that those detained in such facilities could be held for prolonged periods without any judicial review, in practice in incommunicado detention and subject to torture or cruel, inhuman or degrading treatment.” 37. A report by Amnesty International published on 20 April 2010, “Briefing to the Committee Against Torture” (see above), stated, amongst other things: ... 2.", "Patterns of torture and other ill-treatment in Syria Amnesty International has received information from a wide range of sources indicating that torture and other cruel, inhuman and degrading treatment or punishment (hereafter: ill-treatment) of prisoners remains common and widespread in Syria. Political suspects, in particular, are frequently subjected to prolonged incommunicado detention without charge or trial, secret detention or enforced disappearance, and a number have died in custody in suspicious circumstances, yet their deaths have not been independently investigated. While torture and other ill-treatment of criminal suspects by the police is reported to be common, Amnesty International’s information refers primarily to persons arrested or detained for expressing dissent or criticizing the government or its policies and who are perceived by the authorities as opponents of the government. They include human rights defenders (HRDs), including leading human rights lawyers; advocates of political reform and democracy, members of the Kurdish minority campaigning against discrimination and advocating greater respect for the rights of the Kurdish minority; independent journalists and bloggers; suspected Islamists; and people suspected of involvement in terrorism. As well, some Syrian nationals who returned to the country after living abroad have also been arbitrarily detained on arrival or shortly after their return; to seek asylum abroad is perceived as a manifestation of opposition to the Syrian government, so returned asylum seekers face the likelihood of arrest.", "In a number of cases reported to Amnesty International, family members of persons wanted for arrest by the authorities have been detained to induce them to surrender themselves. Over the years, Amnesty International has documented a wide variety of methods used by Syrian security officials to torture and otherwise ill-treat both untried detainees and sentenced prisoners in their custody, many of which reportedly remain prevalent (see below). Those at particular risk are political detainees who are generally held incommunicado at detention centres run by the main security and intelligence agencies (including the Military Intelligence Palestine Branch and centres run by Political and State Security) and who are subject to interrogation, often for long periods during which they have no access to legal counsel, contact with their families or independent inspection of their conditions. Compounding this, the Supreme State Security Court (SSSC) and military courts, as well as the criminal courts, continue to rely heavily on “confessions”, and to admit as evidence and convict defendants on the basis of “confessions” which defendants allege they were forced to make under torture or other duress while they were held incommunicado. The SSSC and other courts routinely accept such questionable “confessions” as evidence of guilt and do so without undertaking adequate, or any, independent investigations into defendants’ allegations of torture.", "In addition, on a number of occasions sentenced political prisoners are reported to have been assaulted by prison guards. The most serious incident reported in recent years occurred at Sednaya Military Prison in July 2008 when a number of prisoners and others were reported to have been killed and others injured as a result of a major confrontation between prisoners and prison guards. Almost two years later, what precisely occurred at Sednaya Military Prison has yet to be fully clarified, and the identities of the prisoners who were killed and the circumstances of their deaths have yet to be disclosed by the Syrian authorities. No independent investigation has been carried out and a number of families of prisoners still do not know whether their relative is alive and still held at the prison or elsewhere, or whether he is dead. 38.", "Following a fact-finding mission to Syria, Lebanon and the Kurdistan Region of Iraq, the Austrian Red Cross and the Danish Immigration Service published a report on human rights issues concerning Kurds in Syria in May 2010. Its general remarks about punishment for draft evasion (p. 65) read as follows: “A Western diplomatic source found it likely that if a person has been drafted for military service while residing abroad, he would be identified by the immigration authorities upon return to Syria as his name will then appear on a list of wanted persons. The immigration authorities will instruct him to report to the military usually within two weeks or up to one month. However, if he does not report to the military within the specified time, he will be called to the Military Court and he will be charged with draft evasion. Any prison sentence issued in absentia by a Military Court will be commuted to an additional three months of service in the army.", "It was added that in reality nobody goes to prison for draft evasion. Based on information from a Syrian lawyer, the Swedish embassy reported in 2004 that: ‘Military courts decide penalty for matters related to the defence forces. The punishment for not showing up to service varies between 2-6 months. However, due to the issuance of amnesty decrees regularly and annually by the President it is not applied in practice. In addition, since these sentences are issued in absence, they are subject to objection and then cancellation.", "In this way, a person would be free within one day of arrest or surrender. Later the trial is repeated at the time when a person is free. The verdict would be either found innocent or the crime is covered by the amnesty law. ...’ According to Amnesty International, men who evade compulsory military service (21 months’ duration) reportedly face different levels of penalty according to the circumstances of the case: Persons who were abroad and failed to report when summoned for military service face arrest by the military police immediately upon return to Syria and sentence of two to three months of imprisonment (usually at Tadmur Prison); Persons, who fail to report for military service while in Syria face arrest and a prison term of three months, then further imprisonment for six months if they fail to undertake military service after completing the first term of imprisonment.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 39.", "On 2 December 2010, approximately two months after the original complaint to the Court and one month after the deportation, the applicant complained that his deportation had been in violation of Article 3 of the Convention in that he had been tortured upon return by the Syrian authorities, and that the Danish authorities should have been aware of that risk before deporting him. 40. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 41. The Government contested that argument. A. Admissibility 42.", "The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 43.", "The applicant submitted that the Danish authorities should have known that he was at risk of being subjected to treatment in breach of Article 3 upon return to Syria, because he had been convicted of drugs offences in Denmark. Such a conviction would by itself suffice for the Syrian authorities to detain him. The decision by the Danish Immigration Service that he was not at risk of double punishment had been based on the consultation response of 9 February 2004 from the Ministry of Foreign Affairs and the expert opinion obtained by a named professor at the Faculty of Law at Damascus University. However, the response had been general and did not take the special circumstances of the present case into consideration, such as the facts that the applicant was Palestinian and not Syrian, that it concerned Syrian law but not Syrian practice, and that it was obtained more than five years before the applicant was expelled de facto. 44.", "On that basis, and since extensive background information on Syria at the relevant time pointed to the risk of detainees being subjected to torture, there had been substantial grounds for believing that the applicant would be subjected to the same treatment upon arrival in Syria. 45. The Government maintained that at the relevant time there were no substantial grounds to believe that the applicant would be at a real risk of being subjected to torture or other inhuman or degrading treatment upon his arrival in Syria, whether in respect of the applicant’s allegations as to the compulsory military service, the accusations of rape, his father’s political activities, or the risk of double jeopardy. 46. Notably as to the issue of ne bis in idem, the Government pointed out that there is no case-law supporting the assertion that such punishment by itself is prohibited under Article 3 of the Convention (see, for example, R.R.", "v. Italy (dec.), 32642/96, 1 December 1997 and H.P.L. v. Austria (dec.), 24132/94, 5 July 1994). A return to face prosecution or enforcement of a sentence falls under Article 3 only if there are substantial grounds for believing that the implementation of such measures will entail a real risk of torture or inhuman or degrading treatment. In the present case it followed from the background information concerning Syrian criminal law that the risk of double jeopardy only existed in relation to offences committed outside Syrian territory when it was a serious crime harming national security, or the perpetrator forged Government stamps or forged or counterfeited Syrian or foreign bank notes or debt instruments which were lawful means of payment or in general circulation in Syria. Moreover, the background information available at the time did not give any specific basis for assuming that upon arrival in Syria, the applicant would be at risk of arbitrary deprivation of liberty justifying asylum.", "They noted for example that the report of 20 April 2010 by Amnesty International, referred to by the applicant, did not discuss the situation of persons forcibly returned to Syria. It was a general status report to the United Nations Committee Against Torture on Syria’s implementation of the United Nation’s Convention Against Torture and dealt mainly with conditions in prisons, methods of torture and refoulement of third country nationals from Syria. Thus, the report could have given reason to suspect a risk of ill‑treatment of prisoners, but it did not substantiate that the applicant would be imprisoned upon his arrival in Syria. 1. The Court’s assessment (a) General principles 47.", "The Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, § 67, Series A no. 94; Boujlifa v. France, judgment of 21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI; Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-XII). 48. However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3.", "In such a case, Article 3 implies an obligation not to deport the person in question to that country (Saadi v. Italy [GC], no. 37201/06, § 125, 28 February 2008). 49. The mere possibility of ill-treatment on account of an unsettled situation in the requesting country does not in itself give rise to a breach of Article 3 (see, Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 111, Series A no. 215).", "Where the sources available to the Court describe a general situation, an applicant’s specific allegations in a particular case require corroboration by other evidence (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 73, ECHR 2005‑I), except in the most extreme cases where the general situation of violence in the country of destination is of such intensity as to create a real risk that any removal to that country would necessarily violate Article 3 (see N.A. v. the United Kingdom, no. 25904/07, §§ 115-16, 17 July 2008; Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 217, 28 June 2011; and Savriddin Dzhurayev v. Russia, no.", "71386/10, § 153, ECHR 2013 (extracts)). 50. The standards of Article 3 imply that the ill-treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case (Hilal v. the United Kingdom, no.45276/99, § 60, ECHR 2001-II). Owing to the absolute character of the right guaranteed, Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials.", "However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection (H.L.R. v. France, judgment of 29 April 1997, § 40, Reports 1997-III). 51. Finally, in cases concerning the expulsion of asylum seekers, the Court does not itself examine the actual asylum applications or verify how the States honour their obligations under the Geneva Convention. It must be satisfied, though, that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources such as, for instance, other Contracting or non‑Contracting States, agencies of the United Nations and reputable non‑governmental organisations (see, NA.", "v. the United Kingdom, cited above, § 119). (b) The general situation in Syria 52. It is not in dispute between the parties that at the relevant time the general situation in Syria was not so serious that the return of the applicant thereto would constitute, in itself, a violation of Article 3 of the Convention. The Court agrees, and recalls that at the time of deportation on 3 November 2010, the Syrian uprising and the ongoing armed conflict in Syria between forces loyal to the Ba’ath Party government and those seeking to oust it, had not yet begun. It commenced around March 2011 with nationwide demonstrations as part of the wider protest movement known as the Arab Spring.", "(c) The applicant’s case 53. The Government have not challenged the applicant’s allegation that he was subjected to treatment contrary to Article 3 upon return to Syria, and the Court will therefore continue on the assumption that this was indeed the case. The crucial question therefore remains whether, at the time of the implementation of the deportation order, the Danish authorities were aware or should have been aware that the applicant would face a real and concrete risk of being subjected to such treatment upon return to Syria. 54. In this respect, the Court notes that the applicant did not rely on Article 3 of the Convention until 2 December 2010, that is approximately one month after his deportation, which could indicate that at the time of the implementation of the deportation order, the applicant was not of the opinion either, that he was at real risk of being subjected to torture upon return.", "55. When the applicant had been subjected to ill-treatment in Syria, he maintained, in particular, that the Danish authorities should have known that he would be at risk thereof, because he had been convicted of drugs offences in Denmark, which in his view by itself sufficed for the Syrian authorities to detain him upon return. 56. The Court recalls that in 2006, when the High Court ordered the applicant’s expulsion, it was aware of the general response from the Ministry of Foreign Affairs, which included the expert opinion of 6 January 2004 by a named professor and former dean at the Faculty of Law of Damascus University, concerning the principle of ne bis in idem. The latter stated that in Syrian criminal law the risk of double jeopardy only existed in relation to offences committed outside Syrian territory when the offence was a serious crime harming national security, or the perpetrator forged Government stamps or forged or counterfeited Syrian or foreign bank notes or debt instruments which were lawful means of payment or in general circulation in Syria.", "His statement did not contain any details in case of double punishment, but it did enumerate various types of offences which could give rise to double punishment. Those did not include drugs offences. 57. Subsequently, by virtue of section 31 of the Aliens Act, the Aliens Service and, on appeal, the Refugee Appeals Board, determined whether, and in the affirmative, to which country the applicant could be returned (see paragraphs 15-17, above). By a final decision of 2 December 2009, the latter found that there were no impediments to the applicant’s deportation to Syria.", "58. The Court notes, in particular, that neither before the Danish authorities, nor before the Court, has the applicant pointed to any source of information, which could indicate that at the relevant time aliens having been convicted of drug offences and served their sentence abroad, would risk detention or double persecution upon return to Syria. 59. The Court is therefore not convinced that the Danish authorities, before implementing the expulsion order, should have been aware that the applicant would risk detention and double persecution upon return to Syria, and that such could or would raise an issue under Article 3 of the Convention. The Court finds reason to point out in this respect that the principle of ne bis in idem does not by itself raise an issue under Article 3, and that even Article 4 of Protocol No.", "7 to the Convention is limited to double punishment within the same State (see, for example Sergey Zolotukhin v. Russia [GC], no. 14939/03, ECHR 2009 and Buzunis v. Greece (dec.), 22997/93, 2 December 1994). 60. As rightly pointed out by the applicant, though, at the time of the deportation various international sources were reporting ill-treatment of detainees and prisoners (see paragraphs 35 to 37), in particular of political prisoners, human rights defenders, members of the Kurdish minority, independent journalists and bloggers, suspected Islamists and people suspected of involvement in terrorism. 61.", "The applicant did not belong to a threatened minority, though, and he was never politically active or in conflict with the regime. Nor could he be perceived as an opponent to the Syrian government due to his stay abroad. In that connection, it may be recalled that the applicant left Syria when he was seven years old, and returned voluntarily twice, in 1997 and 2003. 62. In these circumstances, the Court is not convinced that the Danish authorities, before implementing the expulsion order, should have been aware that the applicant would risk being detained upon return to Syria following his conviction for drug-related offences in Denmark, and that his detention would fall under Article 3 of the Convention.", "63. Before the national authorities, the applicant also maintained that he feared being persecuted upon return to Syria because he had not performed his military service there. Furthermore, he relied on his father’s political past there. Moreover, he feared being persecuted by a Syrian family, because he had had an affair with their daughter in 1999 and she had subsequently falsely accused him of rape. Finally, in 2009 he alleged that in reality he was born in Lebanon.", "In their decisions of 10 August 2009 and 2 December 2009 the Aliens Service and the Refugee Appeals Board rejected these allegations. The Court observes that before these instances, the applicant was represented by a lawyer and he was given the opportunity to submit written observations and documents. His arguments were duly considered and the authorities’ assessment in this regard must be considered adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources. In addition the Court notes that while in Denmark, the applicant was never summoned for military service in Syria. Thus, there were no indications that he would face arrest by the military police upon return on account of having failed to report (see paragraph 38).", "Moreover, as to his father’s political past, the Court notes that apparently that did not prevent his father from returning to Syria in November 2010 in order to receive the applicant upon arrival (see paragraph 22). 64. Having regard to the above, the Court concludes that when the applicant was deported on 3 November 2010, there were no substantial grounds to believe that he was at risk of being subjected to treatment in breach of Article 3 upon return to Syria. 65. There has accordingly been no violation of Article 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 66. The applicant also complained that his deportation to Syria had been in violation of Article 8 of the Convention, which reads: “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.” 67. The Government contested that argument. A. Admissibility 68. The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 69. The applicant pointed out that he had lived in Denmark for more than twenty years and was twenty-eight years old when expelled. He may have had limited contact with his son from his first marriage, but that was due to disagreements with his ex-wife and because it was difficult to maintain his visiting rights in prison.", "Moreover, upon return to Syria, he lost contact with his daughter from the second marriage, since her mother (the applicant’s second ex-wife) did not wish to bring her to Syria. Finally, the applicant’s new wife had not wished to follow him to Syria and the applicant did not have any contact with her or his third child until he entered Sweden. 70. The Government attached crucial importance to the judgment by the Supreme Court of 25 August 2006 convicting the applicant of twenty-six counts of drugs-related offences involving 2.68 kg of heroin and cocaine, for which he was sentenced to seven years’ imprisonment. Hence the offences were extremely serious, a fact which had led the Court in numerous cases to find an expulsion justified by weighty interests of public order (see, inter alia, Lagergren v. Denmark (dec.), no.", "18668/03, 16 October 2006, and Mccalla v the United Kingdom (dec.), no. 30673/04, 31 May 2005). 71. Moreover, the applicant must be considered poorly integrated in Danish Society and he never participated in the labour market. 72.", "In the Government’s view, the fact that the applicant had two children, who were six and eight years old at the time of his deportation, and with whom he had limited contact, could not render the expulsion contrary to Article 8. Likewise, as regards the applicant’s new girlfriend, with whom the applicant was married in an Islamic ceremony and had a child, their relationship only started after the Supreme Court judgment of 25 August 2006, so none of them could have had a justified expectation of being able to continue family life in Denmark. Moreover, the fact that the girlfriend recanted her wish to join the applicant in Syria did not entail that they were effectively prohibited from establishing and maintaining a family life in Syria at the relevant time. Finally, the applicant had retained certain ties with Syria, where his mother, two half-siblings and other family were living. The applicant had several stays in Syria, for example for six months in 1997 during which he worked as a painter, and he speaks and understands Arabic.", "1. The Court’s assessment (a) Whether there has been an interference with the applicant’s right to respect for his private and family life 73. The applicant entered Denmark in 1990 when he was seven years old, and he was granted asylum there in February 1993. At the time of the deportation he had two children from previous marriages in Denmark and a wife with whom he was expecting a child. Accordingly, the deportation order interfered with his private and family life in Denmark 74.", "Such an interference will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 8. It is therefore necessary to determine whether it was “in accordance with the law”, motivated by one or more of the legitimate aims set out in that paragraph, and “necessary in a democratic society”. (b) “In accordance with the law” and “legitimate aim” 75. The parties did not dispute that the applicant’s expulsion was in accordance with the law, namely section 22 and section 26 of the Aliens Act, and that the applicant’s expulsion served a legitimate aim for the purposes of the second paragraph of Article 8, namely “the prevention of disorder and crime”. The Court sees no reason to hold otherwise.", "(c) “Necessary in a democratic society” (i) General principles 76. The Grand Chamber has summarised the relevant criteria to be applied, in determining whether an interference is necessary in a democratic society, at paragraphs 57 to 58 of Üner, cited above: “Even if Article 8 of the Convention does not therefore contain an absolute right for any category of alien not to be expelled, the Court’s case‑law amply demonstrates that there are circumstances where the expulsion of an alien will give rise to a violation of that provision (see, for example, the judgments in Moustaquim v. Belgium, Beldjoudi v. France and Boultif v. Switzerland, cited above; see also Amrollahi v. Denmark, no. 56811/00, 11 July 2002; Yılmaz v. Germany, no.52853/99, 17 April 2003; and Keles v. Germany, 32231/02, 27 October 2005). In the case of Boultif the Court elaborated the relevant criteria which it would use in order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued. These criteria are the following: - the nature and seriousness of the offence committed by the applicant; - the length of the applicant’s stay in the country from which he or she is to be expelled; - the time elapsed since the offence was committed and the applicant’s conduct during that period; - the nationalities of the various persons concerned; - the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life; - whether the spouse knew about the offence at the time when he or she entered into a family relationship; - whether there are children of the marriage, and if so, their age; and - the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.", "58. The Court would wish to make explicit two criteria which may already be implicit in those identified in the Boultif judgment: - the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and - the solidity of social, cultural and family ties with the host country and with the country of destination.” (ii) Application of the above principles in the instant case 77. The Court notes, on the one hand, that the applicant had a criminal record which included convictions for, inter alia, making threats against witnesses and human trafficking. Subsequently, by the High Court’s judgment of January 2006 the applicant was convicted of twenty counts of drugs offences relating to 2.68 kg of heroin and cocaine, committed throughout 2004, when he was twenty-two years old. The High Court considered that the applicant had had a leading role and sentenced him to seven years’ imprisonment.", "In addition, it confiscated his estimated profit, equal to approximately EUR 53,700. In these circumstances, there can be no doubt that the expulsion order was based on very serious offences. 78. The Court also notes that the applicant has ties with Syria, where his mother, two half-siblings and other family members are living, and where he spent six months in 1997 working as a painter, perhaps one month at the beginning of 1999 (it appears that the applicant disputed this and at the same time alleged that during this period he had an affair with a girl who later falsely accused him of rape) and one month in 2003. The applicant speaks and understands Arabic.", "79. The Court notes, on the other hand, that the applicant entered Denmark in 1990, when he was seven years old and had stayed there legally for about fifteen years when the expulsion order was issued in 2006. He speaks and understands Danish. Nevertheless, as the High Court stated in its judgment of 26 January 2006 (see paragraph 13) the applicant “must be deemed poorly integrated in Danish society: he never completed lower secondary school and has not at all participated in the labour market”. Moreover, the applicant served his sentence until the deportation order was implemented on 3 November 2010.", "80. The Court also takes into account that the applicant has a son born in August 2001 and a daughter born in March 2004. It cannot overlook the fact, though, that for various reasons the applicant had very limited contact with his son, and that he was detained nine months after the birth of his daughter, and thus also had limited contact with her. 81. Finally, the applicant met a new girlfriend in December 2007, while imprisoned, and married her according to Arabic tradition, it appears at the beginning of 2010.", "As emphasized by the High Court in its decision of 26 May 2010, the applicant’s relationship with his third wife-to-be thus commenced after the expulsion order had become final by the Supreme Court’s judgment of 25 August 2006. The applicant and his new wife therefore knew that their family life in Denmark would from the outset be precarious and they could not legitimately expect the applicant’s deportation order to be revoked on the basis of a fait accompli due to their marriage or their having a child together (see, for example Udeh v. Switzerland, no. 12020/09, § 50, 16 April 2013 and Onur v. the United Kingdom, no. 27319/07, § 59, 17 February 2009. Nevertheless, even assuming that the applicant can rely on this relationship in the context of the present case, the Court notes that the applicant’s wife-to-be claimed that she could and would follow the applicant to Syria (as opposed to, for example, Amrollahi v. Denmark, cited above, § 40-41), but that for reasons unknown to the Court, she changed her mind after the District Court had refused to revoke the applicant’s expulsion order on 29 March 2010.", "82. In the light of the above elements, the Court considers that it cannot be said that the Danish courts failed to strike a fair balance between the applicant’s interests on the one hand and the prevention of disorder or crime on the other hand. 83. Accordingly there has been no violation of Article 8 of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the application admissible; 2. Holds that there has been no violation of Article 3 of the Convention; 3. Holds that there has been no violation of Article 8 of the Convention; Done in English, and notified in writing on 8 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithGuido RaimondiRegistrarPresident" ]
[ "FIFTH SECTION CASE OF FEDKO v. UKRAINE (Application no. 17277/03) JUDGMENT STRASBOURG 12 June 2008 FINAL 12/09/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Fedko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Rait Maruste,Karel Jungwiert,Volodymyr Butkevych,Mark Villiger,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 20 May 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "17277/03) 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 Dmitriy Alekseyevich Fedko (“the applicant”), on 15 May 2003. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. 3. On 4 December 2006 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the proceedings 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 1972 and lives in Uman. 5. In summer 2000 Mr Y.", "Z., the applicant’s acquaintance, issued the applicant with a power of attorney to represent his interests in connection with criminal proceedings instituted against several individuals, who had stolen his shoes and cash. In this capacity the applicant participated in Mr Y. Z.’s discussions with relatives of Ms Y. V., one of the suspects, who were seeking to negotiate a settlement. Subsequently the relatives of Ms Y. V. accused Mr Y. Z. and the applicant of extorting money from them to pay the law enforcement authorities to discontinue proceedings against Ms Y. V. 6. On 20 July 2000 criminal proceedings were instituted against Mr Y.", "Z. on suspicion of soliciting a bribe. These proceedings were joined with those concerning the larceny of his possessions. 7. Within the framework of these proceedings, on 1 September 2000 the applicant was charged of being an accomplice to Mr Y. Z.", "On an unspecified date he was placed under an undertaking not to abscond. 8. In October 2000 the investigation was completed and the applicant was committed to trial before the Uman Court (Уманський міський суд). 9. On 6 February 2001 the Uman Court ordered a forensic expert assessment at the applicant’s request and suspended the proceedings pending its outcome.", "The court further remanded the applicant in custody, finding that he might interfere with the investigation. 10. On 21 June 2001 the expert assessment was produced to the court. 11. On 9 November 2001 the Uman Court convicted the applicant and Mr Y.", "Z. of fraud and soliciting a bribe, sentencing the applicant to four years’ imprisonment and exempting him from prison under amnesty. On the same day the applicant was released from detention under an undertaking not to abscond. 12. On 15 January 2002 the Cherkasy Regional Court of Appeal (Апеляційний суд Черкаської області) quashed the judgment and remitted the case for fresh consideration. 13.", "On 13 November 2002 the Uman Court remanded the applicant in custody. 14. On 17 January 2003 the Uman Court remitted the case for additional investigation and released the applicant under an undertaking not to abscond. The prosecution appealed. 15.", "On 18 March 2003 the Regional Court quashed the ruling of 17 January 2003 and remitted the case to the first-instance court for consideration on the merits. 16. On 6 June 2003 the Uman Court convicted Mr Y. Z. and the applicant of fraud and soliciting a bribe, sentenced them to three years’ restriction of freedom and exempted them from prison under amnesty. 17.", "On 23 December 2003 the Regional Court quashed the judgment and remitted the case for additional investigation, citing numerous procedural omissions in the course of investigation and trial. In particular, the court pointed out that no formal criminal proceedings had been instituted against the applicant and so the charges brought against him within the framework of proceedings against Mr Y. Z. were unlawful. It further found that the applicant had been placed in custody without sufficient grounds, that the trial court had failed to take due note of several of his requests and that the case file contained unsigned procedural documents. On the same date the court issued a separate ruling bringing the above-mentioned omissions to the attention of the Cherkasy Regional Prosecutor and the President of the Cherkasy Regional Council of Judges.", "The court ordered that the applicant remain under an undertaking not to abscond. 18. On 2 March 2004 the investigative authorities suspended the investigation concerning the larceny of Mr Y. Z.’s possessions on account of inability to determine the identity of the perpetrators. By July 2007 no further procedural actions had ensued. It is unclear whether the applicant has been released from the undertaking not to abscond.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 19. The applicant complained that the length of the 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 ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 20. The Government raised objections, contested by the applicant, regarding exhaustion of domestic remedies similar to those which the Court has already dismissed in the Merit case (see Merit v. Ukraine, no. 66561/01, §§ 54-67, 30 March 2004).", "The Court considers that the present objections must be rejected for the same reasons. 21. The Court notes that the above-mentioned 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 22. The Court reiterates that the period to be taken into consideration in determining the length of criminal proceedings begins with the day on which a person is “charged” within the autonomous and substantive meaning to be given to that term. It ends with the day on which a charge is finally determined or the proceedings are discontinued (see Rokhlina v. Russia, no. 54071/00, § 81, 7 April 2005, and Antonenkov and Others v. Ukraine, no.", "14183/02, §§32-33, 22 November 2005). 23. Turning to the facts of the case, the Court notes that the applicant was charged with a criminal offence on 1 September 2000 and that by July 2007 this charge had not been determined. The proceedings had thus lasted by that date nearly seven years for two levels of jurisdiction. 24.", "The Court reiterates that the reasonableness of the length of these 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). 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, for example, Antonenkov and Others, cited above, § 45; Ivanov v. Ukraine, no. 15007/02, §§ 74-75, 7 December 2006; and Benyaminson v. Ukraine, no.", "31585/02, § 104, 26 July 2007). 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. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28. 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 29.", "The applicant claimed, without providing any supporting materials, 19,058 euros (EUR) in respect of pecuniary damage representing the amount of earnings allegedly lost on account of the fact that he was under criminal investigation. In addition, he claimed EUR 100,000 in respect of non-pecuniary damage. 30. The Government submitted that these claims were exorbitant and unsubstantiated. 31.", "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, the Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 3,200 under that head. B. Costs and expenses 32.", "The applicant also claimed EUR 1,000 for the costs and expenses incurred before the domestic courts and EUR 500 for those incurred before the Court. He presented no documents to support these claims. 33. The Government submitted that these claims were wholly unsubstantiated. 34.", "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. The Court finds that these requirements have not been met in the present case. It therefore rejects the claim for costs and expenses. C. Default interest 35. 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 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, EUR 3,200 (three thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to be converted into the national currency of Ukraine 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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 12 June 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]
[ "FIFTH SECTION CASE OF ANAYO v. GERMANY (Application no. 20578/07) JUDGMENT STRASBOURG 21 December 2010 FINAL 21/03/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Anayo v. Germany, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Renate Jaeger,Karel Jungwiert,Mark Villiger,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva,Ganna Yudkivska, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 30 November 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "20578/07) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Nigerian national, Mr Frank Eze Anayo (“the applicant”), on 10 May 2007. 2. The applicant was represented by Mr R. Schmid, a lawyer practising in Nagold. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice, and by their Deputy Agent, Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice.", "3. The applicant alleged that the decisions of the German courts, which had refused him access to his children, violated his right to respect for his family life under Article 8 of the Convention. 4. On 26 September 2007 the President of the Fifth 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, in its version then in force).", "5. On 2 March 2010 the Court discontinued the application of Article 29 § 3 and declared the application admissible. 6. On 29 April 2010 the President of the Fifth Section granted leave to Mr H. Baro and Mrs D. Baro, the legal parents of the children concerned, to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2 of the Rules of Court, in its version then in force). The third-party interveners were represented by Mr M. Kleine-Cosack, a lawyer practising in Freiburg.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1967 and lived in Achern, Germany, before moving to Spain in 2008. 1. Background to the case 8.", "The applicant, who was born in Nigeria, entered Germany in 2003 and applied for asylum. His asylum request was dismissed, a decision which became final in February 2006. 9. Starting in June 2003 the applicant had a relationship with Mrs B. who was married to Mr B.; the spouses have three children born in 1996, 1998 and 2000. Although she initially considered a divorce, Mrs B., who never lived with the applicant, left the applicant in August 2005 and lived with her husband, Mr B., and the children again.", "10. In December 2005 Mrs B. gave birth to twins. The applicant is the biological father of the twins. Mr and Mrs B. are bringing up the twins together. According to Article 1592 no.", "1 of the Civil Code (see paragraph 28 below), Mr B. is their legal father. Mr and Mrs B. repeatedly refused requests made by the applicant, both before and after the twins’ birth, to be allowed contact with the twins. 2. Proceedings before the District Court 11. On 27 September 2006 the Baden-Baden District Court, having heard the applicant and Mr and Mrs B. in three hearings, granted the applicant contact with the twins once per month for one hour, initially in the presence of a third person and of either Mr or Mrs B. if they wished to be present.", "12. The District Court found that the applicant was entitled to access under Article 1685 § 2 of the Civil Code (see paragraph 27 below) as he was a person with whom the children had close ties. The fact that he had not yet borne any responsibility for the children did not hinder that entitlement, as the applicant had had no possibility to take such responsibility since the twins had been born in December 2005. Hence his access rights could not be denied. 13.", "The District Court further considered that contact between the applicant and the twins was in the children’s best interest. It agreed with the findings of the psychological expert it had consulted, who, having heard Mr and Mrs B. and the applicant, had concluded that contact with the applicant was beneficial for the children’s welfare. Particularly in view of their African-German origins, a relationship with the applicant, their natural father, would be essential for them to get to know their roots, to build up their identity, to understand why they were different and to develop normal self-esteem. The District Court also found that the applicant’s access rights could not be delayed any further as they were being increasingly contested by Mr and Mrs B. The applicant’s access to the twins would not adversely affect Mr and Mrs B.’s other three children because, as the psychologist had convincingly argued, dealing frankly with the realities would be in the best interest of all concerned.", "14. In coming to its decision, the District Court took into consideration that when Mrs B. and the applicant had separated in August 2005, the applicant had agreed that the twins could stay with the B. family but had stated that “he wanted to have a chance in the asylum proceedings”. He had subsequently asked to be granted access to the twins after their birth, which Mr and Mrs B. had refused. He had argued that if he did not stay in Germany, it would be impossible in practice for him to have any contact with his children and build up a relationship with them. In Mr and Mrs B.’s submission, the applicant wanted access to his children only in order to obtain a residence permit in Germany.", "The psychological expert, for her part, stated that it appeared that Mr and Mrs B. were now interpreting the applicant’s relationship with Mrs B. – wrongly and in accordance with common prejudices – as a mere attempt to obtain a residence permit, in order to blame him for their own difficult situation. 3. Proceedings before the Court of Appeal 15. On 12 December 2006 the Karlsruhe Court of Appeal allowed an appeal lodged by Mr and Mrs B., quashed the decision of the District Court and dismissed the applicant’s request for access to the twins.", "16. The Court of Appeal found that the applicant was not entitled to access to the children under Article 1684 of the Civil Code (see paragraph 26 below) because the provision only referred to the entitlement of the legal father (as opposed to the biological father), who in the present case was Mr B. (Article 1592 no. 1 of the Civil Code, see paragraph 28 below). As the children were living with their legal father, the applicant was also not entitled to acknowledge paternity (Article 1594 § 2 of the Civil Code, see paragraph 29 below) nor could he contest Mr B.’s paternity (Article 1600 § 2 of the Civil Code, see paragraph 30 below).", "17. The Court of Appeal further found that the applicant was not entitled to access under Article 1685 of the Civil Code. Being the biological father of the twins, he was, in principle, considered a person with whom the children had close ties (enge Bezugsperson) within the meaning of that provision. He nevertheless had not fulfilled the remaining requirements of Article 1685 of the Civil Code, as he had not borne any responsibility for the children in the past and thus had no social and family relationship with them. 18.", "As the applicant was therefore not entitled to claim access, it was irrelevant whether contact between him and the twins was in the children’s best interests. 19. The fundamental right to respect for one’s family life and one’s parental rights under Article 6 of the Basic Law (see paragraph 24 below) and Article 8 of the Convention did not require a different interpretation of the provisions of the Civil Code. With regard to Article 6 of the Basic Law, the Court of Appeal found that the applicant, being the biological, but not the legal father of the twins, was not a “parent” within the meaning of paragraph 2 of that provision, in particular because the coexistence of two fathers was not consistent with the notion of parental responsibility. Moreover, Article 6 § 1 of the Basic Law protected the access of the biological father to his child only where a social and family relationship between them had already existed in the past; it did not protect the wish to build up a relationship with the child in the future.", "The reasons why there was no relationship between the biological father and the child were irrelevant. 20. The Court of Appeal noted that the refusal to grant the applicant access to the children would mean that he would be unable to build up a relationship with them and would be expelled to Nigeria. Therefore, the children would most probably never be able to get to know their biological father. However, that was because the twins lived in a family together with their legal father who was actually assuming the father’s role.", "It was the legislator’s evaluation, expressed in Article 1600 § 2 of the Civil Code, that the existing relationship between legal father and child took precedence over the relationship between biological father and child. 21. With regard to Article 8 of the Convention, the Court of Appeal observed that there had never been a family bond between the applicant and the twins. It also distinguished the present case from the case of Görgülü v. Germany (no. 74969/01, 26 February 2004) inasmuch as the applicant in that case had also been the legal father of his child and had obtained the right to custody.", "4. Proceedings before the Federal Constitutional Court 22. On 29 March 2007, without giving reasons, the Federal Constitutional Court declined to consider the applicant’s constitutional complaint, in which he had claimed that the refusal to grant him access to the twins had violated his right to respect for his family life (file no. 1 BvR 183/07). 5.", "Subsequent developments 23. On 15 May 2007 the Freiburg Administrative Court dismissed the applicant’s request for an interim order suspending his expulsion until the European Court of Human Rights had decided upon his application. The applicant did not appeal against that decision. The main proceedings before the Freiburg Administrative Court, in which the applicant again applied for a residence permit, are apparently still pending. The applicant moved to Spain in 2008.", "II. RELEVANT DOMESTIC AND COMPARATIVE LAW 1. Domestic law and practice a. Provisions of the Basic Law 24. Article 6 of the Basic Law, in so far as relevant, provides: (1) Marriage and the family shall enjoy the special protection of the state.", "(2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty. b. Provisions of the Civil Code (i) Provisions on access to a child 25. Parental custody includes the right to determine access to the child (Article 1632 § 2 of the Civil Code).", "26. According to Article 1684 § 1 of the Civil Code, a child has a right of access to each parent, and each parent in turn has the right and the duty to have contact with the child. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties (Article 1684 § 3). They may restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if the child’s well-being would otherwise be endangered.", "The family courts may order that the right of access be exercised in the presence of a third party, such as a Youth Office or an association (Article 1684 § 4). 27. Article 1685 § 2 of the Civil Code, in its version applicable at the relevant time, provides for persons with whom the child has close ties (enge Bezugspersonen) to have a right of access to the child if this serves the child’s best interest and if they are bearing actual responsibility for the child or have done so in the past (social and family relationship). It is to be assumed, as a rule, that a person who lived with the child in domestic community for a lengthy period of time has borne such actual responsibility. Article 1684 §§ 3 and 4 apply mutatis mutandis.", "(ii) Provisions on paternity 28. According to Article 1592 of the Civil Code, a child’s father is either the man who at the date of the child’s birth was married to the child’s mother (no. 1), or the man who acknowledged paternity (no. 2) or whose paternity is judicially established under Article 1600d of the Civil Code (no. 3).", "29. An acknowledgement of paternity is not valid as long as the paternity of another man exists (Article 1594 § 2 of the Civil Code). 30. Paternity may be challenged. Under Article 1600 § 1 of the Civil Code, entitlement to challenge paternity lies with the man whose paternity exists under Article 1592 nos.", "1 and 2, with the mother and with the child, and also with the man who makes a statutory declaration that he had sexual intercourse with the child’s mother during the period of conception. However, pursuant to § 2 of Article 1600, this last man has a right to challenge the paternity of the man who is the child’s legal father under Article 1592 nos. 1 or 2 only if he is the child’s biological father and if there is no social and family relationship between the legal father and the child. 31. If there is no paternity under Article 1592 nos.", "1 or 2 of the Civil Code, it is to be established by the family court (Article 1600d § 1 of the Civil Code). 2. Comparative law 32. Research undertaken by the Court in relation to 23 Council of Europe Member States shows that there is no uniform approach in the Member States of the Council of Europe to the question whether, and if so, under what circumstances, a biological father (who is not only a sperm donor) has a right to contact with his child where a different father exists in law. 33.", "In a considerable number of States (comprising, in particular, Bosnia and Herzegovina, Estonia, France, Ireland, Portugal, Russia, Slovenia, Spain, the United Kingdom and Ukraine), where a child is born to a woman who is living with her husband, a biological father can ensure his contact rights by challenging, first, the paternity presumption in place, partly within a fixed time-limit. In these States, as indeed in all of the countries surveyed, a presumption exists in law to the effect that a child born of a married woman during the subsistence of the marriage is presumed also to be the child of her husband. Having been recognised as the (legal) father of the child concerned, the biological father then has a right to contact with his child like any other non-custodial parent, subject to the child’s best interests. 34. According to an expert report drawn up in March 2010 by the German Institute for Youth Human Services and Family Law (Deutsches Institut für Jugendhilfe und Familienrecht e.V., a registered association and non-governmental organisation), which has been submitted by the Government, the same applies in Greece.", "That report, however, interprets differently the provisions applicable in France and Spain. Research undertaken by the applicant confirms the Court’s research notably in respect of the legal situation in France and Spain. The applicant submits that a biological father may also challenge the legal father’s paternity in circumstances similar to those in the present application in several further countries, inter alia, in Norway. 35. In a considerable number of Council of Europe Member States, according to the Court’s research, the biological father of a child would, on the contrary, not be able to challenge the said paternity presumption in circumstances similar to those in the present application (see, in particular, Azerbaijan, Belgium, Croatia, Finland, Hungary, Italy, Latvia, Luxembourg, Monaco, the Netherlands, Poland, Slovakia and Switzerland).", "Biological fathers in those countries lack standing to bring an action to challenge that presumption either in all circumstances or at least in cases in which the mother is still living with her husband (see in this latter respect the law in force in Belgium and Luxembourg). 36. According to the expert report drawn up by the German Institute for Youth Human Services and Family Law submitted by the Government, the same applies in Austria, the Czech Republic, Denmark, Liechtenstein, Sweden and Turkey. The applicant interprets differently the provisions applicable in Italy and Switzerland; the report submitted by the Government, however, confirms the Court’s findings in respect of the legal situation in these countries. 37.", "In those latter Member States, it is thus only open to the biological father to apply for contact as a third party, not as a parent. However, in some of these States (Azerbaijan, Croatia, Finland, Hungary, Italy, Luxembourg and Poland) the biological father does not have standing to apply for contact as a third party either as the law provides a right of contact only to legal parents and (partly) to other relatives. 38. According to the expert report of the German Institute for Youth Human Services and Family Law submitted by the Government, the biological father would also not have standing to apply for contact in Liechtenstein and in the Czech Republic. 39.", "In the remaining Member States surveyed by the Court in which the paternity presumption may not be challenged by a biological father (Belgium, Latvia, Monaco, the Netherlands, Slovakia and Switzerland), different pre-conditions apply for that father to be granted contact if such contact is in the child’s best interests. According to Article 375 bis of the Belgian Civil Code, there has to be “proof of a tie of special affection with the child”; according to Article 181 § 3 of the Latvian Civil Code, the father must have lived together with the child for a long time in the same household. In Monaco a third person can be granted contact by a judge where that would be in the best interests of the child, without additional pre-conditions having to be met (compare Article 300 of the Monegasque Civil Code). In the Netherlands, third persons (including mere sperm donors) may be granted contact under Articles 1:377f and 1:377a § 3 of the Civil Code of the Netherlands if they have a close personal relationship with the child unless contacts run counter to the child’s best interests. According to Section 25 § 5 of the Slovakian Family Act, the biological father may be granted access if he is to be regarded as a “close person” to the child (according to the expert report submitted by the Government, a similar provision applies in Sweden) and according to Article 274a of the Swiss Civil Code, he has a right to contact in exceptional circumstances (according to the expert report submitted by the Government, the same precondition applies in Turkey).", "40. According to the report submitted by the Government, Section 20 of the Danish Act on Parental Responsibility provides that access may only be granted to close relatives having close personal ties with the child concerned if the parents have no or hardly any contact with the child. That report further states that under Article 148 § 3 of the Austrian Civil Code, a biological father may be granted access to his child if the child’s welfare is endangered otherwise. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 41.", "The applicant complained that the refusal to grant him access to his children violated his right to respect for his family life under Article 8 of the Convention, which reads as follows: “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.” 42. The Government contested that argument.", "A. The parties’ submissions 1. The applicant 43. The applicant argued that there was “family life” between him and the twins within the meaning of Article 8 § 1. It was decisive that he was interested in the children and ready to take responsibility for them.", "He underlined that it was only natural for him as the biological father to wish to participate in their upbringing and to take responsibility for them. He had had a serious relationship with Mrs B., who had planned to divorce her husband, for more than two years. He had intended to live with Mrs B. and the children and they had already looked for a flat and had gone to the ultrasound examination together before Mrs B. left him. Since the children’s birth, he had attempted to have access to them and had initiated access proceedings in court. He had not been in a position to establish contact with his children and to bear actual responsibility for them as Mr and Mrs B. had refused him access.", "By doing so, Mr and Mrs B. also wanted to prevent him from residing in Germany. He rejected allegations that he only wanted to profit from the children’s existence in order to obtain a residence permit and underlined that these allegations had already been examined and rejected by the Baden-Baden District Court and by the psychological expert consulted by that court which alone, as has been stressed in the Court’s case-law many times, has – and had here – the benefit of contact with all the persons concerned. Moreover, being an asylum seeker, he had not been in a position to bear financial responsibility for the children. He was now living in Spain and had no reason to seek to obtain a residence permit in Germany if not for being able to see his children. 44.", "In the applicant’s submission, the interference with his family life by the decisions of the domestic courts had not been justified under Article 8 § 2. German legislation, which allowed contact of biological parents with their children only if there was already a social and family relationship between them and refused access if contact was aimed at establishing such a relationship, failed to comply with Article 8 as it did not balance the interests involved in a fair manner and had thus led to a disproportionate interference with his family life in his case. As was illustrated by the present case, it depended on the legal parents’ free will whether or not the biological father could build up a social and family relationship with his children. If the legal parents arbitrarily prevented him from doing so, the biological father could not be granted access under Article 1685 § 2 of the Civil Code even if an independent expert confirmed that this would be in the children’s best interest. The question of access therefore had to be determined in each individual case in accordance with the best interest of the child concerned – which alone was decisive under Article 8 for the question whether a biological father should be granted access – and could not be predetermined by a legal presumption of when contacts would under no circumstances be in a child’s best interest.", "As the Court of Appeal had expressly stated that it had been irrelevant whether contacts between him and his children would be in the children’s best interest, it had therefore failed to give relevant and sufficient reasons to justify the interference with Article 8. 45. The applicant objected to the findings in a general psychological expert report commissioned by the Government for the present proceedings on the question whether the provisions of the German Civil Code on contacts between biological fathers and their children were compatible with children’s welfare (see paragraph 51 below) and to the Government’s interpretation of those findings. In particular, it had not been proven by psychological research that contacts of biological fathers with their children against the legal parents’ will would endanger the children’s welfare in all circumstances. He stressed that the Federal Constitutional Court itself had considered that it was of utmost importance for a child to get to know both parents in order to develop his or her personality.", "He further underlined that it was nothing unusual for families today to deal with two fathers as many children, following separation of their parents, lived together with their mother and stepfather while having contacts with their father. 46. The applicant also contested that the provisions on contacts between biological fathers and children were as restrictive as in Germany in most other European States. He argued that there was nothing to indicate that the access rights of biological fathers in only 17 of the 47 Council of Europe Member States surveyed in the report the Government had obtained from the German Institute for Youth Human Services and Family Law (see paragraph 52 below) were representative for the legal situation in all of the Council’s Member States. 47.", "The applicant further emphasised that contact between the children and him, their biological father, was in the children’s best interest in the circumstances of the case. The independent expert consulted in the proceedings before the District Court had confirmed this and found that contact with him was important for the children to develop their own identity, in particular because it was visible that Mr B. was not the twins’ biological father. Being African-German, they needed their father in order to understand why they were different. The applicant underlined that Mr and Mrs B. had not challenged the expert for bias in the proceedings before the domestic courts and that the family courts had not considered the expert biased. The denial of access to his children would result in his expulsion from Germany, which in turn would render impossible any future contact between him and the children.", "2. The Government 48. The Government argued that there had been no interference with the applicant’s rights under Article 8 § 1 as there had not been any “family life” between the applicant and the twins. It was not sufficient that the applicant was the natural father of the children. There were no close bonds between him and the twins.", "The relationship between the applicant and Mrs B. had ended four months before the twins were born and the applicant had neither been present at their birth nor had any contact with them. At no point in time had he lived with Mrs B. and he had not borne any financial responsibility for the children. On the contrary, the children had been living in a different family unit since their birth. The mere wish of the applicant, who had moved to Spain in the meantime, to establish a relationship with the twins did not fall within the ambit of “family life” under Article 8 § 1. The Government further submitted that it appeared that the applicant was interested in Mrs B. and the twins only in order to obtain a residence permit in Germany and that it was questionable whether the real motive for the applicant’s attempts to be granted access to the twins was his desire to built up a relationship with his children.", "49. The Government submitted that, should the Court find that there had been an interference with the applicant’s family life, that interference was justified under Article 8 § 2. The interference had been in accordance with Articles 1592 no. 1, 1684 and 1685 of the Civil Code and Article 6 of the Basic Law (see paragraphs 24 and 26-28 above). 50.", "The interference had been necessary for the protection of the rights and freedoms of others, in particular for the protection of the legal/social family and the best interest of the children. There had been a fair balancing of the interests involved, that is, those of the biological father, the legal parents and the children. 51. The Government took the view that, in the first place, the German legislator, in Articles 1592, 1594, 1684 and 1685 of the Civil Code, had balanced the competing interests involved in a manner which complied with the requirements of Article 8. It was of utmost importance for the welfare of children not only to know their origins, but in particular to understand to which family they belonged and who bore responsibility for them as a mother or father.", "The Government referred to the findings of a general psychological expert report they had commissioned for the present proceedings on the question whether the provisions of the German Civil Code on contacts between biological fathers and their children were compatible with children’s welfare. They submitted that, according to that report, as a rule, contacts of children with the parent they were not living with became a burden for them and were thus not in their best interests if the parents involved – as was the case here – were unable to limit their conflicts after separation. Moreover, according to the expert’s findings, the total absence of contact with a natural father did not, as a rule, affect a child’s social and emotional development. 52. The Government further considered that a comparative law analysis confirmed that the provisions of Article 1684 and Article 1685 of the Civil Code, compared to the applicable law in other European countries, duly protected the right of biological fathers to contact with their children and that the children’s best interests did not warrant a different solution.", "They referred to the findings in a report drawn up in March 2010 on their request by the German Institute for Youth Human Services and Family Law (Deutsches Institut für Jugendhilfe und Familienrecht e.V. ), a registered association and non-governmental organisation, in which the access rights of biological fathers in 17 other Council of Europe Member States had been analysed (see also paragraphs 34-40 above). They argued that German law, which did not exclude biological fathers in all circumstances from contacts with their children, but allowed contacts only if a social and family relationship existed between biological father and child and if contacts were in the child’s best interests, was in line with the general European standards on that subject-matter. 53. The Government submitted that the provisions of German law on contacts between biological father and child had also led to a fair outcome in the best interest of the children concerned in the instant case.", "Even though a biological parent could have an interest in getting to know his children and in building up a relationship with them, the children in the present case were living in a functioning legal and social family whereas the applicant had never lived with them. As the twins had fair skin and fair hair, they would not be able to understand what connected them with the applicant. The legal parents knew best when to inform the twins of their origins. Therefore, it was in the children’s best interest and in that of the legal/social family to be protected from outside interference. As regards the findings of the psychological expert in the proceedings before the District Court, they submitted that Mr and Mrs B. considered that the expert had been biased.", "3. The third-party interveners 54. The third-party interveners took the view that in the circumstances of the present case, in which the children were living in their legal family and had never had any contacts with their biological father, it should be for them as the children’s legal parents to decide if and when there should be contacts between their children and the biological father. They feared that the children’s welfare and that of their whole family would be endangered if they were forced to allow contacts between the twins and the applicant. They underlined that it had been very difficult to keep their big family together.", "They took the view that the expert report obtained by the District Court could not be taken into consideration in the proceedings before the Court because the Court of Appeal, which had considered the report as irrelevant for determining the case, had not examined their objections to it. They further considered that the applicant had abused Mrs. B.’s trust in him and now wanted to use the children exclusively in order to obtain a residence permit in Germany. B. The Court’s assessment 1. Whether there was an interference 55.", "The Court reiterates that the notion of “family life” under Article 8 of the Convention is not confined to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together out of wedlock. A child born out of such a relationship is ipso jure part of that “family” unit from the moment, and by the very fact, of the birth (see Keegan v. Ireland, 26 May 1994, § 44, Series A no. 290; L. v. the Netherlands, no. 45582/99, § 35, ECHR 2004‑IV; and Znamenskaya v. Russia, no. 77785/01, § 26, 2 June 2005).", "56. However, a biological kinship between a natural parent and a child alone, without any further legal or factual elements indicating the existence of a close personal relationship, is insufficient to attract the protection of Article 8 (compare L., cited above, § 37). As a rule, cohabitation is a requirement for a relationship amounting to family life. Exceptionally, other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto “family ties” (see Kroon and Others v. the Netherlands, 27 October 1994, § 30, Series A no. 297‑C; and L., cited above, § 36).", "57. Moreover, the Court has considered that intended family life may, exceptionally, fall within the ambit of Article 8, notably in cases in which the fact that family life has not yet fully been established was not attributable to the applicant (compare Pini and Others v. Romania, nos. 78028/01 and 78030/01, §§ 143 and 146, ECHR 2004-V). In particular, where the circumstances warrant it, “family life” must extend to the potential relationship which may develop between a child born out of wedlock and the natural father. Relevant factors which may determine the real existence in practice of close personal ties in these cases include the nature of the relationship between the natural parents and a demonstrable interest in and commitment by the father to the child both before and after the birth (see Nylund v. Finland (dec.), no.", "27110/95, ECHR 1999-VI; Nekvedavicius v. Germany (dec.), no. 46165/99, 19 June 2003; L., cited above, § 36; and Hülsmann v. Germany (dec.), no. 33375/03, 18 March 2008; compare also Różański v. Poland, no. 55339/00, § 64, 18 May 2006). 58.", "The Court further reiterates that Article 8 protects not only “family” but also “private” life. It has been the Convention organs’ traditional approach to accept that close relationships short of “family life” would generally fall within the scope of “private life” (see Znamenskaya, cited above, § 27 with further references). The Court thus found in the context of proceedings concerning the establishment or contestation of paternity that the determination of a man’s legal relations with his legal or putative child might concern his “family” life but that the question could be left open because the matter undoubtedly concerned that man’s private life under Article 8, which encompasses important aspects of one’s personal identity (see Rasmussen v. Denmark, 28 November 1984, § 33, Series A no. 87; Nylund, cited above; Yildirim v. Austria (dec.), no. 34308/96, 19 October 1999, and Backlund v. Finland, no.", "36498/05, § 37, 6 July 2010). 59. In the present case, the Court must determine in the first place whether the decision of the Court of Appeal, upheld by the Federal Constitutional Court, to refuse the applicant access to the twins disregarded the applicant’s existing “family life” with his children within the meaning of Article 8. It notes at the outset that (as, for instance, in the cases of Yousef v. the Netherlands, no. 33711/96, § 51, ECHR 2002‑VIII, and L., cited above, §§ 12, 37, but other than, for instance, in the cases of Nylund, cited above, and Hülsmann, cited above) it is uncontested that the applicant is the biological father of the twins.", "In examining whether there is, in addition, a close personal relationship between him and the children which must be regarded as an established “family life” for the purposes of Article 8, the Court observes that the applicant has never cohabited with the twins or with their mother and has to date never met the children. In these circumstances, their relationship does not have sufficient constancy to be qualified as existing “family life”. 60. However, the Court has found that intended family life may, exceptionally, fall within the ambit of Article 8 in cases in which the fact that family life has not been established is not attributable to the applicant (see paragraph 57 above). This applies, in particular, to the relationship between a child born out of wedlock and the child’s biological father, who are inalterably linked by a natural bond while their actual relationship may be determined, for practical and legal reasons, by the child’s mother and, if married, by her husband.", "In the present case, the applicant did not yet have any contact with his biological children because their mother and their legal father, who were entitled to decide on the twins’ contacts with other persons (Article 1632 § 2 of the Civil Code, see paragraph 25 above), refused his requests to allow contact with them. Moreover, under the provisions of German law (Article 1594 § 2 and Article 1600 § 2 of the Civil Code, see paragraphs 16, 29 and 30 above), the applicant could neither acknowledge paternity nor contest Mr B.’s paternity so as to become the twins’ legal father. Therefore, the fact that there was not yet any established family relationship between him and his children cannot be held against him. 61. In determining whether, in addition, there were close personal ties in practice between the applicant and his children for their relationship to attract the protection of Article 8 (see paragraph 57 above), the Court must have regard, in the first place, to the interest in and commitment by the father to the children concerned.", "It notes that the applicant expressed his wish to have contacts with his children even before their birth and repeatedly asked Mr and Mrs B. to be allowed access afterwards. He further pursued his attempt to have contacts with the twins by bringing access proceedings in the domestic courts speedily after their birth. In the circumstances of the case, in which the applicant was prevented from taking any further steps to assume responsibility for the twins, the Court considers that this conduct was sufficient to demonstrate the applicant’s interest in his children. As a result, the Court, in particular, does not consider it established that the applicant lacked genuine interest in his offspring and wanted to have contact with the twins exclusively in order to obtain a residence permit. Furthermore, as to the nature of the relationship between the twins’ natural parents, the Court notes that, even though the applicant and Mrs B. never cohabited, the children emanated from a relationship which lasted some two years and was, therefore, not merely haphazard.", "62. Having regard to the foregoing, the Court does not exclude that the applicant’s intended relationship with his biological children attracts the protection of “family life” under Article 8. In any event, the determination of the legal relations between the applicant and his biological children here at issue – namely the question whether the applicant had a right of access to his children – even if they fell short of family life, concerned an important part of the applicant’s identity and thus his “private life” within the meaning of Article 8 § 1. The domestic courts’ decision to refuse him contact with his children thus interfered with his right to respect, at least, for his private life. 2.", "Whether the interference was justified 63. Any such interference with the right to respect for one’s private life will constitute a violation of Article 8 unless it is “in accordance with the law”, pursued an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”. 64. The decision on access taken by the Court of Appeal, as upheld by the Federal Constitutional Court, was based on Articles 1684 and 1685, read in conjunction with Article 1592 no. 1 of the Civil Code (see paragraphs 26-28 above).", "It was aimed at pursuing the best interest of a married couple, Mr and Mrs B., and of the children who were born during their marriage, who were living with them and whom they cared for, and was therefore taken for the protection of their rights and freedoms. 65. In determining whether the interference was “necessary in a democratic society”, the Court refers to the principles established in its case-law. It has to consider whether, in the light of the case as a whole, the reasons adduced to justify that interference were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, inter alia, T.P. and K.M.", "v. the United Kingdom [GC], no. 28945/95, § 70, ECHR 2001‑V (extracts), and Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003‑VIII (extracts)). It cannot satisfactorily assess whether these reasons were “sufficient” without at the same time determining whether the decision-making process, seen as a whole, was fair and provided the applicant with the requisite protection of his interests safeguarded by Article 8 (see, inter alia, T.P. and K.M.", "v. the United Kingdom, cited above, § 72, and Sommerfeld, cited above, § 66). Consideration of what lies in the best interest of the child concerned is of paramount importance in every case of this kind (see, inter alia, Yousef v. the Netherlands, no. 33711/96, § 73); depending on their nature and seriousness, the child’s best interests may override those of the parents (see Sommerfeld, cited above, § 66; and Görgülü v. Germany, no. 74969/01, § 43, 26 February 2004). 66.", "According to the Court’s well-established case-law, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see, inter alia, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299‑A; Görgülü, cited above, § 41; and Sommerfeld, cited above, § 62). However, restrictions placed by the domestic authorities on parental rights of access call for a strict scrutiny as they entail the danger that the family relations between a young child and a parent would be effectively curtailed (see, inter alia, Elsholz v. Germany [GC], no. 25735/94, §§ 48-49, ECHR 2000‑VIII; Sommerfeld, cited above, §§ 62-63; and Görgülü, cited above, §§ 41-42).", "The above-mentioned principles must apply also in a case like the present one, in which the refusal of contact between a biological father and his children is classified as an interference, at least, with “private life”. 67. In the present case, the Court of Appeal refused the applicant, the natural father, access to his two children without examining the question whether contact between them would be in the twins’ best interest. Applying the relevant provisions of the Civil Code (Articles 1684 and 1685), that court argued that the applicant did not fall within the group of persons entitled to claim access as he was not the children’s legal father and had not borne any responsibility for them (see paragraphs 17-18 above). German law, as interpreted by the Court of Appeal, therefore did not provide for a judicial examination of the question whether contacts between a biological father and his children would be in the children’s best interest if another man was the children’s legal father and if the biological father had not yet borne any responsibility for the children (“social and family relationship”).", "Such a “social and family relationship” will notably be assumed if that father lived with the children in domestic community for a lengthy period of time (see, mutatis mutandis, for a further case in which parental rights of a father were, without a further examination on the merits, prima facie not considered to be in the child’s best interest, Zaunegger v. Germany, no. 22028/04, §§ 44 and 46, 3 December 2009, concerning the general exclusion of judicial review of the attribution of sole custody to the mother of a child born out of wedlock). The reasons why the biological father had not previously established a “social and family relationship” with his children were irrelevant (compare paragraph 19 above); the provisions thus also covered cases in which the fact that such a relationship has not yet been established was not attributable to the biological father. 68. The Court would also note in that connection that a comparative law analysis revealed that there is no uniform approach in the Member States of the Council of Europe to the question whether, and if so, under what circumstances, a biological father has a right to contact with his child where a different father exists in law.", "However, in a considerable number of European States the domestic courts would be in a position to examine on the merits whether contact of a biological father in the applicant’s situation with his child would be in the latter’s interest and could grant that father access if that was the case (see paragraphs 32-40 above). 69. The Court reiterates that in cases arising from individual applications it is not its task to examine the domestic legislation in the abstract, but it must examine the manner in which that legislation was applied to the applicant in the particular circumstances (see, for instance, Sommerfeld, cited above, § 86, and Zaunegger, cited above, § 45). It notes that the approach taken by the Court of Appeal and its interpretation of the domestic legislation led to the applicant being denied any contact with his children, irrespective of the question whether such contact was beneficial for the children’s well-being. In taking that approach the Court of Appeal did not give weight to the fact that the applicant, for legal and practical reasons, was not himself in a position to alter the relationship with his children.", "Under the applicable provisions of the Civil Code (Articles 1592 no. 1, 1594 § 2 and 1600 § 2), he could not become the legal father of the twins. Likewise, he could not obtain a right of access for having borne responsibility for the children because the legal parents, Mr and Mrs B., had the right to decide what contact the twins should have with third persons (Article 1632 § 2 of the Civil Code, see paragraph 25 above) and were therefore in a position to prevent the applicant from assuming any responsibility for them. The legal parents’ motives for refusing contact did not necessarily have to be based on considerations relating to the children’s best interest. 70.", "The Court is aware of the fact that the decision of the Court of Appeal was aimed at complying with the legislator’s will to give an existing family relationship between a legal father and a child, who are actually living together with their wife and mother respectively, precedence over the relationship between a biological father and a child (see paragraph 20 above). It further notes that the twins in the present case were living with their legal father and their mother and accepts that the existing family ties between the spouses and the children they actually cared for equally warranted protection. In fact, the case before it differs from many previous applications before the Court concerning questions of access to children in that a fair balance has to be struck by the domestic authorities between the competing rights under Article 8 not only of two parents and a child, but of several individuals concerned – the mother, the legal father, the biological father, the married couples’ biological children and the children which emanated from the relationship of the mother and the biological father. 71. Nevertheless, the Court is not satisfied that, in according protection to the existing family ties between Mr and Mrs B. and the children, the domestic court fairly balanced the competing interests involved in a decision-making process which provided the applicant with the requisite protection of his interests safeguarded by Article 8 and gave sufficient reasons to justify their interference for the purposes of paragraph 2 of Article 8.", "It would reiterate in that connection that it is for the domestic courts, who have the benefit of direct contact with all the persons concerned, to exercise their power of appreciation in determining whether or not contacts between a biological father and his children are in the latter’s best interest. In the present case, however, the Court of Appeal failed to give any consideration to the question whether, in the particular circumstances of the case, contact between the twins and the applicant would be in the children’s best interest. 72. Having regard to the foregoing, the Court concludes that the reasons given by the domestic courts for refusing the applicant contact with his children were not “sufficient” for the purposes of paragraph 2 of Article 8. The interference with his right to respect for his private life was therefore not “necessary in a democratic society”.", "73. There has accordingly been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 74. 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 75. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. He submitted that he had suffered considerable distress by the refusal to allow him to care for his children. 76. The Government did not comment on the applicant’s claim.", "77. The Court considers that the Court of Appeal’s denial of any contact between the applicant and his children without examining the question whether such contact would be in the children’s best interest must have caused the applicant some distress which is not adequately compensated by the finding of a violation alone. Making an assessment on an equitable basis, it therefore awards the applicant EUR 5,000, plus any tax that may be chargeable, under this head. B. Costs and expenses 78.", "The applicant also claimed EUR 1,685.27 for the costs and expenses of the proceedings before the administrative courts which he had initiated in order to obtain a residence permit in Germany and thus to be able to see his children. He further claimed EUR 2,262.39 for the costs and expenses of the proceedings before the civil courts. These costs were currently covered by legal aid which he had been granted, but the applicant claimed that he might have to reimburse them. Moreover, he requested reimbursement of EUR 2,015.38 for costs and expenses incurred in the proceedings before the Federal Constitutional Court and another EUR 2,015.38 for those incurred in the proceedings before the Court. All amounts claimed include VAT.", "79. The Government did not comment on this issue. 80. 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 were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings in so far as they concern the proceedings in the civil and the administrative courts as the applicant, who had been granted legal aid, failed to demonstrate that he had actually incurred those costs.", "On the other hand, the costs and expenses for the proceedings before the Federal Constitutional Court, which were aimed at redressing the breach of the applicant’s right under Article 8, and for the proceedings before this Court were actually and necessarily incurred and were reasonable as to quantum. It therefore awards the sum of EUR 4,030.76 (including VAT) for costs and expenses incurred both in the domestic proceedings and in the proceedings before the Court, plus any tax that may be chargeable to the applicant. C. Default interest 81. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Holds that there has been a violation of Article 8 of the Convention; 2. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, (i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 4,030.76 (four thousand and thirty euros and seventy-six cents), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (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; 3. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 21 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]
[ "THIRD SECTION CASE OF BALOGH AND OTHERS v. SLOVAKIA (Application no. 35142/15) JUDGMENT STRASBOURG 31 August 2018 FINAL 04/02/2019 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Balogh and Others v. Slovakia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Helena Jäderblom, President,Branko Lubarda,Helen Keller,Pere Pastor Vilanova,Alena Poláčková,Georgios A. Serghides,María Elósegui, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 12 June and 28 August 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "35142/15) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by fifty-one Slovak nationals, whose details are set out in the appendix (“the applicants”), on 9 July 2015. 2. The applicants were represented by Ms O. Szabó, a lawyer practising in Patince. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3.", "The applicants alleged, in particular, that their restitution claim, which had been examined in administrative and thereafter judicial proceedings, had not been decided on within a reasonable time and that they had had no effective remedy at their disposal in that respect, in violation of their rights under Article 6 § 1 and Article 13 of the Convention. 4. On 17 May 2016 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A.", "Restitution proceedings 5. On 23 December 2004 the applicants and 126 others lodged a claim with the Komárno Land Office, an authority that is now part of the Komárno District Office (“the Land Office”), for restitution of land under the Restoration of Land Ownership Act (Law no. 503/2003 Coll., as amended). 6. On 27 May 2010 the Land Office dismissed the claim on the grounds that all the claimants lacked standing to bring it.", "7. On 21 November 2011 the Nitra Regional Court upheld that decision following an administrative-law appeal by the claimants, lodged on their behalf by four individuals. 8. However, following an appeal lodged by the claimants with the Supreme Court, on 29 January 2014 that court quashed the Regional Court’s judgment and remitted the case to it on the grounds that the latter had failed to establish the representatives’ authority to act on behalf of all the claimants. The proceedings before the Regional Court had been conducted merely in the presence of the designated representatives and the court had failed to summon the claimants in person and to have its judgment served on them.", "It had thereby breached the claimants’ right of access to a court. 9. Accordingly, it became incumbent on the Regional Court to determine anew the claimants’ administrative-law appeal against the decision of the Land Office of 27 May 2010. In those proceedings, the court invited the claimants to clarify issues concerning their legal representation with a view to ensuring that they would be represented by a common representative. 10.", "In a decision of 4 December 2014 the Regional Court issued several rulings. In so far as relevant for the present application, it ruled that the claimants would all be jointly represented by a lawyer who had up until then represented only some of them. 11. On 25 May 2016 the Supreme Court upheld the decision of 4 December 2014 following an appeal lodged by the claimants. 12.", "The proceedings are still pending before the Regional Court. B. Constitutional proceedings 13. Meanwhile, on 21 January 2015 the Constitutional Court had rejected a complaint lodged by the applicants about the length of the proceedings in their claim, in so far as they had taken place before the Land Office and the Regional Court. The Constitutional Court held that the length of the administrative proceedings before the Land Office and of the judicial‑review proceedings held before the Regional Court could not be considered together.", "Having split the complaint into those two segments, the Constitutional Court rejected the complaint concerning the administrative proceedings on the grounds of non-exhaustion of ordinary remedies. In particular, it noted that the applicants had failed to challenge the alleged inactivity of the Land Office under Article 250t § 1 of the Code of Civil Procedure (CCP) (see paragraphs 19 et seq. in “Relevant domestic law and practice” below). As regards the judicial-review proceedings, the Constitutional Court dismissed the complaint as manifestly ill-founded. It noted that those proceedings as a whole had lasted some four and a half years.", "However, the case had been pending on appeal before the Supreme Court for about two years of that period. Although the length of the appellate proceedings had been unsatisfactory, as such it had not been complained of by the applicants, who had limited their compliant to the proceedings before the Regional Court. In addition, the Constitutional Court observed that the proceedings had been procedurally complex on account of the number of claimants. In sum, despite the fact that its judgment had been quashed as flawed, the length of the proceedings before the Regional Court had not been excessive. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution (Constitutional Law no. 460/1992 Coll., as amended) 14. The relevant part of Article 48 § 2 provides: “Everyone shall have the right to have his matter ... heard without undue delay ...” 15. Article 127 reads as follows: “1.", "The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.", "3. In its decision on a complaint the Constitutional Court may award appropriate financial compensation to the person whose rights under paragraph 1 have been violated.” B. Constitutional Court Act (Law no. 38/1993 Coll., as amended) 16. The relevant part of section 53 reads: “1.", "A[n] [individual] complaint [under Article 127 of the Constitution] is not admissible if the complainant has not exhausted legal remedies or other legal means, which a statute effectively provides to [the complainant] with a view to protecting [the complainant’s] fundamental rights or freedoms, and which the complainant is entitled to use under special statute. 2. The Constitutional Court shall not declare a[n] [individual] complaint inadmissible even if the condition under subsection 1 has not been fulfilled, if the complainant establishes that [he or she] has not fulfilled this condition for reasons worthy of particular consideration.” C. Statement of the Vice-President of the Constitutional Court 17. On 15 June 2016 the Vice-President of the Constitutional Court issued a written statement in response to a request by the Government Agent concerning the admissibility and merits of the present case. He stated that he leaned towards the Constitutional Court’s decision in the present case.", "In particular, he noted that jurisdiction to deal with alleged delays in administrative proceedings was vested in administrative tribunals under Article 250t of the CCP. This excluded the jurisdiction of the Constitutional Court in relation to the length of administrative proceedings as such. However, if an administrative tribunal’s decision concerning the length of administrative proceedings was considered to be arbitrary, the Constitutional Court could still review it under Article 127 of the Constitution for compliance with the requirement of fairness. Moreover, as an action under Article 250t of the CCP had no compensatory effect, it could have been complemented by compensation claims under the State Liability Act. D. Code of Civil Procedure 18.", "At the relevant time, the rules of procedure for the administrative judiciary were embodied in the 1963 Code of Civil Procedure (Law no. 99/1963 Coll., as amended), in particular its Chapter (Časť) 5. Under those rules, by virtue of an amendment that entered into force on 1 January 2003, administrative tribunals had jurisdiction, inter alia, to examine complaints concerning the inactivity of public administrative authorities (Section (Hlava) 4 – konanie proti nečinnosti orgánu verejnej správy). 19. Under Article 250t § 1, any natural or legal person alleging that a public administrative authority was not dealing with a matter in a timely fashion, in breach of the law and without a weighty reason, could apply to an administrative tribunal for an order instructing the authority concerned to proceed with the matter and to decide on it.", "However, such a remedy could be pursued only after the exhaustion of all ordinary remedies available, in accordance with the relevant legislation. 20. If an action under Article 250t § 1 was allowed, under paragraph 4 of that Article the administrative tribunal would define an appropriate time‑limit, not longer than three months, within which the defendant authority had to take a decision. This time-limit could be extended at the request of the authority concerned. 21.", "In the event of failure by the authority in question to abide by the time-limit, subject to a repeated request by the party concerned, the administrative tribunal had the power to impose, even repeatedly, a fine of up to 3,280 euros (EUR) on that authority (Article 250u). E. Practice in respect of actions brought under Article 250t § 1 of the CCP 22. In a case that gave rise to an order of the Bratislava Regional Court of 11 April 2013 (file no. 1S 38/13), the underlying administrative proceedings concerned a restitution claim lodged in 1992. The claimant brought an action before the Regional Court under Article 250t § 1 of the CCP, complaining of unjustified delays in the administrative proceedings.", "On 11 April 2013 the Regional Court allowed the action and ordered the administrative authority dealing with the restitution claim to decide on the matter within sixty days. 23. On 21 August 2014 the claimant lodged a fresh action under Article 250t § 1 of the CCP arguing that the administrative authority had failed to abide by the order of 11 April 2013. On 27 May 2015 the Regional Court issued a fresh order to the administrative authority to proceed with the matter and to decide on it within three months. At the same time, it imposed a fine on that authority of EUR 1,000.", "On 11 September 2015 the administrative authority dismissed part of the restitution claim. On 19 October 2015 it stayed its examination of the remainder of the claim, inviting a number of institutions to submit relevant documentation, which they did by the end of 2015. As of November 2016 the examination of the remainder of the claim was on-going. F. State Liability Act 24. State liability for damage is regulated by the State Liability Act (Law no.", "514/2003 Coll., as amended). Its section 3(1)(d) provides that the State is liable for damage which has been caused by maladministration (nesprávny úradný postup). 25. Section 9, which deals with compensation for damage caused by maladministration, provides: “1. The State shall be liable for damage caused by maladministration.", "Maladministration includes a public authority’s failure to take action or issue a decision within the statutory time-limit, general inactivity in the exercise of public authority, unjustified delays in proceedings, or other unlawful interference with the rights and legally recognised interests of individuals and legal entities. 2. The right to compensation for damage caused by maladministration is vested in the person who sustained the damage.” 26. Section 17 defines the manner and extent of compensation for damage. It provides in its relevant part: “1.", "Damage and lost profit shall be compensated for, unless special legislation provides otherwise. 2. In the event that the finding of a violation of a right alone is not adequate compensation in view of the loss caused by the unlawful official action or wrongful official conduct, monetary compensation shall also be awarded for non-pecuniary damage, if it is not possible to compensate for it otherwise.” G. Practice in respect of actions brought under the State Liability Act 27. In a judgment of 12 November 2013 the Bratislava Regional Court examined appeal no. 5Co 152/2013 in a case, at the heart of which was the length of administrative proceedings for the issuance of a construction permit.", "28. Following an action brought on 19 March 2004 under Article 250t § 1 of the CCP by the person seeking the permit (“the builder”), the Žilina Regional Court issued a decision on 24 January 2008 finding that there had been unjustified delays in the administrative proceedings and ordering the planning authority to proceed and decide on the matter within thirty days. 29. Relying on that judgment, the builder argued that the unjustified delays in the administrative proceedings amounted to maladministration within the meaning of section 9 of the State Liability Act. At the same time, he pointed out that it had taken more than three years and ten months for his action under Article 250t § 1 of the CCP to be determined, and argued that the length of the proceedings on that action alone had amounted to maladministration.", "30. In the aforementioned judgment of 12 November 2013 the Bratislava Regional Court upheld the first-instance judgment dismissing those claims. In doing so, it fully endorsed the conclusions of the first-instance court, including that: - in view of all the circumstances, including the judgment 24 January 2008, there had been maladministration on the part of the planning authority; - no financial compensation in respect of non-pecuniary damage caused by that maladministration was called for, since the proceedings in respect of the construction permit were still pending and the planning authority could still redress any non-pecuniary damage sustained by the builder by issuing the construction permit he was seeking; - although the proceedings in the action under Article 250t § 1 of the CCP had lasted nearly four years, there were no statutory time-limits for their completion. Accordingly, there could not have been any maladministration on account of their length. Moreover, the builder could have challenged their length by way of a complaint under Article 127 of the Constitution, which excluded jurisdiction of the ordinary courts in the matter under the State Liability Act; - furthermore, as the administrative tribunal dealing with the builder’s action under Article 250t § 1 of the CCP had no power to deal with the merits of his request for a construction permit, and as he had failed to seek judicial enforcement of the decision of 24 January 2008, the State was not liable for any non-pecuniary damage allegedly caused by the length of the proceedings in the action under Article 250t § 1 of the CCP.", "THE LAW I. THE APPLICANTS T. CSENTEOVÁ, J. KÓSOVÁ, L. MOLNÁR, I. OLLÉ, K. SZABÓ, K.SZÉPE, M. TÁNCZOSOVÁ AND M. VERMESOVÁ 31. In submissions of 29 May, 26 June, 9 July and 26 August 2018 the applicants’ lawyer informed the Court that the applicants Ms Csentenová, Ms Kósová, Messrs Molnár, Ollé, Szabó and Szépe, Ms Tánczosová and Ms Vermesová had died in the course of the Court’s proceedings and submitted further information in that respect as follows. The heirs of Ms Csentenová did not wish to continue the relevant part of the application, whereas the heir of Mr Koloman Szépe, Mr Anton Szépe, did. The lawyer submitted a copy of a certificate of inheritance dated 15 November 2016 certifying that Mr A. Szépe, Mr K. Szépe’s brother, was the latter’s only heir.", "As to the heirs of Ms Kósová, Mr Pavol Kóša - her son - expressed the wish to continue the respective part of the application, while the position of Mr Štefan Paál, was unknown. The children and heirs of Ms Vermesová, Ms Teréz Vermes and Messrs István Vermes and Vilmos Vermes, expressed a wish to pursue the application in her stead. In that respect, copies of certificates of 30 January 2017 and 6 June 2018 were submitted indicating that the persons mentioned were the respective heirs of Ms Kósová and Ms Vermesová. Of the heirs of Mr Molnár, Ms Emília Nagyová and Mr Imrich Molnár expressed the wish to continue the respective part of the application, while the position of Ms Mária Molnárová was unknown. To that end, a copy of a part of a decision of the Komárno District Court of 18 December 2017 was submitted showing that they were the heirs of Mr Molnár.", "As regards Mr Ollé, his heirs, Ms Jolana Olléová, Ms Klára Lőrincz, Ms Marta Vargová and Mr Róbert Ollé expressed the wish to continue the respective part of the application. In that respect, a copy of a part of a decision of the District Court of 30 May 2018 was submitted showing that they were the heirs of Mr Ollé. The heirs of Mr Szabó, Ms Alžbeta Szabóová and Mr Koloman Szabó also expressed the wish to continue the proceedings in his stead. In support of that claim, a copy of a part of a decision of the District Court of 25 June 2018 was submitted indicating that they were the heirs of Mr Szabó. Lastly, the childrena and heirs of Ms Tánczosová, Mr Peter Tánczos and Ms Annamária Hencz, likewise submitted that they were interested to continue the proceedings in her stead, relying on a certificate by a public notary identifying them as the heirs of Ms Tánczosová.", "32. The Government for their part proposed first of all that the part of the application brought by Ms Csentenová be struck out of the Court’s list. Moreover, they submitted that they had no objection to (i) Mr Pavol Kóša, (ii) Ms Emília Nagyová and Mr Imrich Molnár, (iii) Ms Jolana Olléová, Ms Klára Lőrincz, Ms Marta Vargová and Mr Róbert Ollé, (iv) Ms Alžbeta Szabóová and Mr Koloman Szabó, (v) Mr Anton Szépe, (vi) Mr Peter Tánczos and Ms Annamária Hencz, and (vii) Ms Teréz Vermes and Messrs István Vermes and Vilmos Vermes continuing the proceedings in place of (i) Ms Juliana Kósová, (ii) Mr Ladislav Molnár, (iii) Mr Imrich Ollé, (iv) Mr Koloman Szabó, (v) Mr Koloman Szépe, (vi) Ms Mária Tánczosová, and (vii) Ms Margita Vermesová, respectively, provided that the former were the heirs of and succeeded the latter in the impugned domestic proceedings. 33. The Court reiterates that it has been its practice to strike applications out of the list of cases in the absence of any heir or close relative who has expressed a wish to pursue the application (see, for example, Silášová and Others v. Slovakia (revision), no.", "36140/10, § 9, 30 January 2018, with further references). Moreover, it finds no special circumstances relating to respect for human rights as defined in the Convention and its Protocols which require it to continue the examination of the application in respect of Ms Csentenová. The application should therefore be struck out of the Court’s list of cases in so far as it relates to this applicant. 34. As Mr Anton Szépe is the sole heir of the late applicant Mr Koloman Szépe, the Court considers that he has a legitimate interest to continue the present proceedings in his late brother’s stead (see, for example, Bittó and Others v. Slovakia (just satisfaction), no.", "30255/09, § 7, 7 July 2015, with further references). The same applies accordingly to (i) Mr Pavol Kóša, (ii) Ms Emília Nagyová and Mr Imrich Molnár, (iii) Ms Jolana Olléová, Ms Klára Lőrincz, Ms Marta Vargová and Mr Róbert Ollé, (iv) Ms Alžbeta Szabóová and Mr Koloman Szabó, (v) Peter Tánczos and Ms Annamária Hencz, and (vi) Ms Teréz Vermes and Messrs István Vermes and Vilmos Vermes, As no submission has been made indicating any interest in continuation of the relevant part of the proceedings by or on behalf of Mr Paál and Ms Mária Molnárová, no ruling concerning their standing is called for. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION, ALONE AND IN CONJUNCTION WITH ARTICLE 13 OF THE CONVENTION 35. The applicants complained that the length of the proceedings on their restitution claim had been excessive and that they had had no effective remedy at their disposal in that respect, contrary to the requirements of Article 6 § 1 and Article 13 of the Convention.", "The relevant part of Article 6 § 1 provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” Article 13 provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 1. The parties’ submissions 36. As to the complaint under Article 6 § 1 of the Convention, the Government pointed out that the proceedings on the applicants’ claim consisted of a phase before an administrative authority and a phase before the courts. Relying on the Constitutional Court’s findings in its decision of 21 January 2015, they considered that the examination of the length of those proceedings had to be divided into those two phases. 37.", "In particular, as regards the administrative phase of the proceedings, the applicants should have brought an action for acceleration of the proceedings under Article 250t § 1 of the CCP. Relying on the judgment of the Bratislava Regional Court in an unrelated case (see paragraph 27 above), the Government further argued that any finding by an administrative tribunal of unjustified delays in the administrative proceedings could then have served as a basis for a claim for compensation in respect of pecuniary and non-pecuniary damage under the State Liability Act (see paragraph 25 above). By not having made use of those remedies, as regards the administrative phase of the proceedings, the applicants had failed to meet the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention. 38. As to the part of proceedings on the applicants’ restitution claim which had taken place before the courts, the Government referred to the findings of the Constitutional Court and argued that the relevant part of the length-of-proceedings complaint was manifestly ill‑founded.", "39. In relation to the applicants’ complaint under Article 13 of the Convention, the Government pointed to the remedies at the applicants’ disposal as mentioned above. Should they not have been successful, the applicants could also have resorted to subsidiary protection by the Constitutional Court under Article 127 of the Constitution. In so far as the Constitutional Court had made protection of the applicants’ right to a hearing without undue delay in the administrative proceedings dependent on their first having challenged the alleged delays in those proceedings by way of an action for their acceleration under Article 250t § 1 of the CCP, the Government sought to distinguish the present case from that of Ištván and Ištvánová v. Slovakia (no. 30189/07, 12 June 2012).", "In that case, the Constitutional Court had made protection of the right of Mr Ištván and Mrs Ištvánová to a hearing within a reasonable time in judicial proceedings dependent on their first having enabled the president of the court concerned to redress the alleged delays in those proceedings in response to a complaint by Mr Ištván and Mrs Ištvánová under the Courts Act (Law no. 757/2004 Coll., as amended). In the Government’s view, the difference between Ištván and Ištvánová and the present case lay in the fact that an action under Article 250t § 1 of the CCP had been accepted by the Court as an effective remedy for the purposes of Article 35 § 1 of the Convention (see Csepyová v. Slovakia (dec.), no. 67199/01, 8 April 2003), whereas a complaint under the Courts Act had not. The Government concluded that the remedies available to the applicants comprised preventive as well as compensatory elements, the aggregate of which met the requirements of Article 13 of the Convention.", "40. In response, the applicants maintained their complaints, submitting that the length of the proceedings should be seen as including the administrative phase, and that not even the arguable complexity of the proceedings could justify their length, which was in no way attributable to them. 2. The Court’s assessment 41. The Court notes that the applicants’ standing to pursue the present application and the applicability of Article 6 § 1 of the Convention to the proceedings on their restitution claim, including the part taking place before the Land Office, have not been disputed.", "The applicability of Article 6 § 1 of the Convention was established by the Court in the past in a similar context (see Csepyová, cited above, and Schmidtová v. the Czech Republic, no. 48568/99, §§ 54-57, 22 July 2003). 42. As to the Government’s objection of non-exhaustion of domestic remedies, the Court further notes that it is limited to the part of the applicants’ complaint which concerns the administrative phase of the proceedings. In that connection, it reiterates that the purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court.", "The rule in Article 35 § 1 is based on the assumption, reflected in Article 13 (with which it has a close affinity), that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights (see, for example, Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000‑XI, with further references). 43. In view of the closely interconnected nature of the Government’s non-exhaustion plea with regard to the complaint under Article 6 § 1 of the Convention and considerations as to the merits of the applicants’ complaint under Article 13 of the Convention, the Court considers that this objection should be joined to the merits of the complaint under the latter provision (see Antoni v. the Czech Republic, no. 18010/06, § 26, 25 November 2010).", "44. Regarding the question of the beginning of the proceedings, the Court further reiterates that when under the national legislation an applicant has to exhaust a preliminary administrative procedure before having recourse to a court, the proceedings before the administrative authorities are to be included when calculating the overall length of the proceedings for the purposes of Article 6 of the Convention (see, for example, Kiurkchian v. Bulgaria, no. 44626/98, § 51, 24 March 2005). 45. The period to be taken into consideration for the purposes of Article 6 § 1 of the Convention accordingly began on 23 December 2004 and has not yet ended.", "It has thus lasted more than thirteen years and three months for the proceedings before the Land Office and two levels of jurisdiction. 46. The Court notes that the length-of-proceedings complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. For similar reasons, it finds the complaint arguable for the purposes of Article 13 of the Convention (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no.", "131). The application must therefore be declared admissible. B. Merits 47. The parties have made no separate submissions on the merits.", "1. Article 13 in conjunction with Article 6 § 1 of the Convention 48. The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint; however, the remedy required by Article 13 must be “effective” in practice as well as in law.", "The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective. Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see Kudła, cited above, § 157). 49. Although the Contracting States are afforded some discretion as to the manner in which they provide the relief required by Article 13 and conform to their Convention obligation under that provision (see, for example, Kaya v. Turkey, 19 February 1998, § 106, Reports of Judgments and Decisions 1998‑I), a remedy available to a litigant at domestic level for raising a complaint about the length of proceedings is “effective”, within the meaning of Articles 13 and 35 § 1 of the Convention, only if it is capable of covering all stages of the proceedings complained of and thus, in the same way as a decision given by the Court, of taking into account their overall length (see, for example, Počuča v. Croatia, no.", "38550/02, § 35, 29 June 2006, with further references). 50. Furthermore, remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective” within the meaning of Article 13 of the Convention if they prevent the alleged violation or its continuation, or provide adequate redress for any violation that has already occurred. A remedy is therefore effective if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (see Mifsud v. France (dec.) [GC], no. 57220/00, § 17, ECHR 2002-VIII).", "While a preventive measure is preferable, if a length‑of‑proceedings violation has already occurred, a remedy designed only to expedite the proceedings may not be adequate, and compensation or another form of redress may be called for (see Cocchiarella v. Italy [GC], no. 64886/01, §§ 74-77, ECHR 2006‑V). 51. The Court notes that the proceedings the length of which is under review in the present case concerned a restitution claim pursued by the applicants. Such claims are primarily conducted before an administrative authority, which may, as in the present case, be followed by proceedings before an administrative tribunal.", "As established by the Constitutional Court in its decision of 21 January 2015 (see paragraph 13 above), there is no single remedy in Slovakia with regard to the length of proceedings conducted in such a regime, the remedial mechanism available consisting of several components. 52. In particular, as regards the phase of the proceedings before the administrative tribunals, the single remedy to be used remains a complaint under Article 127 of the Constitution. On the specific facts of the present case, the Constitutional Court did indeed review the length of that phase of the proceedings, albeit specifically excluding from its examination the other phase of the proceedings, which had taken place before the Land Office. It did so despite the fact that the formulation and construction of the applicants’ constitutional complaint enabled it to examine the length of the proceedings before the Land Office and the Regional Court as a whole (see Šidlová v. Slovakia, no.", "50224/99, § 53, 26 September 2006). 53. As to the administrative phase of the proceedings, the position taken by the Constitutional Court was that the applicants should have sought acceleration of those proceedings by way of an action under Article 250t § 1 of the CCP and that as administrative tribunals had jurisdiction in that matter, it fell outside the jurisdiction of the Constitutional Court. 54. The Court observes that an action under Article 250t § 1 of the CCP has no compensatory potential and that, as the Government themselves have argued in reliance on a judgment of the Bratislava Regional Court of 12 November 2013 (see paragraphs 27 and 37 above), a finding of unjustified delays in the underlying administrative proceedings by an administrative tribunal in response to such an action may serve as a basis for a claim for damages under the State Liability Act against the administrative authority responsible for those delays.", "55. However, at the same time, the Court notes that in the very judgment relied on by the Government, the Bratislava Regional Court endorsed the view that there was no room under the State Liability Act for a claim for compensation in respect of non-pecuniary damage allegedly caused by the excessive length of the underlying administrative proceedings, because it was still open to the administrative authority being sued for damages before the Regional Court to grant the claim that the plaintiff was pursuing in those administrative proceedings. The Court considers that in such circumstances it cannot be said that a compensatory remedy existed in respect of length of the proceedings. 56. Furthermore, the Court finds it noteworthy that, although the applicants in the present case had made no use of the remedy under the State Liability Act prior to lodging a constitutional complaint, in its decision of 21 January 2015 the Constitutional Court did not reproach them for failing to exhaust remedies on that account, as required under section 53 of the Constitutional Court Act.", "Similarly, there is no explanation of the relationship between the remedy under the State Liability Act and a complaint under Article 127 of the Constitution in the statement of the Vice-President of the Constitutional Court (see paragraph 17 above). It thus remains the case that the functional relationship between the remedy under the State Liability Act and that under Article 127 of the Constitution is equivocal (see, mutatis mutandis, Horváth v. Slovakia, no. 5515/09, §§ 74 and 75, 27 November 2012). 57. The relationship between the various components of the remedial mechanism in relation to a lengthy administrative phase of the proceedings was thus in part unclear.", "The Court considers that such a cumulation of remedies, which by extension leads to multiplication of judicial proceedings, by its nature, raises general doubts about its overall effectiveness. 58. The Court also finds that these doubts are amplified by the fact that the division of the examination of the length of proceedings into their administrative and judicial segments is as such at odds with the Court’s approach to examining the overall length of the proceedings (see Bako v. Slovakia (dec.), no. 60227/00, 15 March 2005). In this context, the Court would emphasise the specific nature of the problem of lengthy proceedings, in that it does not consist of a series of static events but rather of one progressively developing occurrence, the gravity of which progressively increases over time.", "59. Furthermore, the Court notes that although the remedies under Article 250t of the CCP and the State Liability Act have now been a part of the Slovakian legal order for quite some time, they appear to have been scarcely used in practice, making it difficult to demonstrate their actual effectiveness. 60. On the contrary, the known examples (see paragraphs 22 et seq. above) appear rather to suggest that even repeated recourse to an action under Article 250t of the CCP produces no real acceleration of administrative proceedings, or that the proceedings in such an action may themselves take a considerable time (see paragraph 28 above).", "61. By the same token, as has already been noted above, the known example of the use of the remedy under the State Liability Act in a situation similar to that of the present case rather demonstrates the limits of its effectiveness. 62. At this juncture, the Court observes that the Government have not identified any other examples of the use of those remedies to show how they function and, more importantly, to demonstrate their effectiveness (see, a contrario, Pallanich v. Austria, no. 30160/96, § 30, 30 January 2001).", "63. In view of these considerations, and to the extent that the Government’s argument has been substantiated, the Court finds the sum of remedies proposed by them in relation to the length of the administrative phase of the proceedings ineffective for the purposes of Article 13 of the Convention. 64. In its decision in Csepyová (cited above) the Court accepted an action for acceleration of administrative proceedings under Part 5 of the CCP as an effective remedy for the purposes of Article 35 § 1 of the Convention. The Court notes, however, that the situation assessed in the present case is different from that in Csepyová in two respects.", "First, in the present case the proceedings brought by the applicants comprised not only an administrative phase, but also a judicial phase. Consequently, the Court’s assessment of the effectiveness of that remedy and others in the present case is made with reference to such two-tier proceedings as a whole. Secondly, unlike in Csepyová, in the present case the absence of established practice demonstrating the effectiveness of an action under Article 250t of the CCP despite its long‑term existence, combined with examples of its failure, cannot but be seen as indicative of its actual ineffectiveness. 65. As to the Government’s argument comparing the present case to that of Ištván and Ištvánová (cited above), the Court notes first of all that in that case it did not examine whether a complaint under the Courts Act was an effective remedy within the meaning of Article 35 § 1 of the Convention as such.", "Its examination focused rather on the overall effectiveness of the combination of remedies available to Mr Ištván and Ms Ištvánová and on whether they had complied with the exhaustion requirement under Article 35 § 1 of the Convention in view of how they had made use of those remedies. The central theme of that assessment was that the availability of redress under Article 127 of the Constitution for Mr Ištván and Ms Ištvánová had been dependent on their making a complaint under the Courts Act (see in particular paragraphs 77, 84, 85 and 91 of that judgment). 66. The situation in the present case is, however, structurally different, in that the Constitutional Court denied the applicants a remedy under Article 127 of the Constitution in relation to the administrative phase of the proceedings, holding that they should bring an action under Article 250t of the CCP, and refused to view the proceedings as a whole, which is combined with the Government’s argument that the applicants had at their disposal an action under the State Liability Act. The problem is accordingly two-fold.", "As has been established above, the remedies under Article 250t of the CCP and the State Liability Act in relation to the administrative phase of the proceedings are inefficient. In addition, the length of the proceedings has never been examined as a whole. 67. The Court concludes that the applicants have not had at their disposal an effective remedy in relation to their length-of-proceedings complaint. There has accordingly been a violation of Article 13, in conjunction with Article 6 § 1 of the Convention, and the Government’s non-exhaustion objection in relation to the applicants’ complaint under the latter provision must be dismissed.", "2. Article 6 § 1 of the Convention 68. 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). 69.", "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). 70. Having examined all the material submitted to it, the Court notes 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, and despite the procedural complexity of the present case which is due to the number of restitution claimants, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1 on that account.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 71. 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 72. The applicants jointly claimed 871,510 euros (EUR) in respect of pecuniary damage, this amount representing their estimate of the value of the land and buildings that were at stake for them at the domestic level.", "In addition, they claimed EUR 30,000 each in respect of non-pecuniary damage. 73. The Government contested the former claim as having no causal connection to the alleged violations and the latter as being excessive. 74. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim.", "On the other hand, it awards each of the applicants, whose application has not been struck out of the Court’s list (see paragraph 33 above), EUR 6,200, plus any tax that may be chargeable, in respect of non‑pecuniary damage, payable in accordance with the domestic inheritance procedures. If more than one person continues the application instead of a late applicant, this amount is to be paid to them jointly. B. Costs and expenses 75. The applicants also made a claim in respect of legal costs.", "While they were unable to specify the amount of their claim in relation to the period prior to 2014, when their current legal representative took over the case, they left that part of their claim to the Court’s discretion. As to the period from 2014, they jointly claimed EUR 276,191.77. This amount was calculated on the basis of the number of “acts of legal assistance” rendered and the value of such an “act” established under the calculation formula applicable at national level, taking into account what they considered to be the value of what was at stake for them at the domestic level. 76. The Government objected that the claim was unsupported by any evidence.", "77. 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 (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). Furthermore, Rule 60 § 2 of the Rules of Court provides that itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part. 78.", "In the instant case, the Court observes that the applicants have not substantiated their claim by any relevant supporting documents establishing that they were under an obligation to pay for the cost of legal services or have actually paid for them. Accordingly, the Court decides not to award any sum under this head (see Ištván and Ištvánová, cited above, § 122). C. Default interest 79. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1.", "Decides, unanimously, to strike the application out of its list of cases in so far as brought by the applicant Ms Terézia Csenteová; 2. Holds, unanimously, that (i) Mr Pavol Kóša, (ii) Ms Emília Nagyová and Mr Imrich Molnár, (iii) Ms Jolana Olléová, Ms Klára Lőrincz, Ms Marta Vargová and Mr Róbert Ollé, (iv) Ms Alžbeta Szabóová and Mr Koloman Szabó, (v) Mr Anton Szépe, (vi) Mr Peter Tánczos and Ms Annamária Hencz, and (vii) Ms Teréz Vermes and Messrs István Vermes and Vilmos Vermes have standing to continue the present proceedings instead of, respectively, (i) Ms Juliana Kósová, (ii) Mr Ladislav Molnár, (iii) Mr Imrich Ollé, (iv) Mr Koloman Szabó, (v) Mr Koloman Szépe, (vi) Ms Mária Tánczosová, and (vii) Ms Margita Vermesová; 3. Joins, unanimously, to the merits of the complaint under Article 13 of the Convention the Government’s non-exhaustion objection in relation to the complaint under Article 6 § 1 of the Convention and rejects it; 4. Declares, unanimously, the application admissible; 5. Holds, unanimously, that there has been a violation of Article 13, in conjunction with Article 6 § 1 of the Convention; 6.", "Holds, unanimously, that there has been a violation of Article 6 § 1 of the Convention; 7. Holds, by four votes to three, (a) that the respondent State is to pay each of the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,200 (six thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (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; 8. Dismisses, unanimously, the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 31 August 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıHelena JäderblomDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Jäderblom, Lubarda and Poláčková is annexed to this judgment.", "H.J.F.A. PARTLY DISSENTING OPINION OF JUDGE POLÁČKOVÁ JOINED BY JUDGES JÄDERBLOM AND LUBARDA To our regret, we have been unable to vote with the majority on the question of the amount of the just satisfaction awarded in respect of non‑pecuniary damage in this case and in the case of Engelhard v. Slovakia (no. 12085/16). Both cases are essentially the same in that they involve an aspect that is purely individual (the length of the applicants’ proceedings from the point of view of Article 6 § 1 of the Convention) and an aspect that has additional systemic features (the lack of an effective remedy from the point of view of Article 13 of the Convention). Under Article 41 of the Convention, subject to other conditions, the Court affords just satisfaction to the injured party “if necessary”.", "In our opinion, the systemic aspect of both cases is sufficiently addressed by the finding of a violation. We therefore consider the amount awarded in just satisfaction unnecessarily high, both in absolute and relative terms. APPENDIX List of applicants 1. Mr Zoltán Balogh was born in 1961 and lives in Kolárovo 2. Ms Mária Bezúrová was born in 1940 and lives in Kolárovo 3.", "Ms Terézia Csenteová was born in 1921, died in 2016, and lived in Kolárovo 4. Ms Cecília Csontosová was born in 1943 and lives in Kolárovo 5. Ms Mária Csontosová was born in 1938 and lives in Kolárovo 6. Ms Edita Donková was born in 1958 and lives in Kolárovo 7. Ms Katarína Erdélyiová was born in 1944 and lives in Komárno 8.", "Mr Ján Fekete was born in 1942 and lives in Kolárovo 9. Mr Jozef Fekete was born in 1958 and lives in Kolárovo 10. Mr Imrich Fekete was born in 1946 and lives in Zemné 11. Ms Magdaléna Feketeová was born in 1960 and lives in Kolárovo 12. Ms Edita Fördősová was born in 1959 and lives in Kolárovo 13.", "Mr Štefan Gőgh was born in 1933 and lives in Kolárovo 14. Mr Vojtech Gőgh was born in 1944 and lives in Kolárovo 15. Ms Margita Hegyiová was born in 1933 and lives in Kolárovo 16. Mr Alexander Horváth was born in 1947 and lives in Kolárovo 17. Ms Terézia Horváthová was born in 1937 and lives in Kolárovo 18.", "Ms Serena Jirková was born in 1931and lives in Hurbanovo 19. Ms Alžbeta Kériová was born in 1949 and lives in Kolárovo 20. Ms Irena Kissová was born in 1942 and lives in Komoča 21. Ms Juliana Kósová[1] was born in 1933, died in 2016, and lived in Kolárovo 22. Ms Mária Mészárosová was born in 1948 and lives in Kolárovo 23.", "Mr Ladislav Molnár was born in 1932, died in 2017, and lived in Kolárovo 24. Ms Mária Molnárová was born in 1940 and lives in Kolárovo 25. Ms Helena Morovičová was born in 1951 and lives in Kolárovo 26. Mr Alexander Nagy was born in 1958 and lives in Kolárovo 27. Ms Terézia Nagyová was born in 1939 and lives in Kolárovo 28.", "Mr Imrich Ollé[2] was born in 1941, died in 2018, and lived in Kolárovo 29. Mr Imrich Őszi was born in 1928 and lives in Kolárovo 30. Ms Margita Švajdová was born in 1951 and lives in Nové Zámky 31. Mr Koloman Szabó[3] was born in 1941, died in 2017, and lived in Kolárovo 32. Ms Alžbeta Szabóová was born in 1940 and lives in Kolárovo 33.", "Ms Magdaléna Szabóová was born in 1959 and lives in Kolárovo 34. Ms Margita Szabóová was born in 1939 and lives in Kolárovo 35. Mr František Szépe was born in 1952 and lives in Kolárovo 36. Mr Koloman Szépe[*] was born in 1958, died in 2016, and lived in Kolárovo 37. Mr Ladislav Szépe was born in 1953 and lives in Kolárovo 38.", "Mr Peter Tánczos was born in 1955 and lives in Kolárovo 39. Mr Tibor Tánczos was born in 1953 and lives in Kolárovo 40. Ms Katarína Tánczosová was born in 1958 and lives in Kolárovo 41. Ms Mária Tánczosová[4] was born in 1935, died in 2018, and lived in Kolárovo 42. Ms Terézia Tánczosová was born in 1930 and lives in Kolárovo 43.", "Mr Jozef Telekes was born in 1980 and lives in Kolárovo 44. Ms Alžbeta Telekesová was born in 1974 and lives in Kolárovo 45. Ms Zuzana Telekesová was born in 1977 and lives in Kolárovo 46. Mr Ján Tóth was born in 1948 and lives in Kolárovo 47. Ms Rozália Tóthová was born in 1954 and lives in Kolárovo 48.", "Mr Alexander Varga was born in 1953 and lives in Kolárovo 49. Ms Margita Vermesová[5] was born in 1937, died in 2018, and lived in Zemianska Olča 50. Mr Arpád Nagy was born in 1967and lives in Kolárovo 51. Ms Alžbeta Forróová was born in 1962 and lives in Kolárovo [1] the application brought by Ms J. Kósová is continued by Mr Pavol Kóša, who was born in 1953 and lives in Kolárovo. [2] the application brought by Mr I. Ollé is continued by Ms Jolana Olléová, Ms Klára Lőrincz, Ms Marta Vargová and Mr. Róbert Ollé, who were born in 1947, 1967, 1968 and 1976, and live in Kolárovo, Nové Zámky, Kolárovo and Kolárovo, respectively.", "The amount specified in paragraph 74 of the text and ruling 7(a) of the operative part of this judgment is awarded to them jointly. [3] the application brought by Mr Koloman Szabó is continued by Ms Alžbeta Szabóová and Mr Koloman Szabó, who were born in 1945 and 1986, respectively, and live in Kolárovo. The amount specified in paragraph 74 of the text and ruling 7(a) of the operative part of this judgment is awarded to them jointly. [*] the application brought by Mr K. Szépe is continued by Mr Anton Szépe, who was born in 1954 and lives in Kolárovo. [4] the application brought by Ms M. Tánczosová is continued by Mr Peter Tánczos and Ms Annamária Hencz, who were born in 1958 and 1960 and live in Kolárovo and Veľký Meder, respectively.", "The amount specified in paragraph 74 of the text and ruling 7(a) of the operative part of this judgment is awarded to them jointly. [5] the application brought by Ms M. Vermesová is continued by Ms Teréz Vermes and Messrs István Vermes and Vilmos Vermes, who were born in 1958, 1962 and 1967, and live in Komárno, Kolárovo and Bozianske Lúky, respectively. The amount specified in paragraph 74 of the text and ruling 7(a) of the operative part of this judgment is awarded to them jointly." ]
[ "SECOND SECTION CASE OF ERBEK v. TURKEY (Application no. 49232/12) JUDGMENT STRASBOURG 19 June 2018 This judgment is final but it may be subject to editorial revision. In the case of Erbek v. Turkey, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Paul Lemmens, President,Valeriu Griţco,Stéphanie Mourou-Vikström, judges,and Hasan Bakırcı, Deputy Section Registrar, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated in private on 29 May 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 49232/12) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Mutasam Erbek (“the applicant”), on 30 May 2012.", "2. The applicant was represented by Ms Ç. Altuntaş, a lawyer practising in Mersin. The Turkish Government (“the Government”) were represented by their Agent. 3. On 7 June 2017 the applicant’s complaint concerning the effectiveness of the procedure by which he could challenge the lawfulness of his detention was communicated to the Government and the remainder of the application was declared inadmissible.", "THE FACTS 4. The applicant was born in 1991 and lives in Mersin. 5. On 30 December 2011 the applicant was taken into custody on suspicion of membership of a terrorist organisation and of making propaganda for that organisation. 6.", "On the same day, the applicant was brought before the investigating judge who ordered his detention on remand taking into account the nature of the offences, and the strong suspicion that he had committed the alleged offences, and the risk of absconding. 7. On 28 March 2012 the applicant’s lawyer lodged an objection against the decision dated 30 December 2011 ordering the applicant’s detention and requested his release. On 29 March 2012 the Mersin Magistrates’ Court dismissed the objection on the basis of the case file, without holding a hearing. On 16 April 2012 the applicant’s lawyer filed a further objection against that decision.", "On 17 April 2012 the Mersin Criminal Court with General Jurisdiction dismissed the objection on the basis of the case file, without holding a hearing. 8. On 5 September 2012 the applicant was released from detention on remand. 9. On 10 September 2012 the Adana Public Prosecutor filed a bill of indictment against the applicant, accusing him of being a member of a terrorist organisation and of making propaganda in its favour.", "10. According to the latest information in the case file, the proceedings against the applicant are still pending before an assize court. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 11. The applicant complained under Article 5 § 4 of the Convention about not being able to appear before the courts when his pre‑trial detention was reviewed.", "12. The Government contested that argument. 13. 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. 14. In the present case, the applicant was placed in pre-trial detention on 30 December 2011 and was released on 5 September 2012. During this period, he was not able to appear before a judge. 15.", "The Court reiterates that it has already examined a similar grievance in the cases of Erişen and Others v. Turkey (no. 7067/06, § 53, 3 April 2012), and Karaosmanoğlu and Özden (no. 4807/08, § 76, 17 June 2014), and found a violation of Article 5 § 4. It has examined the present case and finds no particular circumstances which would require it to depart from its findings in the above-mentioned judgments. 16.", "There has therefore been a violation of Article 5 § 4 of the Convention under this head. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 17. The applicant requested 10,000 euros (EUR) in respect of non‑pecuniary damage and EUR 10,000 in respect of pecuniary damage covering also his costs and expenses incurred before the domestic courts and the Court. 18.", "The Government contested those claims. 19. The Court does not discern any causal link between the violation found and the pecuniary damage alleged, and it therefore rejects that claim. However, it considers that the applicant must have sustained non‑pecuniary damage in connection with the violation of the Convention found in his case. Ruling on an equitable basis, it awards EUR 750 to the applicant in respect of non-pecuniary damage.", "20. Lastly, as regards costs and expenses the Court reiterates that according to its case-law an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case the applicant has not substantiated his claim for costs and expenses. Accordingly, the Court makes no award under this head. 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 § 4 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months EUR 750 (seven hundred and fifty 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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 19 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Hasan BakırcıPaul LemmensDeputy RegistrarPresident" ]
[ "FIRST SECTION CASE OF SAVEZ CRKAVA “RIJEČ ŽIVOTA” AND OTHERS v. CROATIA (Application no. 7798/08) JUDGMENT STRASBOURG 9 December 2010 FINAL 09/03/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. . In the case of Savez crkava “Riječ života” and Others v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 18 November 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 7798/08) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Savez crkava “Riječ života” (Union of Churches “The Word of Life”), Crkva cjelovitog evanđelja (Church of the Full Gospel) and Protestantska reformirana kršćanska crkva u Republici Hrvatskoj (Protestant Reformed Christian Church in the Republic of Croatia) (“the applicant churches”), religious communities incorporated under Croatian law, on 4 December 2007. 2. The applicant churches were represented by Ms I. Bojić, an advocate practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.", "3. The applicant churches alleged, in particular, that the Government’s refusal to conclude an appropriate agreement with them and the resulting inability to provide certain religious services and obtain State recognition of religious marriages conducted by them had breached their right not to be discriminated against in the exercise of their freedom of religion and the rights set forth by law. 4. On 29 January 2009 the President of the First Section decided to communicate to the Government the complaints concerning freedom of religion and the prohibition of discrimination on that account, the general prohibition of discrimination, access to a court and the alleged lack of an effective remedy. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicants are churches of a Reformist denomination which are registered as religious communities under Croatian law and which have their seats in Zagreb (the first and second applicant churches) and Tenja (the third applicant church). 6. The first applicant church has been present in Croatia since 1993, the second since 1989 and the third since the sixteenth century as part of the Reformed Church and since 2001 as an independent church. The applicant churches were entered in the register of religious communities in Croatia on 18 December 2003 (the first applicant church), 3 December 2003 (the second applicant church) and 14 October 2003 (the third applicant church), in accordance with the Religious Communities Act.", "7. On 21 June 2004 the applicant churches submitted a request to the Government’s Commission for Relations with Religious Communities (Komisija za odnose s vjerskim zajednicama – “the Religious Communities Commission”) in order to conclude an agreement with the Government of Croatia, as envisaged in section 9(1) of the Religious Communities Act (see paragraph 18 below), which would regulate their relations with the State. They explained that without such an agreement they were unable to provide religious education in public schools and nurseries, to provide pastoral care to their members in medical and social-welfare institutions, as well to those in prisons and penitentiaries, or to perform religious marriages with the effects of a civil marriage. 8. On 23 December 2004 the Government of Croatia adopted an instruction (zaključak – “the Instruction”) setting out the criteria which religious communities had to satisfy in order to conclude such an agreement with it (see paragraph 19 below).", "9. In a letter of 12 January 2005 the Religious Communities Commission informed the applicant churches that they did not satisfy, either individually or jointly, the historical and numerical criteria set out in the above Instruction, that is to say, that they had not been present in the territory of Croatia since 6 April 1941 and that the number of their adherents did not exceed 6,000 (see paragraph 19 above). Referring to section 21 of the 2003 Health Care Act (see paragraph 21 below) and sections 14, 78(1) and 95 of the Enforcement of Prison Sentences Act (see paragraphs 23-26 below), it also remarked that members of religious communities which had not concluded the relevant agreement with the Government of Croatia had a right to receive pastoral care in medical and social-welfare institutions as well as in prisons and penitentiaries. 10. On 10 February 2005 the applicant churches submitted another request to conclude an appropriate agreement with the Government of Croatia, this time addressing it to the Prime Minister directly.", "11. In a letter of 15 June 2005 the Religious Communities Commission replied to the applicant churches’ request of 10 February 2005, informing them again that they did not satisfy, either individually or jointly, the criteria set forth in the Instruction of 23 December 2004, this time without specifying which particular criteria had not been met. It again referred to section 21 of the 2003 Health Care Act and sections 14, 78(1) and 95 of the Enforcement of Prison Sentences Act, reiterating its opinion that the members of religious communities which had not concluded appropriate agreements with the Government of Croatia had a right to receive pastoral care in medical and social-welfare institutions and in prisons and penitentiaries. 12. The applicant churches then lodged a request for the protection of a constitutionally guaranteed right (zahtjev za zaštitu ustavom zajamčenog prava) with the Administrative Court (Upravni sud Republike Hrvatske) against the Religious Communities Commission’s refusal of 15 June 2005, in accordance with section 66 of the Administrative Disputes Act (see paragraph 28 below).", "They argued that the refusal, even though it had been given in the form of a letter, constituted “an individual legal act” (that is, a decision), within the meaning of section 66 of the Administrative Disputes Act, that had violated their constitutional right to equality of all religious communities before the law, as guaranteed by Article 41 of the Constitution (see paragraph 16 below). 13. On 12 October 2006 the Administrative Court declared their action inadmissible, holding that the Religious Communities Commission’s refusal did not constitute “an individual act” for the purposes of section 66 of the Administrative Disputes Act, and thus was not susceptible to that court’s review. 14. The applicant churches then lodged a constitutional complaint, relying again, inter alia, on Article 41 of the Constitution and alleging a violation of their constitutional right to equality of all religious communities before the law.", "On 1 October 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant churches’ constitutional complaint, finding, inter alia, that Article 41 of the Constitution was not applicable in the particular case. 15. Meanwhile, on 30 September 2005 the applicant churches filed a petition with the Constitutional Court for an abstract review of constitutionality and legality, asking it to examine the conformity of the Instruction of 23 December 2004 with the Religious Communities Act and Article 41 of the Constitution. On 5 June 2007 the Constitutional Court declared the applicant churches’ petition inadmissible, finding that the contested Instruction was not subordinate legislation susceptible to a review of constitutionality and legality. II.", "RELEVANT DOMESTIC LAW A. The Constitution 1. Relevant provisions 16. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum) and 76/2010) read as follows: Article 14 “Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics.", "All shall be equal before the law.” Article 16 “Rights and freedoms may be restricted only by law in order to protect the rights and freedoms of others, the legal order, public morals or health. Every restriction of the rights and freedoms should be proportional to the nature of the necessity for the restriction in each individual case.” Article 40 “Freedom of conscience and religion and freedom to profess faith or other belief publicly shall be guaranteed.” Article 41 “All religious communities shall be equal before the law and shall be separated from the State. Religious communities shall be free to, in accordance with the law, perform religious services publicly, open schools, educational and other institutions, social-welfare and charitable institutions and to administer them, and in their activities enjoy the protection and assistance of the State.” Article 140 “International agreements in force, which were concluded and ratified in accordance with the Constitution and made public, shall be part of the internal legal order of the Republic of Croatia and shall have precedence in terms of their legal effects over the [domestic] statutes. ...” 2. The Constitutional Court’s jurisprudence 17.", "In its decisions nos. U-I-892/1994 of 14 November 1994 (Official Gazette no. 83/1994) and U-I-130/1995 of 20 February 1995 (Official Gazette no. 112/1995) the Constitutional Court held that all rights guaranteed in the Convention and its Protocols were also to be considered constitutional rights having legal force equal to the provisions of the Constitution. B.", "The Religious Communities Act 1. Relevant provisions 18. The relevant provisions of the Act on the Legal Status of Religious Communities (Zakon o pravnom položaju vjerskih zajednica, Official Gazette no. 83/2002 – “the Religious Communities Act”), which entered into force on 24 July 2002, read as follows: Section 1 “A church or a religious community of a different name (hereafter ‘religious community’) within the meaning of this Act is a group of natural persons who exercise freedom of religion by the equal public performance of religious ceremonies and by other manifestations of their faith (hereafter ‘adherents’) and is entered in the register of religious communities in the Republic of Croatia.” Section 5 “(1) Religious communities operating as legal persons on the day of the entry into force of this Act (hereafter ‘existing religious communities’) shall be entered in the register [of religious communities] upon their submission of an application for registration. (2) Congregations which on the day of the entry into force of this Act do not operate as religious communities or which are established after the entry into force of this Act (hereafter ‘newly established religious communities’) shall be entered in the register [of religious communities] upon their submission of an application for registration.", "An application for registration in the register [of religious communities] may be submitted by those congregations which, before submission of such an application, have operated for at least five years as associations with legal personality.” Section 9 “(1) Issues of common interest for the Republic of Croatia and one or more religious communities may also be regulated by an agreement made between the Government of the Republic of Croatia and the religious community. (2) With a view to implementing [legal] instruments regulating relations between the State and religious communities, as well as other issues of interest for the status and operation of religious communities, the Government of the Republic of Croatia shall establish a Commission for Relations with Religious Communities.” (d) Religious education and teaching of religion in educational institutions Section 13(1) and (2) “(1) In nurseries, at the request of parents or guardians, the curriculum of nursery education shall include teaching of religion. Teaching of religion shall be organised in accordance with the law and with an agreement between the religious community and the Government of the Republic of Croatia. (2) In elementary schools and high schools, at the request of parents or guardians of pupils younger than 15 years and on the basis of a joint declaration by students of 15 years of age or above and their parents or guardians, a religious education course shall be organised as an optional course in accordance with the prescribed curriculum and an agreement between the religious community and the Government of the Republic of Croatia.” (e) Pastoral care in medical and social-welfare institutions Section 14 “The right of a religious community to provide pastoral care to its members in medical and social-welfare institutions shall be guaranteed. The manner of exercising this right shall be regulated by an agreement between the religious community and the founder of those institutions.” (f) Pastoral care in prisons and penitentiaries Section 15 “The right of a religious community to provide pastoral care to its members in prisons and penitentiaries shall be guaranteed.", "The manner of exercising this right shall be regulated by an agreement between the religious community and the Government of the Republic of Croatia.” (g) Pastoral care in the armed forces and the police Section 16 “A religious community shall have the right to provide pastoral care to its members serving in the armed forces and the police, as well as to other persons permanently employed in the armed forces and the police, and to members of their families under the conditions and in the manner regulated by an agreement with the Government of the Republic of Croatia.” 2. The Government of Croatia’s Instruction of 23 December 2004 19. The Government of Croatia’s Instruction (zaključak) of 23 December 2004 setting out the criteria which religious communities have to satisfy in order to conclude an agreement with it (“the Instruction” – not published in the Official Gazette) reads as follows: I N S T R U C T I O N “1. For the conclusion of an agreement on issues of common interest for the Republic of Croatia and one or more religious communities, made between the Government of the Republic of Croatia and a religious community, it is necessary for one or more religious communities wishing to conclude the agreement to satisfy one of the following two conditions: - they were active in the territory of the Republic of Croatia on 6 April 1941 and have continued to operate in continuity and legal succession, and the number of [their] adherents exceeds six thousand, according to the last census, - they are a historical religious community of the European cultural circle (Catholic Church, Orthodox Church, Evangelical Church in the Republic of Croatia, Reformed Christian Church in Croatia, Islamic Community in Croatia, Jewish Community in the Republic of Croatia). 2.", "A church or a religious community that secedes or has seceded from a church or a religious community shall be regarded as a new church or religious community, and its secession or establishment shall be taken as the beginning of its activities. 3. The Commission for Relations with Religious Communities shall be responsible for the implementation of this instruction.” C. The Family Act 20. The relevant provisions of the Family Act (Obiteljski zakon, Official Gazette nos. 116/2003, 17/2004, 136/2004 and 107/2007), which entered into force on 22 July 2003, read as follows: CELEBRATION OF MARRIAGE Section 6 “Marriage shall be celebrated ... in a civil or a religious form.” Section 8 “Marriage in religious form with the effects of civil marriage shall be performed by the minister of a religious community with which the Republic of Croatia has regulated legal issues in this respect.” Section 23 “A marriage celebrated in religious form in accordance with the provisions of section 8 ... of this Act shall from the date of [its] celebration have all the effects of a civil marriage as prescribed by this Act.” D. The Health Care Act 21.", "Section 21 of the former 2003 Health Care Act (Zakon o zdravstvenoj zaštiti, nos. 121/03, 48/05 (corrigendum), 85/06 and 117/08), which was in force between 6 August 2003 and 1 January 2009, provided that in the exercise of his or her right to health care, during a stay in a medical institution, every person had the right – in accordance with that Act and other subordinate legislation on compulsory health insurance – to a diet in accordance with his or her belief and the right to perform acts of worship in the areas provided for that purpose. In the case of death, everyone had the right to be treated in accordance with religious and other customs expressing piety to the deceased. 22. Section 22 of the new 2008 Health Care Act (Zakon o zdravstvenoj zaštiti, nos.", "150/2008, 155/2009 and 71/2010), which entered into force on 1 January 2009, contains provisions identical to those of section 21 of the former 2003 Health Care Act (see the preceding paragraph). E. The Enforcement of Prison Sentences Act 23. The relevant provisions of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, nos. 128/99, 55/00, 59/00 (corrigendum), 129/00, 59/01, 67/01 (corrigendum), 11/02 (corrigendum), 190/03 (consolidated text), 76/07, 27/08 and 83/2009) provide as follows. 24.", "Section 14 provides that every prisoner has, under the conditions set forth in the Act, inter alia, the right to profess his or her faith and to consult an authorised cleric. 25. Section 78(1) provides that prisoners have the right to a diet in accordance with their religious demands, providing that such diet is feasible in the particular prison or penitentiary. 26. Section 95 provides that a prison or penitentiary where a large number of prisoners of the same faith are serving their sentences must provide their cleric, at least once a week, with an adequate place and time for worship.", "F. The Government of Croatia Act 27. The relevant provisions of the Act on the Government of the Republic of Croatia (Zakon o Vladi Republike Hrvatske, Official Gazette nos. 101/1998, 15/2000, 117/2001, 199/2003 and 77/2009 – “the Government of Croatia Act”), which entered into force on 5 August 1998, read as follows: Section 30 “The Government shall issue decisions (odluke), rulings (rješenja) and instructions (zaključci) on matters that cannot be regulated by decrees. A decision shall be adopted to regulate particular issues within the competence of the Government or to order measures, give consent to or confirm acts of other authorities or legal entities, and to decide on other matters which cannot be regulated by subordinate legislation. An instruction shall be adopted to define the Government’s position on issues concerning the implementation of an established policy, and to determine the tasks of State administrative bodies.", "A ruling shall be adopted to decide on appointments or dismissals or other individual matters within the Government’s purview.” Section 31 “Decrees and rules of procedure shall be published in the Official Gazette. They shall enter into force on the eighth day from the date of their publication, unless the instruments in question provide for some other date [as the date] of their entry into force. Decisions, rulings and instructions may be published in the Official Gazette if the Government so decides when adopting these instruments.” G. The Administrative Disputes Act 28. The Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977, and Official Gazette of the Republic of Croatia nos.", "53/1991, 9/1992 and 77/1992) in its relevant part provides as follows: Section 66 “A request for the protection of a constitutionally guaranteed right or freedom ... if such a right or freedom has been violated by a final individual act [that is, decision], and no other judicial protection is secured, shall be decided by the [Administrative Court], by applying mutatis mutandis the provisions of this Act.” 29. Sections 67-76 provide for special proceedings for the protection of constitutionally guaranteed rights and freedoms from unlawful factual (physical) acts of public authorities, if no other judicial remedy is available. Under the case-law of the domestic courts, the protection against unlawful “acts” also includes omissions (for example, the Administrative Court in its decision no. Us-2099/89 of 21 September 1989 and the Supreme Court in its decision no. Gž-9/1993 of 6 April 1993 held that failure of the administrative authorities to carry out their own enforcement order constituted an “unlawful act” within the meaning of section 67 of the Administrative Disputes Act).", "30. Section 67 provides that such proceedings are to be instituted by bringing an “action against an unlawful act” (tužba za zaštitu od nezakonite radnje) in the competent municipal court. The action must be brought against the public authority to which the factual act (or omission) is imputable (the defendant). 31. Section 73 provides that the court decides on the merits of the case by a judgment.", "If it finds in favour of the plaintiff, the court orders the defendant to desist from the unlawful activity and, if necessary, orders restitutio in integrum. 32. Section 74 provides that in proceedings following an “action against an unlawful act” the court is to apply, mutatis mutandis, the provisions of the Civil Procedure Act. H. The Obligations Act 1. The relevant provisions 33.", "The relevant part of the Obligations Act (Zakon o obveznim odnosima, Official Gazette, nos. 35/2005 and 41/2008 – “the 2006 Obligations Act”), which entered into force on 1 January 2006 and abrogated the former 1978 Obligations Act (see the next paragraph), reads as follows: Rights of personality Section 19 “(1) Every natural person or legal entity is entitled to the protection of its rights of personality (prava osobnosti) under the conditions provided by law. (2) Rights of personality within the meaning of this Act are the right to life, to physical and mental health, reputation, honour, dignity, name, privacy of personal and family life, liberty, etc. (3) A legal entity shall have all the above-mentioned rights of personality – apart from those related to the biological character of a natural person – and, in particular, the right to a reputation and good name, honour, name or company name, business secrecy, entrepreneurial freedom, etc.” Mandatory conclusion and mandatory contents of a contract Section 248(1) “If a party is bound by law to enter into a contract, the other interested party may request that the contract be entered into without delay.” Request to desist from a violation of rights of personality Section 1048 “Anyone may request a court or other competent authority to order the cessation of an activity which violates his or her rights of personality and the elimination of its consequences.” 34. The text of section 157(1) of the former 1978 Obligations Act (Zakon o obveznim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos.", "29/1978, 39/1985 and 57/1989, and Official Gazette of the Republic of Croatia no. 53/1991 with subsequent amendments – “the 1978 Obligations Act”) was nearly identical to the text of section 1048 of the current 2006 Obligations Act, and read as follows: Section 157(1) “Anyone may request a court or other competent authority to order the cessation of an activity which violates his or her rights of personality.” 2. The position of legal scholars and the case-law 35. Among Croatian legal scholars there is no consensus as to which rights, apart from those enumerated in section 19 of the Obligations Act, are to be considered rights of personality. It is, however, common ground that the following rights of natural persons fall into that category: the right to life, the right to physical and mental integrity (health), the right to liberty, the right to reputation and honour, the right to privacy of personal and family life, the right to secrecy of letters and personal manuscripts, the right to personal identity (in particular the rights to one’s image, voice and name) and the moral rights of the author.", "It would appear that only these rights have so far been interpreted as rights of personality by the Croatian courts in the application of section 157 of the former 1978 Obligations Act and section 19 of the current 2006 Obligations Act. The issue whether other rights guaranteed by the Constitution may, at this point, be qualified as rights of personality remains largely disputed. I. The Anti-Discrimination Act 36. The relevant part of the Anti-Discrimination Act (Zakon o suzbijanju diskriminacije, Official Gazette, no.", "85/2008), which entered into force on 1 January 2009, reads as follows: Section 16 Common provisions “Anyone who considers that his or her right has been violated because of discrimination may seek the protection of that right in the proceedings in which that right is being decided as the main issue, or may also seek protection in special proceedings referred to in section 17 of this Act.” Section 17 Special actions for protection against discrimination “(1) A person claiming to be a victim of discrimination under the provisions of this Act shall be authorised to bring an action and seek: 1. a declaration that the defendant has violated the plaintiff’s right to equal treatment or that the activities the defendant has undertaken or failed to undertake may directly result in the violation of the right to equal treatment (action for declaration of discrimination); 2. the cessation of activities which violate or may violate the plaintiff’s right to equal treatment, or to undertake activities which eliminate discrimination or its consequences (action to desist from or eliminate discrimination); 3. compensation for pecuniary and non-pecuniary damage caused by the violation of the rights protected by this Act (action for damages); 4. publication in the media of the judgment declaring the violation of the right to equal treatment, at the defendant’s expense. (2) Unless this Act provides otherwise, the court shall decide on claims referred to in paragraph 1 of this section by applying the provisions of the Civil Procedure Act. (3) Claims referred to in paragraph 1 of this section may be brought together with claims for the protection of other rights to be determined in civil proceedings if all those claims are interrelated and if the same court has jurisdiction based on subject matter in respect of them, regardless of whether such claims fall to be examined in regular or special civil proceedings, except in cases of disturbance of possessions. In that case, regulations relevant to the type of dispute in question shall apply, unless otherwise provided by this Act. (4) ...” III.", "OTHER RELEVANT MATERIALS A. Report on the Implementation of the Constitutional Act on the Rights of National Minorities 37. The relevant part of the Report on the Implementation of the Constitutional Act on the Rights of National Minorities and the Expenditure of Means Allocated in the State Budget of the Republic of Croatia for 2009 for the Needs of National Minorities (Izvješće o provođenju Ustavnog zakona o pravima nacionalnih manjina i o utrošku sredstava osiguranih u državnom proračunu Republike Hrvatske za 2009. godinu za potrebe nacionalnih manjina), which the Government of the Republic of Croatia submitted to the Croatian Parliament on 1 July 2010, reads as follows: 4. The right to manifest religion and establish religious communities “To date, the Republic of Croatia has concluded four international agreements [concordats] with the Holy See ... ... The Government of the Republic of Croatia also concluded six agreements on issues of common interest with churches and religious communities, and in this way has regulated relations with another 15 churches and religious communities.", "... Churches which have regulated relations with the State of Croatia: 1. receive regular annual financial support, 2. can teach religion courses in schools, and teach religion in nurseries, 3. can celebrate marriage in religious form with the effects of a civil marriage. ... All other religious communities have the right to provide pastoral care in medical and social-welfare institutions, prisons and penitentiaries, as well as in the armed forces.” B. Agreements concluded between the Government of Croatia and religious communities 38. The Government of Croatia has to date concluded agreements on issues of common interest, as envisaged in section 9(1) of the Religious Communities Act, with the following religious communities: - the Serbian Orthodox Church, on 20 December 2002 (Official Gazette, no.", "196/2003); - the Islamic Community in Croatia, on 20 December 2002 (Official Gazette, no. 196/2003); - the Evangelical Church in the Republic of Croatia and the Reformed Christian Church in Croatia, on 4 July 2003 (Official Gazette, no. 196/2003); - the Evangelical (Pentecostal) Church in the Republic of Croatia (together with the associated Church of God in the Republic of Croatia and the Alliance of Pentecostal Churches of Christ in the Republic of Croatia), the Christian Adventist Church in the Republic of Croatia (together with the associated Seventh-day Adventists Reform Movement) and the Alliance of Baptist Churches in the Republic of Croatia (together with the associated Church of Christ), on 4 July 2003 (Official Gazette, no. 196/2003); - the Bulgarian Orthodox Church, the Croatian Old Catholic Church and the Macedonian Orthodox Church, on 29 October 2003 (Official Gazette, no. 196/2003), amended on 23 September 2004 (Official Gazette, no.", "141/2004); and - the Jewish (Religious) Community Beth Israel in Croatia, on 24 October 2008. 39. Relations with the Catholic Church are regulated by four concordats concluded with the Holy See: - the Agreement between the Holy See and the Republic of Croatia on Legal Issues (Official Gazette – International Agreements, no. 3/1997); - the Agreement between the Holy See and the Republic of Croatia on Pastoral Care of Catholic Believers [who are] Members of the Armed Forces and the Police (Official Gazette – International Agreements, no. 2/1997), - the Agreement between the Holy See and the Republic of Croatia on Cooperation in the Field of Education and Culture (Official Gazette – International Agreements, no.", "2/1997), - the Agreement between the Holy See and the Republic of Croatia on Economic Issues (Official Gazette – International Agreements, no. 18/1998). C. The 2001 census 40. According to the last census of 2001 the Bulgarian Orthodox Church has eight members, the Croatian Old Catholic Church 303 and the Macedonian Orthodox Church 211. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 9 41. The applicant churches complained that they had been discriminated against because, unlike other religious communities with which the Government of Croatia had concluded agreements on issues of common interest, as referred to in section 9(1) of the Religious Communities Act, they were not: (a) allowed to provide religious education in public schools and nurseries, (b) allowed to provide pastoral care to their members in medical and social-welfare institutions, prisons and penitentiaries, or (c) entitled to have religious marriages they performed recognised by the State as equal, in terms of their legal effects, to civil marriages. In particular, they argued that certain religious communities such as the Bulgarian Orthodox Church, the Croatian Old Catholic Church and the Macedonian Orthodox Church, which did not satisfy the criteria set forth in the Government’s Instruction of 23 December 2004, had nevertheless concluded agreements with the State and were thus allowed to provide the above religious services and were entitled to the official recognition of religious marriages performed by them. They relied on Article 14 of the Convention, taken together with Article 9. Those Articles read as follows: Article 14 “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.” Article 9 “1.", "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” 42. The Government contested these arguments. They argued that domestic remedies had not been exhausted, that the Articles relied on were not applicable to certain complaints, and that, in any event, all the applicant churches’ complaints were manifestly ill-founded.", "A. Admissibility 1. Non-exhaustion of domestic remedies (a) The arguments of the parties 43. The Government first argued that the applicant churches had failed to exhaust domestic remedies. They submitted, in particular, that the applicant churches could have brought a civil action for mandatory conclusion of a contract under section 248 of the Obligations Act, an action for the protection of rights of personality under section 1048 of the same Act (see paragraph 33 above), or an action under the Anti-Discrimination Act (see paragraph 36 above). 44.", "The applicant churches admitted that they had not exhausted all existing domestic remedies but wondered how many different legal actions, according to the Government, they should have undertaken in order to comply with Article 35 § 1 of the Convention. In turn, they submitted that they had exhausted all remedies which had been available to them at the given time and which had had realistic prospects of success. In particular, they had initiated the relevant proceedings in Croatia long before the 2006 Obligations Act and the Anti-Discrimination Act had entered into force. In any event, it would have been unreasonable to expect them to resort to remedies the effects of which had never been proved by even a single example in the case-law (there was no evidence on the application of the Anti-Discrimination Act in practice), and whose effectiveness, even theoretically speaking, was difficult to envisage. For example, since the Religious Communities Act did not provide for an obligation for the Government of Croatia to enter into agreements with religious communities, the applicant churches submitted that therefore they could not have relied on section 248 of the Obligations Act.", "Lastly, the applicant churches submitted that using the remedies suggested by the Government would have required them to institute another set of proceedings, from the very beginning, in order to protect their rights, and to wait patiently for a few more years in order to “test” yet another remedy. (b) The Court’s assessment 45. As regards the action for mandatory conclusion of a contract under section 248 of the Obligations Act, it is sufficient for the Court to note that this provision applies only to situations where one party is bound by law to enter into a contract (see paragraph 33 above), whereas section 9(1) of the Religious Communities Act provides only that issues of common interest may be regulated by an agreement (see paragraph 18 above) and thus does not bind the State to enter into such an agreement. 46. As regards the action for the protection of rights of personality, the Court notes that under Croatian law it is not clear whether the freedom from discrimination or freedom of religion could be qualified as such a right (see paragraph 35 above), and that, in any event, section 1048 of the Obligations Act provides only for the possibility of a court ordering the cessation of an activity infringing rights of personality (see paragraph 33 above).", "In these circumstances, the Court considers that it was incumbent on the respondent Government to provide examples of cases in which section 1048 of the 2006 Obligations Act or section 157 of the former 1978 Obligations Act had been applied by the courts in order to protect individuals from discrimination or interferences with their freedom of religion and/or of cases in which those provisions had been interpreted to extend to protection against omissions. However, the Government failed to do so. 47. Lastly, as regards the action under the Anti-Discrimination Act, the Court notes that the applicant churches lodged their application with the Court on 4 December 2007, whereas the Anti-Discrimination Act entered into force on 1 January 2009 (see paragraph 36 above). In this connection the Court reiterates that the issue whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged with the Court (see Baumann v. France, no.", "33592/96, § 47, ECHR 2001‑V). While it is true that this rule is subject to exceptions which may be justified by the specific circumstances of each case (see, for example, Brusco v. Italy (dec.), no. 69789/01, ECHR 2001‑IX; and Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002‑VIII), the Court considers, having due regard to the subsidiary character of the Convention machinery, that in the present case there are no special circumstances to justify making an exception to that rule. 48.", "In the light of the foregoing, and given that the Government did not rely on any other possible remedies (see paragraphs 119-123 below), it follows that their objection of failure to exhaust domestic remedies must be dismissed. 2. Applicability (a) The arguments of the parties (i) The Government 49. The Government averred that Article 9 could not be interpreted to mean that the State must allow religious education in public schools and nurseries or recognise religious marriages. 50.", "In particular, the Government argued that while teaching was one of the forms of manifestation of religion referred to in Article 9 § 1 of the Convention, neither the wording of that Article nor the Court’s case-law indicated that the State was obliged to allow religious education in public schools or nurseries. 51. The Government further argued that while celebration of a religious marriage was also one of the forms of manifestation of religion as it amounted to “observance” within the meaning of Article 9 § 1 of the Convention, the recognition of such marriages as equal to civil marriages in terms of their effects was not among the rights guaranteed by that Article. In other words, a religion was manifested through celebration of a religious marriage, and not through the official recognition of such a marriage. 52.", "In conclusion, the Government submitted that the right to religious education in public schools and nurseries and the right to obtain State recognition of religious marriages went beyond the scope of Article 9 of the Convention. 53. As to the applicability of Article 14 of the Convention, the Government noted that under the Court’s case-law that provision had effect solely in relation to other rights safeguarded by the Convention and thus had no independent existence. That being so, and given their view that the right to provide religious education in public schools and nurseries and the right to have religious marriages recognised by the State was beyond the scope of Article 9 of the Convention, the Government concluded that Article 14 was equally inapplicable to that part of the application. (ii) The applicant 54.", "The applicant churches contested in particular the Government’s contention that Article 14 of the Convention was inapplicable because the right to provide religious education in public schools and nurseries and the right to the official recognition of religious marriages were outside the scope of Article 9 of the Convention. They averred that in a situation in which certain religious communities had been granted such rights, there was clearly a positive obligation to grant the same rights to other religious communities in a comparable situation. (b) The Court’s assessment 55. The Court reiterates that Article 14 of the Convention 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, for example, Van Buitenen v. the Netherlands, no.", "11775/85, Commission decision of 2 March 1987, and Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 86, ECHR 2000‑VII). 56. The Court further reiterates that the Convention, including its Article 9 § 1, cannot be interpreted so as to impose an obligation on States to have the effects of religious marriages recognised as equal to those of civil marriages (see X. v. Germany, no. 6167/73, Commission decision of 18 December 1974, Decisions and Reports (DR) 1, pp.", "64-65; Khan v. the United Kingdom, no. 11579/85, Commission decision of 7 July 1986, DR 48, pp. 253 and 255; Spetz and Others v. Sweden, no. 20402/92, Commission decision of 12 October 1994; and Şerife Yiğit v. Turkey [GC], no. 3976/05, § 102, 2 November 2010).", "57. Likewise, the right to manifest religion in teaching guaranteed by Article 9 § 1 of the Convention does not, in the Court’s view, go so far as to entail an obligation on States to allow religious education in public schools or nurseries. 58. Nevertheless, the Court considers that celebration of a religious marriage, which amounts to observance of a religious rite, and teaching of a religion both represent manifestations of religion within the meaning of Article 9 § 1 of the Convention. It also notes that Croatia allows certain religious communities to provide religious education in public schools and nurseries and recognises religious marriages performed by them.", "The Court reiterates in this connection that the prohibition of discrimination enshrined in Article 14 of the Convention applies also to those additional rights, falling within the wider ambit of any Convention Article, for which the State has voluntarily decided to provide (see E.B. v. France [GC], no. 43546/02, § 48, ECHR 2008‑...). Consequently, the State, which has gone beyond its obligations under Article 9 of the Convention in creating such rights cannot, in the application of those rights, take discriminatory measures within the meaning of Article 14 (see, mutatis mutandis, E.B. v. France, cited above, § 49).", "It follows that, although Croatia is not obliged under Article 9 of the Convention to allow religious education in public schools and nurseries or to recognise religious marriages, the facts of the instant case nevertheless fall within the wider ambit of that Article (see, for example and mutatis mutandis, Thlimmenos v. Greece [GC], no. 34369/97, §§ 40-43, ECHR 2000‑IV; Löffelmann v. Austria, no. 42967/98, §§ 46-48, 12 March 2009; and Gütl v. Austria, no. 49686/99, §§ 31-33, 12 March 2009). Accordingly, Article 14 of the Convention, read in conjunction with Article 9, is applicable to the present case.", "59. It follows that the Government’s objection to the applicability of Article 14 of the Convention must also be dismissed. 3. Whether the complaints are manifestly ill-founded (a) The arguments of the parties 60. As regards the applicant churches’ complaint concerning pastoral care in medical and social-welfare institutions, prisons and penitentiaries, the Government submitted that the Religious Communities Act undoubtedly guaranteed the right to provide such care to all religious communities.", "The fact that certain religious communities had not concluded an appropriate agreement with the Government of Croatia did not mean that they were in any way prevented from exercising that right. This was so because the right at issue was not created by such agreements but was directly guaranteed by law. 61. The Government further submitted that, in addition to the Religious Communities Act, the right to pastoral care was also recognised under certain special legislation, in particular by the Health Care Act and the Enforcement of Prison Sentences Act (see paragraphs 21-26 above). 62.", "In any case, the Government observed, the applicant churches had not claimed that any of their members had ever been denied the right to pastoral care in the institutions in question. 63. Lastly, the Government emphasised that the Religious Communities Commission had on several occasions clearly informed the applicant churches that they were entitled to provide pastoral care in medical and social-welfare institutions, and also in prisons and penitentiaries, regardless of the fact that they had not concluded an agreement with the Government of Croatia (see paragraphs 7 and 11 above). 64. In the light of the above, the Government concluded that the applicant churches had the right to pastoral care in medical and social-welfare institutions, as well as in prisons and penitentiaries, and that therefore their complaints on that account were manifestly ill-founded.", "65. The applicant churches did not comment on this issue. (b) The Court’s assessment 66. The Court notes that sections 14 and 15 of the Religious Communities Act guarantee to all religious communities the right to provide pastoral care to their members in medical and social-welfare institutions, prisons and penitentiaries (see paragraph 18 above). While it is true that those sections also provide that this right is to be exercised in a manner regulated by the relevant agreements, the Government explained that members of religious communities which had not concluded such agreements also had a right to receive pastoral care in the institutions in question.", "This interpretation is corroborated by the Report on Implementation of the Constitutional Act on the Rights of National Minorities of 1 July 2010 (see paragraph 37 above), and the letters of 12 January and 15 June 2005 from the Religious Communities Commission to the applicant churches (see paragraphs 7 and 11 above). 67. The Court is also mindful of the Government’s argument (see paragraph 62 above), which remained uncontested, that the applicant churches had not claimed, by citing concrete examples, that the right to provide pastoral care had ever been denied to them. 68. In these circumstances, and having regard to the relevant provisions of the Health Care Act and the Enforcement of Prison Sentences Act (see paragraphs 21-26 above), which constitute leges speciales in relation to the Religious Communities Act, it cannot but be concluded that the applicant churches have the right to provide pastoral care to their members in medical and social-welfare institutions, prisons and penitentiaries, and that this right has not been hindered in any way.", "69. It follows that the applicant churches’ complaints, in so far as they concern pastoral care in medical and social-welfare institutions, prisons and penitentiaries, are inadmissible under Article 35 § 3 as manifestly ill-founded and must therefore be rejected pursuant to Article 35 § 4 of the Convention. 70. On the other hand, to the extent that the applicant churches’ complaints concern religious education in public schools and nurseries and official recognition of religious marriages, they are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Furthermore, these complaints are not inadmissible on any other grounds.", "They must therefore be declared admissible. B. Merits 1. The arguments of the parties (a) The Government 71. The Government argued that the difference in treatment between the applicant churches and the religious communities with which the Government of Croatia had entered into agreements on issues of common interest had an objective and reasonable justification.", "72. The Government explained that forty-two religious communities had been registered in Croatia and that, in practice, it was not feasible to allow each of them to provide religious education in public schools and nurseries or to have religious marriages they performed officially recognised. For this reason, the State had to enjoy a margin of appreciation as regards the conditions to be fulfilled by religious communities in order to be granted those privileges. 73. In this connection the Government relied on the Conclusions of the Seminar on Church-State Relations in the Light of the Exercise of the Right to Freedom of Religion, organised in Strasbourg on 10 and 11 December 2001 by Mr Alvaro Gil-Robles, the former Council of Europe Commissioner for Human Rights.", "In those conclusions the participants acknowledged that certain religious communities could be granted a special status. This did not constitute discrimination provided that cooperation between those religious communities and the State was based on objective and reasonable criteria such as their historical or cultural relevance, representativeness or usefulness to society as a whole or to a large or specific sector of the population. The Government further cited the example of Austria, where the right to provide religious education in public schools and nurseries was granted only to thirteen religious communities which had been granted the special status of religious societies. 74. The Government further maintained that, contrary to the applicant churches’ arguments, the religious communities which had concluded agreements with the Government of Croatia, and thus had been allowed to provide religious education in public schools and nurseries and conduct religious marriages with the effects of a civil marriage, satisfied either the specific historical and numerical criteria or the cultural criterion set forth in the Instruction of 23 December 2004, that is, they had either been active in the territory of Croatia on 6 April 1941 and had at least 6,000 adherents, or they belonged to the European cultural circle (see paragraph 19 above).", "This meant that those religious communities in their long-standing presence in the territory of Croatia had made a contribution to religious and cultural diversity and gained a certain level of trust and recognition in society. 75. In particular, the Government submitted that the Serbian Orthodox Church, the Bulgarian Orthodox Church, the Croatian Old Catholic Church, the Macedonian Orthodox Church, the Islamic Community in Croatia, the Evangelical Church in the Republic of Croatia, the Reformed Christian Church in Croatia and the Jewish Community Beth Israel in Croatia each satisfied the cultural criterion as they were all “historical religious communities of the European cultural circle”. It was true that the remaining religious communities with which an agreement on issues of common interest had been concluded, that is, the Evangelical (Pentecostal) Church in the Republic of Croatia, the Christian Adventist Church in the Republic of Croatia and the Alliance of Baptist Churches in the Republic of Croatia and the associated churches (see paragraph 38 above), each had fewer than 6,000 adherents. However, the Government pointed out that those religious communities had entered into the agreement jointly, a possibility provided for by section 9 of the Religious Communities Act (see paragraph 18 above).", "In that way, the total number of their adherents had reached 6,316, thus exceeding the threshold of 6,000. More importantly, apart from that numerical criterion, those small religious communities satisfied the historical criterion, that is to say, they had been active in Croatia before 6 April 1941. 76. On the contrary, the applicant churches were relatively “young” religious communities, which had been active in Croatia since 1993 (the first applicant church), 1989 (the second) and 2001 (the third). Unlike the religious communities with which the Government of Croatia had entered into relevant agreements, the applicant churches had not even been mentioned in the 2001 census.", "As regards the third applicant church, the Government pointed out that it was a completely new religious community, and could not be considered to have been active since the sixteenth century in the territory of Croatia as part of the Reformed Church. This was so because the Instruction of 23 December 2004 clearly specified that a church or religious community that seceded or had seceded from a church or a religious community was to be regarded as a new church or religious community, and its secession or establishment was to be taken as the beginning of its activities (see paragraph 19 above). 77. In the light of the above considerations, the Government concluded that there had been no violation of Article 14 taken in conjunction with Article 9. (b) The applicant churches 78.", "The applicant churches submitted that treating them differently from the religious communities which had concluded appropriate agreements with the Government had had neither reasonable nor objective justification. They first contested the Government’s argument that it was not feasible to allow every religious community to provide religious education in public schools and nurseries and to have marriages they celebrated recognised by the State (see paragraph 72 above). 79. As regards the right to provide religious education in public schools and nurseries, the applicant churches referred to the Agreement between the Government of Croatia and the Bulgarian Orthodox Church, the Croatian Old Catholic Church and the Macedonian Orthodox Church of 29 October 2003, from which it followed that the State allowed religious education classes to be held even outside schools provided that they conformed to the same pedagogical standards as the classes held in schools. Therefore, having regard to the possibility of holding such classes on the premises of religious communities, the Government could not argue that it was not feasible to organise religious education in public schools and nurseries for all religious communities.", "Given that the core of their complaint was the fact that their members could not have their grades from religious education classes registered in their diplomas, the applicant churches explained that they would have accepted an arrangement whereby religious education classes could be organised outside school premises. It followed that it would take very little effort for the religious education being provided on the applicant churches’ premises to have the same effect as religious education provided on the premises of the religious communities with which the appropriate agreements had been concluded. 80. As regards the State recognition of marriages celebrated in religious form, the applicant churches submitted that the Government had failed to clarify why it was impracticable to recognise all religious marriages, irrespective of the religious community within which they had been celebrated. Such an argument was absurd because recognising all marriages performed by a church minister of any religious community would only decrease the workload of the competent State authorities (registrars).", "81. As to the Government’s argument that there was a consensus among the Contracting States that certain religious communities could have a special status and that such treatment was not discriminatory if cooperation between certain religious communities and the State was based on objective and reasonable criteria, such as historical and cultural significance, membership or benefits to society (see paragraph 73 above), the applicant churches argued that they all had historical and cultural significance, and were beneficial to society. In particular, the applicant churches had been making a significant contribution to society through work with drug addicts and alcoholics, marriage and family counselling, financial aid to the socially disadvantaged, and by promoting moral standards, encouraging non-smoking and alcohol-free lifestyles and prompting individuals to work and earn a living. 82. The applicant churches further disagreed with the Government’s argument (see paragraphs 74-75 above) that all religious communities with which the appropriate agreements had been concluded complied with the criteria set forth in the Instruction of 23 December 2004.", "In the applicant churches’ submission, it was a well-known fact that, for example, the Macedonian Orthodox Church had separated from the Serbian Orthodox Church in 1958, which did not mean that it had stopped being Orthodox. Likewise, the separation of the Old Catholic Church from the Roman Catholic Church had not called into question its Catholicism. Despite the fact that those churches had been created through separation or schism they had, in the view of the Religious Communities Commission, apparently retained their character as “historical religious communities of the European cultural circle” for the purposes of the Instruction of 23 December 2004 (see paragraph 19 above), and the Government of Croatia had therefore concluded agreements with them on issues of common interest. However, when the third applicant church (the Protestant Reformed Christian Church in the Republic of Croatia), which had separated from the Reformed Christian Church in 2001 (a religious community specifically listed in the Instruction as “a historical religious community of the European cultural circle” – see paragraph 19 above), had sought the conclusion of such an agreement, its request had been denied. 83.", "As to the Government’s argument that they had not been listed in the 2001 census (see paragraph 76 above), the applicant churches submitted that certain religious communities with which the relevant agreement had been concluded, such as the Reformed Christian Church in Croatia and the Evangelical (Pentecostal) Church in the Republic of Croatia, had not been listed in that census either. Moreover, contrary to the Government’s argument, certain religious communities which had concluded such an agreement, for example the Evangelical (Pentecostal) Church in the Republic of Croatia, the Church of God and the Alliance of Pentecostal Churches of Christ in the Republic of Croatia, had not existed in Croatia before 6 April 1941 and thus did not fulfil the historical criterion (see paragraph 19 above) set forth in the Instruction of 23 December 2004. 84. In conclusion, the applicant churches contended that they had been discriminated against in the exercise of their freedom of religion, contrary to Article 14 of the Convention, and invited the Court to find a violation of that provision. 2.", "The Court’s assessment 85. The Court reiterates that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. However, 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, for example, Oršuš and Others v. Croatia [GC], no. 15766/03, §149, ECHR 2010‑...). In particular, the conclusion of agreements between the State and a particular religious community establishing a special regime in favour of the latter does not, in principle, contravene the requirements of Articles 9 and 14 of the Convention, provided that there is an objective and reasonable justification for the difference in treatment and that similar agreements may be entered into by other religious communities wishing to do so (see Alujer Fernández and Caballero García v. Spain (dec.), no.", "53072/99, ECHR 2001‑VI). 86. The Court notes that it was not disputed between the parties that the applicant churches were treated differently from those religious communities which had concluded agreements on issues of common interest with the Government of Croatia, under section 9(1) of the Religious Communities Act. The Court sees no reason to hold otherwise. Accordingly, the only question for the Court to determine is whether the difference in treatment had “objective and reasonable justification”, that is, whether it pursued a “legitimate aim” and whether there was a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see, for example, Oršuš and Others, cited above, § 156).", "87. The Court notes that in the case of Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria (no. 40825/98, 31 July 2008) it had an opportunity to examine criteria (in particular, the ten-year waiting period) which a religious community (Religionsgemeinschaft) that already had legal personality had to satisfy in order to obtain a status – specifically, the status of a religious society (Religionsgesellschaft) – entitling it to various privileges (such as, inter alia, the right to provide religious education in public schools), not available to other religious communities which did not have that status. It held: “92. ...Given the number of these privileges and their nature, ... the advantage obtained by religious societies is substantial and this special treatment undoubtedly facilitates a religious society’s pursuance of its religious aims.", "In view of these substantive privileges accorded to religious societies, the obligation under Article 9 of the Convention incumbent on the State’s authorities to remain neutral in the exercise of their powers in this domain requires therefore that if a State sets up a framework for conferring legal personality on religious groups to which a specific status is linked, all religious groups which so wish must have a fair opportunity to apply for this status and the criteria established must be applied in a non-discriminatory manner.” 88. The Court also found that the imposition of such criteria raised delicate questions, as the State had a duty to remain neutral and impartial in exercising its regulatory power in the sphere of religious freedom and in its relations with different religions, denominations and beliefs. Therefore, such criteria called for particular scrutiny on the part of the Court (see Religionsgemeinschaft der Zeugen Jehovas, cited above, § 97). 89. The Court observes that the applicant churches in the present case found themselves in a situation comparable to that of the first applicant in the Religionsgemeinschaft der Zeugen Jehovas case.", "They are also religious communities which already have a legal personality but were unable to obtain a similar privileged status that would entitle them to provide religious education in public schools and nurseries and to have religious marriages they perform recognised by the State. 90. In that case the Court found that the ten-year waiting period had been applied to the first applicant but not to the Coptic Orthodox Church, which had been registered as a religious community in 1998 but obtained the status of a religious society in 2003. The Court therefore held that the waiting period had not been applied on an equal basis, which led it to find a violation of Article 14 of the Convention read in conjunction with Article 9 (see Religionsgemeinschaft der Zeugen Jehovas, cited above, §§ 95 and 98). 91.", "In the present case, the Religious Communities Commission refused to conclude an agreement on issues of common interest with the applicant churches because it found that they did not satisfy the cumulative historical and numerical criteria set forth in the Instruction of 23 December 2004 (see paragraphs 7, 11 and 19 above). The Government of Croatia nevertheless entered into such an agreement with the Bulgarian Orthodox Church, the Croatian Old Catholic Church and the Macedonian Orthodox Church (see paragraph 38 above), which jointly had 522 adherents according to the 2001 census (see paragraph 40 above) and thus did not meet the numerical criterion. The Government explained that this was so because the Religious Communities Commission established that those churches had satisfied the alternative criterion of being “historical religious communities of the European cultural circle” (see paragraphs 19 and 75 above). However, the Government provided no explanation as to why the applicant churches, which are of a Reformist denomination, were not qualified as “historical religious communities of the European cultural circle” by the Religious Communities Commission. Therefore, it has to be concluded, as also submitted by the applicant churches (see paragraph 82 above), that the criteria set forth in the Government’s Instruction of 23 December 2004 were not applied on an equal basis to all religious communities.", "92. The foregoing considerations are sufficient to enable the Court to conclude that the difference in treatment between the applicant churches and those religious communities which had concluded agreements on issues of common interest with the Government of Croatia and were therefore entitled to provide religious education in public schools and nurseries and to have religious marriages they performed recognised by the State did not have any “objective and reasonable justification”. 93. There has accordingly been a violation of Article 14 of the Convention taken in conjunction with Article 9. II.", "ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION TAKEN ALONE 94. The applicant churches also complained that the fact that they had not been allowed to provide religious education in public schools and nurseries, to provide pastoral care to their members in hospitals, social-welfare institutions, prisons and penitentiaries, or to have religious marriages they celebrated recognised by the State as equal to civil marriages, amounted to a violation of Article 9 of the Convention. 95. The Court considers that it follows from its above findings (see paragraphs 56-57 and 66-69 above), that these complaints are inadmissible under Article 35 § 3 as manifestly ill-founded and must therefore be rejected pursuant to Article 35 § 4 of the Convention. III.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 12 TO THE CONVENTION 96. Under Article 1 of Protocol No. 12 to the Convention, the applicant churches raised the same complaints as under Article 14 (see paragraph 41 above). Article 1 of Protocol No.", "12 reads as follows: “1. The enjoyment of any right set forth by law 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. 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.” 97. The Government contested these arguments.", "They argued that the applicant churches had failed to exhaust domestic remedies, that Article 1 of Protocol No. 12 was inapplicable to certain complaints, and that, in any event, all the applicant churches’ complaints were manifestly ill-founded. A. Admissibility 1. Non-exhaustion of domestic remedies 98. The Government and the applicant both relied on the arguments summarised in paragraphs 43-44 above.", "99. The Court refers to its findings under Article 14 of the Convention (see paragraphs 45-48 above), which apply with equal force to the complaints made in the context of Article 1 of Protocol No. 12 to the Convention. 100. It follows that the Government’s objection of failure to exhaust domestic remedies must be dismissed.", "2. Applicability (a) The arguments of the parties 101. The Government noted that Article 1 of Protocol No. 12 to the Convention prohibited discrimination in relation to “any right set forth by law”. While its scope was therefore broader than that of Article 14, it was not unlimited.", "The Government submitted that for Article 1 of Protocol No. 12 to be applicable it was first necessary to establish whether the right in question was actually “set forth by law”. That being so, the Government pointed out that the Religious Communities Act and the Family Act provided for a possibility rather than an obligation to conclude an agreement between the Government of Croatia and one or more religious communities on issues of common interest in order to regulate, inter alia, religious education in public schools and nurseries and recognise the civil effects of religious marriages. Accordingly, the applicant churches could not claim that they had “any right set forth by law” in this regard. 102.", "The applicant churches averred that the right to provide religious education in public schools and nurseries was guaranteed by the Religious Communities Act, just as the right to conduct religious marriages with the effects of civil marriage was guaranteed by the Family Act. Hence, those rights were “set forth by law” within the meaning of Article 1 of Protocol No. 12 to the Convention, which was therefore applicable. (b) The Court’s assessment 103. The Court notes that whereas Article 14 of the Convention prohibits discrimination in the enjoyment of “the rights and freedoms set forth in [the] Convention”, Article 1 of Protocol No.", "12 introduces a general prohibition of discrimination. 104. It is important to note that Article 1 of Protocol No. 12 extends the scope of protection not only to “any right set forth by law”, as the text of paragraph 1 might suggest, but beyond that. This follows in particular from paragraph 2, which further provides that no one may be discriminated against by a public authority.", "According to the Explanatory Report on Article 1 of Protocol No. 12, the scope of protection of that Article concerns four categories of cases, in particular where a person is discriminated against: “i. in the enjoyment of any right specifically granted to an individual under national law; ii. in the enjoyment of a right which may be inferred from a clear obligation of a public authority under national law, that is, where a public authority is under an obligation under national law to behave in a particular manner; iii. by a public authority in the exercise of discretionary power (for example, granting certain subsidies); iv.", "by any other act or omission by a public authority (for example, the behaviour of law enforcement officers when controlling a riot).” The Explanatory Report further clarifies that: “... it was considered unnecessary to specify which of these four elements are covered by the first paragraph of Article 1 and which by the second. The two paragraphs are complementary and their combined effect is that all four elements are covered by Article 1. It should also be borne in mind that the distinctions between the respective categories i-iv are not clear-cut and that domestic legal systems may have different approaches as to which case comes under which category.” 105. Therefore, in order to determine whether Article 1 of Protocol No. 12 to the Convention is applicable, the Court needs to establish whether the applicant churches’ complaints fall within one of the four categories mentioned in the Explanatory Report.", "106. In this connection the Court reiterates that sections 14 and 15 of the Religious Communities Act guarantee “the right” to (all) religious communities to provide pastoral care in medical and social-welfare institutions, prisons and penitentiaries. As already noted above, those sections further provide that this right is to be exercised in a manner regulated by an agreement between a religious community and the founder of a medical or social-welfare institution or, as regards prisons and penitentiaries, with the Government (see paragraph 18 above). It follows that the conclusion of such an agreement is not a necessary condition for the right to be created. Rather, the agreement only regulates the manner in which the right is to be exercised.", "The Court therefore finds that this complaint does concern a “right specifically granted under national law” and, consequently, that Article 1 of Protocol No. 12 to the Convention is applicable to it. 107. In contrast to those provisions, there is nothing in the text of section 13 of the Religious Communities Act or the text of sections 6, 8 and 23 of the Family Act conferring on religious communities the authority to provide religious education in schools and nurseries or to have religious marriages celebrated by them officially recognised, as a matter of right. The religious communities which are entitled to do so were granted those privileges exclusively on the basis of agreements on issues of common interest concluded with the Government of Croatia.", "As already noted above (see paragraph 45), section 9(1) of the Religious Communities Act does not bind the State to enter into such agreements, therefore leaving their conclusion at the discretion of the State. Thus, it cannot be argued that the applicant churches’ complaints that they were not granted the same privileges also concern a “right specifically granted to them under national law”. However, the Court considers that those complaints nevertheless fall under the third category specified in the Explanatory Report as they concern alleged discrimination “by a public authority in the exercise of discretionary power” and that, consequently, Article 1 of Protocol No. 12 to the Convention is applicable to them. 108.", "It follows that the Government’s objection to the applicability of Article 1 of Protocol No. 12 to the Convention must also be dismissed. 3. Whether the complaints are manifestly ill-founded 109. The Government repeated their above arguments (see paragraphs 60-64) that the applicant churches had not in any way been prevented from exercising their right to provide pastoral care in medical and social-welfare institutions, prisons and penitentiaries, whereas the applicant churches remained silent on the issue (see paragraph 65 above).", "110. The Court refers to its above findings under Article 14 of the Convention (see paragraphs 66-68 above), which apply with equal force to the same complaints made in the context of Article 1 of Protocol No. 12 to the Convention. 111. It follows that the applicant churches’ complaints, in so far as they concern pastoral care in medical and social-welfare institutions, prisons and penitentiaries, are inadmissible under Article 35 § 3 as manifestly ill‑founded and must therefore be rejected pursuant to Article 35 § 4 of the Convention.", "112. On the other hand, to the extent that the applicant churches’ complaints concern religious education in public schools and nurseries and official recognition of religious marriages, they are not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. Furthermore, these complaints are not inadmissible on any other grounds. They must therefore be declared admissible. B.", "Merits 1. The arguments of the parties 113. The Government and the applicant both relied on the arguments summarised in paragraphs 71-84 above. 2. The Court’s assessment 114.", "The Court has already found that the difference in treatment between the applicant churches and those religious communities which had concluded agreements on issues of common interest with the Government of Croatia and were therefore entitled to provide religious education in public schools and nurseries and to have religious marriages they performed recognised by the State amounted to discrimination in breach of Article 14 taken together with Article 9 of the Convention (see paragraphs 92-93 above). 115. Having regard to that finding, the Court considers that it is not necessary to examine separately whether, in this case, there has also been a violation of Article 1 of Protocol No. 12 to the Convention (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 51, ECHR 2009-...).", "IV. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION 116. The applicant churches further complained that they had not had access to a court or an effective remedy as they had not been able either to challenge the Government’s Instruction of 23 December 2004 before the Constitutional Court, or to challenge the refusal of the Religious Communities Commission to grant their request to conclude an appropriate agreement before the Administrative Court. They relied on Article 6 § 1 and Article 13 of the Convention, the relevant parts of which read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... 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.” 1. The arguments of the parties 117.", "By referring again to the remedies the applicant churches had failed to exhaust for the purposes of Article 35 § 1 of the Convention (see paragraph 43 above), the Government argued that these complaints were manifestly ill-founded. The fact that the applicant churches had resorted to inappropriate remedies in order to protect their rights did not mean that they had not been granted access to a court or that they had not had an effective remedy. 118. The applicant churches did not specifically address this issue. However, it follows from their arguments adduced in reply to the Government’s objection concerning exhaustion of domestic remedies (see paragraph 44 above) that they contested the Government’s submissions and maintained their view that they had been denied the right of access to a court and had not had an effective remedy for the protection of their rights.", "2. The Court’s assessment 119. The Court first notes that sections 67-76 of the Administrative Disputes Act (see paragraphs 29-32 above) provide for an “action against an unlawful act”, a judicial remedy open to anyone who considers that his or her rights or freedoms guaranteed by the Constitution have been violated by a public authority and that no other judicial remedy is available. Together with the remedy available under section 66 of the same Act (to which the applicant churches resorted – see paragraphs 12 and 28 above), they represent remedies of last resort, to be used in the absence of any other judicial protection, against decisions (the remedy under section 66 of the Administrative Disputes Act) or other (factual) acts or omissions (“action against an unlawful act”) of public authorities capable of violating constitutionally guaranteed rights or freedoms. The rationale behind those remedies is that constitutional rights and freedoms are so precious that they cannot be left unprotected by the courts.", "120. The Court further notes that it has already found the “action against an unlawful act” to be an effective remedy in Croatia in respect of other rights guaranteed by the Convention (see Hackbarth v. Croatia (dec.), no. 27897/02, 3 November 2005). It has reached the same conclusion also in respect of similar remedies in other States Parties (see X. v. Austria, no. 2742/66, Commission decision of 30 May 1967, Collection 23, p. 99).", "121. Given that the right of equality of all religious communities before the law is guaranteed by Article 41 of the Croatian Constitution (see paragraph 16 above), and having regard to the rationale behind the “action against an unlawful act” as described above (see paragraph 119), the Court considers that it cannot be argued that such an action would have lacked prospects of success. It reiterates in this connection that the “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for an applicant (see, for example, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000‑XI; and Amann v. Switzerland [GC], no. 27798/95, § 88, ECHR 2000‑II) and that the mere fact that an action has very limited prospects of success is not equivalent to depriving the plaintiff of the right of access to a court (see X v. the United Kingdom, no.", "7443/76, Commission decision of 10 December 1976, DR 8, pp. 216, 217). Consequently, it cannot be said that the applicant churches lacked access to a court or an effective remedy. The fact that the domestic courts have not yet had a chance to deal with Article 41 of the Constitution in the context of an “action against an unlawful act” does not make any difference. Had the applicants brought such an action, the only possible ground for the domestic courts to declare their action inadmissible would be a finding that another judicial avenue of redress was available to them.", "However, such a finding would only reinforce the Court’s view that the applicant churches had access to a court and had an effective remedy at their disposal. 122. The finding that the applicant churches had access to a court and an effective remedy for the purposes of Article 6 § 1 and Article 13 of the Convention in the form of an “action against an unlawful act”, does not call into question the Court’s above finding that the Government’s objection of failure to exhaust domestic remedies must be dismissed (see paragraph 48 above). This is so because under Rule 55 of the Rules of Court and the Court’s case-law (see, for example, Mooren v. Germany [GC], no. 11364/03, §§ 57-59, ECHR 2009‑...), a plea of inadmissibility on account of non-exhaustion of domestic remedies is subject to the rule of estoppel, that is to say that such a plea “must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application”.", "Since the Government never argued that the applicant churches should have brought an “action against an unlawful act” under sections 67-76 of the Administrative Disputes Act, the Court could not have taken that remedy into account when examining the Government’s objection concerning non‑exhaustion of domestic remedies. However, the Court is not prevented from doing so when examining whether the applicant churches’ complaints under Articles 6 § 1 and Article 13 of the Convention are manifestly ill-founded or not, which is an issue going to the merits of the case that, even at the stage of the admissibility, must be determined without regard to the attitude of the respondent State (see, for example and mutatis mutandis, Morel v. France, (dec.), no. 54559/00, ECHR 2003‑IX; Acquaviva v. France, 21 November 1995, § 45, Series A no. 333‑A; H. v. France, 24 October 1989, § 47, Series A no. 162‑A; and Panikian v. Bulgaria, no.29583/96, Commission decision of 10 July 1997, DR 90, pp.", "109 and 114). 123. It follows that these complaints are inadmissible under Article 35 § 3 as manifestly ill-founded and must therefore be rejected pursuant to Article 35 § 4 of the Convention. V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 124. Lastly, the applicant churches complained that their inability to provide religious education in public schools and nurseries, as well as to celebrate marriages with the same effects as civil marriages, had violated their rights under Article 12 of the Convention and Article 2 of Protocol No.", "1, taken alone and in conjunction with Article 14 of the Convention. Article 12 of the Convention reads as follows: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.” Article 2 of Protocol No. 1 to the Convention reads as follows: “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” 125. The Court reiterates that solely the members of a religious community, as individuals, can claim to be victims of a violation of the right to marry or the right to education, rights which by their nature are not susceptible of being exercised by a religious community itself.", "Therefore, the applicant churches as religious communities cannot themselves allege a violation of either of these rights (see Ingrid Jordebo Foundation of Christian Schools and Ingrid Jordebo v. Sweden, no. 11533/85, Commission decision of 6 March 1987, DR 51, p. 125, and Scientology Kirche Deutschland e.V. v. Germany, no. 34614/97, Commission decision of 7 April 1997). 126.", "It follows that these complaints are incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 127. 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 128.", "The applicant churches claimed 30,000 euros (EUR) in respect of non-pecuniary damage. 129. The Government contested that claim. 130. The Court finds that the applicant churches must have sustained non-pecuniary damage.", "Ruling on an equitable basis, it awards them each EUR 9,000 under that head, plus any tax that may be chargeable on that amount. B. Costs and expenses 131. The applicant churches also claimed 33,137 Croatian kunas (HRK) for the costs and expenses incurred before the Court. 132.", "The Government contested this claim. 133. 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 were 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 4,570 for the proceedings before the Court, plus any tax that may be chargeable to the applicant churches on that amount. C. Default interest 134.", "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 under Article 14 taken in conjunction with Article 9 of the Convention and Article 1 of Protocol No. 12 thereto, in so far as they concern religious education in public schools and nurseries and State recognition of religious marriages, admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 14 taken in conjunction with Article 9 of the Convention; 3.", "Holds that there is no need to examine the complaint under Article 1 of Protocol No. 12 to the Convention; 4. Holds (a) that the respondent State is to pay, 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 Croatian kunas at the rate applicable at the date of settlement: (i) to each applicant church, EUR 9,000 (nine thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) to the applicant churches jointly, EUR 4,570 (four thousand five hundred and seventy euros), plus any tax that may be chargeable to the applicant churches, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant churches’ claim for just satisfaction. Done in English, and notified in writing on 9 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos RozakisRegistrarPresident" ]
[ "THIRD SECTION CASE OF SARKISYAN v. RUSSIA (Application no. 62614/13) JUDGMENT STRASBOURG 3 November 2016 This judgment is final but it may be subject to editorial revision. In the case of Sarkisyan v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helena Jäderblom, President,Dmitry Dedov,Branko Lubarda, judges,and Hasan Bakırcı Deputy Section Registrar, Having deliberated in private on 13 October 2016, Delivers the following judgment, which was adopted on that date: FACTS AND PROCEDURE 1. The case originated in an application (no. 62614/13) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Gayk Levonovich Sarkisyan (“the applicant”), on 23 September 2013.", "2. The applicant was represented by Mr A. Anokhin and Ms M. Gordeyeva, lawyers practising in Astrakhan. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. On 28 January 2016 the complaints concerning Article 5 § 3 and Article 5 § 4 were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.", "4. The relevant details of the application are set out in the appended table. 5. The Government submitted a declaration with a view to resolving the issues raised by the applicant. 6.", "In particular, the Government acknowledged that the applicant had remained in pre-trial detention for an excessively lengthy period in violation of Article 5 § 3 of the Convention. They offered to pay the applicant 1,200 euros and invited the Court to strike the application out of the list of cases in accordance with Article 37 § 1 (c) of the Convention. The amount would be converted into the currency of the respondent State at the rate applicable on the date of payment, and would be payable within three months from the date of notification of the Court’s judgement. In the event of failure to pay this amount within the abovementioned three-month period, the Government undertook to pay simple interest on them, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The declaration did not mention the applicant’s complaint under Article 5 § 4 of the Convention.", "7. The applicant informed the Court that he agreed to the terms of the declaration. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 8. The Court reiterates the applicant’s express agreement to the terms of the declaration made by the Government and will treat it as a friendly settlement between the parties pertaining to the part of the application under Article 5 § 3 of the Convention about the excessive length of the applicant’s pre-trial detention.", "9. It therefore takes note of the friendly settlement reached between the parties as regards a part of the application. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and the Protocols thereto and finds no reasons to justify the continued examination of the part of the application in so far as it concerned Article 5 § 3 of the Convention. 10. Accordingly, it is appropriate to strike this part of the application out of the list.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 11. The applicant submitted an additional complaint about delays in the examination of his appeals against the detention orders. The complaint raises an issue under Article 5 § 4 of the Convention, in accordance with the relevant well-established case-law of the Court (see Idalov, cited above, § 154, with further references). The complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground.", "Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it also discloses a violation of Article 5 § 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 12. 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.” 13.", "Regard being had to the documents in its possession and to its case‑law (see, in particular, Pastukhov and Yelagin v. Russia, no. 55299/07, 19 December 2013), the Court considers it reasonable to award the sum indicated in the appended table. 14. 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.", "Decides to strike the application out of its list of cases in accordance with Article 39 of the Convention in so far as it concerns the complaint under Article 5 § 3 of the Convention about the excessive length of the applicant’s pre-trial detention; 2. Declares admissible the applicant’s complaint about the lack of speedy review of his detention; 3. Holds that there has been a breach of Article 5 § 4 of the Convention concerning the excessive length of judicial review of detention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, the amount indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 3 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Hasan BakırcıHelena JäderblomDeputy RegistrarPresident APPENDIX Application raising complaints under Article 5 § 3 of the Convention (excessive length of pre-trial detention) No. Application no.Date of introduction Applicant name Date of birth Representative name and location Period of detention Length of detention Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses (in euros)[1] 62614/13 23/09/2013 Gayk Levonovich SARKISYAN 02/10/1983 Anokhin Aleksandr Anatolyevich Astrakhan Gordeeva Margarita Vladimirovna, Astrakhan 01/08/2012 to 25/07/2013 11 month(s) and 25 day(s) Art. 5 (4) - excessive length of judicial review of detention 1) appeal against the detention order of 01/04/2013 was examined on 16/05/2013 2) appeal against the detention order of 22/02/2013 was examined on 16/05/2013 500 [1] Plus any tax that may be chargeable to the applicants." ]
[ "FIFTH SECTION CASE OF KAMBOUROV v. BULGARIA (Application no. 55350/00) JUDGMENT STRASBOURG 14 February 2008 FINAL 14/05/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kambourov v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Snejana Botoucharova,Karel Jungwiert,Rait Maruste,Javier Borrego Borrego,Renate Jaeger,Mark Villiger, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 22 January 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "55350/00) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Dimitar Kostadinov Kambourov, a Bulgarian national who was born in 1926 and lives in Plovdiv (“the applicant”), on 3 November 1999. 2. The applicant was represented by Ms E. Nedeva, a lawyer practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Kotseva, of the Ministry of Justice. 3.", "On 20 May 2005 the Court decided to give notice of the application to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and the merits of the application at the same time. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. Until 1987 the applicant occupied a flat with his wife.", "In that year he moved out. On 28 June 1989 they divorced. On 16 September 1989 the applicant's former wife died. A. The first phase of the partition proceedings 5.", "On 12 February 1990 the applicant issued proceedings against his son and daughter in the Plovdiv District Court. He requested partition of his deceased former wife's estate. The estate allegedly consisted of the above‑mentioned flat, a garage, a car and a number of chattels. 6. On 7 March 1990 the proceedings were stayed to await the outcome of an already pending suit between the applicant and his former wife.", "This suit, in which, after her death, the applicant's former wife had been replaced by their son and daughter, concerned her claim to exclusive title to the flat. The suit ended in July 1991 with a ruling that the flat was joint marital property of the applicant and of his former wife. Accordingly, in August 1991 the partition proceedings were resumed. 7. At the invitation of the court, in September and November 1991 the applicant gave further particulars of his claims.", "8. Out of seven hearings listed for various dates between December 1991 and September 1992, three were adjourned on account of improper summoning of the respondents and a further two because of their absence. 9. The Plovdiv District Court gave judgment on 16 September 1992, allowing the partition of the flat and of a number of chattels, but refusing the partition of the car and of certain other chattels. The court also determined the share of each of the co‑owners.", "10. All three litigants appealed to the Plovdiv Regional Court. 11. In a judgment of 25 January 1993 the Plovdiv Regional Court allowed the applicant's appeal, additionally allowing the partition of the car and of certain other chattels. It dismissed the respondents' appeal in so far as it concerned the flat, but allowed it in respect of certain chattels, excluding them from the partition.", "It decided to proceed on the merits and determine each party's share of the car and of the chattels whose partition it had additionally allowed. 12. After holding a hearing on 10 March 1993, in a judgment of 17 March 1993 the Plovdiv Regional Court allowed the partition of the car, but not of the additional chattels. It determined the parties' shares of the car and ordered an expert report on its value. B.", "The second phase of the partition proceedings 13. The Plovdiv District Court listed a hearing for 9 June 1993. However, the applicant's son was absent and the expert report had not been filed in due time before the hearing. The court accordingly only took note of the applicant's and his daughter's requests to be allotted the entire flat and of the applicant's claims for indemnification for the exclusive use of the flat and of the car by his son and daughter, as well as for wear of the car, and adjourned the case. 14.", "A hearing was held on 19 October 1993. The court admitted two expert reports in evidence. The applicant's son challenged the reports and requested a fresh one. The court agreed and adjourned the case. 15.", "The next hearing took place on 9 December 1993. The applicant's son was absent; so was one expert. 16. On 11 March 1994 the applicant asked the court to provisionally allow him to use the flat, arguing that because of his low income it was very hard for him to pay the rent for a flat which he was leasing. 17.", "The court held a hearing on 22 March 1994. The applicant's son did not show up. The court admitted the new expert report in evidence. The applicant repeated his request to be allowed to provisionally use the flat. The court directed that the applicant's son be notified about the applicant's request and adjourned the case.", "18. A hearing took place on 13 April 1994, despite a request by the applicant's son for an adjournment. 19. In a judgment of 21 April 1994 the Plovdiv District Court allotted the flat to the applicant, and ordered him to pay his son and his daughter certain amounts for their shares of it. The court allotted the garage to the applicant's daughter and ordered her to pay the applicant's son a certain amount for his share.", "It also allotted the car to the applicant's son and made a scheme for the repartition of the remainder of the chattels. The court went on to disallow the applicant's and his daughter's claims for indemnification for the use of the flat and of the car. Finally, it discontinued the examination of the applicant's claim for wear of the car, holding that it was not sufficiently connected with the main subject‑matter of the case. 20. Both the applicant and his son appealed.", "21. After holding a hearing on 27 June 1994, in a decision of 4 July 1994 the Plovdiv Regional Court held that the Plovdiv District Court had erred by discontinuing the examination of the claim for wear of the car. It remitted the case to that court with instructions to supplement its judgment by ruling on this claim and then re‑send the case to the Plovdiv Regional Court for examination of the appeals against the other parts of the judgment. 22. After holding two hearings on 14 September and 15 December 1994, in a judgment of 21 December 1994 the Plovdiv District Court found that by discontinuing the examination of the claim for wear of the car, it had in fact ruled on it.", "There was therefore no need for it to supplement its judgment of 21 April 1994. 23. The applicant appealed against this latter judgment. The applicant's son again appealed against the judgment of 21 April 1994. 24.", "The Plovdiv Regional Court held a hearing on 3 April 1995 and in a judgment of 10 April 1995 reversed the Plovdiv District Court's ruling concerning the applicant's claim for indemnification for the use of the flat and the car. It ordered his son and daughter to pay him certain amounts under this head. It then examined the claim for wear of the car on the merits and dismissed it. It also quashed the lower court's ruling concerning the valuation of the flat, and said that it would determine the flat's value – and thus the sums due by the applicant to his son and daughter – after conducting proceedings on the merits and receiving an expert's opinion on the issue. 25.", "The expert report was not ready until February 1996 because in September and December 1995 two experts appointed by the court withdrew from the case and had to be replaced. The report was admitted in evidence on 28 February 1996. 26. In a judgment of 3 May 1996 the Plovdiv Regional Court assessed the value of the flat and determined the amounts which the applicant had to pay his son and his daughter for their respective shares of it. 27.", "On 29 May 1996 the applicant was issued a writ of execution on the basis of the Plovdiv District Court's judgment of 21 April 1994 whereby the flat had been allotted to him (see paragraph 19 above). After several unsuccessful attempts, the writ was executed by an enforcement judge on 20 October 1997. However, as the flat was in very bad repair, the applicant continued to live elsewhere and decided to lease it out. 28. In early 1998 the applicant's son asked the Plovdiv District Court to annul the writ of execution and set its enforcement aside.", "His request was rejected on 7 March 1998 and his ensuing appeal was dismissed by the Plovdiv Regional Court in a final decision of 10 June 1998. 29. Meanwhile, the proceedings concerning the chattels were continuing in the Plovdiv District Court. 30. On 19 September 1996 the court ordered an expert report on the chattels' value.", "However, the report proved impossible to draw up, as during the following year the applicant's son was refusing the experts access to the chattels. The court repeatedly ordered him to give them such access, under pain of a fine, but apparently did not fine him. In June and September 1997 the experts eventually managed to prepare two reports without inspecting the chattels. The court admitted them in evidence. On 24 September 1997 the court instructed an expert to propose how to allocate the chattels to each of the litigants in proportion to their shares.", "31. In the meantime, two hearings listed for 7 November 1996 and 20 May 1997 failed to take place because the applicant's son had not been duly summoned. 32. At a hearing held on 14 October 1997 the court admitted the expert's proposal in evidence. However, it adjourned the case to allow the newly retained lawyer of the applicant's son to acquaint herself with it.", "33. After hearing the parties on 20 October 1997, in a judgment of 29 October 1997 the Plovdiv District Court finally determined the repartition of the chattels in four lots, in line with the expert's proposal. 34. The applicant's son lodged two appeals. He challenged all prior judgments of the Plovdiv District Court and of the Plovdiv Regional Court.", "The Plovdiv District Court apparently did not process one of the appeals. Upon the appeal of the applicant's son, on 4 November 1998 the Plovdiv Regional Court remitted the case to the Plovdiv District Court with instructions to send copies of all appeals to the parties to the case, and, having received their replies, re-send the case to it. 35. After holding on a hearing on 29 March 1999, in a judgment of 2 June 1999 the Plovdiv Regional Court found the applicant's son's appeals partly inadmissible and partly ill‑founded. 36.", "On 6 July 1999 the applicant's son appealed on points of law. The Supreme Court of Cassation heard the appeal on 5 December 2000 and on 4 June 2001 upheld the Plovdiv Regional Court's judgment. The case was then transmitted to the Plovdiv District Court for effecting the partition of the chattels by drawing lots. 37. A hearing listed for 15 October 2001 failed to take place because applicant's son, not having been properly summoned, did not appear.", "38. At a hearing on 28 November 2001 the parties drew lots to determine which of the partitioned chattels should go to which co‑owner. In a judgment of the same date the Plovdiv District Court confirmed the repartition and concluded the proceedings. C. The enforcement proceedings concerning the chattels 39. On an unspecified date in the first half of 2002 the applicant issued enforcement proceedings against his son and daughter.", "40. On 24 June 2002 an enforcement judge seized from the applicant's son a number of the chattels allotted to the applicant and delivered them to him. Noting that the remainder were missing, she attached a number of other chattels belonging to the applicant's son with a view to selling them and paying the applicant the monetary equivalent of the missing chattels. On 9 September 2002 the same judge attached a number of chattels belonging to the applicant's daughter and her husband with a view to selling them and satisfying the applicant's claim in respect of the chattels allotted to him. 41.", "The parties do not provide further information about the unfolding of the enforcement proceedings. 42. The applicant said that between April 2003 and October 2006 no steps had been taken for enforcing the Plovdiv District Court's judgment of 28 November 2001. In corroboration of his allegation he produced a certificate in which the enforcement judge stated that during that time the case file had been sent to the Plovdiv District Court, as it had been needed for the examination of a civil action pending before that court. 43.", "At the time of the latest information from the parties (12 November 2006) the enforcement proceedings were still pending. II. RELEVANT DOMESTIC LAW A. Partition‑of‑property proceedings 44. At the relevant time partition‑of‑property proceedings were governed by Articles 278 to 293a of the Code of Civil Procedure of 1952. They had two phases.", "45. During the first phase the court had to ascertain the number and the identity of the co-owners and of the items of common property to be partitioned, as well as the share of each co‑owner (Article 282 § 1). 46. During the second phase the court carried out the partition, which could be done either by specifying which item of property went to which co‑owner (Articles 287 and 289), or by auctioning off an undividable piece of property and distributing the proceeds among the co‑owners (Article 288 § 1). If one of the partitioned items was a flat which used to be a family dwelling, the surviving spouse could request that it be allotted exclusively to him or her (Article 288 § 2, as in force at the relevant time).", "During that phase the court could also have cognisance of certain ancillary matters, such as the reimbursement of expenses incurred in relation with the partitioned property, indemnification for the exclusive use of the property by one or more of the co‑owners pending its partition (Article 286 § 1), or the use of the property during the pendency of the proceedings (Article 282 § 2). B. Other relevant provisions of the Code of Civil Procedure of 1952 47. Article 217a of the Code, added in July 1999, created a “complaint about delays”. In such a complaint a litigant aggrieved by the slow examination of the case, delivery of judgment or transmitting of an appeal against a judgment could request the chairperson of the higher court to give mandatory instructions for faster processing of the case.", "48. Article 332 § 1 of the Code provided that the parties to enforcement proceedings could complain of the failure to of the enforcement judge to undertake an action which they had requested of him or her. Until November 2002 these complaints were examined by the district courts, and after that – by the regional courts (Article 333 § 1). A copy of the complaint was served on the other party (Article 333 § 2), which had the opportunity of replying in writing (Article 333 § 3). The court examined the matter in private, unless it was necessary to hear witnesses or experts (Article 334 § 1), and had to rule within thirty days after receiving the complaint (Article 334 § 4).", "Until 12 November 2002 the district courts' decisions on such complaints were appealable before the regional courts (Article 335 § 2, as in force before 12 November 2002); after that date they were final (Article 334 § 4, as in force after 12 November 2002). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 49. The applicant alleged that the length of the proceedings was in breach of Article 6 § 1 of the Convention, which reads, as relevant: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 50. The Government contested that allegation.", "A. Admissibility 51. The Court considers that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. Period to be taken into consideration 52. The proceedings started on 12 February 1990. However, the period to be considered did not begin to run until 7 September 1992, when the Convention entered into force in respect of Bulgaria. Nevertheless, to determine whether the time which has elapsed since this date is reasonable, the Court has to take account of the stage which the proceedings had reached at that point (see, among many other authorities, Rachevi v. Bulgaria, no.", "47877/99, § 70, 23 September 2004). 53. The judicial stage of the proceedings ended on 28 November 2001. However, in 2002 the applicant issued enforcement proceedings. At the time of the latest information from the parties (12 November 2006) these proceedings were still pending.", "The Court has previously said that the enforcement proceedings are the second stage of the proceedings and that the right asserted does not actually become effective until enforcement (see Di Pede v. Italy and Zappia v. Italy, judgments of 26 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1384‑85, §§ 22, 24 and 26, and pp. 1411‑12, §§ 18, 20 and 22). This is even more so in partition‑of‑property cases, where the proceedings are issued with the sole aim of allowing the joint owners of an estate to effectively exercise their individual property rights. The relevant period has therefore not ended yet.", "54. The overall length of the proceedings has thus been at least sixteen years and nine months, and the duration of the period to be considered has been no less than fourteen years and two months. 2. Reasonableness of the length of the proceedings 55. 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 litigation (see, among many other authorities, Hadjibakalov v. Bulgaria, no.", "58497/00, § 48, 8 June 2006). 56. The parties presented arguments as to the way in which these criteria should apply in the present case. 57. The Court observes that the distinctive feature of the case is that the judicial stage of partition‑of‑property proceedings in Bulgaria has two phases, during which the courts must, as a rule, deal with more issues than in an ordinary civil action (see paragraphs 44, 45 and 46 above).", "It thus seems that by their very nature such proceedings are apt to consume more time than a typical civil case. However, this cannot absolve the authorities from their duty to dispose of the case within a reasonable time, as States have a general obligation to organise their legal systems so as to ensure compliance with all the requirements of Article 6 § 1, including that of trial within a reasonable time (ibid., § 50). 58. The case was not very complicated legally, but had a certain amount of factual complexity, due to the number of partitioned items and the parties' ancillary claims. A number of issues, such as the value of the flat, of the garage, of the car and of the chattels, required expert opinions.", "However, these elements cannot explain all of the accumulated delays. 59. Concerning what was at stake for the applicant, the Court notes that the proceedings related, among others, to a flat where he had lived until 1987. It should however be observed that in May 1996 the applicant obtained a writ of execution in respect of that flat and that in October 1997 it was delivered into his possession (see paragraph 27 above). After that the proceedings concerned only the car and certain chattels.", "60. The Court does not consider that the applicant was to blame for any significant delays. 61. As to the conduct of the authorities, the Court observes that, apart from the adjournment of three hearings due to improper summoning of the respondents (see paragraph 8 above), no major unjustified delays attributable to them may be discerned during the first phase of the partition proceedings. In any event, this period lies mostly outside its temporal jurisdiction.", "However, the fact remains that on 7 September 1992, the beginning of the period under consideration, the proceedings had already been pending for more than two and a half years. 62. As regards the period after 7 September 1992, the Court notes the following elements. 63. The absence of the applicant's son, most often due to the authorities' failure to properly summon him, triggered the adjournment of a number of hearings (see paragraphs 13, 17, 31 and 37 above).", "64. The applicant's son was also at the origin of the gap between September 1996 and September 1997, when he was refusing the experts access to the chattels in his possession (see paragraph 30 above). A large part of that gap could have been avoided if the courts had adopted a more proactive approach in processing the case. However, they did not adequately try to avert the dilatory behaviour of the applicant's son and may thus be considered responsible for the resulting delay (see Kuśmierek v. Poland, no. 10675/02, § 65, 21 September 2004; Sokolov v. Russia, no.", "3734/02, § 40, 22 September 2005; and Kesyan v. Russia, no. 36496/02, § 58, 19 October 2006). 65. Meanwhile, five months were wasted in the proceedings concerning the flat between September 1995 and February 1996 because of the need to replace two experts (see paragraph 25 above). Bearing in mind that they had been appointed by the court, responsibility for the belated presentation of their report may be considered to lie with the authorities (see Rachevi, cited above, § 90, with further references).", "66. The Court also notes that, while the proceedings concerning the flat were pending before the Plovdiv Regional Court, the Plovdiv District Court made no progress in the proceedings concerning the car and the chattels. It does not appear from the documents in file that the determination of this latter part of the case required awaiting the outcome of the controversy concerning the former, which was finally determined by the Plovdiv Regional Court on 3 May 1996 (see paragraph 26 above). Therefore, the delay in the proceedings concerning the chattels between April 1995 and September 1996 does not appear justified. 67.", "The courts' incoherent approach in processing the appeals against the Plovdiv District Court's judgments of 21 April 1994 and 29 October 1997, coupled with the drawing out of the examination of the appeal on points of law by the Supreme Court of Cassation (see paragraphs 19‑22 and 33‑36 above) caused more than two years of delay. 68. Concerning the enforcement proceedings, the Court notes that in June and September 2002 the enforcement judge seized and attached a number of chattels with a view to satisfying the applicant's claim (see paragraph 40 above). The applicant did not specify whether he requested further steps to be taken and whether the enforcement judge refused or failed to act. The Court is not persuaded that this was rendered wholly impossible by the sending of the case file to the Plovdiv District Court for use in other proceedings (see paragraph 42 above).", "However, even assuming that the length of the enforcement proceedings is not attributable to the authorities, the fact remains that by 2006 the case had been pending for sixteen years, which appears excessive. 69. Having regard to the delays identified above and the overall length of the proceedings, the Court concludes that the applicant's case was not determined within a “reasonable time”, as required by under Article 6 § 1 of the Convention. There has therefore been a violation of that provision. II.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 70. The applicant complained that because of the excessive length of the proceedings he had been unable to peacefully use the partitioned flat, had incurred expenses for repairing it, and had had to lease another flat where to live during the pendency of the proceedings. He relied on Article 1 of Protocol No. 1, which provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 71. The Government said that this complaint was out of time, as the part of the case relating to the flat had been finally determined on 3 May 1996, whereas the application had been lodged on 3 November 1999. As regards the part of the complaint relating to the incurred expenses, the applicant had failed to exhaust domestic remedies, as he had not requested indemnification under Article 286 of the Code of Civil Procedure of 1952 (see paragraph 46 above) or under the general law of tort. 72.", "The applicant replied that at the time when his application had been lodged the overall dispute between him and his son and daughter had not been finally determined. The Government's reliance on Article 286 was misplaced, as it did not apply to claims for deterioration of property, which were tortuous in nature. It was therefore not open to him to claim compensation for the flat's deterioration in the context of the partition proceedings. He finally said that as a result of the length of the proceedings he had been unable to recover most of the chattels allotted to him, because in the meantime the respondents had disposed of them. 73.", "The Court finds that this complaint is closely linked to the one about the length of the proceedings and must, therefore, be declared admissible. However, having regard to its conclusion under Article 6 § 1 (see paragraph 69 above), it does not consider it necessary to examine it separately (see Zanghì v. Italy, judgment of 19 February 1991, Series A no. 194‑C, p. 47, § 23; and Di Pede, cited above, p. 1395, § 42). III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 74.", "The applicant complained under Article 13 of the Convention about the lack of effective remedies in respect of the excessive length of the proceedings. Article 13 provides: “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.” 75. The Government said that the applicant could have used the “complaint about delays” under Article 217a of the Code of Civil Procedure of 1952. 76. The applicant replied that this remedy came to late to be able to impact on the global length of the proceedings and was not effective.", "Moreover, in Bulgarian law there existed no compensatory remedies for the length of civil proceedings. 77. The Court considers that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "78. Having regard to its conclusion under Article 6 § 1 (see paragraph 69 above), the Court considers that the complaint is arguable and that Article 13 is applicable. 79. The Court notes that the proceedings had two stages: judicial (consisting of two phases) and enforcement. It considers it appropriate to examine the availability of remedies in each of those stages separately.", "80. Concerning the judicial stage, which started on 12 February 1990 and ended on 28 November 2001, the Court notes that in several judgments against Bulgaria it has found that until July 1999 – more than nine years after the beginning of the proceedings in issue and slightly less than seven years after the beginning of the period to be considered – Bulgarian law did not provide any remedies capable of accelerating civil proceedings (see Djangozov v. Bulgaria, no. 45950/99, § 51, 8 July 2004; Rachevi, cited above, §§ 64, 65 and 101; Dimitrov v. Bulgaria, no. 47829/99, § 77, 23 September 2004; and Todorov v. Bulgaria, no. 39832/98, § 59, 18 January 2005).", "Even assuming that the “complaint about delays” under Article 217a of the Code of Civil Procedure of 1952 (see paragraph 47 above) could have speeded up the examination of the case after that date, it came too late to have a significant effect on the length of the proceedings as a whole (see Djangozov, § 52; Rachevi, §§ 66 and 67; Dimitrov, §§ 78 and 79; and Todorov, § 60, all cited above; as well as Holzinger v. Austria (no. 2), no. 28898/95, §§ 20 and 21, 30 January 2001). 81. As regards the enforcement stage, which started in 2002 and has apparently still not ended, the Court notes that the applicant had the possibility of challenging the inaction of the enforcement judge before a court (see paragraph 48 above).", "This procedure does not appear prima facie ineffective, but the Court must have regard to the specific circumstances of each case (see, mutatis mutandis, Stefanova v. Bulgaria, no. 58828/00, § 69, 11 January 2007). It observes that it is not clear whether after September 2002 the applicant requested the enforcement judge to take further steps to execute the final judgment in his favour and, if so, whether he challenged her inaction before the competent court. In these circumstances, the Court does not consider that the remedy available to the applicant was not effective as such. However, having regard to overall delay accumulated by September 2002, it does not consider that its use could have had a significant impact of the length of the proceedings as a whole (see the cases cited in paragraph 80 in fine above).", "82. The Court finally notes that, as already found in the judgments mentioned above, Bulgarian law does not presently provide any remedies capable of leading to the award of compensation for excessive delays in civil proceedings (see Djangozov, § 58; Rachevi, § 103; Dimitrov, § 82; Todorov, § 65; and Stefanova, § 73 in fine, all cited above). 83. There has therefore been a violation of Article 13 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 84. 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 85. The applicant claimed 21,400 euros (EUR) in respect of pecuniary damage sustained on account of the excessive length of the proceedings. This damage consisted of the rent which he had had to pay as a result of his not being able to live in the partitioned flat, of the loan which he had had to take to make repairs to the flat, and of the value of the chattels which had been allotted to him but were still not in his possession.", "The applicant also claimed EUR 6,000 in respect of non‑pecuniary damage. 86. The Government did not comment. 87. In the Court's view, it is reasonable to conclude that, as a result of the long delay, in breach of Article 6 § 1, the applicant suffered a loss of opportunities which warrants an award of just satisfaction in respect of pecuniary damage.", "However, the various components of this damage cannot be calculated precisely (see, mutatis mutandis, Martins Moreira v. Portugal, judgment of 26 October 1988, Series A no. 143, pp. 22‑23, §§ 65 and 67). Making an assessment on an equitable basis, the Court awards under this head EUR 1,000, plus any tax that may be chargeable. The Court also considers that the applicant has sustained non‑pecuniary damage on account of the violation of Article 6 § 1 and awards him under this head EUR 3,000, plus any tax that may be chargeable.", "B. Costs and expenses 88. The applicant sought the reimbursement of EUR 4,645 for the costs and expenses incurred before the Court. 89. The Government did not comment.", "90. According to the Court's case‑law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000, plus any tax that may be chargeable. C. Default interest 91. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that it is not necessary to examine the complaint under Article 1 of Protocol No. 1 to the Convention; 4.", "Holds that there has been a violation of Article 13 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros) in respect of pecuniary and non‑pecuniary damage and costs and expenses, plus any tax that may be chargeable to the applicant, the said amount to be converted into Bulgarian levs at the rate applicable on 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 the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 14 February 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]
[ "FIRST SECTION CASE OF MILAŠINOVIĆ v. CROATIA (Application no. 41751/02) JUDGMENT STRASBOURG 24 May 2007 FINAL 24/08/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Milašinović v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL.", "Loucaides,MrsN. Vajić,MrK. Hajiyev,MrD. Spielmann,MrS.E. Jebens,MrG.", "Malinverni, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 3 May 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 41751/02) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mrs Ana Milašinović (“the applicant”), on 7 November 2002. 2. The applicant was represented by Mr M. Mihočević, a lawyer practising in Zagreb.", "The Croatian Government (“the Government”) were represented by their Agents, first Mrs L. Lukina-Karajković and subsequently Mrs Š. Stažnik. 3. On 29 January 2004 the Court decided to give notice of the application 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 1950 and lives in Karlovac. 5. Following her return from Germany in March 1992, the applicant found out that three business premises in her ownership had been blown up by unknown perpetrators. A.", "Civil proceedings 6. On 1 March 1995 the applicant instituted three separate sets of proceedings against the State before the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking damages. She relied on section 180 of the Civil Obligations Act. 7. On 3 February 1996 the Amendment to the Civil Obligations Act (“the 1996 Amendment”) entered into force.", "It provided that all proceedings concerning actions for damages resulting from terrorist acts or acts of violence were to be stayed pending the enactment of new legislation on the subject. 8. On 31 July 2003 the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (“the 2003 Liability Act”) entered into force. 9. Pursuant to the 2003 Liability Act, the Municipal Court resumed the proceedings.", "On 19 March 2004 it gave three decisions declaring the applicant's actions inadmissible for lack of jurisdiction. On 26 March 2003 the applicant appealed against those decisions to the Zagreb County Court (Županijski sud u Zagrebu). 10. On 23 June and 22 October 2004 and 18 January 2005, respectively, the County Court quashed the impugned decisions and remitted the cases to the Municipal Court. 11.", "In the resumed proceedings, on 28 January and 25 May 2005, respectively, the Municipal Court gave judgments dismissing the applicant's claims in two of those proceedings. On 4 April and 20 June 2006 the Zagreb County Court dismissed the applicant's appeals and upheld the first-instance judgments. The applicant then appealed on points of law (revizija) and the two cases are currently pending before the Supreme Court (Vrhovni sud Republike Hrvatske). 12. As regards the third set of proceedings, on 23 May 2005 the Municipal Court decided to stay them because the applicant's husband, who was a co-plaintiff in that case, had died.", "B. Proceedings before the Constitutional Court 13. Meanwhile, on 15 October 2002 the applicant lodged a constitutional complaint under section 63 of the Constitutional Court Act complaining about the length of the above three sets of civil proceedings and the lack of access to a court. On 25 November 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) accepted the applicant's complaint. Relying on the Court's case law (Kutić v. Croatia, no.", "48778/99, ECHR 2002‑II), it found violations of her constitutional rights to a hearing within a reasonable time and of access to a court. It awarded her 12,750 Croatian kunas (HRK) in compensation, and ordered the Zagreb Municipal Court to give a decision in the proceedings complained of in the shortest time possible but no later than a year following the publication of the decision in the Official Gazette. The Constitutional Court's decision was published on 10 December 2004. II. RELEVANT DOMESTIC LAW 14.", "The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette, nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/99) provided as follows: Section 180(1) “Liability for loss caused by death or bodily injury or by damage or destruction of another's property, when it results from acts of violence or terrorist acts or from public demonstrations or manifestations, lies with the ... authority whose officers were under a duty, according to the laws in force, to prevent such loss.” 15. The relevant part of the Act Amending the Civil Obligations Act (Zakon o izmjeni Zakona o obveznim odnosima, Official Gazette no. 7/1996 – “the 1996 Amendment”) reads as follows: Section 1 “Section 180 of the Civil Obligations Act (the Official Gazette nos. 53/91, 73/91 and 3/94) shall be repealed.” Section 2 “Proceedings for damages instituted under section 180 of the Civil Obligations Act shall be stayed.", "The proceedings referred to in sub-section 1 of this section shall be resumed after the enactment of special legislation governing liability for damage resulting from terrorist acts.” 16. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01 and 117/03) provides: Section 212 “Proceedings shall be stayed: (1) when a party dies ..., ... (6) where another statute so prescribes.” 17. The Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette no. 117/2003 – “the 2003 Liability Act”) provides, inter alia, that the State is to compensate only damage resulting from bodily injuries, impairment of health or death.", "All compensation for damage to property is to be sought under the Reconstruction Act. Section 10 provides that all proceedings stayed pursuant to the 1996 Amendment are to be resumed. 18. The relevant part of the Reconstruction Act (Zakon o obnovi, Official Gazette nos. 24/96, 54/96, 87/96 and 57/00) provides, inter alia, that the State shall grant, under certain conditions, reconstruction assistance to owners of property (flats and family houses only) which has been damaged during the war.", "The request is to be submitted to the competent ministry. 19. Article 29 § 1 of the Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/2001 of 7 May 2001) reads as follows: “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” 20. The relevant part of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no.", "49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows: Section 63 “(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant's rights and obligations or a criminal charge against him or her within a reasonable time ... (2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits... (3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 21. The applicant complained that Parliament's enactment of the 1996 Amendment violated her right of access to a court as provided 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 ... by [a] ... tribunal...” 22. The Government contested that argument.", "A. Admissibility 1. The parties' arguments 23. The Government submitted that the Constitutional Court had accepted the applicant's constitutional complaint, found a violation of her constitutional right of access to a court, and awarded her compensation. That being so, the violation complained of had been remedied before the domestic authorities and the applicant had lost her victim status. 24.", "The applicant submitted that, in spite of the Constitutional Court's decision of 25 November 2004, she was still a “victim” within the meaning of Article 34 of the Convention. She argued that the Constitutional Court had not responded to her complaint regarding access to a court, but solely to her length complaint. Moreover, the amount of compensation was insufficient and significantly lower than amounts awarded by the Court in similar cases (see Kutić v. Croatia, no. 48778/99, § 39, ECHR 2002‑II). 2.", "The Court's assessment 25. The Court recalls that in the Tomašić case (see Tomašić v. Croatia, no. 21753/02, §§ 26-36, 19 October 2006), it found manifestly unreasonable the amount of compensation, which was approximately 15 % of what the Court was generally awarding in similar Croatian cases. While it is true that the applicant in the present case received a somewhat higher amount, the Court considers that her situation does not significantly differ from that in the Tomašić case and finds no reason to depart from its conclusion therein. Accordingly, the applicant can still claim to be a “victim” of a breach of her right of access to a court, and the Government's objection must therefore be dismissed.", "26. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 27. The Court has frequently found violations of the applicants' right of access to a court under Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Kutić v. Croatia, cited above, and Multiplex v. Croatia, no. 58112/00, 10 July 2003). 28. 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.", "There has accordingly been a breach of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 29. The applicant complained that Parliament's enactment of the 1996 Amendment also violated her right to an effective remedy as guaranteed by Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 30. The Government contested that argument.", "31. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 32. Having regard to the finding relating to Article 6 § 1 (see paragraph 30 above), the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 13 since its requirements are less strict than, and are here absorbed by, those of Article 6 § 1 (see, for example, Dražić v. Croatia, no. 11044/03, § 43, 6 October 2005).", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 33. 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 34. The applicant claimed 327,000 euros (EUR) in respect of pecuniary damage and EUR 50,000 in respect of non-pecuniary damage.", "35. The Government deemed the amounts claimed by the applicant excessive. 36. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 37.", "As to the non-pecuniary damage sought, the Court reiterates that where an applicant had resorted to an available domestic remedy and thereby obtained a finding of a violation and was awarded compensation, but can nevertheless still claim to be a “victim”, the amount to be awarded under Article 41 may be less than the amounts the Court was awarding in similar cases. In that case an applicant must be awarded the difference between the amount obtained from the Constitutional Court and an amount that would not have been regarded as manifestly unreasonable compared with the amounts awarded by the Court (see Tomašić v. Croatia, cited above, § 48). 38. The Court recalls that the applicant was awarded approximately EUR 1,730 by the Constitutional Court. Having regard to the circumstances of the present case, the characteristics of the constitutional complaint as well as the fact that, notwithstanding this domestic remedy, the Court has found a violation, it considers, ruling on an equitable basis, that the applicant should be awarded EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.", "B. Costs and expenses 39. The applicant also claimed 30,500 Croatian kunas (HRK) for the costs and expenses incurred before the Court. 40. The Government contested the claim.", "41. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 for the proceedings before the Court, plus any tax that may be chargeable on that amount. C. Default interest 42. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there is no need to examine the complaint under 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 according to Article 44 § 2 of the Convention, the following amounts which are to be converted into the national currency of the respondent State at a rate applicable at the date of settlement: (i) EUR 1,000 (one thousand euros) in respect of non-pecuniary damage; (ii) EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses; (iii) any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 24 May 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]
[ "SECOND SECTION CASE OF PIŠTOROVÁ v. THE CZECH REPUBLIC (Application no. 73578/01) JUDGMENT STRASBOURG 26 October 2004 FINAL 26/01/2005 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Pištorová v. the Czech Republic, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrA.B. Baka, President,MrG.", "Bonello,MrL. Loucaides,MrK. Jungwiert,MrsW. Thomassen,MrM. Ugrekhelidze,MrsA.", "Mularoni, judges, and Mrs S. Dollé, Section Registrar, Having deliberated in private on 5 October 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 73578/01) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Czech national, Mrs Helena Pištorová (“the applicant”), on 12 February 2001. 2. The applicant was represented by Mr J. Kalista, a lawyer practising in Praha 1.", "The Czech Government (“the Government”) were represented by their Agent, Mr Vít A. Schorm, from the Ministry of Justice. 3. On 4 June 2002 the Court decided to communicate the application. 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 4.", "The applicant was born in 1935 and lives in Prague. 5. The applicant's parents owned a house with a garden and private road. On 24 April 1967 they donated their property to the State. The property was then administered by the Humpolec Municipality (město Humpolec).", "6. On 24 April 1991 the applicant requested the Municipality to conclude a restitution agreement with her, pursuant to the Extra-Judicial Rehabilitation Act (hereinafter “the Act”). The Municipality refused. 7. On 10 February 1993 the Pelhřimov District Court (okresní soud), after having held two hearings on 17 June 1992 and 9 February 1993, dismissed the applicant's action for restitution of the property in question, introduced on 31 March 1992 and completed on 8 and 16 June 1992, stating that the contract of donation had not been concluded under pressure, as envisaged by the Act.", "8. On 13 May 1993 the České Budĕjovice Regional Court (krajský soud), upon the applicant's appeal of 17 March 1993, quashed this judgment and remitted the case to the District Court. 9. On 20 October and 10 December 1993 and on 26 and 29 July 1994 the District Court held hearings. 10.", "On 29 July 1994 it ordered the Municipality to restore the property to the applicant. The court, having assessed certain additional evidence, found that the applicant's parents had signed the contract of donation under pressure. 11. On 8 December 1994 the Regional Court, on the defendant's appeal of 28 August 1994, to which the applicant had made her comments on 4 September 1994, modified the District Court's judgment, dismissing the applicant's claim for restitution. It found that the Municipality had not owned the house on 1 April 1991, as provided for in the Act, and that it had not been transferred to the Municipality after the entry into force of Act no.", "172/1991 with the obligation to restore it to the former owners. 12. On 13 February 1995 the judgment was notified to the applicant who, on 27 February 1995, filed an appeal on points of law (dovolání) with the Prague High Court (Vrchní soud), raising the question of the position of the Municipality as defendant. 13. On 17 December 1998 the Supreme Court, to which the applicant's case had been transferred for reasons of material competence on 2 January 1996, dismissed the applicant's appeal, endorsing the reasons given by the Regional Court.", "14. On 23 March 1999 the applicant lodged a constitutional appeal (ústavní stížnosti) claiming that the proceedings had been unreasonably long, and that her right to a fair and public hearing respecting the principle of equality of arms had been violated. 15. On 3 August 2000 the Constitutional Court (Ústavní soud) dismissed her appeal, stating inter alia that there had been no unjustified delays in the proceedings. It considered that any delay in the proceedings before the Supreme Court had been caused by the amendments to the Code of Civil Procedure (občanský soudní řád).", "The decision was notified to the applicant's lawyer on 14 August 2000. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS 16. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided 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...” 17. The Government contested that argument.", "18. The period to be taken into consideration began on 31 March 1992, when the applicant lodged an action with the Pelhřimov District Court and ended on 14 August 2000 when the Constitutional Court's decision was served on the applicant. The proceedings thus lasted eight years, four months and fourteen days. A. Admissibility 19. Under Article 35 § 1 of the Convention, the Court may only deal with a matter after all domestic remedies have been exhausted.", "20. The Government contended that the applicant had not exhausted available domestic remedies with regard to her complaint about the length of the proceedings. They submit that administrative hierarchical complaints about the length of proceedings may be lodged with the president of the competent court, with the president of the superior court or with the Ministry of Justice, and that this system, governed by Act no. 335/1991 which was, on 1st April 2002, replaced by Act no. 2/2002, is complemented by the possibility of constitutional appeals.", "21. The applicant disputed the Government's arguments. 22. The Court recalls that there was no effective remedy under the Czech law to complain about the length of civil proceedings (Hartman v. Czech Republic, no. 53341/99, § 84, ECHR 2003‑VIII (extracts)).", "It is true that in the present case the Government also referred to new Act no. 6/2002. However, the Court considers that this Act did not introduce a new system of administrative complaints against delays in proceedings, nor did it modify the previous one in a substantive manner. Therefore, the Court finds that it has not been established that the applicant had any effective remedy at her disposal which would have enabled her to submit her complaint under Article 6 § 1 of the Convention to the domestic authorities. Accordingly, the application cannot be declared inadmissible for non-exhaustion of domestic remedies.", "23. The Court finds that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further concludes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 24. The Government submitted that the present restitution case had been complex. The evidence had included an expert report, a number of witness statements and hearings, with one witness having to be interviewed by another court. The Government further submitted that the proceedings had been adjourned as the applicant had often adduced new evidence. Moreover, the appellate court had to examine the case file and order a hearing upon the applicant's appeal.", "Summarising the procedural steps undertaken by the national courts, the Government argued that the first and second instance courts had examined the applicant's case within a reasonable time. As far as the proceedings before the High Court and Supreme Court are concerned, they left the question open for the Court's assessment. 25. 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).", "26. The Court considers that even though the case involved a certain degree of complexity on account of the need for expert evidence and witness hearings, it cannot be said that this in itself justified the total length of the proceedings. 27. It also considers that the applicant's conduct, in particular the manner in which she exercised her procedural rights, did not substantially contribute to the length of the proceedings. 28.", "As regards the conduct of the authorities, the Court observes that there were periods of inactivity in the proceedings. In particular, there were two intervals of almost eight months (from 17 June 1992 to 9 February 1993 and from 10 December 1993 to 26 July 1994 - see paragraphs 7 and 9 above). The Court notes that the Regional Court needed more than two months to notify its judgment of 8 December 1994 to the applicant (paragraph 12 above). Furthermore, there was a significant delay of three years and more than nine months when the applicant's appeal on points of law was pending before the High Court and subsequently before the Supreme Court - from 27 February 1995 to 17 December 1998 (paragraphs 12-13 above). The Court also notes that the Constitutional Court was responsible for a delay of one year and more than four months in its examination of the applicant's appeal - between 23 March 1999 and 3 August 2000 (paragraphs 14-15 above).", "29. Consequently, having regard to the circumstances of the case and taking into account the overall duration of the proceedings, the Court finds that the “reasonable time” requirement laid down in Article 6 § 1 of the Convention was not complied with in the present case. 30. There has accordingly been a breach of Article 6 § 1. II.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS 31. The applicant alleged that her right to a fair hearing had been violated by the national courts, which had manipulated the merits of her action and not examined her request for the protection of her property right. Admissibility 32. The Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention.", "Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, e.g., García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). 33. The Court considers that there is nothing in the case file which indicates that the national courts, when dealing with the applicant's action, lacked impartiality or that the proceedings before it were otherwise unfair. The mere fact that the applicant is dissatisfied with the outcome of the litigation cannot of itself raise an arguable claim of a breach of Article 6 of the Convention.", "34. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 35.", "The applicant further complained that the domestic courts had violated her right to the peaceful enjoyment of her possessions, as guaranteed by Article 1 of Protocol No. 1, in that they decided that the defendant was not liable to be sued under the Extra-Judicial Rehabilitation Act. She maintained that she had never legally lost her property but that she was deprived of her right to use it. 36. The Government contested that argument.", "37. Article 1 of Protocol No. 1 provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Admissibility 38.", "The Court recalls that Article 1 of Protocol No. 1 applies only to existing possessions and does not guarantee a right to acquire property (see, e.g., Van der Mussele v. Belgium, judgment of 23 November 1983, Series A no. 70, p. 23, § 48). Accordingly, anyone who complains of an interference with one of his or her property rights must show that such a right existed. In accordance with the Court's practice, a conditional claim which lapses as a result of the non-fulfilment of a statutory condition cannot be considered a “possession” within the meaning of Article 1 of Protocol No.", "1 (see, e.g., Malhous v. the Czech Republic (dec.), no. 33071/96, ECHR 2000-XII). 39. In the present case, the Regional Court, for the reasons clearly set out in its decision of 8 December 1994 that the property in question could not be restored since one of the requirements laid down in the Extra-Judicial Rehabilitation Act was not met – held that the defendant had not owned the property on 1 April 1991, the date of the entry into force of the Act. The Supreme Court upheld this finding.", "The Court finds no indication that the conclusion of the national authorities was arbitrary or incompatible with the relevant provisions of Czech law. 40. In these circumstances, the Court concludes that the applicant's claim falls outside the scope of Article 1 of Protocol No. 1. 41.", "It follows that this complaint is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected in accordance with Article 35 § 4. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 42. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 43.", "The applicant initially claimed CZK 2,520,000 (EUR 79,121) as compensation for the lost possibility to use and loan the property at issue between 1 January 1994 and 31 December 2002. She modified her claim later, asking for CZK 100,800,000 (EUR 3,164,835) to cover the period from 1 April 1995 to 31 March 2000. 44. The Government submitted that no causal link had been shown between the facts of the case and the damage allegedly suffered by the applicant. 45.", "The Court considers, on the evidence before it, that the applicant has failed to demonstrate that the pecuniary damage claimed was actually caused by the violation of the Convention in her case. Consequently, there is no justification for making any award under that head (see, mutatis mutandis, Nowicka v. Poland, no. 30218/96, § 82, 3 December 2002, unreported). 46. The Court further considers that the applicant certainly suffered non-pecuniary damage, such as distress and frustration on account of the protracted length of the proceedings, which cannot be sufficiently compensated by finding a violation.", "Taking into account the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant a total sum of EUR 1,600 under that head. B. Costs and expenses 47. The applicants did not request the reimbursement of any costs and expenses in connection with the proceedings before the domestic courts and the Court. Therefore, no award is made under this head.", "C. Default interest 48. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the length of the proceedings 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 according to Article 44 § 2 of the Convention, EUR 1,600 (one thousand six hundred euros) in respect of non-pecuniary damage to be converted into the currency of the respondent State at the rate applicable on 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; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 26 October 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléA.B. BakaRegistrarPresident" ]
[ "FOURTH SECTION CASE OF BUCZKIEWICZ v. POLAND (Application no. 10446/03) JUDGMENT STRASBOURG 26 February 2008 FINAL 26/05/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Buczkiewicz v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Josep Casadevall,Stanislav Pavlovschi,Lech Garlicki,Ljiljana Mijović,Ján Šikuta,Päivi Hirvelä, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 29 January 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "10446/03) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Polish nationals, Ms Wanda Buczkiewicz and Mr Antoni Buczkiewicz (“the applicants”), on 14 March 2003 2. The applicants, who had been granted legal aid, were represented by Mr P. Sendecki, a lawyer practising in Lublin. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3. The applicants alleged that their right to the peaceful enjoyment of their possessions had been breached since the land which they owned had been designated for expropriation at some undetermined future date.", "Under domestic legislation they were not entitled to any compensation for the interference with their ownership rights resulting from the future expropriation. 4. On 20 October 2006 the President of the Fourth Section of the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicants’ legal predecessors owned a plot of land with a surface area of 3,625 sq. m. located in the municipality of Warszawa‑Włochy, listed in a land register under entry no. 29552. In 1993 the applicants inherited this property as co‑owners.", "The property was designated, by an administrative decision given on an undetermined date, apparently prior to 1993, for agricultural use. 6. By a letter of 30 October 1991 the first applicant was informed by the Warszawa‑Ochota Muncipal Office that the starting date for the development foreseen by the draft land development plan for the municipality had not yet been yet fixed, but that it was most likely that work would begin after 1995. 7. According to the relevant local development plan, which was adopted in 1992 and later amended in 1995, the entire property had been designated for construction of a major roadway, connecting the municipality with Warsaw, and various commercial buildings.", "As a result, the applicants could continue to use their property for gardening or agricultural purposes, but could not carry out any development. A number of owners lodged objections against this plan, which were ultimately dismissed by the Supreme Administrative Court. 8. In June 1992 the applicants requested the municipality to specify the use to which their property would be put under the land development plan and to indicate time‑limits for the works to begin. They also requested the municipality to acquire the property from them.", "This offer apparently remained unanswered. 9. On 13 May 1999 the applicants made an enquiry with the municipality as to the development plans in respect of their property. 10. In a reply of 14 June 1999 they were informed that their property remained covered by the development plan adopted in 1992 under which it was designated for construction of a roadway and for various commercial buildings.", "11. On 12 November 2001 the applicants renewed their request for the municipality to acquire their plot. This was refused on 21 December 2001. 12. On 27 December 2001 the applicants complained to the municipal authorities that the local land development plan had not been implemented and that no time‑frame for its implementation had been foreseen, even tentatively.", "As a result, they could not carry out any development of the property and had been left in a prolonged state of uncertainty as to its future fate. It could not be used for leisure purposes as it was situated in a rather unattractive area. They had been contacted by many potential buyers who, having learnt about the lack of possibilities to develop the land immediately, had lost interest in buying the property. Their requests that the municipality acquire their land had been unsuccessful. As a result of the legal situation of the property, their ownership had been stripped of all economic value.", "13. On 7 January 2002 the applicants were informed by the Municipal Office that their land would be acquired in the future by a company which would construct the roadway foreseen under the 1992 development plan. 14. On 11 April 2002 the applicants requested, for the first time, that an initial approval of a development project (decyzja o warunkach zabudowy) be issued for the construction of a small house on their land. 15.", "In a reply of 20 May 2002 the Warszawa‑Włochy Municipal Office informed them that such a decision could not be issued as it would not be compatible with the local land development plan adopted in 1992. 16. In a further letter of 2 August 2002 the Warszawa‑Włochy Municipal Office informed the applicants that the mere fact that their property had been foreseen for future expropriation for the purposes of the construction of the roadway did not entail for the municipality an obligation to acquire their land from them. Accordingly, there were no immediate plans to purchase the properties designated in the local development plan for the construction of the roadway. They were also informed that a new land development plan was being prepared by the municipality.", "17. On 27 March 2003 the applicants complained to the Supreme Administrative Court about the local administration’s failure to adopt a new land development plan. They referred to the restrictions which the 1992 plan imposed on the exercise of their ownership. 18. On 16 April 2003 the Supreme Administrative Court rejected their complaint, holding that a complaint against the administration’s failure to act could not be made in respect of proceedings concerning elaboration of local land development plans.", "19. On 31 December 2003 the relevant local development plan expired, pursuant to the Local Planning Act 2003 (see paragraph 23 below). Apparently to date no new land development plan has been adopted by the municipality. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "Changes in land development legislation during the period concerned 20. From 1984 to 1 January 1995 questions of land development were governed by the Local Planning Act of 12 July 1984. 21. On 7 July 1994 a new Local Planning Act was enacted. It entered into force on 1 January 1995.", "22. On 21 December 2001 Parliament passed a law amending the Local Planning Act 1994. 23. On 27 March 2003 a new Local Planning Act was enacted which repealed the 1994 Act. 24.", "Under the Local Planning Act of 12 July 1984 owners of properties to be expropriated in the future were not entitled to any form of compensation for damage resulting from restrictions on the use of their property or the reduction in its value originating in expropriations to be carried out at an undetermined future date. 25. Section 36 of the Local Planning Act enacted in 1994 created for local authorities a number of obligations towards owners whose properties were designated for expropriation at an undetermined future date under land development plans adopted by the competent municipal authorities. The municipalities were obliged to buy such property, replace it with other land within six months of an owner’s request, or provide compensation for the damage caused by the designation. 26.", "However, pursuant to section 68 § 1 of the Act, these obligations and the corresponding claims of the owners applied only to plans adopted after the Act had entered into force, i.e. to plans adopted by local municipalities after 1 January 1995. 27. Pursuant to the 1994 Act, plans adopted before its entry into force were to expire on 31 December 1999. 28.", "In 1999 an amendment to the 1994 Act was adopted under which the validity of such plans was extended for a further two years until 31 December 2001. Again, on 21 December 2001, Parliament passed a law amending the Local Planning Act 1994 which extended until the end of 2002 the validity of the land development plans adopted before 1 January 1995. 29. Under section 87 of the 2003 Act (see paragraph 23 above), all local plans adopted before 1 January 1995 remained valid, but not beyond 31 December 2003. 30.", "Compensation entitlements for owners, provided for by the 1994 Act (see paragraph 25 above), were in essence maintained by the 2003 Act. Pursuant to section 36 of that Act, when, following the adoption of a new local land development plan, the use of property in the manner provided for by a previous plan has become impossible or has been restricted, it is open to the owner to claim compensation from the municipality, or to request the municipality to buy the plot. Any litigation which may arise in this respect between municipalities and owners can be pursued before the civil courts. It would appear that the operation of section 36 is not retroactive, thus limiting the scope of any such claims to the period after the adoption of the 2003 Act. 31.", "Other relevant legislative provisions are extensively set out in the Court’s judgment of 14 November 2006 in the case of Skibińscy v. Poland (no. 52589/99, §§ 28‑53). B. Judgment of the Constitutional Court 32. In its judgment of 5 December 1995 (K 6/95), the Constitutional Court examined the request submitted to it by the Ombudsman to determine the compatibility with the Constitution of section 68 § 1 of the Land Planning Act 1994 insofar as it excluded the application of section 36 of that Act to land development plans adopted before 31 December 1994.", "The court referred to its established case-law to the effect that ownership could not be regarded as ius infinitivum. Consequently, its exercise was normally restrained by many legal and practical considerations, including the necessity of balancing the owners’ interests against those of other persons. Local land development plans were to be regarded only as a practical expression of restraints originating in numerous statutes regulating the lawful exercise of ownership. In particular, owners of properties “frozen” for the purpose of future expropriations as a result of the adoption of such plans could normally continue to use their properties as they had been using them prior to the adoption of such plans. This did not amount to such an interference with ownership that it could be regarded as being incompatible with the constitutional protection of ownership.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 33. The applicants complained that their right to the peaceful enjoyment of their possessions had been breached. They referred to Article 1 of Protocol No.", "1 Convention, which reads as follows: “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 1. Incompatibility ratione temporis with the provisions of the Convention 34. The Government submitted that the alleged violation of the applicants’ property rights had originated in the land development plan adopted in 1992.", "Moreover, the applicants’ land had already been designated for agricultural purposes before they acquired a legal title thereto in 1993. The application was therefore incompatible ratione temporis with the provisions of the Convention because the alleged violation had taken place before 10 October 1994, the date on which Poland had ratified Protocol No. 1 to the Convention. 35. The applicants disagreed.", "They argued that, in the context of a continuing violation of the right to the peaceful enjoyment of one’s possessions, the events which had taken place before the date of ratification of Protocol No. 1 to the Convention were to be taken into account as a background relevant to the assessment of the current situation. The applicants referred to the Court’s reasoning in a case in which it had held that legislation which had been adopted prior to the entry into force of Protocol No. 1 had created for the applicant a continuing situation in that it had determined her legal situation and that this legal situation remained in force after the ratification (Rudzińska v. Poland (dec.), no. 45223/99, 7 September 1999).", "In addition, the applicants referred to the Court’s judgment in the case of Rosiński v. Poland (no. 17373/02, 17 July 2007), concerning similar facts, where the Court had accepted that it had temporal jurisdiction. 36. The Court’s jurisdiction ratione temporis covers only the period after the date of ratification of the Convention and its Protocols by the respondent State. After ratification, the State’s acts must conform to the Convention or its Protocols and subsequent facts fall within the Court’s jurisdiction even where they are merely extensions of an already existing situation (see, for example, Almeida Garrett, Mascarenhas Falcão and Others v. Portugal, nos.", "29813/96 and 30229/96, § 43, ECHR 2000‑I). Accordingly, the Court is competent to examine the facts of the present case for their compatibility with the Convention only in so far as they occurred after 10 October 1994, the date of the ratification of Protocol No. 1 by Poland. It may, however, have regard to the facts prior to ratification inasmuch as they could be considered to have created a continuous situation extending beyond that date or may be relevant for the understanding of facts occurring after that date (see Hutten‑Czapska v. Poland [GC], no. 35014/97, §§ 147‑153, ECHR 2006‑...).", "37. The Court observes that the applicants’ complaint is not directed against a single measure or decision taken before, or even after, 10 October 1994. It rather refers to continuous restrictions imposed on the exercise of their ownership and arising from various legal measures, adopted both before and after that date (see paragraphs 20‑31 above). The Government’s plea of lack of jurisdiction ratione temporis must accordingly be rejected. 2.", "Incompatibility ratione materiae with the provisions of the Convention 38. The Government submitted that in 1993 the applicants had acquired agricultural land, with no construction rights. Hence, they could not have had any legitimate expectation that in the future they would be allowed to use it for construction purposes. They had never been deprived of such a right. Under Polish law the authorities could not be required to permit agricultural land to be designated for construction purposes.", "In the present case the applicants could have had no more than a mere hope that they would acquire such a right, but it could not be said that they had ever had a legitimate expectation to be able to build on their land. 39. The applicants disagreed and emphasised that as a result of the restrictions originating in the land development plan, seen as a whole, an effective exercise of their ownership, guaranteed by the applicable provisions of civil law, had been seriously limited. 40. The Court notes the Government’s argument that under applicable laws the applicants had no right to build on the land concerned.", "However, it observes that the essence of the applicants’ complaint relates to a set of de facto restrictions on the exercise of their ownership, with particular emphasis on the lack of any right to compensation for the future expropriation of their land (see paragraph 59 below), rather than on the mere impossibility to implement any construction projects which they might have had. The Court further notes that this state of affairs lasted for over eight years. It therefore rejects the Government’s objection. 3.Exhaustion of domestic remedies 41. The Government argued that if the applicants had considered that the provisions on which the domestic decisions in their case had been based were incompatible with the Constitution, it would have been open to them to challenge these provisions by lodging a constitutional complaint under Article 79 of the Constitution.", "They should have lodged such a complaint against a judgment of the administrative court which the applicants should have sought in order to have the local land development plan amended. 42. The Government further argued that the applicants should have lodged a civil action with a court, claiming damages against either the State Treasury or the municipality for the interference with their right to the peaceful enjoyment of their possessions. Had a civil court found against them, they could subsequently have lodged a constitutional complaint with the Constitutional Court. 43.", "The applicants disagreed. They submitted that they had tried to remedy their situation by submitting various requests to the municipality in 1992, 2001 and 2002. In April 2002 they requested to be granted building permission. In reply, the municipality informed them, by way of a letter, that such permission would have been incompatible with the land development plan. However, in the absence of a formal refusal in the form of an administrative decision, the applicants could not lodge a formal appeal and pursue their application before the Supreme Administrative Court and, ultimately, to the Constitutional Court.", "44. They further submitted that the provisions of civil law on civil liability of public authorities had not been applicable to their case. The Local Planning Act 1994 had expressly excluded civil liability of public authorities for claims originating from interferences with property rights in connection with future expropriations in the context of implementation of land development plans. They concluded that they had not had at their disposal any compensatory remedies that would have been available and offered reasonable prospects of success not only in theory, but also in practice. 45.", "The Court recalls that the object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address the allegation made of violation of a Convention right and, where appropriate, to afford redress before that allegation is submitted to the Court (Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI). The Court further reiterates that Article 35 of the Convention, which sets out the rule on exhaustion of domestic remedies, provides for a distribution of the burden of proof. It is incumbent on the Government claiming non‑exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V and Mifsud v. France (dec.) [GC], no.", "57220/00, ECHR 2002‑VIII). 46. The Court has already dealt with the question of the effectiveness of the Polish constitutional complaint (Szott-Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003; Wypych v. Poland (dec.), no. 2428/05, 25 October 2005).", "It examined its characteristics and in particular found that the constitutional complaint was an effective remedy for the purposes of Article 35 § 1 of the Convention in situations where the alleged violation of the Convention resulted from the direct application of a legal provision considered by the complainant to be unconstitutional. 47. However, in the instant case, the Court notes that the essence of the applicants’ complaint is that, as a result of the expropriation to be carried out at a future, undetermined date: - they were not entitled to compensation for the protracted period of uncertainty, which was twice extended by the legislator; - they were not entitled to obtain land to replace the plot designated for expropriation; - they were unable to oblige the municipality to acquire their property before the planned expropriation; and lastly - they were prevented from pursuing any development projects on that property. 48. The Court further notes that the provisions of the Local Planning Act 1994 were examined by the Constitutional Court in 1995.", "That court held that they were compatible with the obligation of the State to protect private property laid down in the Constitution of 1952 (see paragraph 32 above). 49. The Court observes that the applicants’ requests to have their property acquired by the municipality were refused, but only by informal letters (see paragraphs 14 and 15 above). Hence, the authorities did not issue binding administrative decisions against which the applicants could have appealed to the administrative court. It has not been shown or argued that the applicants could oblige them to do so.", "Therefore the Court is of the view that it has not been shown that in the circumstances of the case the way to the Constitutional Court was open to them. 50. Insofar as the Government argued that the applicants should have claimed compensation before a civil court, the Court observes that under the provisions of the Land Planning Act 1994 the liability of public authorities for any damage which might have its origin in expropriation planned in the future was excluded. Hence, this remedy did not offer any prospects of success. It further notes that the Government have not adduced any case‑law of the domestic courts which would have demonstrated that such a claim, in the circumstances arising against the background of the 1994 Act and the successive land planning legislation, offered any prospects of success.", "51. Having regard to the above, the Court dismisses the Government’s objection concerning domestic remedies. Furthermore, it 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 52. The Government first submitted that there had been no interference with the applicants’ right to the peaceful enjoyment of their possessions. The plot at issue had been designated for agricultural purposes before the applicants acquired it.", "They had never had an unconditional right or a legitimate expectation to be able to use their property for housing purposes. Even if there had been no public investment planned for their property, the applicants would not automatically have had the right to build on it, or to demand its designation for such purposes (Allan Jacobsson v. Sweden, no. 18/1987/141/195, 25 October 1989, § 60; Matti and Marianne Hiltunen against Finland (dec.), no. 30337/96, 28 September 1999). In 1993, when the applicants had inherited the land, the planned course of the new roadway had already been known.", "53. The Government argued that neither the provisions of Polish law nor of Protocol No. 1 imposed on the Polish authorities an obligation to change the character of the use of land by individual owners. Under Article 1 of Protocol No. 1, States had a right to enforce such laws as they deemed necessary to control the use of property in accordance with the general interest.", "The applicants had bought a property designated for agricultural use and should have been aware that their ownership right had not encompassed the right to build a house there. They had been entitled to use or dispose of their plot only within the limits prescribed by the law, the principles of reasonable social co‑operation and the socio-economic purpose of ownership. The applicants’ situation was therefore different from that in the case of Sporrong and Lönnroth v. Sweden (judgment of 23 September 1982, Series A no. 52, § 11) in which restrictions were imposed on property in the centre of the capital city. The applicants’ ownership had therefore not become precarious.", "54. The Government submitted that the measures complained of had pursued the legitimate aim of securing land for the implementation of the local development plan. The impugned measures had served the general interest as they had been intended to resolve the communication and environmental problems of the municipality. As the Court acknowledged on many occasions, such matters corresponded to the general interest of the community and the measures taken in the present case had been dictated by the difficult situation concerning the communications network in the municipality. 55.", "The Government argued that by adopting in 1994 the provisions of the Local Planning Act, insofar as it conferred on the owners to be expropriated in the future an entitlement to obtain compensation, the legislature had given the local authorities time to adjust land development plans to the new needs of the municipalities. However, the latter were not obliged to compensate individual owners for the consequences of local development plans adopted before 1989, when the transformation of the legal and economic system of the State had been undertaken. 56. The Government argued that the procedure for the adoption of the development plan had sufficiently involved the local community. All stages of the procedure had been public and the inhabitants of the municipality, including the applicants, had been able to comment on the draft plans.", "57. The Government were of the opinion that in the present case the individual burden imposed on the applicants had not been excessive. They had not been prevented from either selling or leasing their property. It had remained possible for them to continue using the property for agricultural purposes in the same way in which their parents had apparently been using it prior to the entry into force of the 1994 Act. Therefore the special compensatory entitlements provided for by that Act did not in any event apply to the applicants.", "Hence, the present case was different from the situation in which the Court had found a violation of Article 1 of Protocol No. 1 to the Convention in the case Immobiliare Saffi v. Italy ([GC], no. 22774/93, ECHR 1999‑V) as the applicants could fully enjoy their ownership rights. The authorities could not be held responsible for the fact that the value of the land had decreased as a result of the land development plan having been adopted in 1992. In any event, the property situated in the vicinity of an airport was not attractive to prospective buyers.", "The applicants had not shown that they had sought to lease the property to third parties or that they envisaged any other economically viable manner in which the property could be used until the expropriation. 58. The Government concluded that, in the circumstances of the case, a fair balance had been struck between the applicants’ individual rights on the one hand and the public interest of the local community on the other. 59. The applicants were of the view that the circumstances of the case amounted to a breach of their right to the peaceful enjoyment of their possessions.", "Their land had been designated for expropriation at an undetermined future date and this state of affairs had lasted for a long period of time, despite the fact that no funds had been available throughout this period to finance the planned investment. The public authorities, while they were obviously entitled to take appropriate measures to implement their spatial planning policies, should have also eliminated uncertainty concerning the future fate of the properties affected by such policies. The applicants stressed that uncertainty – whether originating from legislative or administrative sources or arising from practices applied by the authorities – is a factor to be taken into account in assessing the State’s conduct. Indeed, where an issue in the general interest is at stake, it is incumbent on the public authorities to act in good time and in an appropriate and consistent manner (see Vasilescu v. Romania, judgment of 22 May 1998, Reports of Judgments and Decisions 1998-III, p. 1078, § 51; Beyeler v. Italy [GC], no. 33202/96, §§ 110 in fine, 114 and 120 in fine, ECHR 2000‑I; Sovtransavto Holding v. Ukraine, no.", "48553/99, §§ 97‑98, ECHR 2002‑VII). 60. As a result of the authorities’ failure to address their situation correctly, they could not freely use their property for purposes other than agricultural and could not seek requalification of their land. Moreover, they had not been entitled to any compensation for this interference with their rights. The applicants referred to the Court’s finding of violations of Article 1 of Protocol No.", "1 made in the aforementioned case of Rosiński v. Poland. 2. The Court’s assessment (i) Whether there was interference with the peaceful enjoyment of “possessions” 61. The Court must first examine whether there was interference with the peaceful enjoyment of the applicants’ possessions. The Court observes that the applicants’ situation was affected by the local land development plan adopted by the municipality in 1992 because it provided for the future expropriation of their land.", "The Court emphasises that the applicants were affected not so much by the mere prospect of expropriation, but by the fact that this future expropriation was to be carried out at an undetermined date. 62. In that connection, the Court further observes that before the enactment of the Local Planning Act in 1994 the local authorities did not have any obligation to compensate owners of plots to be expropriated in the future. It was only by virtue of that Act that local authorities became obliged either to buy plots designated for future expropriation under local land development plans, or to replace those plots by other plots, or to award the owners compensation for damage caused by the fact that their plots were designated for future expropriation. However, the right to compensation applied only to plans adopted after the 1994 Act had entered into force.", "Consequently, they were not applicable to the applicants’ situation as the plan for the municipality had been adopted in 1992. 63. The Court notes the Government’s argument that these compensation entitlements were available only to persons who could show that the future expropriation affected the current use to which their property could be put. In the Government’s view, the applicants could not, in any event, avail themselves of such entitlements, because the future expropriation did not affect the agricultural use of the property concerned. However, the Court observes that, even assuming that this argument is correct, it is tantamount to acknowledging that the applicants did not have any entitlements to compensation for the future expropriation, either before the Local Planning Act 1994 was adopted, or afterwards.", "64. The Court further notes that the municipality repeatedly informed the applicants that it was not obliged to acquire their property which was to be expropriated in the future. 65. Consequently, the Court is of the view that the measures complained of, taken as a whole, in law left intact the applicants’ right to continue to use and dispose of their possessions. Nevertheless, in practice, they significantly reduced the practical and effective exercise of that right.", "The Court considers that the prospect of the future expropriation could negatively affect the market value of the property. It also notes that it is reasonable to accept that a request to have the land reclassified so that it could be used for construction purposes was, in these circumstances, bound to fail. Likewise, the applicants could not reasonably expect that any development projects on their property would be accepted by the municipality. Their property rights thus became precarious (mutatis mutandis, Sporrong and Lönnroth v. Sweden, cited above, §§ 58-60; Skibińscy v. Poland, no. 52589/99, 14 November 2006, § 79; Skrzyński v. Poland, no.", "38672/02, 6 September 2007, § 74, Rosiński v. Poland, cited above, § 72). The Court therefore concludes that there was indeed an interference with the peaceful enjoyment of the applicants’ possessions. The Court further considers that the measures complained of did not amount to expropriation. Likewise, they cannot be regarded as a control of use of property. Accordingly, the interference falls to be examined under the first sentence of Article 1 of Protocol No.", "1 (cf. James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, pp. 29‑30, § 37; see also, among many other authorities, Belvedere Alberghiera S.r.l. v. Italy, no.", "31524/96, § 51, ECHR 2000‑VI). (ii) Whether the interference was “provided for by law” 66. The Court notes that it is not in dispute between the parties that the interference with the applicants’ property rights was based on the Local Planning Act 1994 and subsequent legislation. The interference complained of was therefore “provided by law” within the meaning of Article 1 of Protocol No. 1 to the Convention (see the aforementioned Skibińscy v. Poland judgment, § 84).", "(iii) Whether the interference was “in the general interest” 67. Any interference with a right of property can only be justified if it serves a legitimate public (or general) interest. The Court reiterates that, because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to decide what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures interfering with the peaceful enjoyment of possessions (see Terazzi S.r.l. v. Italy, no.", "27265/95, § 85, 17 October 2002; Elia S.r.l. v. Italy, no. 37710/97, § 77, ECHR 2001‑IX). 68. In the present case the Court accepts that, already in 1994, the measures complained of pursued the legitimate aim of securing land in connection with the implementation of the local development plan.", "This corresponds to the general interest of the community (see, mutatis mutandis, Cooperativa La Laurentina v. Italy, no. 23529/94, § 94, 2 August 2001; Bahia Nova S.A. (dec.), no. 50924/99, 12 December 2000; Chapman v. the United Kingdom, no. 27238/95, § 82, ECHR 2001‑I). (iv) Proportionality of the interference 69.", "The Court must next examine whether an interference with the peaceful enjoyment of possessions strikes the requisite fair balance between the demands of the general interest of the public and the requirements of the protection of the individual’s fundamental rights, or whether it imposes a disproportionate and excessive burden on the applicant (see, among many other authorities, Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 93, ECHR 2005‑VI). 70. The Court considers that, in the area of land development and town planning, the Contracting States should enjoy a wide margin of appreciation in order to implement their policies (see Terazzi S.r.l. and Elia S.r.l., cited above).", "Nevertheless, in the exercise of its power of review, the Court must determine whether the requisite balance was maintained in a manner consonant with the applicant’s right to property (see, mutatis mutandis, Sporrong and Lönnroth, cited above, § 69). 71. In that connection, the Court first observes that in 1992 the municipality adopted the land development plan. Under this plan, the applicants’ property was designated for future expropriation with a view to the construction of a road. However, that plan did not have any timeframe for its implementation.", "As a result, the applicants were threatened with expropriation at an undetermined point in time. In addition, they did not have any effective entitlement to compensation in the meantime. The Court emphasises that this situation lasted for a long period: from 1992 when the plan was adopted until 31 December 2003, when this plan eventually expired under the provisions of the Local Planning Act 2003. 72. The Court observes that the successive amendments to the Local Planning Act 1994 had a double effect: they extended the validity of the local plan and also prolonged the period during which owners to be expropriated in the future could not claim any compensation from the municipality.", "73. In this connection, the Court notes the Government’s argument that the provisions of the 1994 Act were intended to improve the situation of owners, because it introduced for them a right to compensation which had not previously existed. They also pointed out the temporary nature of the prolongations. However, the Court cannot overlook the fact that, although the legislature introduced compensatory provisions into the law, at the same time it excluded their application in respect of plans adopted before 1 January 1995. Moreover, this situation was prolonged three times, for an overall period of nine years.", "Consequently, until July 2003, the date of entry into force of the Local Planning Act 2003, the applicant could not make any claim for compensation against the municipality. 74. The Court notes that compensation claims of owners who were affected by future expropriations can be pursued before civil courts. However, this provision is only applicable to situations arising after the 2003 Act had entered into force in respect of new local land development plans. It has not been argued or shown that the 2003 Act, or any other legislation, provides for any retroactive right to compensation for the prejudice suffered by the applicants before its entry into force, as a result of the restrictions originating in earlier development plans.", "Consequently, even assuming that the provisions on compensation contained in this Act were applicable to the applicants’ situation (an assumption which the Government, in any event, refute; see paragraph 63 above), the entry into force of the 2003 Act did not alter their situation. 75. The Court notes the Government’s argument that, by adopting such provisions, the legislature had given the local authorities time to adjust land development plans to the new needs of the municipalities. The Court is aware that the problems arising from the enactment of a comprehensive legal framework in the area of urban planning constitute part of the process of transition from a socialist legal order and its property regime to one compatible with the rule of law and the market economy – a process which, by the very nature of things, is fraught with difficulties. However, these difficulties and the enormity of the tasks facing legislators having to deal with all the complex issues involved in such a transition do not exempt the Contracting States from the obligations stemming from the Convention or its Protocols (see Schirmer v. Poland, no.", "68880/01, 21 September 2004, § 38). 76. Finally, the Court notes that the applicants’ request for an initial approval of a development project was refused in 2001 (see paragraphs 14‑15 above). In the refusal the authorities essentially referred to the provisions of the development plan. However, when the applicants requested that approval, there were no sound grounds on which to believe that the land development plan adopted in 1992 would be implemented promptly.", "As a result, the de facto blocking of any construction on the property did not serve any immediate or medium-term purpose in the interests of the community. 77. In the Court’s view, given that it was uncertain when the land development plan adopted in 1992 would be implemented, and in the absence of any reasonable timeframe, this state of affairs, seen as a whole, failed to strike the requisite fair balance between the competing general and individual interests. Consequently, the applicants were required to bear an excessive individual burden (see Skibińscy v. Poland, cited above, § 97; Skrzyński v. Poland, cited above, § 91, Rosiński v. Poland, cited above, § 88). There has accordingly been a violation of Article 1 of Protocol No.", "1 to the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 78. 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 79.", "The applicants claimed 100,000 (PLN) in respect of pecuniary and non-pecuniary damage which they had sustained as a result of the violation of their rights. 80. The Government argued that the applicants’ claim was exorbitant. 81. As regards pecuniary damage, the Court observes that the applicants have not quantified their claims.", "Accordingly, the Court considers that there is no call to award the applicants any sum on that account. At the same time, the Court accepts that the applicants suffered some distress as a result of the violations found and therefore awards to the applicants jointly EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 82. The applicants did not submit any claims in this respect.", "The Court, accordingly, makes no award under this head. C. Default interest 83. 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 1 of Protocol No. 1 to the Convention; 3. Holds (a) that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros) 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, 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; 4. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 26 February 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Lawrence EarlyNicolas BratzaRegistrarPresident" ]
[ "THIRD SECTION CASE OF SHEPEL v. RUSSIA (Application no. 44815/10) JUDGMENT STRASBOURG 24 May 2016 This judgment is final but it may be subject to editorial revision. In the case of Shepel v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helena Jäderblom, President,Dmitry Dedov,Branko Lubarda, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 3 May 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 44815/10) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vladimir Gennadyevich Shepel (“the applicant”), on 15 July 2010.", "2. The applicant was represented by Mr S. Uvarov, a lawyer practising in Yaroslavl. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3. On 1 October 2014 the complaint concerning the length of pre-trial detention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of the Court.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1968 and, prior to his conviction, lived in Yaroslavl. 5. On 15 April 2008 the applicant was arrested on suspicion of fraud.", "Subsequently, he was charged with fraud, attempted fraud, embezzlement, tax evasion and a breach of duties in his work as a tax agent. 6. On 16 April 2008 the Kirovskiy District Court of Yaroslavl remanded the applicant in custody pending investigation. The judge found that (1) the applicant was suspected of serious crimes, (2) he might abscond, (3) he might put pressure on witnesses, or (4) he might interfere with the investigation. 7.", "On 25 April 2008 the Yaroslavl Regional Court upheld the detention order of 16 April 2008 on appeal. 8. The applicant remained in detention pending investigation and trial. The courts extended his detention, using the same stereotyped formula as described above. 9.", "On 16 March 2009 he was committed for trial before the Kirovskiy District Court of Yaroslavl. 10. On 27 October 2009 he was convicted of the charges and sentenced to seven years’ imprisonment. 11. On 29 December 2009 the Yaroslavl Regional Court quashed the judgment on appeal and remitted the case to the first-instance court for a fresh examination.", "12. On 25 January 2010 the trial court ordered his release on bail. 13. On 27 January 2010 the bail was paid and the applicant was released. 14.", "On 20 July 2010 the applicant was convicted of fraud and attempted fraud and sentenced to five years and six months’ imprisonment. 15. On 19 October 2010 the Yaroslavl Regional Court upheld the judgment on appeal. II. PROCEEDINGS BEFORE THE COURT 16.", "On 2 December 2014 the Government submitted a unilateral declaration. They acknowledged that the applicant had been detained “between 15 April 2008 and 27 October 2009 ... without relevant and sufficient grounds”, in breach of the requirements of Article 5 § 3 of the Convention. They offered to pay him a sum of 1,850 euros (EUR) as just satisfaction and invited the Court to strike the case out of its list of cases. 17. On 2 February 2015 the applicant replied that he had taken note of the Government’s acknowledgment of the violation, but that the amount of compensation was not acceptable to him.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 18. The applicant complained that the duration of his pre-trial detention had been excessive and therefore in breach of Article 5 § 3 of the Convention, which reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Scope of the complaint 19.", "Having regard to the provisions contained in the unilateral declaration submitted by the Government, the Court considers it necessary to determine the scope of the applicant’s complaint at the outset. 20. The Court reiterates that, generally speaking, when determining the length of detention pending trial under Article 5 § 3 of the Convention, the period to be taken into consideration begins on the day the accused is taken into custody and ends on the day when the charge is determined, even if only by a court of first instance, or, possibly, when the applicant is released from custody pending criminal proceedings against him (see Labita v. Italy [GC], no. 26772/95, §§ 145-47, ECHR 2000‑IV, and Idalov v. Russia [GC], no. 5826/03, § 112, 22 May 2012).", "21. In the present case, the applicant’s pre-trial detention began at the date when he was arrested, namely, on 15 April 2008. He was detained for the purpose of Article 5 § 3 until his conviction by the Kirovskiy District Court of Yaroslavl on 27 October 2009. He was then placed in pre-trial detention again on 29 December 2009 when the Yaroslavl Regional Court quashed his conviction. He was detained till 27 January 2010 when he was released (see Solmaz v. Turkey, no.", "27561/02, §§ 34-37, 16 January 2007). Thus, the applicant was in pre-trial detention for one year, seven months and eleven days. B. The Government’s request for the case to be struck out under Article 37 of the Convention 22. Having studied the terms of the Government’s declaration of 2 December 2014, the Court is satisfied that the Government have acknowledged a violation of the applicant’s right to release pending trial under Article 5 § 3 of the Convention and have also offered to pay compensation.", "23. The Court observes, however, that the Government submitted a declaration which only covered part of the period of the applicant’s pre-trial detention, namely, the period from 15 April 2008 to 27 October 2009, and did not acknowledge the violation of Article 5 § 3 of the Convention with regard to the period of pre-trial detention from 29 December 2009 to 27 January 2010. Without prejudging its decision on the admissibility and merits of the case, the Court considers, in such circumstances, that the Government’s declaration does not provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the case (see Sorokin v. Russia, no. 67482/10, § 21, 10 October 2013, and Kalınin v. Russia, no. 54749/12, § 23, 19 February 2015).", "24. That being so, the Court rejects the Government’s request to strike the application out of its list of cases under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case. C. Admissibility 25. The Court considers that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. D. Merits 26. The Court has already, on a large number of occasions, examined applications against Russia raising similar complaints under Article 5 § 3 of the Convention and found a violation of that Article on the grounds that the domestic courts extended an applicant’s detention, relying essentially on the gravity of the charges and using stereotyped formulae without addressing his or her specific situation or considering alternative preventive measures (see, among many other examples, Valeriy Samoylov v. Russia, no. 57541/09, 24 January 2012; Romanova v. Russia, no. 23215/02, 11 October 2011; Sutyagin v. Russia, no.", "30024/02, 3 May 2011; Logvinenko v. Russia, no. 44511/04, 17 June 2010; Gultyayeva v. Russia, no. 67413/01, 1 April 2010; Makarenko v. Russia, no. 5962/03, 22 December 2009; Lamazhyk v. Russia, no. 20571/04, 30 July 2009; Belov v. Russia, no.", "22053/02, 3 July 2008; and Shukhardin v. Russia, no. 65734/01, 28 June 2007). Similar considerations apply in the circumstances of the present case, in which the domestic courts failed to consider any alternative to a custodial preventive measure and in which the Government acknowledged the absence of relevant and sufficient reasons for keeping the applicant in custody during the initial one and a half years of his detention. 27. There has accordingly been a violation of Article 5 § 3 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28. 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 29. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.", "30. The Government offered in their unilateral declaration EUR 1,850 in respect of pecuniary and non-pecuniary damage as well as costs and expenses. 31. The Court awards the applicant EUR 2,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable. B.", "Costs and expenses 32. The applicant did not make any claim under this head. C. Default interest 33. 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.", "Rejects the Government’s request to strike the application out of its list of cases under Article 37 of the Convention; 2. Declares the application admissible; 3. Holds that there has been a violation of Article 5 § 3 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date of the judgment, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 24 May 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsHelena JäderblomRegistrarPresident" ]
[ "THIRD SECTION CASE OF YUSHIN AND OTHERS v. RUSSIA (Application no. 2403/06 and 7 others - see appended list) JUDGMENT STRASBOURG 8 February 2018 This judgment is final but it may be subject to editorial revision. In the case of Yushin and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Luis López Guerra, President,Dmitry Dedov,Jolien Schukking, judges,and Liv Tigerstedt Acting Deputy Section Registrar, Having deliberated in private on 18 January 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the non-enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law.", "THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 6.", "The applicants complained of the non-enforcement or delayed enforcement of domestic decisions given in their favour and of the lack of any effective remedy in domestic law. They relied, expressly or in substance, on Article 6 § 1 and Article 13 of the Convention and on Article 1 of Protocol No. 1, which read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... 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.” 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.” 7. The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “hearing” for the purposes of Article 6. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v. Greece, no. 18357/91, § 40, Reports of Judgments and Decisions 1997‑II). 8.", "In the leading case of Gerasimov and Others v. Russia, no. 29920/05 and 10 others, 1 July 2014, the Court already found a violation in respect of issues similar to those in the present case. 9. Having regard to the nature of the judicial awards in the applicants’ favour (see the appended table for details of court orders), the Court considers that the applicants had, by virtue of these judgments, a “legitimate expectation” to acquire a pecuniary asset, which was sufficiently established to constitute a “possession” within the meaning of Article 1 of Protocol No. 1.", "10. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the authorities did not deploy all necessary efforts to enforce fully and in due time the decisions in the applicants’ favour. 11. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1 to the Convention. 12. The applicants also complained under Article 13 of the Convention about the lack of an effective domestic remedy in respect of the non‑enforcement. The Court has already noted the existence of a new domestic remedy against the non-enforcement of domestic judgments imposing obligations of a pecuniary and non-pecuniary nature on the Russian authorities, introduced in the wake of the pilot judgment, which enables those concerned to seek compensation for damage sustained as a result of excessive delays in the enforcement of court judgments (see Kamneva and Others v. Russia (dec.), no. 35555/05 and 6 others, 2 May 2017).", "Even though the remedy was – or still is – available to the applicants, the Court reiterates that it would be unfair to request the applicants whose cases have already been pending for many years in the domestic system and who have come to seek relief at the Court, to bring again their claims before domestic tribunals (see Gerasimov and Others, cited above, § 230). 13. However, in the light of the adoption of the new domestic remedy, the Court, as in its previous decisions, considers that it is not necessary to examine separately the admissibility and merits of the applicants’ complaint under Article 13 in the present cases (see, for a similar approach, Kamneva and Others, cited above, and, mutatis mutandis, Tkhyegepso and Others v. Russia, no. 44387/04 and 11 others, §§ 21-24, 25 October 2011). This ruling is without prejudice to the Court’s future assessment of the new remedy.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 14. 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.” 15. The Court notes that the applicants did not submit any claims for just satisfaction in due time. It therefore does not find it necessary to make any award.", "At the same time it observes that the respondent State has an outstanding obligation to enforce the judgments which remain enforceable. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the complaints concerning the non-enforcement or delayed enforcement of domestic decisions admissible; 3. Holds that these complaints disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1 to the Convention concerning the non-enforcement or delayed enforcement of domestic decisions; 4. Decides that it is not necessary to examine the admissibility and merits of the applicants’ complaint under Article 13 of the Convention; 5. Holds that the respondent State shall ensure, by appropriate means, within three months, the enforcement of the pending domestic decisions referred to in the appended table. Done in English, and notified in writing on 8 February 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtLuis López Guerra Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 6 § 1 and Article 13 of the Convention and Article 1 of the Protocol No.", "1 (non-enforcement or delayed enforcement of domestic decisions and lack of any effective remedy in domestic law) No. Application no.Date of introduction Applicant name Date of birth Relevant domestic decision Start date of non-enforcement period End date of non-enforcement period Length of enforcement proceedings Domestic order 2403/06 03/11/2005 Nikolay Ivanovich Yushin 01/09/1934 Arsenyevsk Town Court of the Primorye Region, 20/07/2000 28/08/2000 pending More than 17 years and 1 day “To oblige the local council ... within a year to carry out works for evacuation of rain water and prevention of flooding of the land plot of [the applicant]” 44360/07 18/09/2007 Household Roman Vladimirovich Gunin 25/09/1980 Irina Vasilyevna Gunina 17/08/1945 The Justice of the Peace of the 2nd Court Circuit of the Oktyabrskiy District of Ivanovo, 30/05/2006 16/11/2006 27/10/2009 2 years and 11 months and 12 days “... to oblige MPZhKh of Ivanovo to replace the lining and to plaster the ... room, to reinforce and to plaster the wall between the kitchen and toilet in apartment 162 building 47, prospect Lenina... to order MPZhKh of Ivanovo to pay [the applicants] 500 Russian roubles of non-pecuniary damage ...” 34128/09 04/06/2009 Luiza Akhtyamovna Bakhtizina 02/06/1939 Vakhitovskiy District Court of Kazan, 05/09/1995 05/05/1998 pending More than 19 years and 3 months and 24 days to perform repair works in the applicant’s apartment 56597/12 13/08/2012 (5 applicants) Household Yelena Borisovna Aleshina 20/08/1976 Boris Nikolayevich Aleshin 14/09/2002 Dmitriy Nikolayevich Aleshin 07/01/1999 Ilya Nikolayevich Aleshin 06/07/1997 Anastasiya Nikolayevna Aleshina 02/07/2008 Yakutsk Town Court, 12/04/2006 22/04/2006 pending More than 11 years and 4 months and 7 days “...the Ministry of Youth Policy and ... ZhSK ‘Molodezhnye zhilye kompleksy’ should put [the applicants] on the list of the subprogramme ‘Provision of housing for young families’ ...” 63752/12 18/09/2012 Pavel Valeryevich Stsepuro 08/07/1975 Ustin Valeryevich Stsepuro 22/05/1977 Yakutsk Town Court, 21/11/2005 26/12/2005 24/07/2015 9 years and 7 months and 2 days to provide with housing 78214/13 14/11/2013 Sergey Ivanovich Davydov-Orlov 22/11/1960 Oktyabrskiy District Court of Tomsk, 09/11/2012 14/05/2013 pending More than 4 years and 3 months and 15 days “... the Administration of Tomsk to provide [the applicant] with [residential room] after his eviction from [previous address] ... ” 2844/14 28/12/2013 Lyudmila Grigoryevna Firsova 30/10/1946 Simonovskiy District Court of Moscow, 22/04/2011 20/02/2012 pending More than 5 years and 6 months and 9 days “... to return a metallic tent [belonging to the applicant] to its previous location” 40484/14 12/05/2014 Arina Nikolayevna Pulkina 22/12/1969 Kondopoga Town Court of the Republic of Karelia, 03/10/2012 25/01/2013 pending More than 4 years and 7 months and 4 days “... the Administration of Kondopoga to carry out reparation works in the [applicant’s] block of flats, in particular of the roof, isolation, water supply, and sewerage system, by 01/07/2013 ... ”" ]
[ "FOURTH SECTION CASE OF TRUHLI v. CROATIA (Application no. 45424/99) JUDGMENT STRASBOURG 28 June 2001 FINAL 12/12/2001 This judgment will become final in the circumstances set out in Article 44 § 2. In the case of Truhli v. Croatia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: MrG. Ress, President,MrA. Pastor Ridruejo,MrI.", "Cabral Barreto,MrV. Butkevych,MrsN. Vajić,MrJ. Hedigan,MrM. Pellonpää,and Mr V. Berger, Section Registrar, Having deliberated in private on 12 December 2000 and on 7 June 2001, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1.", "The case originated in an application (no. 45424/99) against the Republic of Croatia 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 Croatian national, Mr Nikola Truhli (“the applicant”), on 25 September 1998. 2. The applicant, who had been granted legal aid, was represented by Boro Radić, a lawyer practisig in Zagreb (Croatia). The Croatian Government (“the Government”) were represented by their Agent, Ms Lidija Lukina-Karajković.", "3. The applicant alleged that the Constitutional Court’s decision to terminate the proceedings concerning his constitutional claim challenging the constitutionality of the laws that served as a basis for a decrease of his military pension violated his right of access to a court. 4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No.", "11). 5. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. 6.", "By a decision of 12 December 2000, the Chamber declared the application partly admissible. 7. The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine), the parties replied in writing to each other’s observations. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 8. The applicant served in the Yugoslav People’s Army (hereinafter the “YPA”) and retired from service in 1987. His military pension was assessed according to his rank and years of service and was paid from the Federal Pension Fund in Belgrade. The payments terminated in December 1991, following the dissolution of the Socialist Federal Republic of Yugoslavia. 9.", "Three separate proceedings subsequently dealt with the decrease of the applicant’s military pension. 10. Firstly, on 12 December 1992, the Croatian Social Security Fund, Pula Office, assessed the applicant’s pension, as from 1 October 1992, to 63,22% of the amount he had received until 31 December 1991. The applicant appealed against that decision and, after his appeal was dismissed, instituted administrative proceedings with the Administrative Court (Upravni sud Republike Hrvatske) which dismissed the applicant’s claim on 19 May 1993. 11.", "On 7 February 1994 the applicant lodged a constitutional complaint claiming that the decisions of the administrative bodies and the Administrative Court to decrease the amount of his pension violated his constitutional rights. He alleged specifically that the decision to decrease his military pension was not based on legal grounds. 12. On 7 April 1999 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint concerning the lower bodies’ decisions to reduce his pension. It stated that these decisions were based on the laws that prescribed that the pensions of the former YPA officers would be assessed in the amount of 63,22 % of what they had received in December 1991.", "13. Secondly, on 29 April 1993, the applicant lodged a constitutional claim challenging the constitutionality of the Decree regulating the pension rights of the former YPA officers whose service in the YPA terminated prior to 31 December 1991 (Uredba o ostvarivanju prava iz mirovniskog i invalidskog osiguranja osoba kojima je prestalo svojstvo aktivne vojne osobe u bivšoj JNA do 31. prosinca 1991 - Official Gazette 46/92 and 71/92). He alleged specifically that his constitutional rights were violated insofar as his pension had been drastically decreased. 14. On 18 October 1993 the Croatian Parliament passed the Act on regulation of pensions of the former YPA officers that, inter alia, reiterated that the amount of the former YPA officers’ pensions was to be 63,22 % of what they had received in December 1991 (Zakon o ostvarivanju prava iz mirovinskog i invalidskog osiguranja pripadnika bivše JNA - Official Gazette 96/93).", "15. On 4 February 1998 the Constitutional Court terminated the proceedings concerning the applicant’s constitutional claim of 29 April 1993 due to the fact that the above legislation had entered into force. 16. Thirdly, on 10 November 1993 the applicant lodged a constitutional complaint against the Act of 18 October 1993, challenging the constitutionality of that Act as a whole. 17.", "As of 1 January 1999 new legislation entered into force regulating the pension rights of all Croatian citizens (Zakon o mirovinskom osiguranju – Official Gazette 102/98). 18. Consequently, on 20 January 1999 the Constitutional Court terminated the proceedings regarding the applicant’s constitutional claim of 10 November 1993. II. RELEVANT DOMESTIC LAW A.", "The 1991 Constitutional Act on the Constitutional Court (hereinafter the “1991 Constitutional Court Act” - Ustavni zakon o Ustavnom sudu, Official Gazette 13/91) 19. The relevant provisions of the 1991 Constitutional Court Act read as follows: Section 15 “Every person has a right to institute proceedings challenging the constitutionality of the laws...” Section 23 § 2 “Each person whose rights have been violated by a decision based on the legislation declared unconstitutional or unlawful may ask the body that took the decision to vary it...” Section 27 “The Constitutional Court shall terminate proceedings concerning the constitutionality of legislation that has been repealed or brought into line with the Constitution and statute law while those proceedings are pending before the Constitutional Court.” Section 28 § 1 “Every person, who considers that any of his constitutional right has been violated by a decision of judicial or administrative body or any other body invested with public authority, may lodge a constitutional complaint with the Constitutional Court.” Section 30 “By a decision adopting a constitutional complaint the Constitutional Court quashes the contested decision and remits a case for re-trial.” B. The 1999 Constitutional Act on the Constitutional Court (hereinafter the “1999 Constitutional Court Act”) 20. The relevant provisions of the 1999 Constitutional Court Act read as follows: Section 55 § 1 “The Constitutional Court shall decide upon the constitutionality of the contested legislation even in cases where that legislation is repealed or amended while the proceedings are pending before the Constitutional Court.” Section 55 § 2 “When the Constitutional Court declares the legislation contemplated in § 1 unconstitutional or unlawful, each person whose rights have been violated by a decision based on that legislation may ask the body that took the decision to vary it.” THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 21. The applicant complains that he was denied effective access to a court in breach of 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 ... hearing within a reasonable time by [a] ... tribunal...” 22.", "The applicant complains that the Constitutional Court failed to decide his claim challenging the constitutionality of the Act of 18 October 1993 regulating the decrease of his military pension. He contends that the Constitutional Court, thus, violated his right of access to a court. 23. According to the Government the issue concerned in the proceedings terminated by the Constitutional Court’s decision of 20 January 1999 were not the applicant’s constitutional rights and freedoms, but an abstract review of the constitutionality of the contested Act. However, as the new legislation regulating pension rights of all Croatian citizens, including the former YPA officers, entered into force on 1 January 1999, the Constitutional Court, pursuant to Section 27 of the 1991 Constitutional Court Act had no other choice but to terminate those proceedings.", "24. They further contend that the alleged violation of the applicant’s individual rights and freedoms was examined by the Constitutional Court in the proceedings concerning the applicant’s constitutional complaint of 7 February 1994. In respect of those proceedings the Constitutional Court, by its decision of 7 April 1999, dismissed the applicant’s complaint as it assessed that his constitutional rights and freedoms were not violated by the lower bodies’ decisions to decrease his pension. 25. The Court reiterates that in the determination of civil rights and obligations the right to a court, of which the right of access is one aspect (see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no.", "18, p. 18, § 36), is not absolute; it may be subject to limitations (see the Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93, pp. 24–25, § 57). However, these limitations must not restrict the exercise of the right in such a way or to such an extent that the very essence of the right is impaired. They must pursue a legitimate aim and there must be a reasonable proportionality between the means employed and the aim sought to be achieved (see, among other authorities, the Fayed v. the United Kingdom judgment of 21 September 1994, Series A no.", "294‑B, pp. 49–50, § 65; the Bellet v. France judgment of 4 December 1995, Series A no. 333‑B, p. 41, § 31; and the Levages Prestations Services v. France judgment of 23 October 1996, Reports of Judgments and Decisions 1996‑V, p. 1543, § 40). 26. In the present case the Court notes that the applicant disagrees in substance with the authorities decisions to decrease his military pension and in order to settle that dispute the Court finds that Croatian law undoubtedly afforded the applicant the possibility of bringing judicial proceedings.", "He availed himself of that possibility by lodging an application with the Administrative Court, thus contesting the lower bodies’ decisions to decrease his military pension. After this recourse showed to be unsuccessful for the applicant, he had two possibilities to pursue his case - by bringing a constitutional complaint alleging that his constitutional rights were violated by the lower bodies’ decisions, or by bringing a constitutional claim challenging the constitutionality of the laws that had served as a basis for decisions decreasing his military pension. The applicant used both. 27. It is not for the Court to assess the ways and means by which the Constitutional Court may examine a case.", "It will confine itself to examining the specific issue before it and observes in this respect that although the Constitutional Court terminated, on 7 February 1998 and on 20 January 1999, the proceedings concerning the applicant’s constitutional claims, due to the enactment of new legislation, it decided on the applicant’s individual constitutional complaint on 7 April 1999. In the proceedings which led to this decision the applicant alleged that his constitutional rights had been violated by the Administrative Court’s decision of 19 May 1993 upholding the lower bodies’ decision to decrease his pension. On 7 April 1999 the Constitutional Court dismissed the applicant’s complaint stating that the applicant’s constitutional rights had not been violated. 28. In these circumstances the Court finds that the applicant had access to a court as secured by Article 6 of the Convention for the determination of the civil rights and obligations involving him.", "Furthermore, the fact that the Constitutional Court decided prior to its decision of 7 April 1999 to terminate other proceedings due to the fact that the contested legislation was no longer in force does not restrict the exercise of this right in such a way or to such an extent that the very essence of the right was impaired. FOR THESE REASONS, THE COURT UNANIMOUSLY Holds that there has been no violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 28 June 2001, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerGeorg RessRegistrarPresident" ]
[ "THIRD SECTION CASE OF STERE AND OTHERS v. ROMANIA (Application no. 25632/02) JUDGMENT STRASBOURG 23 February 2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Stere and Others v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President,MrJ.", "Hedigan,MrL. Caflisch,MrC. Bîrsan,MrsA. Gyulumyan,MrsR. Jaeger,MrE.", "Myjer, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 2 February 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 25632/02) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Romanian nationals, Mr Mihail Stere, Mr Romeo Stoica and Mr Emil Marin Enache (“the applicants”), on 21 June 2002. 2. The applicants, who had been granted legal aid, were represented by Mrs Adnana Calugar, a lawyer practising in Alba Iulia.", "The Romanian Government (“the Government”) were represented by their Agent, Mrs R. Rizoiu, and subsequently Mrs B. Rămăşcanu, of the Ministry of Foreign Affairs. 3. On 14 December 2004 the Court (Third Section) decided to communicate the application to the Government. Under Article 29 § 3 it decided to examine the admissibility of the application and the merits of the case at the same time. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1960, 1956 and 1948 respectively and live in Alba Iulia. 5. In connection with the restructuring of the armed forces, which had begun in 1995, a number of legislative measures were passed with a view to encouraging professional soldiers to apply for reassignment to the reserve force and thereby to take early retirement. 6.", "In addition to their retirement pension, section 7 of Government Ordinance no. 7 of 26 January 1998 (“Ordinance no. 7/1998”) granted those concerned a tax-free “income replacement allowance” calculated in relation to their gross monthly pay. Under section 31 (1) of Law no. 138 of 20 July 1999 (“Law no.", "138/1999”), they were additionally entitled to a tax-free “maintenance allowance”, also calculated in relation to their gross monthly pay. The method of calculating those allowances was amended by Government Emergency Ordinance no. 136 of 14 September 2000 (“Ordinance no. 136/2000”), which provided that the net monthly pay would be used as the basis of calculation. 7.", "At their request, the applicants were assigned to the reserve force and thereby took early retirement, on 31 March 2000 for the first and third, and on 31 May 2000 for the second, with entitlements to the above-mentioned pension and allowances. However, when those sums were paid out, the Ministry of Defence deducted income tax, calculated in accordance with Ordinance no. 73 of 27 August 1999 concerning income tax (“Ordinance no. 73/1999”), thereby depriving the first applicant of 85,804,572 Romanian lei (ROL), the second of ROL 77,945,656 and the third of ROL 59,605,499. 8.", "In an action against the Ministry of Defence, the applicants claimed the reimbursement of those sums, which they alleged had been wrongfully deducted, on the ground that their allowances were exempt from tax under Ordinance no. 7/1998 and Law no. 138/1999. The Ministry disputed their claim, contending that the taxation in question was consistent with Ordinance no. 73/1999.", "9. In a judgment of 11 January 2001 the Alba Iulia Court of First Instance allowed the applicants’ action and ordered the Ministry to reimburse the amounts deducted for tax. The court considered that on the date of their retirement, that is to say some time before the entry into force of Ordinance no. 136/2000, the applicants had acquired an entitlement to tax-free allowances calculated in relation to their gross monthly pay. Moreover, the court observed that section 5 of Ordinance no.", "73/1999 provided that maintenance allowances were likewise tax exempt. 10. The Ministry of Defence appealed, arguing that the tax exemption provision in respect of the income replacement allowance, under section 7 of Ordinance no. 7/1998, had been expressly repealed by section 86 of Ordinance no. 73/1999, which had also implicitly abolished the exemption in respect of maintenance allowances under section 31 (1) of Law no.", "138/1999. 11. In a final decision of 27 March 2001 the Alba County Court upheld the merits of the judgment at first instance on the following grounds: “Even assuming, purely for the sake of argument, that the provisions of section 7 of Ordinance no. 7/1998 had been repealed, those of section 31 (1) of Law no. 138/1999 – which also provide for tax exemption and for the calculation [of the allowance] in relation to gross monthly pay – would remain as a legal basis.", "The Ministry contends that the provision in question was implicitly repealed, but that view has not been substantiated, because Ordinance no. 73/1999 post-dates Law no. 138/1999 and if the legislature had wished to repeal the section in question, nothing would have prevented it from making express provision to that effect, as was the case for other legislative instruments referred to in section 86 of Ordinance no. 73/1999. ...", "In any event, a Government Ordinance, being of secondary legislative importance in relation to statute law, cannot repeal a statute. In addition, the Ministry wrongly contends that Ordinance no. 73/1999 constitutes a lex specialis in relation to Ordinance no. 7/1998 and to Law no. 138/1999.", "In actual fact, Ordinance no. 73/1999 is the framework instrument concerning taxation, and, in relation to the other two instruments mentioned above, which grant tax relief to a specific category of employees, it lays down the ordinary rules from which the special provisions of those instruments derogate. Moreover, section 6 of Ordinance no. 73/1999 states that income replacement allowances and maintenance allowances, such as those concerned in the present case, are exempt from income tax, thus indicating the legislature’s intention that they should not be taxable. The provisions of Ordinance no.", "136/2000 to the effect that the allowance is calculated in relation to net pay do not apply in the case of the applicants, who retired before the entry into force of the Ordinance, which does not have retrospective effect ... The possibility of discrimination [between servicemen who retired after the entry into force of Ordinance no. 136/2000, whose allowances were calculated in relation to net pay, and those who retired before that date, who were entitled to allowances based on gross pay] is not left to the discretion of the employer or of the courts, but is a matter for the legislature, which should have taken this into account and found an appropriate solution in the course of the legislative process, by means of precise and specific regulatory provisions. Accordingly, neither an employer nor a court can substitute itself for the legislature in harmonising the various provisions which have come into force at different times but which concern situations that are similar, although they arose, changed or ceased to exist under different statutes.” 12. The court also considered that the two allowances in issue could not be characterised as a “salary” or “income treated as a salary” for the purposes of sections 22 and 23 of Ordinance no.", "73/1999, especially as they were not included among the forms of taxable income referred to in section 4 of that Ordinance. Lastly, the court looked at the practice of other courts in similar disputes and found that it supported the claims of the former servicemen. 13. As the judgment of 11 January 2001 had become res judicata and had been endorsed with a writ of execution, the applicants received, on an unspecified date, the amounts they had claimed. 14.", "On 11 September 2001 the Procurator-General of Romania applied to the Supreme Court of Justice to have the 11 January 2001 judgment of the Alba Iulia Court of First Instance and the 27 March 2001 decision of the Alba County Court quashed. 15. He considered that in construing domestic law the two courts had committed serious errors of law which had vitiated the settlement of the dispute. He argued that section 86 of Ordinance no. 73/1999 had superseded the provisions of section 7 of Ordinance no.", "7/1998 and section 31 of Law no. 138/1999, and added that under sections 4 and 23 of Ordinance no. 73/1999 the allowances and other entitlements of military personnel were treated as salaries and were therefore liable to the taxation provided for in that Ordinance. 16. The applicants sought the dismissal of the Procurator-General’s application to have the judgments quashed, disputing his arguments that the above-mentioned provisions had been superseded and that the allowances were treated as salaries.", "They argued that, in any event, even assuming that the allowances could have been treated as salaries, they should not have been liable to tax, since section 6 (f) of Ordinance no. 73/1999 exempted from tax any allowances that were calculated in relation to net monthly pay. Moreover, under section 24 (2) of that Ordinance, net earnings were not defined as gross earnings minus tax but as gross earnings minus social-insurance contributions. Accordingly, they considered that the Ministry of Defence had wrongly deducted tax from their allowances. 17.", "In a judgment of 30 January 2002 the Supreme Court of Justice allowed the Procurator-General’s application, quashed the impugned judgments and ordered the reimbursement of the sums that the Ministry of Defence had paid to the applicants on the basis of those judgments. The relevant passage of the decision provided: “Whilst section 31 of Law no. 138/1999 provides that, upon their reassignment to the reserve force, servicemen benefit from a tax-free maintenance allowance, calculated in relation to their gross monthly pay, that provision must be read in the light of the provisions of section 5 of Government Ordinance no. 73/1999 and of the Government Order [no. 1066 of 29 December 1999 – “Order no.", "1066/1999”], which, whilst providing that income from maintenance allowances is exempt from tax, specify which forms of income are included in that category and exclude any salaries or income treated as such. Considering that Law no. 138/1999 pertains precisely to salaries and entitlements relating to the status of Ministry of Defence employee, it is clear that the grant of a maintenance allowance under section 31 of the above-mentioned Law stems from employee status, and that such allowances are accordingly liable to tax, in accordance with Ordinance no. 73/1999. That conclusion is confirmed by Government Order no.", "1066/1999 which, referring to section 5 of Ordinance no. 73/1999, specifies what forms of income are exempt from tax, among them maintenance allowances. It can be seen from the enumeration in that provision that the maintenance allowances contemplated in Ordinance no. 73/1999 are confined to those granted for special purposes, such as maintenance allowances for soldiers’ spouses, welfare benefits, emergency relief granted by the State or local councils in cases of hardship, funeral grants, etc. The above-mentioned provision makes no reference to maintenance allowances paid to servicemen upon their reassignment to the reserve force and calculated in relation to their gross monthly pay.", "Consequently, since such allowances are comparable to a salary and are calculated on the basis of gross monthly pay, they are taxable like any gross income. In addition, section 86 of Ordinance no. 73/1999 expressly provides that any provision contrary to that Ordinance is superseded, thereby confirming once again that the legislature’s intention was to render such income taxable. As regards the income replacement allowances granted to the applicants under section 7 of Ordinance no. 7/1998, being tax-exempt and likewise calculated in relation to gross monthly pay, it should be noted that section 86 of Ordinance no.", "73/1999 expressly superseded that provision as regards the tax exemption of such income. Accordingly, the applicants are also liable for tax on such income. Furthermore, it is to be observed that section 6 (f) of Ordinance no. 73/1999 exempts from income tax only those income replacement allowances and maintenance allowances that are calculated in relation to net monthly pay, whereas the allowances granted to the applicants were calculated in relation to their gross monthly pay. It follows that this income was also taxable.” 18.", "As the authorities failed to bring any action for the enforcement of the judgment of the Supreme Court of Justice, the applicants have not, to date, reimbursed the disputed amounts. II. RELEVANT DOMESTIC LAW A. Code of Civil Procedure 19. Article 330 of the Code of Civil Procedure provided: Article 330 “The Procurator-General may, of his own motion or on an application by the Minister of Justice, apply to the Supreme Court of Justice for any final judicial decision to be quashed on any of the following grounds: 1. that the court in question has exceeded its jurisdiction; 2. that the decision concerned by the application has seriously breached the law, leading to erroneous findings on the merits of the case, or that the decision is ill-founded.” This Article was repealed by Government Emergency Ordinance no.", "58 of 25 June 2003. B. Government Ordinance no. 7 of 26 January 1998 on certain measures of social protection for the benefit of military and civilian personnel during the restructuring of the armed forces 20. The relevant provisions read as follows: Section 6 “During the restructuring of the armed forces, officers, non-commissioned officers and instructors [having completed at least 20 years of service] may request to be reassigned to the reserve force, before reaching the statutory age-limit, with a military pension entitlement ...” Section 7 “Military personnel reassigned to the reserve force who are entitled to a military pension ... shall receive, in return for their service in the armed forces, the compensation provided for in the statutory provisions on remuneration of military personnel.", "Moreover, for each remaining year of service until the age of fifty-five, they shall be entitled to a tax-free income replacement allowance of which the amount shall be double that of their last gross monthly pay.” Section 8 “Military personnel having completed less than twenty years of service may request to be reassigned to the reserve force or may be assigned thereto automatically ... and shall receive a tax-free income replacement allowance, calculated on the basis of their length of service and their last gross monthly pay.” C. Law no. 138 of 20 July 1999 on the remuneration and other entitlements of military and civilian personnel in the armed forces 21. Section 31 of Law no. 138 provides: Section 31 “Military personnel reassigned to the reserve force who are entitled to a military pension, ... shall receive a tax-free maintenance allowance calculated according to their length of service ... and their last gross monthly pay ... Military personnel reassigned to the reserve force, with a military pension entitlement, before reaching the statutory age-limit, shall also receive, for each remaining year of service until that age, a tax-free maintenance allowance of which the amount shall be double that of their last gross monthly pay. The provisions of the second paragraph shall not apply to military personnel receiving the income replacement allowance provided for by Ordinance no.", "7/1998.” D. Government Ordinance no. 73 of 27 August 1999 on income tax (entered into force on 1 January 2000) 22. The relevant provisions read as follows: Section 4 “The category of taxable income shall consist of income from self-employment, rent from property, salaries, interest, dividends and other income.” Section 5 “The following shall not be considered taxable income and shall not be liable to taxation: (a) maintenance allowances, grants and other forms of benefit for special purposes, being paid from the State budget, the social insurance fund, special funds, local councils, other public funds or third-party sources ...” Section 6 (f) “The following shall be considered tax-free income: ... sums constituting income replacement allowances calculated on the basis of net monthly pay and granted to military personnel assigned to the reserve force in connection with the restructuring of the armed forces, and maintenance allowances calculated on the basis of net monthly pay and granted to military personnel assigned to the reserve force with or without a pension entitlement”. Section 22 “A salary shall be defined as any income in money or in kind received by an individual who pursues an activity under a contract of employment, regardless of the term of the contract, the designation given to the income or the means of payment ...” Section 23 (b) “The following shall be treated as salaries for tax purposes: monthly pay, allowances, bonuses, subsidies and other statutory entitlements of armed-forces personnel.” Section 24 (2) “The net amount of taxable salaries shall be calculated by subtracting the following from the gross amount ...: (a) statutory contributions to supplementary pension, unemployment benefit and medical insurance funds; (b) a 15% deduction in respect of professional expenses ....” Section 86 “The present Ordinance, upon its entry into force, shall supersede ... the provisions on tax exemption in respect of the income replacement allowances provided for in section 7 and section 8 (1) of Ordinance no. 7/1998 ..., together with any other provisions that may be incompatible.” E. Government Order no.", "1066 of 29 December 1999 (published in the Official Gazette of 5 January 2000) on the implementation of Ordinance no. 73/1999 23. The Order in question provides: “Tax-free income [for the purposes of section 5 (a) of Ordinance no. 73/1999] shall include: ... maintenance allowances for soldiers’ spouses, welfare benefits, emergency relief granted by the State or local councils in cases of hardship, unemployment benefit, professional reintegration allowances, funeral grants, humanitarian, medical or social relief ...” F. Government Emergency Ordinance no. 136 of 14 September 2000 on the calculation of income replacement and maintenance allowances paid to military personnel 24.", "The relevant provisions read as follows: Section 1 “The amount of the income replacement allowance provided for in sections 7, 8 and 11 of Ordinance no. 7/1998 ... and that of the maintenance allowance provided for in section 31 and section 32 (1) of Law no. 138/1999 shall be calculated on the basis of net monthly pay.” Section 2 “The amount of the net monthly pay shall be calculated by subtracting the statutory monthly tax from the amount of the gross monthly pay in respect of the last month of service. The amount of the monthly tax shall be calculated as provided in Ordinance no. 73/1999 on income tax”.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 25. The applicants complained of a lack of independence and impartiality on the part of the Supreme Court of Justice and alleged that the Procurator-General’s application to have judgments quashed had been allowed because of pressure from the Finance and Defence Ministries. They relied on Article 6 § 1 of the Convention, which provides: “.... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal ...” 26. The Government argued that Article 6 was not applicable to the proceedings in issue since they concerned taxation (see Ferrazzini v. Italy [GC], no.", "44759/98, §§ 21-30, ECHR 2001‑VII). 27. The applicants made no observations under that head. 28. The Court reiterates that tax disputes fall outside the scope of civil rights and obligations, despite the pecuniary effects which they necessarily produce for the taxpayer (see Ferrazzini, cited above, §§ 29-31).", "29. In the present case, the Court finds that, even though the dispute was referred to the civil courts it concerned the tax liability attaching to the applicants’ allowances. The applicants were thus disputing tax liabilities. 30. Accordingly, having regard to the circumstances of the case, the Court considers that the subject of the dispute was essentially a matter of public law and more specifically tax litigation (see, mutatis mutandis, Cabinet Diot and S.A. Gras Savoye v. France (dec.), nos.", "49217/99 and 49218/99, 3 September 2002). 31. Moreover, the Court does not consider the proceedings to have any “criminal connotation” (contrast Bendenoun v. France, judgment of 24 February 1994, Series A no. 284, p. 20, § 47). 32.", "Accordingly, Article 6 § 1 of the Convention is inapplicable in the present case. 33. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.1 34.", "The applicants complained of interference with their right to the peaceful enjoyment of their possessions on account of the obligation to repay the amounts they had received by virtue of a decision that had become res judicata. They relied on Article 1 of Protocol No. 1, which provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 35.", "The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It moreover considers that no other ground for declaring it inadmissible has been established and therefore declares it admissible. B. Merits 36. The Government acknowledged that in accordance with the final decision of the Alba County Court of 27 March 2001 the applicants had a right to payment from the State and that the annulment of this obligation by the Supreme Court of Justice had interfered with the applicants’ right to the peaceful enjoyment of their possessions.", "37. The Government considered that the interference amounted to a control of the use of property to secure the payment of taxes, that it thus fell under the second paragraph of Article 1 of Protocol No. 1 and that it was compatible with that Article in so far as the measure was lawful and proportionate to the legitimate aim pursued. 38. As regards the principle of lawfulness, the Government submitted that the interference was based on the provisions of Government Ordinance no.", "73/1999, as interpreted by the Supreme Court of Justice in exercising its discretion and applying domestic law. 39. Concerning the “fair balance” to be struck between the demands of the general interest and the protection of the applicants’ fundamental rights, the Government alleged that the obligation to pay a tax retrospectively, by virtue of a judicial decision, amounted to the retrospective application of tax legislation, which was not proscribed per se by Article 1 of Protocol No. 1 (see, mutatis mutandis, Di Belmonte (no 2) v. Italy (dec.), no. 72665/01, 3 June 2004, and M.A.", "and Others v. Finland (dec), no. 27793/95, 10 June 2003). 40. The Government also considered that the obligation to pay a tax corresponding to some 40% of the amount of the allowances did not, in the circumstances of the case, constitute an excessive burden for the applicants. In this connection, it asserted that the allowances represented neither a form of remuneration for the applicants’ work nor a social-security entitlement, but rather an incentive grant by the State to encourage military personnel to take early retirement and to help them return to civilian life.", "41. The applicants argued that the Supreme Court of Justice had interpreted the provisions of Ordinance no. 73/1999 incorrectly and that the taxation of their allowances had had no legal basis. They maintained that they had been deprived of their right to receive payment, which they had acquired lawfully by virtue of a final judicial decision. 42.", "The Court first notes that it is not in dispute that, by virtue of a final decision of 27 March 2001, the applicants had a claim against the State that was sufficiently established to be enforceable. The Ministry of Defence, moreover, paid them the amounts owed and they had peaceful enjoyment of those amounts until the Supreme Court of Justice ordered their reimbursement in a judgment of 30 January 2002. That judgment therefore constituted interference with the applicants’ right to receive such payment and, accordingly, with their right to the peaceful enjoyment of their possessions. 43. Concerning the applicable rule under Article 1 of Protocol No.", "1, the Court reiterates that this Article comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third rule, contained in the second paragraph, recognises that the Contracting States are entitled to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. 44.", "The Court observes that the applicants complained of being deprived of their right to payment, within the meaning of the second sentence of the first paragraph of Article 1. It is true that interference with the exercise of rights deriving from claims against the State can be regarded as constituting such a deprivation of property (see Pressos Compania Naviera S.A. and Others v. Belgium, judgment of 20 November 1995, Series A no. 332, p. 22, § 34). However, as regards the levy of a tax, the most natural approach is to examine the complaints from the perspective of a control of the use of property in the general interest “to secure the payment of taxes”, as contemplated by the rule in the second paragraph of Article 1 (see National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, judgment of 23 October 1997, Reports of Judgments and Decisions 1997‑VII, p. 2353, § 79). 45.", "However, the three above-mentioned rules are not “distinct” in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and are therefore to be construed in the light of the general principle enunciated in the first rule (see, among many other authorities, Gasus Dosier- und Fördertechnik GmbH v. the Netherlands, judgment of 23 February 1995, Series A no. 306‑B, pp. 46-47, § 55). 46. The Court reiterates that Article 1 of Protocol No.", "1 requires, above all, that any interference by public authorities with the right to the peaceful enjoyment of one’s possessions must be lawful. The second paragraph recognises the right of States to control the use of property by enforcing “laws”. In exercising its supervisory jurisdiction, the Court has the power, albeit limited, to review compliance with domestic law (see, for example, Håkansson and Sturesson v. Sweden, judgment of 21 February 1990, Series A no. 171‑A, p. 16, § 47). 47.", "In the present case, it finds that the parties took diverging positions. The Government considered that the provisions of Ordinance no. 73/1999, as interpreted by the Supreme Court of Justice, constituted the legal basis for the interference. The applicants alleged, for their part, that the interpretation given by the Supreme Court was erroneous. 48.", "The Court observes that the applicants submitted identical arguments to those on which they had relied in the Supreme Court of Justice, which dismissed the arguments in its judgment of 30 January 2002. On that point, the Court notes that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see, mutatis mutandis, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I). 49. Having regard to the above-mentioned judgment of the Supreme Court of Justice, which found that the provisions of section 31 of Law no.", "138/1999 and section 7 of Ordinance no. 7/1998, concerning the tax exemption of the allowances in question, had been superseded, the Court considers that the interference was provided for by law – in this case by Ordinance no. 73/1999 – as required by Article 1 of Protocol No. 1. 50.", "The Court must also establish whether a “fair balance” was struck between the demands of the general interest and the requirements of the protection of the individual’s fundamental rights. The concern to achieve this balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole, including therefore the second sentence. There must accordingly be a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see the Building Societies judgment, cited above, pp. 2353-54, § 80).", "51. Moreover, in determining whether that requirement is met, it has been recognised that a Contracting State, not least when framing and implementing policy in the area of taxation, enjoys a wide margin of appreciation (see, among many other authorities, Gasus Dosier- und Fördertechnik GmbH, cited above, pp. 48-49, § 60). 52. However, the Court notes that in the present case the applicants were ordered to reimburse amounts which had been lawfully paid to them after being recognised as due debts in a final decision that had become res judicata.", "53. In this connection it should be recalled that the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see Broniowski v. Poland [GC], no. 31443/96, § 147, ECHR 2004‑V). It presupposes respect for the principle of legal certainty, particularly as regards judicial decisions that have become res judicata. No party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case (see, for example, Sovtransavto Holding v. Ukraine, no.", "48553/99, § 72, ECHR 2002‑VII, and Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003‑IX). Were that not the case, the reversal of final decisions would result in a general climate of legal uncertainty, reducing public confidence in the judicial system and consequently in the rule of law. 54. Admittedly, the retrospective application of tax legislation is not proscribed per se by Article 1 of Protocol No.", "1 (see Di Belmonte (no. 2) and M.A. and Others, both cited above). However, the Court notes that the present case does not concern the retrospective application of tax legislation but the quashing of a final decision which had become res judicata and had established the applicants’ right to payment from the State. 55.", "Having regard to the fact that the intervention of the Procurator-General after the end of the proceedings – to which he had not been a party – led to the total annulment of that entitlement, the Court considers that such serious interference with the rights of the applicants upset, to their detriment, the fair balance that must be struck between the protection of property and the requirements of the general interest (see, mutatis mutandis, S.A. Dangeville v. France, no. 36677/97, § 61, ECHR 2002‑III, and Kliafas and Others v. Greece, no. 66810/01, § 30, 8 July 2004). 56. Notwithstanding the wide powers of the State in the field of taxation, the exercise of those powers, in the circumstances of the case, infringed the principles of legal certainty and the rule of law.", "57. Accordingly, there has been a violation of Article 1 of Protocol No. 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 58.", "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 59. The applicants each claimed 10,000 euros (EUR) in respect of the non-pecuniary damage caused to them by the interference with the peaceful enjoyment of their possessions. 60. The Government made no observations under that head.", "61. The Court considers that the applicants sustained indisputable non-pecuniary damage as a result of being ordered to reimburse the amounts in issue. 62. Having regard to the circumstances of the case, and ruling on an equitable basis as required by Article 41, the Court awards EUR 1,000 to each of the applicants under this head. B.", "Costs and expenses 63. The applicants claimed EUR 1,200 for the costs and expenses they had incurred in the domestic proceedings. 64. The Government made no observations under that head. 65.", "In accordance with the Court’s case-law, an award can be made to an applicant in respect of costs and expenses only in so far as they have been actually and necessarily incurred and are reasonable as to quantum. In the present case, having regard to the fact that the applicants failed to produce any supporting documents, the Court dismisses the claim for costs and expenses in respect of the domestic proceedings. C. Default interest 66. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaint under Article 1 of Protocol No. 1 admissible, and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 1 of Protocol No. 1; 3. Holds (a) that the respondent State is to pay each of the applicants, within three months from the date on which the judgment becomes final in accordance with 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; (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; 4.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in French, and notified in writing on 23 February 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerBoštjan M. ZupančičRegistrarPresident" ]
[ "THIRD SECTION CASE OF NICOLAE CONSTANTINESCU v. ROMANIA (Application no. 10277/04) JUDGMENT STRASBOURG 30 September 2008 FINAL 30/12/2008 This judgment may be subject to editorial revision. In the case of Nicolae Constantinescu v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Corneliu Bîrsan,Boštjan M. Zupančič,Alvina Gyulumyan,Egbert Myjer,Ineta Ziemele,Ann Power, judges,and Stanley Naismith, Deputy Section Registrar, Having deliberated in private on 9 September 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 10277/04) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Nicolae Constantinescu (“the applicant”), on 9 February 2004.", "The applicant died on 30 March 2005. However, his widow, Ms Floarea Constantinescu, and his daughter, Ms Silvia Surcel, expressed their wish to pursue the application. For practical reasons Mr Nicolae Constantinescu will continue to be called “the applicant” in this judgment, although Ms Floarea Constantinescu and Ms Silvia Surcel are now to be regarded as such (Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999‑VI). 2.", "The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu. 3. On 3 May 2007 the Court 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 THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1929 and lived in Sopot. 5. On 8 March 1994 the applicant, together with four relatives, lodged a civil action claiming restitutio in integrum of a mill, the property of their parents, which had been taken by the State in 1948. 6. Of the twenty-two hearings held between 6 April 1994 and 12 January 1996, five were adjourned at the applicant’s request.", "7. On 9 February 1996 the Craiova Court of First Instance (“the Court of First Instance”) rejected the action, considering that the mill had been nationalised in accordance with the law and that therefore the applicant and his relatives had no right of property. 8. The applicant and his relatives appealed. Of the twenty-four hearings held between 23 August 1996 and 14 May 1998 one was adjourned at the applicant’s request.", "9. On 21 May 1998 the Dolj Regional Court (“the Regional Court”), taking into account the expert’s report produced during the appeal, dismissed the appeal as being groundless. 10. On 1 February 1999 the Craiova Court of Appeal (“the Court of Appeal”) by a final decision upheld the findings of the lower courts, considering that the nationalisation had been lawful. 11.", "The applicant and his relatives made use of extraordinary remedies and on 12 May 1999 the Court of Appeal allowed the application to set aside the final decision of 1 February 1999, quashed the previous judgments and sent the case back for fresh examination. The court noted that under Government Ordinance no. 447/1997 the Ministry of Finance should have been summoned to appear in the proceedings as the State’s representative. 12. During the retrial, of the twenty-five hearings held between 26 August 1999 and 21 January 2002 two were adjourned at the applicant’s request.", "On 8 September 2000 the Court of First Instance held that it had no jurisdiction ratione materiae, considering the case to be within the competence of the Regional Court. On 14 December 2000 the Regional Court also refused to exercise jurisdiction. Following the dispute as to jurisdiction, the Court of Appeal decided on 12 June 2001 that it was the Court of First Instance which had jurisdiction ratione materiae. 13. On 28 January 2002 the Court of First Instance, having regard to the two experts’ reports and to the witnesses produced during the retrial, upheld in part the action lodged by the applicant and his relatives, considering that the legal requirements for nationalisation had not been fulfilled and therefore the State had no valid title.", "The court granted restitutio in integrum in respect of the mill and of the appurtenant land. 14. The defendant party appealed. Of the eleven hearings held between 10 May 2002 and 14 February 2003 none was adjourned as a result of requests by the applicant. A new expert’s report was produced.", "15. On 21 February 2003 the Regional Court allowed the appeal by the defendant and rejected on the merits the action lodged by the applicant and his relatives, considering that the nationalisation had been lawful. That decision was upheld on 7 October 2003 by a final decision of the Court of Appeal. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 16.", "The applicant complained that the length of the 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...” 17. The Government contested that argument considering that the case had been particularly complex because of the participation of six parties in the proceedings and the need to produce four experts’ reports. 18. The period to be taken into consideration began on 20 June 1994, when Romania ratified the Convention. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of the proceedings at the time.", "The period in question ended on 7 October 2003. It thus lasted nine years, three months and seventeen days for three levels of jurisdiction. Seven courts examined the case during this period. A. Admissibility 19. 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 20. 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). 21. 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). 22. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.", "Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 23. The applicant complained under Article 6 § 1 of the Convention of an unfair trial.", "He also complained under Article 1 of Protocol No. 1 in respect of the nationalisation of 1948 and as regards the courts’ refusal to grant restitutio in integrum of the mill and of the land appurtenant to it. 24. Having carefully considered the applicant’s submissions in the light of all the material in its possession, the Court finds that, in so far 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 or its Protocols. 25.", "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. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 26. 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 27.", "The applicant’s successors claimed around 271,000 euros (EUR) in respect of pecuniary damage, representing EUR 80,000-90,000 for the value of the mill, EUR 131,000 for the value of the tools inside the mill and EUR 50,000 for the loss of profit over fourteen years. They also claimed EUR 5,000 in respect of non-pecuniary damage, out of which EUR 2,000 represented the cost of the applicant’s funeral. However, they asked the Court to determine the amount of compensation in respect of pecuniary and non-pecuniary damage. 28. The Government contested these claims.", "29. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it considers that the applicant must have sustained non-pecuniary damage in respect of the violation found. Ruling on an equitable basis, the Court awards a total sum of EUR 2,600 under that head to be paid jointly to the applicant’s successors. B.", "Costs and expenses 30. The applicant’s successors sought reimbursement of the costs and expenses incurred in the proceedings in the national courts and before the Court, and quantified them only as regards the amount of EUR 142 for each expert report, between EUR 80 and 120 for lawyers’ fees and EUR 280 for sundry expenses. They did not provide any supporting documents, submitting that they had no receipts. 31. The Government contested the claim as being unsubstantiated.", "32. The Court reiterates that under Article 41 of the Convention it will reimburse only the costs and expenses that are shown to have been actually and necessarily incurred and are reasonable as to quantum (see Arvelakis v. Greece, no. 41354/98, § 34, 12 April 2001). Furthermore, Rule 60 § 2 of the Rules of Court provides that itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part. 33.", "The Court notes that the applicant’s successors did not submit any supporting documents or particulars to substantiate their claim. Accordingly, the Court does not award any sum under this head. C. Default interest 34. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaint concerning the excessive length of the proceedings 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 jointly to the applicant’s successors, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,600 (two thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 30 September 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stanley NaismithJosep CasadevallDeputy RegistrarPresident" ]
[ "FIFTH SECTION CASE OF SLYUSAR v. UKRAINE (Application no. 34361/06) JUDGMENT STRASBOURG 8 March 2012 FINAL 08/06/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Slyusar v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President,Elisabet Fura,Karel Jungwiert,Boštjan M. Zupančič,Mark Villiger,Ganna Yudkivska,Angelika Nußberger, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 14 February 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "34361/06) 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 Dmytro Sergiyovych Slyusar (“the applicant”), on 1 August 2006. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Ms Valeria Lutkovska. 3. The applicant alleged that the principle of equality of arms had not been respected in the proceedings brought by him concerning the lawfulness of his detention.", "4. On 2 November 2010 the application was communicated to the Government. It was also decided to rule on its admissibility and merits at the same time (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1981 and lives in Hurstville, Australia. 6. On 24 February 2006 the applicant, who lived in Ukraine at the time, was detained by the Kyiv police on suspicion of murder. On 27 February 2006 he was released. 7.", "On 1 March 2006 the applicant complained to the Pecherskyy District Court of Kyiv (“the Pecherskyy Court”) that his detention had been unlawful. 8. On 20 March 2006 the Pecherskyy Court rejected his complaint. Its ruling was delivered following a hearing with the participation of the applicant and his lawyer on one side and the prosecutor on the other. The prosecutor advocated rejecting the complaint on the ground that the applicant’s detention had been in compliance with the criminal procedural legislation.", "9. The applicant appealed. 10. On 17 April 2006 the Kyiv City Court of Appeal informed him that the hearing in his case would take place on 8 June 2006. 11.", "However, when the applicant appeared in court on that date, he found out that the hearing had already been conducted, on 18 May 2006, and that his appeal had been rejected. As noted in the appellate court’s ruling of 18 May 2006, the prosecutor had been present and had pleaded the case. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 12. The applicant complained that his appeal in the proceedings concerning the lawfulness of his detention had been considered in his absence, whereas the prosecutor had been in attendance.", "He relied on Articles 5 § 4 and 6 § 1 of the Convention which read as follows in their relevant part: “Article 5 § 4 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. ... Article 6 § 1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...” A. Admissibility 13. The Court notes at the outset that the proceedings in question were conducted after the applicant’s release, which means that Article 5 § 4 was no longer applicable (see Reinprecht v. Austria, no. 67175/01, § 51, ECHR 2005‑XII).", "This circumstance in itself is however not an obstacle to the examination of the application under Article 6 § 1 of the Convention also relied on by the applicant (see Lazoroski v. “the former Yugoslav Republic of Macedonia”, no. 4922/04, § 66, 8 October 2009). 14. The Government considered that Article 6 § 1 of the Convention was not applicable either, be it under its civil or criminal head. They argued that the application was therefore incompatible ratione materiae with the Convention.", "15. As regards the criminal head of Article 6, the Government referred to the judgment in the case of Reinprecht (cited above), in which the Court held that “applying Article 6 to the proceedings reviewing the lawfulness of pre-trial detention would be against its wording as their subject matter is not the “determination of a criminal charge” (§ 48). The Government contended that the proceedings in the present case similarly did not concern the determination of a criminal charge against the applicant. 16. As to the civil head of Article 6, the Government argued that the present case had to be distinguished from Aerts v. Belgium (judgment of 30 July 1998, Reports 1998‑V) in that the present proceedings exclusively concerned the lawfulness of the applicant’s detention and did not involve any claim for damages.", "17. The applicant did not comment on the Government’s objection as to the admissibility of the application within the set time-limit. 18. The Court agrees with the Government’s objection as to the applicability of Article 6 § 1 of the Convention under the criminal head. It remains to be seen however whether the proceedings fall under its civil head.", "19. The Court notes that, in its judgment on the case of Aerts cited by the Government, it found that Article 6 § 1 applied under its civil head to proceedings concerning the lawfulness of deprivation of liberty, as “the right to liberty is a civil right” (§ 59). In the cited case the applicant had been detained as a person of unsound mind. Following his release, he had requested legal aid in order to challenge the courts’ assessment of the lawfulness of his detention and to seek compensation. 20.", "The Court does not accept the Government’s proposal to distinguish the present case and to interpret Aerts, despite the general wording, as only meaning that the civil head of Article 6 applied to proceedings concerning compensation for allegedly unlawful detention. Thus, in two cases subsequent to Aerts, which also concerned proceedings relating to the lawfulness of detention, the Court found Article 6 to be applicable under its civil head with reference to Aerts (see Vermeersch v. France (dec.), no. 39277/98, 30 January 2001, and Laidin v. France (no. 2), no. 39282/98, §§ 73-76, 7 January 2003).", "In both those cases the Court explicitly dismissed the Government’s objection of incompatibility ratione materiae, despite the fact that some of the proceedings in issue concerned only the lawfulness of the detention, without involving any related pecuniary claims. The Court reiterated this position in Reinprecht (cited above, § 50), with reference to the aforementioned two cases. 21. Accordingly, the fact that the applicant did not bring any claim for damages in the present case does not rule out the applicability of Article 6 § 1 of the Convention to the proceedings concerning the lawfulness of his detention. 22.", "The Court notes that, having brought the proceedings in question, the applicant sought a judicial declaration that his detention as a murder suspect had been unlawful. Therefore, his civil right to liberty was at stake (see Aerts, cited above, § 59, and Shulepova v. Russia, no. 34449/03, § 60, 11 December 2008). 23. This consideration is sufficient for the Court to conclude that Article 6 § 1 of the Convention is applicable under its civil head to the proceedings complained of.", "24. The Court therefore rejects the Government’s objection on the basis of incompatibility of the application ratione materiae with the Convention. 25. It further notes that the application 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 26. The Government argued that the appellate court did not require the applicant’s presence for it to adjudicate, in a comprehensive and fair manner, his appeal on the basis of the case file alone. They further noted that the prosecutor had not brought forward any new arguments at that stage. 27.", "The applicant did not comment on the Government’s observations within the set time-limit. 28. The Court notes that the requirement of equality of arms, in the sense of a “fair balance” between the parties, applies to both criminal and civil cases (see Dombo Beheer B.V. v. the Netherlands, 27 October 1993, §§ 32-33, Series A, no. 274). 29.", "As one of the elements of the broader concept of a fair trial, this principle requires each party to be given a reasonable opportunity to present his case, under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. This implies, in principle, an opportunity for the parties to a trial to have knowledge of and comment on all evidence adduced or observations submitted, even by an independent member of the national legal service, with a view to influencing the court’s decision (see Kress v. France [GC], no. 39594/98, §§ 72 and 74, ECHR 2001-VI). 30. The requirement of equality of arms would however be devoid of substance if a party to the case were not notified of the hearing in such a way as to have an opportunity to attend it, should he or she decide to exercise a right to appear established in domestic law (see Zagorodnikov v. Russia, no.", "66941/01, § 30, 7 June 2007, and Fyodorov and Fyodorova v. Ukraine, no. 39229/03, § 99, 7 July 2011). 31. Turning to the present case, the Court is satisfied that the prosecutor acted as the applicant’s adversary in the proceedings in question, even though those were of a civil nature within the meaning of Article 6 § 1 of the Convention and did not concern the determination of a criminal charge against the applicant (see paragraphs 8 and 23 above and, for comparison, Zhuk v. Ukraine, no. 45783/05, § 30, 21 October 2010).", "32. The Court notes that the appellate court examined the applicant’s appeal after hearing the prosecutor’s arguments, while the applicant, who had been given a wrong date of the hearing, was not able to contest those arguments or to make his own submissions. 33. The Court therefore considers that the applicant’s absence from the hearing before the Kyiv City Court of Appeal was in breach of the principle of equality of arms guaranteed by Article 6 § 1 of the Convention. 34.", "There has therefore been a violation of this provision. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 35. 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.” 36. The applicant did not submit a claim for just satisfaction within the established time-limit.", "Accordingly, the Court considers that there is no call to award him any sum on that account. 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. Done in English, and notified in writing on 8 March 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Claudia WesterdiekDean Spielmann Registrar President" ]
[ "FIRST SECTION CASE OF GELSOMINI SIGERI SRL v. ITALY (Application no. 63417/00) JUDGMENT STRASBOURG 18 December 2003 FINAL 18/03/2004 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gelsomini Sigeri Srl v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrP.", "Lorenzen,MrG. Bonello,MrA. Kovler,MrV. Zagrebelsky,MrsE. Steiner,MrK.", "Hajiyev, judges, and Mr S. Nielsen, Deputy Section Registrar, Having deliberated in private on 27 November 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 63417/00) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian company, Gelsomini Sigeri S.r.L., on 26 May 2000. 2. The applicant was represented by Mr C. Coroneo and Mrs I. Bassano, lawyers practising in Milan.", "The Italian Government (“the Government”) were represented by their successive Agents, respectively Mr U. Leanza and Mr I.M. Braguglia, and by their successive co-Agents, respectively Mr V. Esposito and Mr F. Crisafulli. 3. On 7 May 2002 the Court declared the application admissible. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant is the owner of a flat in Milan, which it had let to E.S. 5. In a writ served on the tenant on 24 April 1986, the applicant informed the tenant that it intended to terminate the lease on expiry of the term and summoned her to appear before the Milan Magistrate. 6.", "By a decision of 12 May 1986, which was made enforceable on 22 May 1986, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 29 March 1987. 7. On 5 June 1987, the applicant served notice on the tenant requiring her to vacate the premises. 8. On 26 June 1987, the applicant informed the tenant that the order for possession would be enforced by a bailiff on 24 July 1987.", "9. Between 24 July 1987 and 9 November 1999, the bailiff made forty attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession. 10. On 14 January 2000, the applicant recovered possession of the flat.", "II. RELEVANT DOMESTIC LAW 11. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no.", "22774/93, §§ 18-35, ECHR 1999-V. Lastly, for some cases, a suspension of the enforcement of the orders for possession until 30 June 2004 was introduced by Legislative Decree no. 147 of 24 June 2003, which became Law no. 200 of 1 August 2003. A. The system of control of the rents 12.", "As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows. 13. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation. 14.", "The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price. 15.", "Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents. B. Obligations of the tenant in the case of late restitution 16. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat.", "In this regard, Article 1591 of the Italian Civil Code provides: “The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages.” 17. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat. 18.", "In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional.", "Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages. 19. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 AND OF ARTICLE 6 § 1 OF THE CONVENTION 20. The applicant complained of its prolonged inability to recover possession of its flat, owing to the lack of police assistance. It alleged a violation of its right of property, as guaranteed by Article 1 of Protocol No. 1 to the Convention, which provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 21. The applicant also alleged a breach of 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 ... hearing within a reasonable time by [a] ... tribunal...” 22. The Court has previously examined a number of cases raising issues similar to those in the present case and found a violation of Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention (see Immobiliare Saffi, cited above, §§ 46-75; Lunari v. Italy, no.", "21463/93, §§ 34-46, 11 January 2001; Palumbo v. Italy, no. 15919/89, §§ 33-48, 30 November 2000). 23. The Court has examined the present case and finds that there are no facts or arguments from the Government which would lead to any different conclusion in this instance. It notes that the applicant had to wait approximately twelve years and five months after the first attempt of the bailiff before being able to repossess the flat.", "Consequently, there has been a violation of Article 1 of Protocol No. 1 and of Article 6 § 1 of the Convention in the present case. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 24. 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. Pecuniary damage 25.", "The applicant claimed 30,000,000 Italian lire (ITL) [15,4983.71 euros (EUR)] for the pecuniary damage it had sustained. The applicant submitted this amount as the result of the difference between the market value rent and the rent imposed by law for a period of time of seven years (from 1st January 1993 to 31 December 1999). For the purpose of assessing the market value rent of the flat, the applicant submitted a rent contract stipulated in 1993 for a flat similar to the one of the present application (located on the first floor - the one of the applicant is on the sixth - of the same building and with the same surface). The applicant also submitted the official price list of the Chamber of Commerce of Milan for the period of time from July 1999 to January 2000. 26.", "The Government contested the claim. 27. The Court considers that the applicant must be awarded compensation for the pecuniary damage. Having regard to the means of calculation proposed by the applicant and in the light of the evidence before it and the period concerned, it decides to award on an equitable basis EUR 13,285 under this head. B.", "Costs and expenses 28. The applicant also claimed reimbursement of his legal costs and expenses as follows: - EUR 829.03 for the costs of the enforcement proceedings; - EUR 4,957.34 for the costs and expenses before the Court. 29. The Government contested the claims. 30.", "On the basis of the information in its possession and the Court's case-law, the Court considers it reasonable to award the applicant the sum claimed in full under the costs and expenses incurred in the domestic proceedings (i.e. EUR 829.03) and EUR 2,000 for the proceedings before the Court. 31. The Court awards a total sum of EUR 2,829.03 for legal costs and expenses. C. Default interest 32.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 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 according to Article 44 § 2 of the Convention, the following amounts: (i) EUR 13,285 (thirteen thousand two hundred eighty-five euros) for pecuniary damage; (ii) EUR 2,829.03 (two thousand eight hundred twenty-nine euros and three cents) for legal costs and expenses; (iii) any tax that may be chargeable on the above amounts; (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 18 December 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos Rozakis Deputy RegistrarPresident" ]
[ "FOURTH SECTION CASE OF MALINOWSKA v. POLAND (Application no. 35843/97) JUDGMENT STRASBOURG 14 December 2000 FINAL 14/03/2001 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. In the case of Malinowska v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: MrG. Ress, President,MrA. Pastor Ridruejo,MrL.", "Caflisch,MrJ. Makarczyk,MrV. Butkevych,MrJ. Hedigan,MrM. Pellonpää, judges, and Mr V. Berger, Section Registrar, Having deliberated in private on 21 November 2000, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 35843/97) against the Republic of Poland 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, Mrs Krystyna Malinowska (“the applicant”), on 16 November 1996. 2. The Polish Government (“the Government”) were represented by their Agent, Mr Krzysztof Drzewicki, of the Ministry of Foreign Affairs. 3.", "The applicant alleged that the civil proceedings in her case were not concluded within a reasonable time in breach of Article 6 § 1 of the Convention. 4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).", "5. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. 6. By a decision of 20 January 2000 the Chamber declared the application admissible.", "THE FACTS 7. The applicant is a Polish national, born in 1932 and living in Złotokłos, Poland. 8. On 4 March 1982 the applicant filed with the Warsaw District Court (Sąd Rejonowy) a civil action against certain Messrs A.B and W.I. claiming 116,000 old zlotys (PLZ) in compensation.", "The applicant submitted that in 1979 the defendants had leased from her a greenhouse and borrowed 16 tonnes of coal, which they subsequently used to heat it. Since they had failed to either return the coal or pay for it before the agreed deadline of 31 October 1981, the applicant commenced litigation seeking payment for the coal. 9. On 29 February 1984 the Warsaw District Court delivered a judgment in which it awarded to the applicant PLZ 101,600. Both A.B.", "and W.I. appealed against that judgment to the Warsaw Regional Court (Sąd Wojewódzki). On 18 December 1984 the Regional Court quashed the judgment and ordered that the case be joined with another action, which had been lodged by the applicant on 29 November 1983 and in which she sought from the same defendants damages in relation to their breach of the lease agreement which required them to make investments in a greenhouse, the subject of the said lease. 10. On 16 October 1985 the Warsaw District Court joined the two cases in which the proceedings had been initiated by the applicant on 4 March 1982 and 29 November 1983.", "There had been nine hearings held in the latter proceedings before the cases were joined. 11. During the next hearing held on 4 December 1985 one of the defendants was not present. The applicant informed the court about the increase in the amount of her claim. The counsel for the applicant’s son, who had joined the proceedings as an intervenor, asked the court to conclude the proceedings on that date.", "12. On 3 February 1986 the case-file was transmitted to a court expert. 13. On 26 August 1986 the applicant asked the District Court to fix the date of the next hearing, pointing out that the case lay dormant since 4 December 1985. 14.", "During the hearing held on 4 December 1986 the counsel for one of the defendants informed the court that he had not received a copy of an expert opinion mailed on 28 October 1986 and requested that the hearing be adjourned. The court decided that an additional expert opinion should be prepared and adjourned the hearing after the parties had failed to reach a friendly settlement. 15. On 30 December 1986 the expert opinion requested on 4 December 1986 reached the court. 16.", "The next hearing took place on 29 January 1987. The counsel for the defendants and a court expert failed to attend. 17. During the hearing held on 28 April 1987 the court took evidence from an expert. 18.", "The next hearing was held on 19 May 1987. The applicant and the counsel for the intervenor did not appear. The court allowed the intervenor’s request that the hearing be adjourned. 19. During the hearing held on 24 June 1987 the court took evidence from an expert.", "The next hearing was fixed for 18 August 1987. On that date the applicant and the defendant A.B. were not present although they had received the summonses. The court allowed the request submitted by the applicant’s son that the minutes of the hearing held on 24 June 1987 be corrected. 20.", "The next hearing was held on 10 September 1987. On that occasion the applicant, the counsel for the intervenor, a court expert and a witness did not appear. 21. During the hearing held on 7 October 1987 the defendants were not present. The court examined one witness and a court expert.", "22. On 26 November 1987 the applicant, the defendants and a court expert failed to attend a hearing. 23. The next hearing was held on 17 December 1987. The court examined the applicant, the intervenor and one of the defendants.", "It also requested the Piaseczno Municipal Office (Urząd Miasta i Gminy) to submit a file concerning the leaseholders of the greenhouse. 24. In a letter of 15 January 1988 the court inquired of the Piaseczno Municipal Office the reasons for delay in submitting a file requested on 17 December 1987. It appears that on 25 May 1988 the court again requested the Piaseczno Municipal Office to submit the file. On 10 June 1988 the Piaseczno Municipal Office informed the court that the file included only two documents which had already been sent to it on 4 March 1988 and again submitted them.", "25. On 20 June 1988 the case-file was transferred to an expert who subsequently submitted his opinion on 18 January 1989. 26. During the hearings held on 14 April and 23 June 1989 the defendant A.B. was not present.", "On 22 September 1989 both defendants were present but the applicant and her son failed to appear before the court. 27. On 29 November 1989 the hearing was adjourned until 31 January 1990, as none of the two lay judges sitting on the case was present. 28. On 5 February 1990 the applicant filed with the court a request to re-hear two experts.", "29. The next hearing was held on 29 March 1990. Both defendants and a court expert failed to appear. The lawyer who was considered to act as counsel for both defendants informed the court that he in fact never represented the defendant W.I. 30.", "During the hearing held on 20 June 1990 the defendant A.B. was absent. The next hearing was held on 25 June 1990 and was attended by all the parties. On that occasion the court proposed to the parties the conclusion of a friendly settlement. 31.", "On 12 October 1990 the defendant A.B. failed to appear before the court. The next hearing, fixed for 11 January 1991, was not attended by the applicant’s son and both defendants. On 20 March 1991 the defendant A.B. again failed to appear before the court.", "32. On 7 May 1991 the court revoked the applicant’s partial exemption from the payment of court fees. On 23 May 1991 the applicant appealed against that decision. 33. The hearing held on 29 May 1991 was adjourned because of the absence of both lay judges.", "34. The next hearing was held on 4 September 1991. The court examined the applicant. 35. During the hearing held on 6 November 1991, which was not attended by the defendant A.B., the court took evidence from the defendant W.I.", "It also instructed the counsel for the intervenor to submit documents concerning the construction of the greenhouse and instructed the expert to update his opinion. 36. On 10 December 1991 the applicant asked the court to take evidence from a witness K.O. 37. The next hearing was held on 8 January 1992.", "38. On 4 March 1992 the hearing was adjourned until 29 April 1992 as one of the lay judges was absent due to his illness. The court decided that one of the witnesses, who was not present on that date, should be requested to submit an explanation of his failure to attend. In default thereof he would be fined. It also decided to advise the witness that another absence at the hearing could result in the execution of a warrant authorising police to bring him before the court.", "39. The next two hearings were held on 29 April and 17 June 1992. 40. During the hearing held on 7 September 1992 the applicant’s son explained that her illness prevented her from attending the hearing and asked the court to adjourn it. After proposing a friendly settlement to the parties the court adjourned the hearing until 2 November 1992.", "41. On 2 November 1992 the hearing was adjourned until 14 December 1992 as none of the lay judges was present. On the latter date the absence of one of the lay judges led to a further adjournment until 11 January 1993. 42. During the hearing held on 11 January 1993 the Warsaw District Court decided that the case would be transferred to the Warsaw Regional Court as the applicant had increased the amount of her claim.", "43. In a letter of 3 March 1993 the applicant asked the Regional Court to expedite the proceedings pointing to the fact that they had already taken more than eleven years and that during that time she had retired and her health had deteriorated. 44. During the hearing held on 12 April 1993 both defendants, one of the lawyers and a witness failed to appear. 45.", "On 21 June 1993 the Regional Court adjourned the hearing as both defendants, the counsel for one of the defendants and the applicant and a witness were not present. The defendant A.B. had been notified about the service of the summons but failed to collect it, whereas the defendant W.I. had been served with the summons. The next hearing was fixed for 7 October 1993.", "On that date none of the defendants was present although they had been served with the summonses. The counsel for A.B. attended the hearing. The court heard one of the witnesses and adjourned the hearing until 17 January 1994. 46.", "On 24 November 1993 the applicant asked the court to serve the defendants with the summonses requiring their compulsory presence at the hearing on 17 January 1994, as their persistent failures to attend hearings had contributed to the excessive length of the proceedings. 47. On 17 January 1994 none of the defendants was present although they had been informed about the date of the hearing. The counsel for A.B. attended the hearing.", "The court further adjourned the case until 12 May 1994. 48. On 12 May 1994 the defendant A.B., his counsel and witnesses were not present. As the case-file did not contain any confirmation of the service of the summonses, the hearing was adjourned until 19 September 1994. 49.", "In a letter of 30 May 1994 the press spokesman for the Ministry of Justice informed the applicant that, since the case was still pending before the Regional Court, he could not comment on it and was not in a position to respond to her inquiry concerning the date of the next hearing. He also expressed the opinion that the proceedings were approaching their conclusion. 50. On 2 August 1994 the applicant complained to the Warsaw Regional Court about the length of the proceedings and asked it to deliver a speedy decision on her claim. 51.", "On 19 September 1994 none of the defendants appeared before the court although they had been served with the summonses. The counsel for A.B. attended the hearing. The court further adjourned the case until 30 November 1994 and decided that both defendants would be served with the summonses informing them that should they fail to attend the hearing the court would not take evidence from them. 52.", "On 30 November 1994 the court heard the parties. The defendant A.B. accepted in part the applicant’s claim. The court adjourned the delivery of a judgment until 14 December 1994. On 13 December 1994 the applicant submitted to the court a letter supporting her claim.", "On 14 December 1994 the defendants filed with the registry of the Warsaw Regional Court a letter dated 12 December 1994 in which they requested that the investments they had made in the greenhouse be set off against any awards to be made by the court to the applicant. In view of those submissions the court decided to postpone the delivery of a judgment until 28 December 1994. However, no hearing was held on that date as the court decided to re-open the proceedings and scheduled the next hearing for 28 February 1995. 53. In response to the applicant’s complaint about the postponement of the delivery of the judgment, the President of the Warsaw Regional Court informed her on 30 January 1995 that it was justified by the fact that the defendants had raised a new claim in their letter of 12 December 1994.", "He also pointed out that he could not question the decision of an independent court. 54. On 28 February 1995 the court adjourned the hearing until 14 March 1995 since both defendants and the counsel for the defendant A. B. were not present and there was no confirmation of the service of the summonses. On 14 March 1995 the court further adjourned the case until 20 April 1995.", "55. On 20 April 1995 the court adjourned the hearing until 18 May 1995 as one of the defendants was absent due to his illness. During the hearing held on 18 May 1995, at which the counsel for the defendant A.B. represented her client in his absence, all the parties declared that they did not intend to submit any further evidence. The court adjourned the delivery of a judgment until 25 May 1995 when it again postponed delivery until 1 June 1995.", "56. On 1 June 1995 the Warsaw Regional Court delivered a judgment in which it awarded to the applicant 28,600 new zlotys (PLN) in damages together with costs incurred in the proceedings. The court considered that the evidence before it showed that the defendants had breached the lease agreement by not making investments in the renovation and upkeep of the greenhouse provided for by the terms of the agreement. It also pointed out that one of the defendants accepted in part the applicant’s claim during the hearing held on 30 November 1994. On 5 September and 3 November 1995 the defendants A.", "B. and W. I., respectively, appealed against that judgment. 57. During the hearing held on 25 January 1996 before the Warsaw Regional Court the defendant W.I. asked the court to extend the time-limit for the payment of the court fee for lodging an appeal. 58.", "On 29 January and 1 February 1996 the Warsaw Regional Court issued decisions concerning the payment of court fees by the defendants. 59. In a letter of 1 March 1996 the applicant complained to the Minister of Justice about the length of the proceedings in her case. 60. On 27 March 1996 the case-file was transmitted to the Warsaw Court of Appeal (Sąd Apelacyjny).", "61. The hearing held on 30 April 1996 before the Warsaw Court of Appeal was adjourned due to the justified absence of the defendant W.I. and the illness of the counsel for A.B. 62. On 12 June 1996 the Warsaw Court of Appeal quashed the judgment of 1 June 1995 and remitted the case to the Warsaw Regional Court.", "The appellate court pointed out that the court of first instance had failed to assess properly the evidence before it. In particular, it had not taken into account the evidence taken from several witnesses and experts. Furthermore, the Regional Court had not explained why it had based its award of damages to the applicant on her calculations while ignoring other relevant evidence in the case-file. The appeal court also observed that since it could not on its own consider the matters of fact but was obliged to follow the findings of the first-instance court, the erroneous assessment of the evidence by the Regional Court made it impossible for it to properly examine the reasoning of the court of first instance. Finally, the appellate court instructed the Regional Court to take additional expert evidence.", "63. On 20 August 1996 the case-file was returned to the Warsaw Regional Court. 64. On 3 October 1996 the applicant asked the Minister of Justice to expedite the proceedings. In response to her request, the President of the Warsaw Regional Court informed the applicant on 12 November 1996 that a judge rapporteur had been appointed in the case on 4 November 1996.", "He also advised her that the next hearing would be fixed at the beginning of 1997 as no free sessions were available in the court’s calendar before the end of 1996. 65. On 15 November 1996 the Regional Court requested the parties to submit their written pleadings concerning the appeal court’s decision of 12 June 1996 together with any requests concerning evidence. On 17 January 1997 the applicant submitted her observations to the registry of the Regional Court and informed it that she had not been notified about the court’s request for such observations. It appears that the applicant learned about the request by inspecting the case-file in the registry.", "66. On 3 March 1997 the applicant lodged a request for exemption from the court fees. 67. On 15 May 1997 the Warsaw Regional Court held a hearing. On that occasion the applicant increased her claim to PLN 39,208.", "In addition, the defendant W.I. declared that he contested the applicant’s claims, whereas A.B. requested the court to adjourn the hearing since his counsel was absent. The court fixed a time-limit until 25 July 1997 for the submission by the counsel for A.B. of pleadings concerning the decision of the Warsaw Court of Appeal of 12 June 1996 and written submissions made by the applicant on 15 January and 15 May 1997.", "68. On 30 July 1997 the applicant requested the court that the time-limit of 25 July 1997 be considered as final since any extensions would provide the defendants with opportunities to further delay the proceedings. She also asked the court to deliver a partial judgment in relation to her claim concerning the coal as she considered that it was ready for decision. 69. On 16 September and 30 October 1997 the court again requested the counsel for A.B.", "to submit her observations. On 30 October 1997 the applicant complained to the court about the failure of the counsel for A.B. to submit written observations and asked it to expedite the proceedings. On 15 December 1997 the counsel for A.B. submitted her observations to the Regional Court.", "On 9 January 1998 the applicant filed her response to those observations. On 23 January 1998 the applicant again lodged a request for a partial judgment. 70. The next hearing was held on 11 May 1998. The counsel for the intervenor was not present because of her illness.", "The court dismissed the applicant’s request for a partial judgment on her claim concerning the coal and the adjournment of the examination of other claims. During the hearing the applicant submitted her written observations on the state of the greenhouse at the beginning of the lease. The hearing was adjourned at the request of the applicant and the intervenor. The date of the next hearing was fixed for 27 October 1998 as no hearing room was available before that date. 71.", "On 27 October 1998 none of the defendants appeared before the court. The applicant submitted her written observations on an expert opinion prepared by the court expert S.W. The counsel for the defendants asked the court to adjourn the hearing so that further evidence could be taken from the parties. 72. On 24 March 1999 the court fixed the next hearing for 6 June 1999.", "On 25 March 1999 the court transmitted the case-file to a court expert. On 28 April 1999 the court expert requested the court that he be exempted from preparing an opinion as he was not qualified to do it. On 5 May 1999 the court transmitted the case-file to another expert. 73. In a letter of 21 May 1999 the Ministry of Justice informed the applicant that it had inspected the progress in the court proceedings concerning her case.", "It showed that the proceedings should be expedited. The Ministry therefore requested the President of the Warsaw Court of Appeal to supervise the course of the proceedings. The Ministry also expressed an opinion that this would help to avoid in the future any unreasonable length of proceedings. 74. On 12 July 1999 the court expert returned the case-file to the Warsaw Regional Court.", "75. During the hearing held on 22 October 1999 the defendants requested the court to take evidence from witnesses and to allow them to submit a written calculation of expenses incurred by them in 1979. The applicant asked the court to reject this request pointing out that it would result in a further delay in the proceedings. The court rejected the defendants’ request to take evidence from witnesses and granted them a time-limit for the submission of a written calculation of their expenses. 76.", "Subsequently, the Warsaw Regional Court fixed delivery of a judgment for 30 December 1999. However, on that date it postponed delivery until 13 January 2000. 77. On 13 January 2000 the Warsaw Regional Court delivered a judgment in which it, inter alia, awarded to the applicant PLN 28,000. The defendants appealed against that judgment to the Warsaw Court of Appeal.", "78. On 20 March 2000 the applicant submitted to the Warsaw Court of Appeal her written observations in reply to the defendants’ pleadings filed with their appeal. 79. On 25 May 2000 the defendants were exempted from the court fees for lodging their appeal. On 10 July 2000 the Warsaw Regional Court transmitted the case-file to the Warsaw Court of Appeal.", "80. The proceedings are still pending. THE LAW I.ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 81. The applicant asserted that the civil proceedings in her case were not concluded within a reasonable time, contrary to Article 6 § 1 of the Convention, which in so far as relevant provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 82. The Government contended that the facts of the case disclosed no breach of that provision.", "A.Period to be taken into consideration 83. The Court notes that the period to be taken into consideration began not on 4 March 1982, when the applicant initiated the proceedings, but on 1 May 1993, when Poland’s declaration recognising the right of individual petition for the purposes of former Article 25 of the Convention took effect. Furthermore, it observes that the proceedings in the applicant’s case are still pending. Accordingly, the proceedings have lasted so far over eighteen years and eight months, out of which seven years, six months and twenty-one days are taken into consideration by the Court (see paragraphs 8 and 80 above). 84.", "In order to determine the reasonableness of the length of time in question the Court will have regard to the state of the case on 1 May 1993 (see, among other authorities, Humen v. Poland [GC], no. 26614/95, 15.10.99, § 59). B.Reasonableness of the length of the proceedings 85. The Court, with reference to its settled case-law on this matter, will asses the reasonableness of the length of the impugned proceedings in the light of the particular circumstances of the case having regard to its complexity, to the conduct of the applicant and to that of the authorities dealing with the case (see, among other authorities, the Mavronichis v. Cyprus judgment of 24 April 1998, Reports of Judgments and Decisions 1998-II, p. 956, § 38). 1.Complexity of the case 86.", "The applicant submitted that the case was not very complex. She averred that most of the changes in the amount of her claim, which eventually led to the transfer of the case to the Warsaw Regional Court, resulted from the high rate of inflation prevailing in Poland. She also considered that the fact that approximately seventeen persons were involved in the proceedings did not explain their overall length. 87. The Government contended that the case involved both factual and legal complexity.", "In particular, they pointed out the following factors which in their view contributed to the complexity: difficulties in collecting evidence on account of the lapse of time since the facts contested by the parties had taken place, the number of participants involved in the proceedings, necessity to take expert evidence, frequent changes in the amounts of the claim and the court experts’ fees caused by inflation, an appeal against the first-instance court’s judgment and the appellate court’s decision to quash the judgment and remit it to the trial court. The Government also referred to “a number of other reasons”. 88. The Court firstly observes that the Government argued that the complexity of the case resulted in part from the fact that the courts experienced difficulties in collecting evidence because of the lapse of time since the facts contested by the parties had taken place. This argument attempts to justify the length of the proceedings by their complexity caused by the length of the proceedings and as such does not convince the Court.", "It further considers that also the remaining grounds invoked by the Government in support of their submission that the case was complex cannot justify the length of the proceedings. As the length of the proceedings cannot be explained in terms of the complexity of the issues involved, the Court will examine it in the light of the conduct of the applicant and of the national authorities (see paragraph 85 above). 2.Conduct of the applicant 89. The applicant submitted that her conduct during the proceedings did not contribute to the delay. She denied the Government’s claim that on numerous occasions she had failed to attend hearings.", "The applicant averred that she and her son, who acted as an intervenor in the proceedings, had failed to attend only a small number of hearings and that their absence on those few occasions had always resulted from either an illness or other serious reasons. They had always advised the courts in good time about their inability to attend the hearings. 90. The Government contended that the behaviour of the applicant contributed to the delay as on numerous occasions she had failed to attend hearings and had asked for adjournments. In particular, the Government submitted that after 30 April 1993 the applicant had failed to attend eleven hearings, which resulted in thirteen months of delay.", "91. The Court notes that there is disagreement about whether in fact the applicant failed to attend eleven hearings after 30 April 1993. Nevertheless, the Court considers that, having regard to the state of the case on 1 May 1993 and the length of the proceedings since that date, even such a failure on the part of the applicant would not explain the overall delay in deciding her case (see paragraphs 83 and 84 above). Furthermore, the Court sees no other reasons for which the conduct of the applicant could be blamed for the length of the proceedings. 92.", "The applicant claimed that the national authorities were responsible for the unreasonable length of the proceedings. In this connection, she submitted that the courts allowed the defendants to delay the proceedings, appointed incompetent experts, mailed summonses to incorrect addresses and examined many times the same witnesses and court experts. In addition, she pointed out that the fact that at least eight judges presided over the case contributed to the delay. 93. The Government asserted that the conduct of the national authorities did not contribute to the delay.", "They contended that domestic courts showed diligence in the conduct of the proceedings. In particular, the courts adjourned several hearings at the request of the parties and followed the principles of Polish law allowing the parties to take an active approach in the course of the proceedings. 94. The Court notes that the civil action initiated by the applicant on 4 March 1982 has still not been the subject of a final judgment (see paragraphs 8 and 80 above). It observes that after 30 April 1993 the defendants on numerous occasions failed to attend hearings.", "However, the trial court reacted to that behaviour only on 19 September 1994, when it warned the defendants that should they fail to attend the next hearing fixed for 30 November 1994, it would not take evidence from them (see paragraphs 45-51 above). Furthermore, the first hearing before the Warsaw Regional Court after the case had been remitted to it on 12 June 1996 took place on 15 May 1997. According to the information obtained by the applicant from the President of the Regional Court, that delay had been caused in part by the workload of the court (see paragraphs 62-67 above). The Court also notes that the trial court waited one year and one month for the submission by the counsel for one of the defendants of written observations requested by it on 15 November 1996. The observations were filed with the court on 15 December 1997, after extensions of a time-limit granted despite the applicant’s objection to their allowing the defendants to further delay the proceedings (see paragraphs 65-69 above).", "Moreover, a hearing held on 11 May 1998 was adjourned until 27 October 1998 as no hearing room was available before that date (see paragraph 70 above). The Court is of the view that these delays must be attributed to the national authorities. 95. The Court considers that a period of over eighteen years and eight months, out of which seven years, six months and twenty-one days are taken into consideration by the Court, without any final decision having been reached yet, exceeds a reasonable time. There has therefore been a violation of Article 6 § 1.", "II.APPLICATION OF ARTICLE 41 OF THE CONVENTION 96. 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.Pecuniary damage 97. The applicant asked the Court to award her PLN 84,718. She submitted that this amount comprised PLN 28,000 awarded to her by the Warsaw Regional Court on 13 January 2000 together with interest. In addition, she claimed PLN 20,000, which in her opinion represented the sum that should have been awarded to her by the Warsaw Regional Court to take into account a decrease in the real value of her claim caused by inflation.", "The applicant averred that the Court should award to her the above amounts because in view of the way in which the work of domestic courts was organised she might not live long enough to receive them. 98. The Government submitted that the applicant’s claim was exorbitant. 99. The Court notes that in her claim submitted under the head of pecuniary damage the applicant requested it to award to her the amounts she seeks in the domestic civil court proceedings.", "However, it is not for the Court to decide her case pending before domestic courts. The Court accordingly dismisses the claim. 100. The applicant also sought an award of PLN 50,000 to compensate her for the ill-health and moral damage suffered as a result of protracted proceedings. In particular, she referred to numerous illnesses and problems in her family life, which in her view resulted from the delay in deciding her case.", "101. The Government submitted that the applicant’s claim was exorbitant. 102. In the circumstances of the instant case and making its assessment on an equitable basis, the Court awards the applicant PLN 25,000. C.Costs and expenses 103.", "The applicant also claimed PLN 52,000 by way of legal costs and expenses incurred in the domestic court proceedings. In particular, she submitted specifications of fees charged by court experts and counsel. 104. The Government submitted that the applicant’s claim was exorbitant. 105.", "The Court recalls that to be entitled to an award of costs and expenses under Article 41, the injured party must have incurred them in order to seek, through the domestic legal order, prevention or redress of a violation, to have the same established by the Court or to obtain reparation therefor (see the Zimmermann and Steiner v. Switzerland judgment of 13 July 1983, Series A no. 66, p. 14, § 36). However, it considers that the applicant has not shown that the legal costs and expenses claimed by her were incurred in order to prompt domestic courts to comply with the requirements of Article 6 § 1 (cf. the above Zimmermann and Steiner judgment, pp. 14-15, § 37).", "The Court accordingly dismisses the claim. D.Default interest 106. According to the information available to the Court, the statutory rate of interest applicable in Poland at the date of adoption of the present judgment is 30% per annum. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.Holds that there has been a violation of Article 6 § 1 of the Convention; 2.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, 25,000 (twenty-five thousand) Polish zlotys in respect of non-pecuniary damage; (b)that simple interest at an annual rate of 30% shall be payable from the expiry of the above-mentioned three months until settlement; 3.Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 14 December 2000, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Vincent BergerGeorg RessRegistrarPresident" ]
[ "SECOND SECTION CASE OF KEPENEKLİOĞLU AND CANPOLAT v. TURKEY (Application no. 35363/02) JUDGMENT STRASBOURG 6 September 2005 FINAL 06/12/2005 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kepeneklioğlu and Canpolat v. Turkey The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrR. Türmen,MrK.", "Jungwiert,MrM. Ugrekhelidze,MrsA. Mularoni,MrsE. Fura-Sandström,MrD. Popović, judges,and Mr S. NAISMITH, Deputy Section Registrar, Having deliberated in private on 5 July 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 35363/02) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Adem Kepeneklioğlu and Mehmet Hakan Canpolat, on 7 August 2002. 2. The applicants were represented by Y. Hoş, a lawyer practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.", "3. On 8 July 2004 the Court declared the application partly inadmissible and decided to communicate the complaints concerning a lack of a fair trial by an impartial and independent tribunal within a reasonable time, a failure to observe the presumption of innocence, a lack of adequate facilities for the preparation of the defence, and a lack of legal assistance during detention. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. 4. Both the applicants and the Government submitted their observations outside the time limit.", "They have therefore not been admitted to the case file. 5. On 1 November 2004 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 6. The applicants, Mr Adem Kepeneklioğlu and Mr Mehmet Hakan Canpolat, are Turkish nationals, who were born in 1954 and 1964 respectively. When they lodged their application with the Court they were imprisoned in Turkey. 7. On 29 and 30 June 1992 the applicants were taken into custody in Istanbul by police officers from the Istanbul Anti-Terrorist Branch.", "On 13 July 1992 they were detained on remand. 8. On 27 July 1992 the Public Prosecutor at the Istanbul State Security Court filed a bill of indictment accusing the applicants of, inter alia, organised murder and armed burglary, as well as being members of an illegal terrorist organization. 9. On 25 November 1992 the Istanbul State Security Court commenced the trial against the applicants and three other accused and prolonged the applicants' detention.", "10. On 3 April 1998 the Istanbul State Security Court convicted the applicants under Article 146 of the Criminal Code and sentenced them to death. 11. On 10 March 1999 the Court of Cassation quashed the judgment. 12.", "On 12 June 2001 the Istanbul State Security Court convicted them of the same crimes. 13. On 4 February 2002, upon the applicants' appeal, the Court of Cassation upheld the judgment of the State Security Court. II. RELEVANT DOMESTIC LAW 14.", "A full description of the domestic law may be found in the judgments of Demirel v. Turkey (no. 39324/98, §§ 47-49, 28 April 2003) and Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002). THE LAW 15. The applicants complained that they were not tried by an independent and impartial tribunal within a “reasonable time.” They asserted that, since they were detained during the trial, their right to the presumption of innocence was breached.", "They further asserted that their consultations with their lawyer were subjected to very strict regulations which hindered the preparation of their defence. They claimed that they were not allowed to consult a lawyer during their police custody, before the public prosecutor or the first time they appeared before the trial court. They finally claimed that they could not put questions to the main prosecution witnesses. With respect to their complaints, the applicants invoked Article 6 §§ 1, 2, and 3 (b), (c) and (d) of the Convention, which in so far as relevant read as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by an independent and impartial tribunal established by law” “ 2.", "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 3. Everyone charged with a criminal offence has the following minimum rights: ... (b) to have adequate time and facilities for the preparation of his defence; ...” (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” I. ADMISSIBILITY 16. The Court considers that these complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.", "II. ALLEGED VIOLATIONS OF ARTICLE 6 A. As regards the independence and impartiality of the Istanbul State Security Court and the fairness of the proceedings 17. The applicants alleged that they had been denied a fair hearing on account of the presence of a military judge on the bench of the Istanbul State Security Court which tried and convicted them. 18.", "The Government did not submit their observations within the specified time-limit. 19. The Court notes that it has previously examined similar applications concerning the composition of the State Security Courts and has found violations of Article 6 § 1 (see, among others, Özel, cited above, §§ 33-34, and Özdemir v. Turkey, no. 59659/00, §§ 35-36, 6 February 2003). 20.", "The Court sees no reason to reach a different conclusion in the instant case. It is reasonable that the applicants, who were prosecuted in a State Security Court for aiding and abetting an illegal organisation, should have been apprehensive about being tried by a bench which included a regular army officer and member of the Military Legal Service. On that account, they could legitimately fear that the Istanbul State Security Court might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case. In other words, the applicants' fears as to the State Security Court's lack of independence and impartiality can be regarded as objectively justified (see Incal v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, p. 1573, § 72 in fine). 21.", "Accordingly, the Court concludes that there has been a violation of Article 6 § 1. B. As regards the fairness of the proceedings 22. Having regard to its finding that the applicants' right to a fair hearing by an independent and impartial tribunal has been infringed, the Court considers that it is unnecessary to examine the applicant's other complaints under Article 6 §§ 2 and 3 (b), (c) and (d) (see Incal, cited above, § 74, and Çıraklar v. Turkey, judgment of 28 October 1998, Reports 1998-VII, § 45). C. As regards the length of proceedings 23.", "The applicants complained that the criminal proceedings against them were not concluded within a reasonable time. 24. The Court observes that these proceedings began on 29 June 1992, with the applicants' arrest, and ended on 4 February 2002. They thus lasted more than nine years and seven months. 25.", "The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising similar issues to the one in the present application (see, for example, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II, and Ertürk v. Turkey, no. 15259/02, 12 April 2005). 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. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28.", "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.” 29. On 8 July 2004 the applicants were requested to submit their claims for just satisfaction. They did not submit any such claims within the specified time‑limit. Accordingly, the Court considers that there is no call to award them any sum on that account. 30.", "Where the Court finds that an applicant has been convicted by a tribunal which is not independent and impartial within the meaning of Article 6 § 1, it considers that, in principle, the most appropriate form of relief would be to ensure that the applicant is granted in due course a retrial by an independent and impartial tribunal (Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). 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 as regards the complaint relating to the independence and impartiality of the Istanbul State Security Court; 3.", "Holds that it is not necessary to consider the applicants' other complaints under Article 6 § 2 and Article 6 § 3 (b) (c) and (d) of the Convention; 4. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the criminal proceedings. Done in English, and notified in writing on 6 September 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. NaismithJ.-P. CostaDeputy Section RegistrarPresident" ]
[ "FIFTH SECTION CASE OF GERASHCHENKO v. UKRAINE (Application no. 20602/05) JUDGMENT STRASBOURG 7 November 2013 FINAL 07/02/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gerashchenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President,Ann Power-Forde,André Potocki,Paul Lemmens,Helena Jäderblom,Aleš Pejchal, judges,Stanislav Shevchuk, ad hoc judge,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 15 October 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "20602/05) 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 Sergeyevich Gerashchenko (“the applicant”), on 19 July 2006 (see paragraphs 71-74 below). 2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently, Mr Nazar Kulchytskyy. 3. The applicant alleged, in particular, that he had been ill-treated by the police, that a search of his home had been unlawful and arbitrary, that his pre-trial detention had been unlawful and unreasonably long and that it had lacked the requisite judicial review.", "He also complained that he had incriminated himself under duress and without legal assistance. 4. On 16 December 2009 the complaints regarding the applicant’s pre-trial detention and the police search at his home were communicated to the Government. The Court also raised ex officio and communicated the issue of Ukraine’s compliance with Articles 8 and 34 of the Convention on account of possible monitoring of the applicant’s correspondence with the Court. 5.", "On 15 March 2012 the President of the Section decided, under Rule 54 § 2 (c) of the Rules of Court, that the parties should be invited to submit further written observations on the admissibility and merits of the applicant’s complaints about his ill-treatment by the police and the violations of his right to legal assistance and the privilege against self-incrimination. 6. Mrs G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Chamber decided to appoint Mr S. Shevchuk to sit as an ad hoc judge (Rule 29 § 1(b)). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1958 and is currently serving a prison sentence in Odessa following his conviction in criminal proceedings subsequent and unrelated to those examined in the present case. A. Background to the case 8. On 4 December 2003 the applicant was convicted of possession of illegal drugs and sentenced to three years’ imprisonment.", "However, the sentence was suspended and he was put on probation. It was his third conviction for a drug-related offence. 9. On 12 May 2004 the Khadzhybeyivskyy Police Department instituted criminal proceedings against an individual, Mr B., on suspicion of possession of illegal drugs. In the course of the investigation Mr B. stated that he had bought the drugs from the applicant.", "10. On 18 May 2004 the investigator applied to the Odessa Suvorivskyy District Court (hereafter – “the Suvorivskyy Court”), seeking authorisation of a search of the applicant’s home with a view to verifying Mr B.’s statement. 11. On 19 May 2004 the Suvorivskyy Court authorised the police search, having agreed that it was required for the criminal investigation to progress. B.", "Events of 2 July 2004 12. According to the authorities, on 2 July 2004 an undercover police agent bought 1.9 millilitres of liquid opium from the applicant, having paid him 30 Ukrainian hryvnias (UAH) in banknotes previously marked with a luminous substance. The undercover operation was followed by a search, in the course of which the police seized the aforementioned banknotes from the applicant and equipment used for drug production that was found in his house. They also discovered a condom filled with liquid opium in his pocket. 13.", "According to the applicant, on 2 July 2004 while he was repairing his car in the yard, a group of policemen in plain clothes broke into his property without identifying themselves or giving reasons for their intrusion and started beating him. One of the officers grabbed the applicant’s hair and pulled him into the house, where the beating continued. The applicant was then handcuffed, after which the police planted the liquid opium and the pre-marked banknotes on him. The applicant further alleged that the house search had been conducted in a chaotic and violent manner. While it was going on, he had been lying on the floor, handcuffed, in one of the rooms.", "From time to time, a number of officers had approached him, sworn at him and beaten him. 14. The applicant’s parents and wife, as well as his acquaintance Mr Zh., who happened to be in the house at the time, witnessed the search. 15. The applicant gave a written explanation to the police in which he stated that he was a drug addict and produced liquid opium for his own use.", "While admitting that the police had found some liquid opium and poppy straw, as well as some money in his trousers, the applicant denied selling drugs. 16. According to the search report, signed by the police officers involved, two attesting witnesses and the applicant, the search lasted from 4 to 7.30 p.m. 17. The undercover agent reported in writing to his superior on the same date that he had received the pre-marked banknotes at 5 p.m. and that he had bought the liquid opium from the applicant at about 6 p.m. 18. After the search was completed, the police arrested the applicant and took him to Khadzhybeyivskyy Police Station “for further inquiries”.", "C. Pre-trial investigation and related facts 19. On 3 July 2004 the applicant was examined by a neurosurgeon in the city hospital (see also paragraph 30 below). The medical certificate issued by the doctor read as follows: “No fainting, nausea or vomiting reported. No symptoms of neurological injury. The skull and the cervical vertebrae are without injury.", "No acute neurosurgical injuries have been discovered. There is no need for neurosurgical treatment at the time of examination.” 20. There is no further information in the case file as to the circumstances of this examination of the applicant. 21. On 5 July 2004 a criminal case was initiated against the applicant on suspicion of the production and distribution of illegal drugs, and he was arrested as a criminal suspect.", "22. On 7 July 2004 another criminal case was launched against him on suspicion of possession of drugs for his own consumption. 23. On the same date the above criminal cases were joined. 24.", "According to the Government, the applicant was informed of his right to have a lawyer on several occasions, but waived that right. The case file does not contain copies of those waivers. 25. As it transpires from the applicant’s medical file, a copy of which was provided to the Court by the Government, on 7 July 2004 an ambulance was called for the applicant following his complaints of pain in the lower right side of the back. The applicant explained that he had been beaten up during his arrest on 2 July 2004.", "He was taken to the Odessa Regional Hospital, where he was examined by an urologist and X-rayed. The diagnosis was a contusion of the right kidney, with no impairment of the kidney’s functions. It was also recommended that the applicant undergo an ultrasound examination. 26. On the same date the doctor in charge passed this information to the Khadzhybeyivskyy Police Department, where the officer on duty registered it in the logbook.", "27. On 8 July 2004 the investigator applied to the Suvorivskyy Court for the applicant’s remand in custody as a preventive measure pending trial. 28. On the same date the Suvorivskyy Court ruled that further information about the applicant was required in order for it to decide on whether to order the preventive measure. As a result, it extended his arrest to ten days (calculated from 5 July 2004).", "As transpires from the court’s ruling, the applicant was legally represented at that stage. 29. On 14 July 2004 formal charges of possession, production and distribution of illegal drugs were brought against the applicant. 30. On the same date the applicant was questioned as an accused.", "The investigator referred to the applicant’s allegation of having been beaten up by the police and asked whether he had sought medical assistance. As per the minutes of the questioning session, the applicant replied as follows: “Yes. After I had been taken to Khadzhybeyivskyy Police Station, they wanted to send me to a detention facility. As I had visible bodily injuries, I was taken to the [city hospital]. A neurosurgeon examined me and my head was X-rayed.", "While in the hospital, I was confused and I forgot to tell the doctor that I also had pain in the lower part of [my] back. On the following day I was taken to the detention facility. At the request of the convoy officers, I did not say anything about my injuries upon my arrival there. Today I still have blood in [my] urine and my kidneys hurt.” 31. On 15 July 2004 a lawyer (apparently hired by the applicant’s relatives) was admitted to represent the applicant in the proceedings.", "32. On the same date the Suvorivskyy Court remanded the applicant in custody as a preventive measure pending trial, for an initial period of two months (until 5 September 2004). The court noted the seriousness of the charges against the applicant and his extensive criminal record. It considered that he might flee and/or reoffend if at liberty. 33.", "On 3 September 2004 the Suvorivskyy Court extended the term of the applicant’s pre-trial detention to three months (until 5 October 2004) upon the investigator’s application. It explained this decision by the necessity to conduct the following measures: the applicant’s examination with a view to establishing whether he was a drug addict; completion of the investigation; providing the applicant with the opportunity to study the case file; and approval of the indictment. 34. On 9 September 2004 the applicant was examined by an addiction psychiatrist, who concluded that he was an opium addict in partial recovery. 35.", "On 21 September 2004 the applicant asked the investigator to allow him to undergo a forensic medical examination, referring to the contusion of his right kidney which he claimed to have sustained as a result of his beating by the police on 2 July 2004. He noted that he had repeatedly asked to be examined. 36. On 30 September 2004 the investigator rejected the above request referring to findings made by the Suvorivskyy District Prosecutor’s Office on an unspecified date, according to which the applicant had been slandering the police officers with a view to evading criminal liability. 37.", "On 5 October 2004 the applicant was indicted. As noted in the indictment, the investigator had conducted confrontations between the applicant and the police officers involved in his arrest, during which no claims of ill-treatment had been made. The indictment also referred to statements made by the applicant’s acquaintance, Mr Zh., who had been at the applicant’s home at the time of the search (see paragraph 14 above). According to Mr Zh., the police officers’ behaviour on 2 July 2004 had been proper and he had not witnessed any violence towards the applicant or any of his family members. D. Trial 38.", "On 28 October 2004 the Suvorivskyy Court held a preparatory hearing, during which it decided to extend the applicant’s detention as a preventive measure pending the pronouncement of the verdict. 39. By a judgment of 14 March 2005, the Suvorivskyy Court found the applicant guilty of the illegal possession, production and distribution of drugs and sentenced him to five years and two months’ imprisonment (which included the unserved part of the sentence imposed pursuant to his conviction on 4 December 2003 – see paragraph 8 above). It also ordered the confiscation of all his personal property. The court based its findings mainly on the evidence obtained through the undercover operation and the searches of the applicant’s house and person carried out on 2 July 2004.", "It heard the police officers involved, the attesting witnesses, and three of the applicant’s neighbours. During the trial, Mr Zh. withdrew his statements given in the course of the pre-trial investigation (see paragraphs 14 and 37 above), claiming that they had been extracted from him under duress and submitting that he was not aware of any drug production or distribution by the applicant. He also maintained that he had witnessed the applicant being beaten by the police on 2 July 2004. The court dismissed this submission as untrue.", "It also considered the statement of the applicant’s father that he had seen a police officer planting drugs on the applicant to be untrue. 40. On the same date the Suvorivskyy Court issued a separate ruling by which it held that the monitoring of the applicant’s conduct by the local police department during his probation had been inadequate. 41. On 20 December 2005 the Odessa Regional Court of Appeal (“the Court of Appeal”) quashed the aforementioned judgment on the applicant’s appeal and remitted the case back to the first-instance court for fresh examination.", "It referred, in particular, to a number of factual discrepancies which had to be reconciled. Thus, according to the search report, the search of the applicant’s house had lasted from 4 p.m. till 7.30 p.m. on 2 July 2004. At the same time, it was indicated in the report of the undercover agent that he had received the pre-marked banknotes for the operation at about 5 p.m. and had bought liquid opium from the applicant at about 6 p.m. In other words, it appeared that the search had started about two hours before the undercover drug purchase took place. There were also discrepancies in the statements of the attesting witnesses, one of whom had submitted that the applicant had been searched in the house, while the other had noted that his body search had taken place outside, near the police car.", "The appellate court also noted that the applicant’s allegations of the fabrication of evidence and his beating had not been thoroughly investigated. 42. Furthermore, the Court of Appeal criticised the trial court for its failure to “assess the fact that the search had been conducted on the basis of a search warrant of 19 May 2004, which had been issued at the investigator’s request concerning a different criminal case initiated a long time before the criminal investigation [against the applicant] was launched”. 43. On 3 April 2006 the applicant applied to the Suvorivskyy Court for his release subject to an undertaking not to abscond.", "44. On 19 April 2006 the court rejected this application, having noted that the applicant was suspected of a crime punishable with more than three years’ imprisonment and that he already had three drug-related convictions to his name. 45. On 6 November 2006 the applicant again applied to be released. 46.", "On 15 November 2006 the Suvorivskyy Court replied to him by letter, stating as follows: “Your request for a change of the preventive measure of 6 November 2006 has been examined. Please be informed that you previously submitted a similar request, which was rejected by a ruling of [this court] on 19 April 2006. Given the fact that similar requests on your part have been responded to, the present request ... will be archived (“списати в наряд суду”)”. 47. On 6 June 2007 the Suvorivskyy Court issued a new judgment in which it made the same findings as before.", "As noted therein, the two witnesses had testified that the applicant had been subjected to a body search outside the house. As to the report of the undercover agent, it was not a valid procedural document and therefore could not be relied on. The judgment was silent as to why the search of the applicant’s house had been conducted on the basis of a search warrant issued two months earlier and relating to a different criminal case. 48. The Suvorivskyy Court also held as follows in the operative part of its judgment: “To maintain [the applicant’s] detention as a preventive measure pending the entry into force of the verdict.", "To calculate the sentence from 2 July 2004, that is from the date of [the applicant’s] actual arrest.” 49. The applicant and the lawyer acting on his behalf appealed against the judgment of 6 June 2007. The lawyer submitted, in particular, that the applicant’s allegation of his beating by the police on 2 July 2004 had not been duly addressed. 50. On 4 December 2007 the Court of Appeal upheld the applicant’s conviction.", "It noted that the applicant had chosen “the tactics of denial of the events and manipulating the established facts” by challenging the lawfulness of the police officers’ actions during his arrest. Similarly to the first-instance court, the appellate court did not address the issue of the time and context of the search warrant, on the basis of which the applicant’s house had been searched on 2 July 2004. 51. On 22 March, 28 May, 11 June and 9 July 2008 the applicant lodged cassation appeals with the Supreme Court. All of them were returned to him for his failure to comply with procedural formalities, such as putting a date under his cassation appeal, signing it, or attaching a duly certified copy of the judicial decisions challenged.", "On three occasions the applicant was invited to rectify the indicated shortcomings. As he failed to comply, on 7 August 2008 the Supreme Court dismissed his cassation appeal without examination on the merits. E. The applicant’s correspondence with the Court 52. On 13 May 2005 the applicant wrote his first letter to the Court, in which he enquired about the procedure of introduction of an application before the Court. 53.", "On 15 July 2005 he further wrote to the Court that he considered his case yet premature, but that he planned to introduce in the future complaints under Article 5 § 3 and Article 6 § 3 (c) and (d) of the Convention. 54. On 3 August 2005 the Registry of the Court warned the applicant that his file would be destroyed if he did not submit an application form within a year. 55. On 19 July 2006 the applicant submitted a completed application form, which he subsequently supplemented on a number of occasions.", "56. The applicant’s letters to the Court sent from the pre-trial detention centre (SIZO) on 13 May and 15 July 2005, 19 July 2006, and 7 May, 18 July and 30 November 2007, bore the SIZO stamp on their first page with a handwritten date. The first page of his letters sent to the Court from prison on 4 June 2008 and 20 January 2009 bore the stamp of the prison. 57. On 22 January, 27 July and 12 September 2007 the Registry of the Court asked the applicant to submit copies of a number of documents.", "58. In his subsequent correspondence the applicant confirmed receipt of the Registry’s letters of 22 January and 27 July, but never referred to that of 12 September 2007 and did not comply with the request contained therein. 59. According to the information provided by the Government, there was no incoming correspondence for the applicant registered in the SIZO between 10 August and 10 November 2007. 60.", "On 20 January 2009 the applicant informed the Registry that he had sent a letter to the Court on 21 October 2008, indicating the number it had been assigned by the prison administration. He also noted that the administration charged money for sending correspondence to the Court, which he could not afford. The applicant therefore stated that he had had to send his letter of 20 January 2009 through his mother. However, that letter arrived at the Court directly from the prison, accompanied by its cover letter and with the prison stamp on the first page. 61.", "The Court did not receive the applicant’s letter of 21 October 2008. According to the Government, it was dispatched by the prison administration on the same day as it was submitted by the applicant for postage. F. Other relevant facts 62. On 4 August 2009 the applicant was released on parole. 63.", "On an unspecified date (apparently after the case had been communicated to the Government and the Government had tried to collect the relevant information), the SIZO issued an information note stating that the logbook of detainees’ complaints for 2004 and 2005 had been destroyed on 29 January 2009. 64. On 14 November 2011 the Suvorivskyy District Prosecutor’s Office issued an information note stating that the materials of the investigation into the applicant’s allegation of ill-treatment (2005) had been destroyed on 20 January 2010 after the expiry of the five-year storage period envisaged by the recordkeeping guidelines approved by the General Prosecutor’s Office on 28 December 2002. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "Search of home and other property 65. Article 30 of the Constitution (1996) guarantees the inviolability of everyone’s home. It prohibits entry into the home or other property of a person, and the examination or search thereof, other than pursuant to a reasoned court decision. 66. Article 311 of the Civil Code (2003) reiterates the above constitutional principles.", "67. Article 177 of the Code of Criminal Procedure (1960) requires that for a search of a house or other property to be conducted, there must be sufficient grounds to believe that the items to be searched for might be found there and a reasoned court decision authorising the search. Such a decision by a court cannot be appealed against. Article 183 of the Code requires the investigating officer in charge of the search to serve the search warrant on the person(s) occupying the relevant premises. If the items searched for are not given to the investigating officer voluntarily, the latter must conduct the search forcibly.", "68. The relevant provisions of the Law “On Search and Seizure Activities” (1992) are summarised in the Volokhy v. Ukraine judgment (no. 23543/02, § 27, 2 November 2006). B. Pre-trial detention 69.", "Article 29 of the Constitution is cited in the judgment on the case of Svershov v. Ukraine (no. 35231/02, § 39, 27 November 2008). 70. The relevant provisions of the Code of Criminal Procedure (CCP) are to be found in the judgments in the following cases: Nevmerzhitsky v. Ukraine, no. 54825/00, §§ 53-54, ECHR 2005‑II (extracts); Kucheruk v. Ukraine, no.", "2570/04, §§ 67-69, 6 September 2007; and Sergey Volosyuk v. Ukraine, no. 1291/03, §§ 24-25, 12 March 2009. THE LAW I. DATE OF INTRODUCTION OF THE APPLICATION 71. The Court notes that, in accordance with its established practice and Rule 47 § 5 of the Rules of Court, it normally considers the date of the introduction of an application to be the date of the first communication indicating an intention to lodge an application and giving some indication of the nature of the application (see Kemevuako v. the Netherlands (dec.), no.", "65938/09, §§ 17 and 19, 1 June 2010). 72. The Court notes that in the present case the applicant’s first communication with the Court on 13 May 2005 was confined to his enquiry about the procedure of introduction of an application before the Court. As to his subsequent letter to the Court of 15 July 2005, the applicant merely referred to his plans to submit some complaints in the future considering his case to be premature at the time (see paragraphs 52-53 above). 73.", "The Court observes that only on 19 July 2006 the applicant submitted a completed application form (see paragraph 55 above). 74. It therefore considers this to be the date of introduction of the present application. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 75.", "The applicant alleged that he had been beaten up by the police on 2 July 2004. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 76. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 77. The applicant complained that on 2 July 2004 he had been beaten up by the police and that, as a result, he had sustained a contusion of the right kidney. In substantiation, he referred to the medical certificate of 7 July 2004 (see paragraph 25 above). 78.", "The Government denied this allegation. They noted that on 3 and 7 July 2004 the applicant had undergone medical examinations in civilian hospitals, with no injuries having been discovered. They further pointed out that, even though the applicant had mentioned to the doctor on 7 July 2004 that he had been ill-treated by the police on 2 July 2004, he had not specified “the circumstances of that ill-treatment”. Lastly, the Government noted that the investigation file had been destroyed following the expiry of the storage time-limits (see paragraph 60 above). In sum, they contended that the applicant’s complaint should be dismissed as unsubstantiated.", "79. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25).", "Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as lying with the authorities to provide a satisfactory and convincing explanation (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII). 80.", "Turning to the present case, the Court observes that it communicated the case to the respondent Government on 16 December 2009 albeit without including the applicant’s complaint under Article 3 of the Convention, this complaint being communicated later (see paragraphs 4 and 5 above). It notes that on 20 January 2010 the domestic authorities had destroyed the file on the investigation of the applicant’s allegation of ill-treatment by the police (see paragraph 64 above). The Court considers it unacceptable that the authorities would destroy any documents relevant to what transpired during an applicant’s detention at a time after a complaint concerning that detention had been communicated to the respondent Government and before any part of an applicant’s case had been declared inadmissible. 81. The Court also emphasises that the obligation on the part of the domestic authorities to investigate a credible allegation of ill-treatment by police does not derive from the purported victim’s attitude, but is to be undertaken by virtue of Article 3 of the Convention (see Arat v. Turkey, no.", "10309/03, § 43, 10 November 2009, and Teslenko v. Ukraine, no. 55528/08, § 117, 20 December 2011). In circumstances where it is clear that the file investigating the applicant’s complaints of ill-treatment has been destroyed, the Court is precluded from considering the extent to which, if at all, the authorities complied with their procedural obligations under Article 3. That said, there is nothing to indicate that they did so. 82.", "In the present case, because of the destruction of the investigation file, the Court is also precluded from using materials that were on that file in assessing the applicant’s substantive complaints of ill-treatment. It remains to be seen to what extent this will hamper the examination of the applicant’s substantive complaint. 83. The Court observes that the parties are in dispute as to whether the applicant sustained any injuries which might be attributable to the police. 84.", "It notes that the Government relied, in particular, on the medical certificate issued by a neurosurgeon on 3 July 2004 reporting the absence of any injuries to the applicant in so far as his area of competence was concerned (see paragraph 19 above). The Court sees no reasons for questioning this finding. It notes, however, that the scope of that examination was quite limited, as the doctor was not called upon to evaluate the applicant’s general state of health or to establish the presence or absence of any injuries on him other than those of a neurological nature. The reasons for that particular medical examination on the day following the applicant’s de facto, but apparently undocumented, detention (see, in particular, paragraphs 18, 27-28 and 48 above) remain unknown. 85.", "The Court further notes that both parties relied on the medical certificate of 7 July 2004 in support of their argument. Having regard to the unambiguous diagnosis of a contusion of the applicant’s right kidney contained in that certificate, the Court does not share the Government’s opinion that it can be regarded as disproving the applicant’s allegation of ill-treatment. Furthermore, the Court does not lose sight of the fact that the doctor who reached the diagnosis forwarded the information to the police (see paragraph 26 above). This indicates that he considered the applicant’s allegation plausible. 86.", "On the facts of the case, it is established that on 2 July 2004 the applicant was arrested and on 7 July 2004 he was diagnosed with a contusion of the right kidney (see paragraphs 18 and 25 above). It was not suggested at any point that prior to his arrest the applicant had been involved in any violence that could have resulted in such an injury. It is also observed that no plausible alternative version of events such as would explain the cause of the applicant’s injury has been advanced by the domestic authorities at any stage. Therefore, it can be assumed that the injury sustained by the applicant was caused during or after his arrest by the police (see and compare with Kulish v. Ukraine, no. 35093/07, § 49, 21 June 2012).", "87. The Court notes from the file that the applicant’s complaint about his ill treatment would appear to have first been made some five days after the assault, when he was examined by a doctor. Under the circumstances he might well have been discouraged from voicing his allegations by the very fact of being under the control of those whom he accused of ill-treatment (see Nadrosov v. Russia, no. 9297/02, § 33, 31 July 2008, and Dvalishvili v. Georgia, no. 19634/07, § 44, 18 December 2012).", "88. In sum, the Court considers that there has been a violation of Article 3 of the Convention in that the applicant was subjected to ill-treatment by police. III. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 89. The applicant complained under Article 5 § 1 (c) of the Convention that his detention from 20 December 2005 to 6 June 2007 had been unlawful.", "He further complained under Article 5 § 3 that the overall length of his pre-trial detention had been unreasonable. Lastly, the applicant complained under Article 5 § 4 that he had been denied adequate judicial review of its lawfulness. The provisions relied on read as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 3.", "Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Admissibility 90. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. The parties’ submissions 91.", "The applicant did not submit any observations on the merits of these complaints within the established time-limits. 92. The Government submitted that the applicant’s detention from 20 December 2005 to 6 June 2007 had been in compliance with applicable domestic law. As to the length of his pre-trial detention, which, according to the Government’s calculation, had been two years, one month and twenty-six days, they considered it reasonable. The Government drew the Court’s attention to the seriousness of the charges against the applicant and his criminal record.", "In their opinion, there had been sufficient and relevant reasons for the domestic courts to remand the applicant in custody and to uphold his continued detention. Lastly, the Government submitted that the applicant had had – and had used on many occasions – the ability to seek judicial review of the lawfulness of his pre-trial detention by way of lodging an application for release. In their view, the applications for release made by the applicant had been duly examined. 2. The Court’s assessment (a) Article 5 § 1 (c) 93.", "The Court notes that on 20 December 2005 the Court of Appeal, having quashed the applicant’s conviction, ordered his retrial and further detention, yet provided no reasons for this detention and set no time-limit on it. It lasted until his subsequent conviction by the first-instance court on 6 June 2007. 94. The Court has previously examined similar situations in other cases against Ukraine and found them to be incompatible with the requirements of lawfulness under Article 5 § 1 of the Convention (see Kondratyev v. Ukraine, no. 5203/09, §§ 109-112, 15 December 2011, as a recent reference containing a brief overview of the relevant cases against Ukraine).", "95. There are no arguments in this case capable of persuading the Court to reach a different conclusion. 96. There has accordingly been a violation of Article 5 § 1 (c) of the Convention in this regard. (b) Article 5 § 3 97.", "The Court notes that the applicant remained in continuous detention following his arrest on 2 July 2004. With the periods when he was detained after conviction for the purposes of Article 5 § 1 (a) of the Convention having been deducted from the total time that he was deprived of his liberty, the overall period to be taken into consideration in the instant case is two years, two months and eight days (from 2 July 2004 to 14 March 2005 and from 20 December 2005 to 6 June 2007). 98. The Court reiterates that the question whether a period of time spent in pre-trial detention is reasonable cannot be assessed in the abstract. Whether it is reasonable for an accused to remain in detention must be assessed on the facts of each case and according to its specific features.", "Continued detention can be justified in a given case only if there are actual 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 et seq., ECHR 2000‑XI; and Idalov v. Russia [GC], no. 5826/03, § 140, 22 May 2012). 99. The existence and persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention.", "However, after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds are “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, §§ 152 and 153, ECHR 2000‑IV; and Idalov, cited above, § 140). Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, no.", "38822/97, § 66, ECHR 2003-I). When deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures of ensuring his appearance at trial (see Jablonski v. Poland, no. 33492/96, § 83, 21 December 2000). 100. The responsibility falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of a suspect 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 or against the existence of the public interest which justifies a departure from the rule in Article 5 and must set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the established facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see Idalov, cited above, § 141, referring, by way of example, to McKay v. the United Kingdom [GC], no. 543/03, § 43, ECHR 2006-X). 101. This means that, at every occasion when a court has to decide whether or not to extend a pre-trial detention, it has to make a fresh assessment of the justification for maintaining the detention.", "Where the court maintains the detention using each time similar, not to say stereotyped, wording, without showing that it actually pays attention to the passage of time, the requirements of Article 5 § 3 of the Convention are not met (see Mansur v. Turkey, 8 June 1995, § 55, Series A no. 319 B; Svipsta v. Latvia, no. 66820/01, § 109, 9 March 2006; and Tiron v. Romania, no. 17689/03, § 39, 7 July 2009). 102.", "The Court has often found a violation of Article 5 § 3 of the Convention in cases against Ukraine on the basis that, even for lengthy periods of detention, the domestic courts referred to the same set of grounds, if any, throughout the period of the applicant’s detention (see, for example, Yeloyev v. Ukraine, no. 17283/02, §§ 59-61, 6 November 2008, and Kharchenko v. Ukraine, no. 40107/02, §§ 80-81 and 99, 10 February 2011). 103. In the present case the seriousness of the charges against the applicant and the risk of his absconding or reoffending had been advanced in the initial order for his detention.", "This reasoning did not evolve with the passage of time. Nor did the domestic courts consider at any stage any alternative preventive measure instead of detention on remand. 104. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 5 § 3 of the Convention. (c) Article 5 § 4 105.", "The Court reiterates that Article 5 § 4 of the Convention entitles arrested or detained persons to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty. This means that the court with jurisdiction has to examine not only compliance with the procedural requirements of domestic law but also the reasonableness of the suspicion underpinning the arrest, and the legitimacy of the purpose pursued by the arrest and the ensuing detention (see Butkevičius v. Lithuania, no. 48297/99, § 43, ECHR 2002‑II (extracts)). 106. The Court observes that the domestic court refused to look again into the reasonableness of the applicant’s detention on the grounds that it had ruled on the lawfulness of his detention on a previous occasion (see paragraph 46 above), therefore denying the applicant’s right to a review of the lawfulness of his detention as guaranteed by Article 5 § 4 (see Yeloyev v. Ukraine, cited above, § 65).", "Moreover, the Court held in its judgment in the case of Kharchenko v. Ukraine, cited above, that this problem is of a systemic nature stemming from legal lacunae and inadequate administrative practice (§§ 100 and 101). 107. It considers that the same findings are pertinent in the present case. 108. There has therefore been a violation of Article 5 § 4 too.", "IV. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 109. The applicant raised a number of complaints under Article 6 §§ 1, 3 (b), (c) and (d) of the Convention about the alleged unfairness and length of his trial. The provisions relied on read as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ... 3.", "Everyone charged with a criminal offence has the following minimum rights: (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” A. Complaints as to the fairness of the criminal proceedings against the applicant 110. The applicant’s complaints under Article 6 §§ 1 and 3 (c) of the Convention as regards the alleged violation of his right to the privilege against self-incrimination and early access to a lawyer were communicated to the Government. 111. The Government submitted that the applicant had failed to duly raise these issues in his cassation appeal and could not therefore be regarded as having exhausted domestic remedies.", "112. The applicant disagreed. He admitted that his cassation appeal had not been accepted for examination by the Supreme Court on the grounds that it had not complied with various formal requirements (see paragraph 51 above). The applicant, however, expressed suspicion that the letters from the Supreme Court indicating certain shortcomings in his cassation appeal had in fact been forged by the judge of the first-instance court dealing with his case, who he claimed had wished to prevent him bringing the case before the Supreme Court. 113.", "The Court reiterates that the purpose of Article 35 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions (see, for example, Hentrich v. France, 22 September 1994, § 33, Series A no. 296-A). Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body in compliance with the formal requirements and time-limits laid down in domestic law (see Cardot v. France, 19 March 1991, § 34, Series A no. 200). A failure to comply with such requirements may lead to a finding that domestic remedies have not been exhausted (see, among many other authorities, MPP Golub v. Ukraine (dec.), no.", "6778/05, ECHR 2005‑XI). 114. At the same time, the Court notes that only effective remedies are required to be exhausted (see Paksas v. Lithuania [GC], no. 34932/04, § 75, ECHR 2011 (extracts)). 115.", "The Court has already held that an appeal in cassation to the Supreme Court (under the criminal procedural legislation in force at the material time) is considered an effective remedy for complaints of unfair criminal proceedings (see, mutatis mutandis, Arkhipov v. Ukraine (dec.), no. 25660/02, 18 May 2004, and Borotyuk v. Ukraine, no. 33579/04, § 73, 16 December 2010). The applicant could reasonably have expected the domestic courts to deal with his complaint and to remedy any violation, in particular, of his right to mount a defence, if found (see Shalimov v. Ukraine, no. 20808/02, § 62, 4 March 2010, and Borotyuk v. Ukraine, cited above, § 73).", "116. It follows that in the present case, in order to comply with the exhaustion requirement, the applicant should have raised his complaints concerning the alleged unfairness of his trial in a cassation appeal to the Supreme Court. 117. The Court notes, however, that the applicant failed to comply with the formalities existing in domestic law for introducing his appeal in cassation. The only explanation given by him for this failure was that he suspected forgery of documents by a judge of the first-instance court (see paragraph 112 above).", "In the absence of any direct or indirect evidence in support of this submission, the Court cannot be satisfied as to the veracity of this explanation. It does not lose sight of the absence of any submissions by the applicant that the guidelines given to him as regards the shortcomings in his cassation appeals and the ways of their rectification were unreasonable or impossible to comply with, or that he was precluded from complying with them by a lack of legal assistance or owing to any other specific circumstances. 118. In sum, the Court considers that the applicant’s complaints under this head, both those which were communicated to the respondent Government and those which were not (see paragraphs 109 and 110 above), should be rejected for non-exhaustion of domestic remedies under Article 35 §§ 1 and 4 of the Convention. B.", "Complaint as to the length of the trial 119. 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 criteria laid down in the Court’s case-law, in particular the complexity of the case, the applicant’s conduct and the conduct of the competent authorities (see Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II). 120. The Court notes that the criminal proceedings against the applicant in the present case lasted less than four years for the pre-trial investigation and the judicial proceedings before the courts of three levels of jurisdiction, including one remittal of the case by the appellate court to the first-instance court.", "The Court does not consider the length of these proceedings as unreasonable. 121. It therefore rejects this complaint as being manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION REGARDING THE APPLICANT’S RIGHT TO RESPECT FOR HIS HOME 122. The applicant complained that the police search of his house on 2 July 2004 had breached his right to respect for his home under Article 8 of the Convention, which provides as follows: “1.", "Everyone has the right to respect for his ... home ... 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.” A. Admissibility 123. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 124. The applicant maintained his complaint in general terms. 125. The Government admitted that there had been an interference with the applicant’s right to respect for his home.", "However, they considered it to have been in compliance with the requirements of paragraph 2 of Article 8 of the Convention. The Government observed that the search of the applicant’s home had been based on the judicial ruling of 19 May 2004 and that it had been necessary for the prevention of crime. While the aforementioned ruling had concerned a criminal investigation in respect of a different person, Mr B., it had become known to the investigator that the applicant might have been involved in the production and sale of illegal drugs. Accordingly, it had been legitimate to verify this information by way of a search. Lastly, the Government emphasised that the lawfulness of the search in question had been reaffirmed by the courts of three levels of jurisdiction in the course of the trial and appeal proceedings.", "126. The Court finds, and this is common ground between the parties, that the search complained of amounted to an interference with the applicant’s right to respect for his home. 127. The Court next observes that the search in question had a legal basis in domestic law, namely Article 177 of the Code of Criminal Procedure (see paragraph 67 above). 128.", "Furthermore, it was ordered in the course of a criminal investigation into the possession of illegal drugs (see paragraph 11 above). It therefore served a legitimate aim, namely the prevention of crime. It remains to be examined whether the interference was “necessary in a democratic society”. 129. The Court reiterates that where States consider it necessary to resort to measures such as searches of residential premises in order to obtain evidence of offences, it will assess whether the reasons adduced to justify such measures were relevant and sufficient and whether the proportionality principle has been adhered to.", "The Court will also explore the availability of effective safeguards against abuse or arbitrariness in domestic law and check how those safeguards operated in the specific case under examination. Elements to be taken into consideration in this regard include, but are not limited to, the manner and circumstances in which the order was issued, in particular whether there was further evidence available at that time, and the content and scope of the order, having particular regard to the safeguards taken in order to confine the impact of the measure to reasonable bounds (see Buck v. Germany, no. 41604/98, §§ 44-45, ECHR 2005‑IV). 130. The Court notes that in the present case the search of the applicant’s home was conducted under a warrant issued by the Suvorivskyy Court and was therefore subject to judicial scrutiny.", "However, this mere fact will not in itself necessarily amount to a sufficient safeguard against abuse (see Cronin v. the United Kingdom (dec.), no. 15848/03, 6 January 2004). In assessing whether the State’s interference was proportionate, the Court must consider the particular circumstances of each case (see, for example, Camenzind v. Switzerland, 16 December 1997, § 45, Reports of Judgments and Decisions 1997‑VIII). 131. The impugned search took place in the course of a criminal investigation concerning an individual, Mr B., who was suspected of possessing illegal drugs, following his allegation that he had bought drugs from the applicant (see paragraph 9 above).", "At that stage, there was no criminal investigation pending in respect of the suspicion of the applicant’s possession or distribution of illegal drugs. The Court accepts that the task of uncovering evidence of a crime might necessitate a search of a third party’s premises (see and compare with Buck v. Germany, cited above, § 48). This factor is, however, to be borne in mind in applying the proportionality test (see also Ratushna v. Ukraine, no. 17318/06, § 74, 2 December 2010). 132.", "The Court notes that, in order to grant a warrant for a search of a house or other property, the Ukrainian courts are required by law to be satisfied that there are sufficient grounds to believe that the items to be searched for might be found there (see paragraph 67 above). 133. The Court has no reasons to doubt that when issuing the search warrant on 19 May 2004 the Suvorivskyy Court had some evidence before it suggesting that the applicant could have had drugs in his possession with the intent to supply them. Namely, there had been an allegation made that the applicant was selling drugs. This warranted investigation, possibly by way of a search of his house.", "134. The Court observes, however, that the police only searched the applicant’s house on the basis of the aforementioned warrant one-and-a-half months later. No explanation for this delay is known to have been given. Moreover, although the Court of Appeal expressly criticised the failure of the trial court to assess the timing and the context of the search warrant in question when quashing the judgment of 14 May 2005 (see paragraph 42 above), this issue was completely disregarded in the subsequent judicial decisions delivered in the criminal proceedings against the applicant (see paragraphs 47 and 50 above). 135.", "The Court does not lose sight of the fact that the impugned search took place almost immediately after an undercover operation (even though the exact timing of the events was in dispute – see paragraph 41 above). This might have implied a certain urgency with a view to securing evidence of a crime (see and compare with Mastepan v. Russia, no. 3708/03, §§ 41 and 44, 14 January 2010). In this case, however, the reliance of the investigating authorities on the search warrant of 19 May 2004 does not demonstrate such urgency. 136.", "Lastly, the Court cannot overlook certain factual discrepancies around the conduct of the search, which were not reconciled in a convincing manner (see paragraphs 16-17, 41 and 47 above). 137. Regard being had to the foregoing, the Court does not consider that the interference with the applicant’s right to respect for his home was proportionate to the legitimate aim pursued. 138. There has therefore been a violation of Article 8 of the Convention in this regard.", "VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION REGARDING THE APPLICANT’S RIGHT TO RESPECT FOR HIS CORRESPONDENCE 139. Having regard to the fact that a number of letters from the applicant to the Court bore the stamp of the detention facilities on the first page, the Court considered it appropriate to raise, of its own motion, the issue of Ukraine’s compliance with Article 8 of the Convention on account of the monitoring of the applicant’s correspondence with the Court (see Glinov v. Ukraine, no. 13693/05, § 42, 19 November 2009). This Article, insofar as relevant, reads as follows: “1.", "Everyone has the right to respect for 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.” 140. The Government contended that this part of the application should be rejected: for the applicant’s failure to comply with the six-month time-limit in so far as his complaint concerned the alleged interference by the administration of the detention facilities with his correspondence before 21 December 2005 (the entry into force of legislative amendments prohibiting monitoring of detainees’ correspondence with the Court); and for non-exhaustion of domestic remedies as regards the alleged monitoring of his correspondence with the Court thereafter. 141.", "The Government further contended that the applicant had submitted his letters addressed to the Court to the administration for dispatching without any envelopes and that his correspondence had been sent at the expense of the administration. Accordingly, the staff members in charge had had no other option than to put a stamp on the first page of every letter. This did not, however, mean that they had read the correspondence, as the applicant had been able to immediately seal the envelopes himself. 142. The applicant did not comment.", "143. The Court does not consider it necessary to decide on the Government’s objections since this complaint is in any event inadmissible. 144. The Court notes that six of the applicant’s letters sent to it from the SIZO and two letters sent from the prison had the SIZO or the prison stamp on their first page (see paragraph 56 above). However, unlike in the case of Glinov, cited above, where the administration of the detention facilities accompanied the applicant’s letters to the Court by brief summaries of their contents (§§ 27, 28 and 55), no such summaries were attached to the applicant’s letters in the present case.", "Nor did the applicant refer to any factual details suggesting that the administration had in fact read his correspondence. 145. The Court does not consider implausible the Government’s submission that the applicant had submitted his correspondence to the administration without envelopes. Accordingly, the mere fact that the first page of his letters was stamped does not automatically imply monitoring of his correspondence. 146.", "In sum, having regard to all the circumstances of this case, the Court is not convinced that there was any interference with the applicant’s right to respect for his correspondence under Article 8 in the present case. 147. It therefore considers that this part of the application discloses no appearance of a violation of that provision, and dismisses it as being manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention. VII. ALLEGED INTERFERENCE WITH THE APPLICANT’S RIGHT OF INDIVIDUAL PETITION UNDER ARTICLE 34 OF THE CONVENTION 148.", "Lastly, the applicant complained that the prison administration had hindered his communication with the Court by charging him for postage and that, as a result, he had been obliged to send correspondence to the Court – namely, the letter of 20 January 2009 – through his mother. He also complained that he had never received the Court’s letter of 12 September 2007 and that his letter of 21 October 2008 had not reached the Court. The Court considers it appropriate to examine the above complaint under Article 34 of the Convention, which reads as follows: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” 149. The Government submitted that the administration of the detention facilities had not hindered the applicant’s communication with the Court in any way, having dispatched his letters and having passed on those received from the Court addressed to him without delay.", "Moreover, they pointed out that it had been the administration that had borne the postage costs. 150. The Court reiterates that Article 34 of the Convention imposes an obligation on a Contracting State not to hinder the right of individual petition. While the obligation imposed is of a procedural nature, distinguishable from the substantive rights set out in the Convention and its Protocols, it flows from the very essence of this procedural right that it is open to individuals to complain of its alleged infringement in Convention proceedings (see Manoussos v. the Czech Republic and Germany (dec.), no. 46468/99, 9 July 2002).", "The Court also underlines that the undertaking not to hinder the effective exercise of the right of individual application precludes any interference with the individual’s right to present and pursue his complaint before the Court effectively (see, among other authorities and mutatis mutandis, Akdivar and Others v. Turkey, 16 September 1996, § 105, Reports 1996-IV; Kurt v. Turkey, 25 May 1998, § 159, Reports 1998-III; Tanrikulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV; Şarlı v. Turkey, no. 24490/94, §§ 85-86, 22 May 2001; and Orhan v. Turkey, no. 25656/94, 18 June 2002). 151.", "Turning to the substance of the applicant’s complaint, the Court notes that one of the letters which the applicant sent to the Court and one letter from the Court addressed to him did not arrive. It is possible that this was due to a technical error at some stage of their dispatch or delivery. However, the Court is unable to find on that basis alone that the Ukrainian authorities deliberately stopped the applicant’s letter or failed to ensure that it was duly dispatched or that they deliberately withheld the Court’s letter addressed to him (see Vasiliy Ivashchenko v. Ukraine, no. 760/03, § 115, 26 July 2012, with further references). 152.", "As to the applicant’s submission that he had been obliged to send his letter of 20 January 2009 through his mother, it appears that he is mistaken in this regard as there is evidence that this letter was dispatched for postage to the Court directly from the prison (see paragraph 60 above). 153. Lastly, as regards the applicant’s complaint that he could not afford to pay for postage, the Court notes that it is not supported by any factual details, such as, for example, information relating to the applicant’s financial situation and the relevant postage costs. 154. In sum, the Court concludes that the respondent State did not fail to comply with its obligations under Article 34 of the Convention.", "VIII. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 155. The applicant complained under Article 5 § 1 of the Convention that the entire period of his detention had been unlawful, in addition to that from 20 December 2005 to 6 June 2007 (see paragraph 89 above). He further complained under Article 1 of Protocol No. 1 to the Convention that the police had damaged some of his property during the search on 2 July 2004.", "The applicant next complained in general terms and without referring to any provision of the Convention that he had received poor medical care in prison. Lastly, he cited Articles 7 and 17 of the Convention and Article 3 of Protocol No. 7 to the Convention without being more specific. 156. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that there is a failure to substantiate those claims and thus concludes that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.", "It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant Article 35 §§ 3 (a) and 4 of the Convention. IX. APPLICATION OF ARTICLE 41 OF THE CONVENTION 157. 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 158.", "The applicant claimed 2,000,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. 159. The Government contested the claim as excessive and irrelevant. 160. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim.", "On the other hand, taking into account the nature of the violations found and ruling on an equitable basis, it awards the applicant EUR 9,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 161. The applicant did not make any claim under this head. The Court therefore makes no award.", "C. Default interest 162. 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 complaints concerning the applicant’s alleged ill-treatment by the police, the lawfulness of his detention from 20 December 2005 to 6 June 2007, the length of the entire period of his pre-trial detention and the alleged lack of adequate judicial review of its lawfulness, and the alleged infringement of his right to respect for his home admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention on account of the applicant’s ill-treatment by the police; 3.", "Holds that there has been a violation of Article 5 § 1 (c) of the Convention as regards the applicant’s detention from 20 December 2005 to 6 June 2007; 4. Holds that there has been a violation of Article 5 § 3 of the Convention; 5. Holds that there has been a violation of Article 5 § 4 of the Convention; 6. Holds that there has been a violation of Article 8 of the Convention on account of the police search of the applicant’s home on 2 July 2004; 7. Holds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention; 8.", "Holds (a) that the respondent State is pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 9,000 (nine thousand euros) in respect of non-pecuniary damage plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable on 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; 9. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 7 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekMark VilligerRegistrarPresident" ]
[ "SECOND SECTION CASE OF SOTIRIS AND NIKOS KOUTRAS ATTEE v. GREECE (Application no. 39442/98) JUDGMENT STRASBOURG 16 November 2000 FINAL 16/02/2001 In the case of Sotiris and Nikos Koutras ATTEE v. Greece, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrA.B. Baka, President,MrC.L. Rozakis, MrB. Conforti,MrG.", "Bonello,MrP. Lorenzen,MrM. Fischbach,MrA. Kovler, judges,and Mr E. Fribergh, Section Registrar, Having deliberated in private on 9 December 1999 and 26 October 2000, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no.", "39442/98) against the Hellenic Republic lodged with the European Commission of Human Rights (“the Commission”) by a Greek limited company, Sotiris and Nikos Koutras ATTEE (“the applicant company”), on 11 July 1997 under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). 2. The applicant company was represented by Ms V. Kasseri, who was subsequently replaced by Ms E. Vratsida, of the Athens Bar. The Greek Government (“the Government”) were represented by the delegates of their Agent, Mr V. Kyriazopoulos, Senior Adviser at the State Legal Council, and Mrs M. Papida, Legal Assistant at the Legal Council of State. 3.", "Relying on Article 6 § 1 of the Convention the applicant company complained of an infringement of its right of access to a tribunal. 4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).", "5. It was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6. By a decision of 9 December 1999 the Court declared the application admissible [Note by the Registry.", "The Court's decision is obtainable from the Registry.]. THE FACTS 7. On 11 February 1992 the applicant company applied to the Ministry of the National Economy under the provisions of Law no. 1892/1990 for a subsidy to build a hotel. That statute provided that companies satisfying certain conditions were entitled to a State subsidy for their investments.", "8. The applicant company's request was rejected in a decision of 29 June 1992. 9. On 30 September 1992 the applicant company lodged an application with the Supreme Administrative Court for judicial review of the above-mentioned decision. Its lawyer delivered the application by hand to two police officers at Athens police station no.", "4. The police officers affixed the police station's seal to the first page of the application and wrote the registration number and date on it. They did not, however, note the registration number on the record of deposit stamped onto the application itself. 10. On 6 February 1996 the Supreme Administrative Court ruled the application inadmissible on the following grounds: “Article 19 §§ 1 and 2 of Presidential Decree no.", "18/1989 provide that in order for an application for judicial review to be validly lodged with a public authority, it must be registered in the said authority's register and stamped with a record of deposit. This record must mention the registration number and the date and must be signed by the official receiving the application and by the applicant ... There can be no substitute formalities for compliance with that procedure, to which the applicant himself is a party, because it is a legal requirement for the valid registration of an application. Accordingly, if an application lodged with a public authority other than the Supreme Administrative Court is incorrectly stamped, this will affect the validity of the application. In the present case the notice of application was lodged with Athens police station no.", "4 and stamped with a record of deposit which was signed by the lawyer depositing the application, the two police officers receiving it and the senior officer at the station. However, this stamp did not bear a registration number. Admittedly, the registration number and date of deposit are indicated both on the seal next to the stamp and the first page of the application, but they do not appear on the stamp recording the deposit of the application itself and are signed neither by the lawyer who lodged the application nor by the police officers who took delivery of it. Accordingly, they do not satisfy the statutory conditions of admissibility of applications.” 11. That judgment was finalised (καθαρογραφή) on 16 May 1997 and the applicant company obtained a copy on 13 June 1997.", "THE LAW i. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 12. The applicant company submitted that there had been a breach of Article 6 § 1 of the Convention, which provides: “In the determination of his civil rights and obligations ... ,everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...” The applicant company complained in particular that the decision of the Supreme Administrative Court ruling its application inadmissible amounted to a denial of access to the courts. The error which had given rise to this situation could not be attributed to the applicant company because, in its submission, the police officers were responsible for stamping the application correctly and, in their capacity as public officials, taking all necessary steps to ensure that it was valid. 13.", "The Government submitted that, in the interests of the proper administration of justice, it had to be accepted that there were certain formalities which had to be complied with before an action could validly be brought in a national court. Accordingly, the Supreme Administrative Court's dismissal of the application was the foreseeable consequence of the error made on lodging the application. Since the applicant company's lawyer was also responsible for that error, her client could not complain of an infringement of its right of access to a tribunal. 14. The Court has held that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights or obligations brought before a court or tribunal.", "That “right to a tribunal”, of which the right of access is an aspect, may be relied on by anyone who considers on arguable grounds that an interference with the exercise of one of his civil rights is unlawful and complains that he has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6 § 1 (see, inter alia, the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, p. 18, § 36). 15. It is also apparent from the Court's case-law that the right of access to a tribunal is not an absolute one; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. However, these limitations must not restrict or reduce a person's access in such a way or to such an extent that the very essence of the right is impaired.", "Furthermore, such limitations will not be compatible with Article 6 § 1 if they do 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 achieved (see, among other authorities, the Levages Prestations Services v. France judgment of 23 October 1996, Reports of Judgments and Decisions 1996-V, p. 1543, § 40). 16. In the instant case the applicant company's application for judicial review was declared inadmissible on the basis of Article 19 of Presidential Decree no. 18/1989. The applicant company alleged that a mere clerical error had deprived it of its right to have its application for judicial review examined by the Supreme Administrative Court.", "17. The Court reiterates that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see the Edificaciones March Gallego S.A. v. Spain judgment of 19 February 1998, Reports 1998-I, p. 290, § 33). This applies in particular to the interpretation by the courts of rules of a procedural nature such as time-limits governing the filing of documents or lodging of appeals (see the Pérez de Rada Cavanilles v. Spain judgment of 28 October 1998, Reports 1998-VIII, p. 3255, § 43). The Court's role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention.", "18. Furthermore, the Court reaffirms that Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation. Nevertheless, a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before these courts the fundamental guarantees contained in Article 6 (see, among other authorities, the Delcourt v. Belgium judgment of 17 January 1970, Series A no. 11, pp. 13-15, § 25).", "The manner in which Article 6 § 1 applies to courts of appeal or cassation depends on the special features of the proceedings concerned and account must be taken of the entirety of the proceedings conducted in the domestic legal order and the Court of Cassation's role in them; the conditions of admissibility of an appeal on points of law may be stricter than for an ordinary appeal (see, among other authorities, the Brualla Gómez de la Torre v. Spain judgment of 19 December 1997, Reports 1997-VIII, p. 2956, § 37, and Mohr v. Luxembourg (dec.), no. 29236/95, 20 April 1999, unreported). 19. In the instant case the Court finds that the applicant company had access to the Supreme Administrative Court, but only to hear its application declared inadmissible on the ground that the registration number had not been entered in the record of deposit (see paragraph 10 above). The fact that the applicant company was able to bring its case before a court does not in itself necessarily satisfy the requirements of Article 6 § 1.", "It must still be established that the degree of access afforded under the national legislation was sufficient to secure the individual's “right to a court”, having regard to the rule of law in a democratic society (see the Golder judgment cited above, pp. 16-18, §§ 34-35). 20. The Court considers that the rules governing the formal steps to be taken in lodging an appeal are aimed at ensuring a proper administration of justice. Litigants should expect the existing rules to be applied.", "However, the rules in question, or the application thereof, should not prevent persons amenable to the law from availing themselves of an available remedy. 21. The Court notes that, in declaring the application inadmissible in the instant case, the Supreme Administrative Court penalised the applicant company for a clerical error made on lodging its application, whereas the applicant company cannot be held liable for that error. The Court considers, rather, that since domestic law provides that an application for judicial review can be lodged with a public authority other than the registry of the Supreme Administrative Court, compliance with the formalities for lodging such an application is mainly the responsibility of the public officers empowered to receive the application. 22.", "Furthermore, given the special nature of the Supreme Administrative Court's role in reviewing administrative decisions, the Court cannot accept that the procedure before that court should be so excessively formalistic. Indeed, the Court notes that the Supreme Administrative Court did not succeed other national courts in examining the applicant company's case, but was called upon to rule at first and last instance. It was therefore the first and last set of proceedings during which the applicant company's case could be examined by a court. 23. Lastly, as the Supreme Administrative Court has itself acknowledged, the missing registration number appeared both on the seal affixed next to the record of deposit and on the first page of the application, so identification of the application was not jeopardised.", "The Court therefore considers that the applicant company was disproportionately hindered in its right of access to a court and that, accordingly, there has been an infringement of the very essence of its right to a tribunal. Accordingly, there has been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 24. The applicant company also complained of a breach of Article 13 of the Convention, which provides: “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.” It complained in particular that it had not had an effective remedy before a national court by which to exercise its rights.", "25. Having regard to the finding in paragraph 23 above, the Court holds that it is unnecessary to rule on the complaint in question. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 26. 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 27. The applicant company claimed 231,000,000 drachmas (GRD) for pecuniary damage. That was the amount it would have received if the Supreme Administrative Court had upheld its claim. The applicant company also claimed GRD 20,000,000 for non-pecuniary damage. 28.", "The Government stressed that any just satisfaction that might be awarded to the applicant company should not exceed GRD 1,000,000. 29. The Court considers that, even if the application lodged by the applicant company had been declared admissible, it is not a foregone conclusion that it would have succeeded in the Supreme Administrative Court. It would therefore be mere speculation to assert that the Supreme Administrative Court would have upheld the applicant company's claim if it had not concluded that its application was inadmissible. Accordingly, the Court considers that, in the absence of a causal link between the pecuniary damage referred to and the breach found, no compensation can be awarded under this head.", "It does consider, however, that the applicant company should be awarded compensation for the non-pecuniary damage resulting from the lack of a fair trial. Having regard to its case-law on the subject and making its assessment on an equitable basis, as required by Article 41, it decides to award the applicant company GRD 3,000,000 under this head. B. Costs and expenses 30. The applicant company requested the reimbursement of GRD 250,000 for counsel's fees for the proceedings in the Supreme Administrative Court.", "31. The Government did not comment. 32. The Court considers that the applicant company should be awarded the entirety of the sum claimed for costs and expenses. C. Default interest 33.", "According to the information available to the Court, the statutory rate of interest applicable in Greece 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 a violation of Article 6 § 1 of the Convention as regards the applicant company's right to a fair trial; 2.Holds that it is unnecessary to rule on the complaint based on Article 13 of the Convention; 3.Holds (a) that the respondent State is to pay the applicant company, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, GRD 3,000,000 (three million drachmas) for non-pecuniary damage and GRD 250,000 (two hundred and fifty thousand drachmas) for costs and expenses, together with any value-added tax that may be chargeable; (b) that simple interest at an annual rate of 6 % shall be payable from the expiry of the above-mentioned three months until settlement; 4.Dismisses the remainder of the claim for just satisfaction. Done in French, and notified in writing on 16 November 2000, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Erik FriberghAndrás BakaRegistrarPresident" ]
[ "FOURTH SECTION CASE OF RUBINS v. LATVIA (Application no. 79040/12) JUDGMENT STRASBOURG 13 January 2015 FINAL 01/06/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Rubins v. Latvia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Päivi Hirvelä, President,Ineta Ziemele,Ledi Bianku,Nona Tsotsoria,Paul Mahoney,Krzysztof Wojtyczek,Faris Vehabović, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 2 December 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "79040/12) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Mr Andris Rubins (“the applicant”), on 7 December 2012. 2. The applicant was represented by Ms I. Betkere, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Ms K. Līce. 3.", "The applicant alleged, in particular, that his dismissal from his university post following a critical email sent to the Rector constituted a violation of his right to freedom of expression guaranteed by Article 10 of the Convention. 4. On 5 October 2013 the Government were given notice of the complaint concerning Article 10 of the Convention and the remainder of the application was declared inadmissible. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1947 and lives in Riga. A. Events leading to the applicant’s dismissal 6. The applicant was a professor and the head of the Department of Dermatological and Venereal Diseases of the Faculty of Medicine of Riga Stradiņa University (hereafter “the University”), which is a State university. The applicant had been elected to the position of head of department with effect until 13 April 2013.", "He was also an elected member of the constituent assembly of the University (Satversmes sapulce). 7. On 22 February 2010 the Council of the Faculty of Medicine decided to merge the Department of Dermatological and Venereal Diseases and the Department of Infectious Diseases. That decision was approved by the Senate of the University (Senāts) on the following day. It appears that as a result of the merger the position of head of department occupied by the applicant was abolished.", "Accordingly, on 24 February 2010 the applicant received a warning (brīdinājums) to that effect and was given the opportunity to agree to the changes in his contract with the University. He was also informed that if he refused, his employment relationship with the University would be terminated. 8. On 28 February 2010 the applicant sent various emails to the Rector of the University concerning the circumstances of the reorganisation and the abolition of his department. He criticised the decisions taken by the deputy dean, G.B.", "9. On 3 March 2010 the applicant sent another email to the Rector of the University and to several other recipients, including the members of the Senate. The email criticised the lack of democracy and accountability in the leadership of the organisation, which, according to the applicant, stemmed from the fact that all the members of the Senate were also a part of the executive authority of the University and there was thus an inadequate system of checks and balances. He also drew the recipients’ attention to the alleged mismanagement of the University’s finances. In support of this allegation the applicant relied on the conclusions adopted by the State Audit Office (Valsts Kontrole) in December 2009.", "10. The applicant further spoke in unfavourable terms about several representatives of the management of the University, stating, for example, that [Mr ...]. “pretends to be a God-fearing Catholic ... yet, as far as is known, has several children born out of wedlock”, that [Mr ...] “cannot decide a single question by himself, does not keep his word, is lying” and that [Mrs ...] “has called me and asked me to break the law in the interests of her protégés”. 11. Finally, the applicant came up with a proposal involving several amendments to the constitution of the University, such as changes in the election of the members of the Senate (an obligation to inform the constituent assembly of the candidate’s CV at least one week before the elections, the setting-up of an independent electoral commission); separation of powers between the University’s governing bodies (Senate members should not be part of the executive body of the University); and the granting of independence to the Senate (changing the remuneration system so that the Rector did not unilaterally fix the remuneration of members of the Senate).", "He asked the Rector to forward his proposals to the members of the constituent assembly and to send him the email addresses of those members or inform him where to find those contacts. 12. It appears that on 16 March 2010 the applicant expressed his disagreement with the reorganisation at the meeting of the Senate of the university which upheld the decision. 13. On 20 March 2010 the applicant sent an email to the Rector of the University.", "The subject-line of the email read “Settlement agreement”. The text of the email read as follows: “To the Rector of the University .... Confidential [1] Dear Rector, [2] In view of the situation which has evolved and the advice of my lawyers and supporters, I hereby propose the following settlement agreement. [3] It would entail: [4] Version 1 [5] You (the University) revoke all the orders and decisions of the Senate concerning the abolition/merger of the Department of Dermatological and Venereal Diseases. I for my part withdraw all my appeals, thereby restoring the situation as it was before the decision of the Senate of 23 February 2010.", "Meanwhile the three lecturers ... (all of them were recognised as plagiarists by a decision of the [Latvian association of doctors]) who expressed their intention to move to the Department of Infectious Diseases, are transferred to that Department. I have no objections if the specialist ... who, it is common knowledge, is the mother of ...’s daughter, is transferred to another post or fired. This month she did not spend a single day at work in the Department of Dermatological and Venereal Diseases (presumably she reports to ... or has been transferred to ... or another department, or maybe [she has] submitted her resignation, I don’t know). [6] Version 2. I, as a head of department elected until 2013, and after having received a certain amount of compensation on which we would agree (for example, LVL 100,000), as provided for by my agreement with the University, agree terms with you, the dispute is terminated and I leave the post.", "[7] Of course I understand that at the constituent assembly of the University you, as Rector, can secure a decision that is favourable to you. However by this means nothing would come to an end but would only start, as I reserve the right to appeal against all the decision [adopted by] the University in the administrative, district and regional courts, while of course making everything public beforehand and attracting the attention of society. [8] I do not believe that in an election year, taking into consideration the latest news (the conclusion adopted by the State Audit Office on the illegalities at the University, plagiarism on the part of lecturers and professors of the University etc. ), you would want to have additional tasks and trouble (nodarbošanos un nepatikšanas). [9] I am sure that I don’t want this and I wish to be allowed to work in a creative manner with students in my field as before.", "In addition, I have much work to do organising two large European congresses in 2011 and 2012 in Riga, in both of which my participation as president has been confirmed. [10] Since I have also not received the list of members of the constituent assembly of the University (which was requested from you and the Senate in my letter of 3 March 2010! ?, a fact which demonstrates the lack of democracy [at] the University), I will await a reply from you by Monday, 22 March 2010 at 11 a.m. If we are unable to reach agreement by signing a settlement agreement I will make all my current information public in the form of an open letter so that the members of the constituent assembly of the University also have at least one day before the meeting to think about their vote. Professor A. Rubins P.S.", "[contains a request concerning one of the applicant’s staff members who was on sick leave but at the same time attended meetings of the Senate]. 14. On 22 March 2010 the Rector replied to the applicant that he could not agree to any of the proposals. 15. The following day, 23 March 2010, at the meeting of the constituent assembly of the University, the applicant expressed his disagreement with the reorganisation and asked that the decision concerning the merger of faculties be annulled.", "His request was not upheld. On the same day the national news agency LETA published the applicant’s views about the alleged shortcomings in the management of the University. The criticisms referred to the conclusions of the State Audit Office. 16. On 25 and 31 March 2010 the Rector asked an ad hoc investigative committee and the ethics committee to review the applicant’s conduct.", "17. On 6 May 2010 the applicant received a notice of termination of employment (uzteikums) from the University, in which he was informed that his employment contract with the University would be terminated ten days after receipt of the notice. The legal basis for the applicant’s dismissal was section 101(1)(1) and (3) of the Labour Law, and the applicant was deemed to have acted in contravention of several provisions of the University’s staff regulations (see Relevant domestic law part, paragraphs 30 and 34 below). The notice stated, inter alia, as follows: “The ground for dismissal is the email you sent to the Rector of [the University] on 20 [March] 2010, in which, while addressing the Rector concerning issues of interest to you, you included inappropriate demands, including elements of blackmail and undisguised threats. As a consequence your actions are considered as very grave infringements of basic ethical principles and standards of behaviour, and as absolutely contrary to good morals.", "The fact of sending such a letter, and its contents, are clearly contrary to good morals, all the more so taking into account the circumstances in which the letter was sent and your attitude.” 18. On 17 May 2010 the University dismissed the applicant from his post. Soon afterwards he took up a post in another university in Latvia. B. Civil proceedings 19.", "The applicant submitted a claim to the Riga City Kurzeme District Court, asking the court to invalidate the notice of termination and to order his reinstatement and payment of the unpaid salary and benefits together with compensation for non-pecuniary damage. 20. In a judgment of 11 March 2011 the Kurzeme District Court allowed the applicant’s claim in part. It held that the fact that the applicant’s employer had been offended by his email was not a legitimate reason for his dismissal, since section 101 of the Labour Law did not include such a ground. The court considered that the allegation that the applicant’s email had contained elements of blackmail and threats was merely speculation on his employer’s behalf.", "It was additionally found that the applicant had not been given an adequate opportunity to respond to the allegations contained in the termination notice before that notice was sent to him. Accordingly the court annulled the termination notice and ordered the applicant’s reinstatement with back-payment of his salary. The applicant’s claim for compensation in respect of non-pecuniary damage was rejected as unsubstantiated. 21. Both the applicant and the University appealed.", "During the court hearing the applicant mentioned that he had requested that several illegalities be examined at the meeting of the constituent assembly of 23 March 2010. Counsel for the defendant stated that both the ad hoc investigative committees set up by the Rector had found that the content of the letter was to be perceived as blackmail and threats. He contended that the request to receive a certain amount in compensation and the deadline by which the reply had to be received all proved the breach of ethical norms. The defendant further alleged that several “defamatory facts about the University” had been published on 23 March by LETA, and considered that the above activities therefore confirmed the threats made in the applicant’s email. 22.", "On 18 January 2012 the Riga Regional Court quashed the first-instance court’s judgment and dismissed the applicant’s claim in full. The appeal court considered that in his email of 20 March 2010 the applicant had invited the Rector to carry out “unlawful actions”, namely to annul a decision of the Senate of the University (concerning the merger of two departments within the Faculty of Medicine). Such action was deemed to be “unlawful” because annulling decisions of the Senate of the University exceeded the Rector’s authority. The court also considered that the applicant had requested “unreasonably high compensation” for the termination of his employment. These two considerations led the appeal court to conclude that the applicant had failed to observe basic ethical principles such as honesty, collegiality and responsibility.", "23. The conclusions of the appeal court echoed those reached by the University’s ethics committee and by two ad hoc investigative committees set up on 25 March and 6 April 2010. In particular, the court observed in point 10.1 that the committee had concluded that the infringements committed by the applicant were demonstrated by the fact that he had sent the email and had carried out “other activities after the Senate’s decision of 23 February 2010 ... including making unfounded statements, for example, about the abolition of the department, the circumstances of the reorganisation that had been directed against the applicant, and threats made by G.B. against the applicant. The email of 28 February 2010 ... comprises statements, for example, about ... private life and religious convictions”.", "24. The court further noted that it was apparent from the materials in the case file that on 23 March 2010 the national news agency LETA had published the applicant’s views about events in the University, in which he had criticised the leadership of the University, stating that a group of twelve to fifteen persons had usurped all power and set up an authoritarian or even dictatorial regime. The court also referred to the content of the email the applicant had sent on 3 March 2010 (see paragraph 9 above) and came to the conclusion that he had contravened the obligation to treat the staff of the University with respect. 25. The court turned next to the question of “good morals” and, after finding that this term had no precise legal definition, proceeded to conclude that it consisted of three “basic ethical principles”: “the principle of integrity and righteousness”, “the principle of responsibility” and “the principle of loyalty”.", "It found that the applicant had acted in breach of these principles and that there was: “[11.2] ...no reason to conclude that the applicant had only intended to inform [the Rector] about [his plan] to exercise his democratic rights, [that is], to submit complaints to the courts and to publish information in the media, while respecting the interests of society. The content of the letter [of 20 March 2010] attests to [the applicant’s] wish to act for a selfish cause, namely to retain his position as a head of department, contrary to the Senate’s decision on reorganisation, or to receive substantial financial compensation, regardless of [the need to use] the budget of [the University] in an economical and reasonable way in compliance with the goals of the [University]. [The appeal court] finds that there is no evidence that prior to the letter of 20 March 2010 [the University] had obstructed the applicant’s democratic rights to inform society and the competent institutions about the alleged violations in the [University]. Taking into account the aforementioned finding, [that is], that the [applicant’s] aim in writing the letter of 20 March 2010 was selfish, the [appeal court] finds that the [applicant] sought to achieve a result beneficial to himself by trying to persuade [the Rector] to take unlawful steps. In view of the aforementioned considerations, this should be considered a threat.” 26.", "Turning to the applicant’s claim for compensation in respect of non-pecuniary damage, the appeal court cited section 9(1) of the Labour Law (see the Relevant domestic law part, paragraph 29 below) and disagreed that the applicant’s dismissal had created “unjustified consequences” (nepamatotas sekas) or caused non-pecuniary damage simply because the applicant had expressed legitimate concerns about the reorganisation of the University and about the way its financial resources were used. The court’s reasoning in that regard read as follows: “[The appeal court], on the basis of experience and logic, finds that a calm and positive atmosphere and a respectful attitude among colleagues best contribute to achieving constructive dialogue. Having analysed the above-mentioned evidence, the [appeal court] considers that nothing prevented the applicant from expressing his opinion in a manner compatible with ethics and the staff regulations”. 27. The applicant submitted an appeal on points of law, disputing, inter alia, the appeal court’s findings to the effect that, by sending one confidential letter to one recipient (namely the Rector of the University), in which he had raised points concerning the unjustified use of funds from the State budget, he had committed an infringement of work-related rules and ethics of such gravity as to justify his dismissal.", "The applicant also invoked in this connection that he had an obligation to inform the society about the unjustified use of funds, therefore the appellate court had erred in finding that the impugned email was unethical. The applicant’s appeal on points of law was rejected by the Senate of the Supreme Court in a preparatory meeting on 26 September 2012. C. Criminal proceedings 28. On 27 September 2010 the Rector of the University sought to institute criminal proceedings against the applicant for extortion. The criminal proceedings were instituted on 30 January 2012 on the basis of section 183 of the Criminal Law (extortion) and the applicant was ordered not to leave his permanent residence for more than twenty-four hours without the permission of the competent investigative authority.", "The criminal proceedings were discontinued on 9 February 2012 for lack of corpus delicti. The decision to discontinue the criminal proceedings stated, inter alia, that according to the linguistic expert’s conclusions the impugned email contained clearly expressed demands to pay a certain amount of money as well as undisguised threats to disclose disreputable information about [the Rector] prior to the meeting of the Senate. It also noted that the email demonstrated the applicant’s wish to act selfishly, either in order to maintain his post or to receive a significant amount in compensation for the termination of his employment contract. However, as the Rector’s attitude demonstrated that the threats were not perceived as real, the court ruled that the criminal proceedings should be terminated and that the Rector had the right to institute defamation proceedings. II.", "RELEVANT DOMESTIC AND INTERNATIONAL LAW Relevant domestic law and practice 1. Labour Law 29. Section 9 of the Labour Law (a whistle-blowers’ protection clause) provides that an employee may not be punished or otherwise directly or indirectly subjected to unfavourable treatment, in the context of employment relations, for exercising his rights in a permissible manner [pieļaujamā veidā] or informing the competent authorities or officials about suspicions of criminal or administrative offences in his place of employment. If, in the event of a dispute, an employee reports such circumstances which could serve as a basis for unfavourable treatment by his or her employer, it is the employer’s duty to prove that the employee has not been punished or otherwise unfavourably affected, either directly or indirectly, for having exercised his or her rights in the context of employment relations in a permissible manner. 30.", "Section 101(1)(1) and (3) of the Labour Law authorises employers to dismiss an employee only on the basis of circumstances related to the employee’s conduct or his or her abilities, or in connection with the performance of economic, organisational, technological or similar functions within the company if (1) “the employee, in the absence of extenuating circumstances, has committed significant infringements of his or her employment contract or terms of employment” and (3) “the employee has fulfilled his or her duties in a manner that disregards good morals [labi tikumi] and such actions are not compatible with his or her continued employment.” 31. The same section further provides that if an employer intends to issue a notice of termination of an employment contract on the basis of, inter alia, the first paragraph, sub-paragraphs 1 and 3 of this section, the employer has a duty to request written explanations from the employee. When deciding on the possible termination of the employment contract the employer has a duty to evaluate the severity of the violation at issue and the circumstances in which it was committed, as well as the personal characteristics of the employee and his or her previous work record. 2. Relevant provisions regulating the functioning of the University 32.", "Point 3.2 of the constituent document of the University (Rīgas Stradiņa universitātes Satversme) provides that the Rector or the Senate may convene the constituent assembly of the University. The Rector, the Senate or the student self-government body may convene an extraordinary meeting of the constituent assembly. Pursuant to point 3.8 the Rector has a right of suspensive veto (atliekošā veto tiesības) over decisions adopted by the Senate. 33. Point 5.1 of the statue of the Senate (Senāta nolikums) provides that Senate meetings are convened, inter alia, at the initiative of the Rector.", "34. The relevant provisions of the staff regulations in force at the University at the material time read as follows: 6.1.2. – employees must carry out their tasks conscientiously and honestly; 6.1.7. – employees must treat other members of the University staff with respect; 6.2.1. – employees have a responsibility to carry out work of good quality in accordance with their contract and job description, the constitution of the University, decisions of the Senate, internal regulations and orders and the external legislation of the Republic of Latvia.", "3. Practice on the interpretation of certain provisions of the Labour Law 35. According to the view of the Senate of the Supreme Court, published in a compilation of case-law on employment disputes, the final assessment of whether an infringement [of an employment contract or staff regulation] is grave lies with the domestic courts. Furthermore, the term “good morals” (section 101, paragraph 1, sub-paragraph 3 of the Labour Law) is applicable not only to work carried out within the specified working hours but may also refer to employment-related functions performed outside regular working hours. Since the legislature failed to define the term “good morals”, this term has been acknowledged to be a general clause the content of which has to be defined by the courts’ case-law.", "According to present-day case-law and legal science, the term “good morals”, in addition to its social character, also has a legal dimension, that is, it encompasses not only generally accepted moral standards but also ethical principles and values enshrined, inter alia, in the Constitution. Thus, according to the Senate, the reference to the term “good morals” is a general clause the content of which has to be determined by those who apply the law. THE LAW I. ADMISSIBILITY OF THE APPLICATION 36. The Government advanced two sets of preliminary objections. Firstly, they contended that the applicant could not claim to be a victim within the meaning of Article 34 of the Convention.", "Secondly, the Government put forward two grounds on the basis of which, in their view, the present application fell outside the Court’s jurisdiction ratione materiae. A. Incompatibility ratione personae 1. The parties’ submissions 37. The Government were firmly of the opinion that in the instant case the applicant could not arguably claim that he had suffered interference with his right to freedom of speech, as he had never been prevented from or punished for exercising that freedom. In this regard the Government referred to the judgment of the Riga Regional Court of 18 January 2012 in which it was acknowledged that the applicant’s employer had never prevented the applicant from exercising his democratic right to inform society and the competent authorities about the alleged shortcomings at the University.", "38. The applicant contested that argument. He pointed out that his employer had subjected him to unfavourable treatment both before and after he had had the information published by the local news agency. The establishment of the ad hoc investigative committees and the Rector’s demands for the applicant to provide explanations for his email of 20 March 2010 had both contributed to the existence of an infringement. 2.", "The Court’s assessment 39. Since the arguments outlined above are pertinent and closely related to the analysis of the complaint under Article 10, the Court considers that the objection is closely linked to the merits of the applicant’s complaint. It will therefore deal with the objection in its examination of the merits below (see paragraphs73-74 below). B. Incompatibility ratione materiae 1. The parties’ submissions 40.", "The Government alleged that the applicant’s complaint did not fall under Article 10 of the Convention as it essentially concerned an employment dispute as to whether the applicant’s dismissal had been lawful under domestic law; it therefore concerned a labour dispute of a private-law nature. They noted that the reasons for the applicant’s dismissal had been gross infringements of the staff regulation and of ethical and behavioural norms which affected the University. Moreover, the Government emphasised that in his civil claim of 11 May 2010 the applicant had not made any allegations that the University had acted in violation of his freedom of speech. 41. Alternatively, the Government contended that the present application was incompatible with the provisions of the Convention in that freedom of expression had been invoked in disregard of Article 17 of the Convention.", "In particular, the Government argued that the approach adopted in the Court’s case-law concerning Holocaust denial and related issues should not be interpreted in too formalist and restrictive a manner. In support of this argument the Government contended that the impugned email addressed to the applicant’s employer had contained blackmail and undisguised threats and that such statements were not covered by the protection afforded under Article 10 of the Convention. 42. The applicant contested the Government’s objections and argued firstly that his dismissal had come after he had drawn his employer’s attention to shortcomings in the University’s management. Secondly, the applicant contended that the information to which he referred in the impugned email and which was later published was true and was of public interest.", "2. The Court’s assessment 43. At the outset the Court will address the Government’s argument that Article 10 is not applicable because the complaint essentially concerned an employment dispute. 44. In this connection the Court first observes that it is not disputed between the parties that the University was a public-law body (see Lombardi Vallauri v. Italy, no.", "39128/05, § 38, 20 October 2009). Even assuming that in its employment relationships the University acted in the area of private law, the Court has previously held that in the sphere of private-law relationships the responsibility of the authorities would nevertheless be engaged if the facts complained of stemmed from a failure on their part to secure to the applicants the enjoyment of the right enshrined in Article 10 of the Convention (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 60, ECHR 2011). 45. Turning to the question of whether such conditions existed in the present case, the Court observes that the applicant’s dismissal was mainly based on an email of 20 March 2010 in which he proposed two ways of settling his dispute with the University and asked the Rector to agree to one of the options before the meeting of the constituent assembly took place (see paragraph 13 above).", "The applicant also referred to several existing problems at the University (point 8 of the email) and informed the Rector of his intention to inform the members of the assembly about the problems if no agreement was reached (point 10 of the email). The applicant’s employer considered that the above email amounted to serious misconduct, a finding that was upheld by the domestic courts. The Court considers that, even before entering into an analysis as to whether there was interference with the applicant’s rights under Article 10, it is apparent from the facts of the case and the review of the domestic courts (see paragraphs 22-26 above) that the crux of the employment dispute was the allegedly unethical manner of expression used by the applicant in communication with his employer. 46. Moreover, the applicant in substance brought the issue concerning the infringement of his freedom of expression before the domestic courts (see paragraph 27 above), and the domestic courts addressed it (see paragraph 26 above).", "In any event the Government did not raise any objections claiming non-exhaustion. 47. Having regard to the central issue in the dispute the Court accepts that Article 10 is applicable to the facts of the case (compare and contrast Nenkova-Lalova v. Bulgaria, no. 35745/05, § 53, 11 December 2012; see also and Lombardi Vallauri, cited above, § 30). 48.", "Turning to the next preliminary objection raised by the Government, namely that the impugned email contained remarks not covered by the protection of the Convention in the light of Article 17 thereof, the Court considers that the present application is to be clearly distinguished from the cases relied on by the Government in which the expression of negation or revision of certain facts was removed from the protection of Article 10. In the present case, the Court is unable to conclude from the text of the impugned email that it contained anything aimed at weakening or destroying the ideals and values of a democratic society (see, for example, Ždanoka v. Latvia [GC], no. 58278/00, § 99, ECHR 2006‑IV). 49. The Court therefore dismisses the Government’s preliminary objection that the present application falls outside the Court’s jurisdiction ratione materiae.", "C. Conclusion 50. The application cannot therefore be declared inadmissible as being incompatible ratione materiae. The Court further considers that the application raises issues of law and fact which require examination of the merits. 51. It accordingly concludes that the application is not manifestly ill-founded.", "Having also established that no other obstacles to its admissibility exist, the Court, having joined to the merits the objection raised in connection with incompatibility ratione personae, declares it admissible. II ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 52. The applicant complained that his dismissal violated Article 10 of the Convention, since he had been punished for expressing a legitimate opinion about problems prevailing in the University and for attempting to resolve his employment situation. Article 10 of the Convention reads as follows: “1. Everyone has the right to freedom of expression.", "This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. The parties’ submissions 1.", "The applicant (a) The interference 53. The applicant drew attention to the chronology of the events and contended that the impugned email of 20 March 2010 had merely been used as a pretext to dismiss him and that the real reason for his dismissal was his persistent criticism of the University. He dismissed the Government’s argument that he had not been prevented from exercising his right to freedom of expression and considered that his dismissal constituted interference with his rights protected under Article 10 of the Convention. (b) Whether the interference was prescribed by law and pursued a legitimate aim 54. The applicant further contested the assertion that the interference was prescribed by law and pursued a legitimate aim.", "Firstly, he contended that the legal basis on which the interference was grounded fell short of the requisite quality in that the court had assessed facts that were not included in the notice of termination (uzteikums). In particular, he drew the Court’s attention to the fact that even though the notice of termination referred solely to his email sent on 20 March 2010, the Riga Regional Court had reached its conclusions by relying on other events which had taken place before and after the impugned email. He also noted that it was only after the LETA news agency had published his views that his employer had found the email to be threatening and contrary to good morals. 55. Secondly, the applicant disputed that the interference had pursued a legitimate aim and alleged that, as the University was a State-owned establishment, the public had a right to find out how their tax money was spent.", "He claimed that other colleagues had also opposed the lack of transparency in the restructuring of the University and that those who did not oppose it were afraid of losing their jobs. (c) Whether the interference was necessary 56. The applicant further emphasised that nothing in the impugned email could be interpreted as unethical and at odds with good morals, as he had merely indicated his intention to publish true information, namely the conclusions adopted by the State Audit Office concerning the mismanagement of public finances at the University, and it was his duty to inform society thereof. He contended that the authorities had failed to prove that the content of the email overstepped the bounds of remarks that “shock, offend and disturb”. 57.", "The applicant also contended that the domestic courts had failed to strike a fair balance and had erred in finding that the impugned email contained unlawful requests. Firstly, he alleged that although the two requests included in the email had been addressed to the Rector, the applicant had nevertheless referred to “the University” in brackets, thus making clear that the Rector was a senior official of the University who, in accordance with the Constitution of the University, had the right of veto over Senate decisions. Secondly, he argued that his request to settle the dispute with the University had been based on his employment contract, which stated that all disputes were to be settled by mutual agreement. In this connection the applicant raised objections against the expert’s findings in the course of the criminal proceedings, alleging that the findings had never been sent to him and could not be used as evidence in the civil proceedings. 58.", "Finally, the applicant considered that the sanction – his dismissal – was not proportionate and that it had a dissuasive effect. This conclusion could not be altered by the fact invoked by the Government that the applicant had taken up a post in another major Latvian university soon afterwards. 2. The Government (a) The interference 59. The Government maintained their argument stated above (see paragraph 40) that the present case essentially concerned a labour dispute governed by the provisions of private law.", "They reiterated that the applicant had been dismissed after having addressed an email to the Rector of the University which contained illegal requests as well as threats and blackmail. They considered that a distinction should be drawn between the expression of criticism that might disturb or offend other persons, on the one hand, and incitement to perform unlawful activities that infringed individuals’ honour and dignity on the other. The latter was at issue in the present case, as the applicant’s behaviour constituted a particularly grave infringement of the principles of ethics and breached the University’s staff regulations and the provisions of the Labour Law. Therefore the content of the email written by the applicant – an incitement to perform illegal activities – did not enjoy the protection afforded by Article 10 of the Convention. Moreover, the Government asserted that the applicant had failed to substantiate which prior public remarks had formed the alleged basis for his dismissal, and pointed out that the Rector had not made any statements to the effect that the applicant should be dismissed from the University because of his criticism towards it.", "60. Accordingly, the Government contended that there had been no interference with the applicant’s rights under Article 10. Nevertheless, should the Court consider that there had been interference with the applicant’s rights protected by Article 10, the Government alleged that it had been prescribed by law, had pursued a legitimate aim and had been necessary. (b) Whether the interference was prescribed by law and pursued a legitimate aim 61. The Government contended that the alleged interference – the applicant’s dismissal – was based on section 101(1) and (3), which allowed the termination of employment relationships in the event of grave and unjustified breaches of an employment contract or staff regulations or if the employee, when performing his or her duties at work, acted contrary to good morals.", "Similarly, the Government argued that the interference had pursued the legitimate aim of protecting the reputation or rights of others within the meaning of Article 10. (c) Whether the interference was necessary 62. Relying on the Court’s case-law the Government observed that the Court must examine the question of necessity essentially from the standpoint of the relevance and sufficiency of the reasons provided by the domestic courts. In doing so the Court might be required to take into account whether the domestic courts had struck the requisite balance between, on the one hand, freedom of expression and, on the other hand, the right of others to respect for their private life, and that a distinction must be made between criticism and insult. 63.", "The Government referred to the protection afforded to employees under section 9 of the Labour Law and subscribed to the principle that the applicant, as a professor, was entitled to express his criticism and present his opinion to the university’s management. At the same time employees were expected to act in good faith and had a duty of loyalty and discretion towards their employers (see Heinisch v. Germany, no. 28274/08, § 64, ECHR 2011 (extracts)), and national authorities could be justified in insisting that employment relations should be based on mutual trust (see Nenkova-Lalova v. Bulgaria, no. 35745/05, § 60, 11 December 2012). In applying the above principles to the present case the Government emphasised that the impugned email had contained personal threats directed against the Rector and that the applicant had been well aware of the unlawfulness of the proposals made in the email.", "Moreover, according to the Government, the contested email did not fall within the scope of a public debate, as the applicant had been guided by a personal desire not to lose his job. The Government stressed that the domestic court and the prosecutor’s office had come to the same conclusion, namely that the email demonstrated bad faith on the part of the applicant. 64. The Government also considered the sanction imposed on the applicant to have been proportionate and pointed out that after his dismissal the applicant had not been prevented from pursuing his professional activities both in a professional organisation and in another major university. Moreover, in 2012 the criminal proceedings initiated against the applicant had been terminated.", "65. The Government also produced a letter in which the University provided replies to the Government’s questions. It stated, inter alia, that the University had assessed the question whether a less restrictive measure could be applied to the applicant and had also examined the employee’s right to freedom of expression, as attested to by the analysis of the impugned email carried out by the ethics committee and the ad hoc investigative committee. 66. Finally, reiterating the arguments employed by the Riga Regional Court (see paragraph 25 above), and referring to the principle of subsidiarity reiterated in the Palomo Sánchez judgment, the Government maintained that the domestic court had thoroughly analysed the evidence brought before it, thus rendering the sanction proportionate to the legitimate aim of protecting the reputation and dignity of those against whom the email was directed.", "B. The Court’s assessment 1. Whether there was “interference” with the applicant’s rights under Article 10 67. According to the Court’s case-law, in order to determine whether an applicant’s right protected under Article 10 of the Convention has been infringed it must first be ascertained whether the disputed measure amounted to interference with the exercise of freedom of expression, in the form, for example, of a “formality, condition, restriction or penalty” (see Glasenapp v. Germany, 28 August 1986, § 50, Series A no. 104, Kosiek v. Germany, 28 August 1986, § 36, Series A no.", "105). 68. It is clear from the parties’ submissions that the existence of the interference is in dispute between the parties, as they are not in agreement as to whether the dismissal was based solely on the impugned email sent by the applicant to the Rector of the University on 20 March 2010, or rather on the persistent criticism expressed by the applicant prior to sending the impugned email. 69. In this connection the Court observes that in reaching their conclusion about the lawfulness of the applicant’s dismissal the domestic courts relied on evidence which contained references to other activities carried out by the applicant prior to his sending the impugned email (see paragraph 23 above).", "This would imply that the applicant’s prior activities in expressing criticism played some role in deciding whether the applicant’s dismissal had been lawful. 70. But even assuming that the dismissal was based solely on the impugned email, the Court refers back to its reasoning in relation to the nature of the dispute in question and the applicability of Article 10 (see paragraph 45 above), and considers that the applicant’s dismissal did amount to interference within the meaning of that provision. Such interference will constitute a breach of Article 10 unless it is “prescribed by law”, pursues a legitimate aim under paragraph 2 of that Article and is “necessary in a democratic society” for the achievement of such an aim. These issues will be discussed below.", "71. The Court further dismisses the Government’s preliminary objection that the applicant cannot claim to be a victim of the alleged violation of Article 10 (see paragraph 37 above). 2. Whether the interference was “prescribed by law” and served a legitimate aim 72. The Court observes that the applicant also disputed the lawfulness of the impugned measure and its aim.", "In particular he contested the quality of section 101 of the Labour Law. 73. The Court notes that the applicant’s dismissal was based on section 101 of the Labour Law (see “Relevant domestic law”, paragraph 30 above). It was alleged that in carrying out his duties he had acted contrary to “good morals” [labi tikumi] and that such actions were incompatible with his continued employment. The notice of dismissal also referred to three paragraphs of the University staff regulations (see paragraphs 32-34 above).", "In applying the above legislation to the facts of the case the domestic courts analysed whether the content of the impugned email was compatible with several ethical principles; this, according to domestic practice, was sufficiently foreseeable (see paragraph 35 above). Although the applicant contested the quality of the above provisions and their application by the domestic courts, the measure was based on sufficiently clear provisions of domestic law according to which employees owed to their employer a duty of loyalty, reserve and discretion (see Guja v. Moldova [GC], no. 14277/04, § 70, ECHR 2008). The Court reiterates in this connection that even if the requirement to act in good faith in the context of an employment contract does not imply an absolute duty of loyalty towards the employer or a duty of discretion to the point of subjecting the worker to the employer’s interests, certain manifestations of the right to freedom of expression that may be legitimate in other contexts are not legitimate in that of labour relations (see Palomo Sánchez and Others, cited above, § 76). Thus the Court is ready to accept that the interference had a basis in domestic law which served a legitimate aim.", "74. Mindful of the Court’s supervisory role, according to which it is not for the Court to take the place of the competent national authorities but rather to review the decisions taken by the latter pursuant to their power of appreciation, the Court will next ascertain whether the national authorities adequately secured the applicant’s right to freedom of expression in assessing the necessity of the interference in the context of labour relations (ibid.,§ 61). 3. Whether the interference was “necessary in a democratic society” (a) General principles 75. The Court will first reiterate the fundamental principles deriving from Article 10 case-law.", "These principles provide that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. Moreover, Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see, among many other authorities, Palomo Sánchez and Others, cited above, § 53 and the case-law cited there).", "76. In this connection the test of “necessity in a democratic society” is applied, which requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 62, Series A no. 30). 77.", "In carrying out its supervisory role the Court has to satisfy itself that the national authorities did apply standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298). 78. In the context of employment disputes the Court has noted that employees owe to their employer a duty of loyalty, reserve and discretion (see, for instance, Kudeshkina v. Russia, no. 29492/05, § 85, 26 February 2009, Heinisch v. Germany, no.", "28274/08, § 64, ECHR 2011 (extracts) ), and that in striking a fair balance the limits of the right to freedom of expression and the reciprocal rights and obligations specific to employment contracts and the professional environment must be taken into account (see Palomo Sánchez and Others, cited above, § 74). 79. Therefore the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicant and the professional context in which he made them (see Lingens v. Austria, 8 July 1986, § 40, Series A no. 103, and Palomo Sánchez and Others, cited above, § 70). (b) Application of those principles 80.", "The Court refers to its observations and findings set forth above (see the paragraphs 67-71 above) and observes that the crucial issue before the domestic courts was whether the content of the impugned email sent by the applicant amounted to a violation of the provisions of the Labour Law and the University staff regulations, which require employees to carry out their professional duties in accordance with “good morals”. In this connection the Court refers to the defendant’s submissions during the court hearing in which it submitted that the email contained threats and blackmail and that the applicant had fulfilled his threats by publicly divulging defamatory statements about his employer (see paragraph 21 above). The applicant, on the other hand, alleged both in his appeal on points of law and during the court hearing that an indication of an intention to publish true information about the mismanagement of State funds could not possibly be considered as blackmail or threats (see paragraph 27 above). In reaching their conclusion about the lawfulness of the applicant’s dismissal the domestic courts analysed the applicant’s motivation and concluded that it ran counter to the ethical principles enshrined in the concept of “good morals” under section 101 of the Labour Law. 81.", "The Court considers that the above reasoning by the domestic courts is relevant in the context of the specific features of labour relations, especially when it comes to weighing up conflicting interests in the workplace (see Palomo Sánchez and Others, cited above, § 65). 82. As to the further question whether those reasons were sufficient for the purposes of Article 10, the Court must take into account the nature of the applicant’s labour dispute and the overall background against which the impugned email was written. The Court will therefore look at such factors as the public interest of the impugned remarks, their form and consequences, and the severity of the measure. As the Government also challenged the true motives of the applicant’s statements, the Court shall include it in its assessment.", "(i) Public interest 83. The Government argued that no public interest was involved in the email and that it had been a personal threat against the Rector. 84. The Court considers that the content of the email cannot be assessed in isolation and that particular attention should be paid to what information the applicant was going to disclose and did actually disclose. Firstly, the Court notes that in his email the applicant referred to shortcomings identified by the State Audit Office.", "He also raised an issue about cases of plagiarism at the University which had been confirmed by the report of a professional association. The truthfulness and authenticity of both pieces of information were not contested by the parties either before the domestic court or before the Court. Secondly, even though in reaching its conclusion that the applicant’s actions had been unethical the domestic court referred to the publication of his views by LETA (see paragraph 24 above), it did not provide any reasoning as to whether the information was true (see, mutatis mutandis, Frankowicz v. Poland, no. 53025/99, § 50, 16 December 2008). The Court notes in this regard that the validity of the information which was later published by LETA was not contested by the University in any defamation proceedings.", "85. The Court reiterates that the University was a State-financed education establishment. It appears that the issues invoked by the applicant were of some public interest and that the truthfulness of the information was not challenged by the parties. Nevertheless it is apparent from the appellate court’s judgment that these aspects – the public interest and truthfulness of the information – were not assessed at all. (ii) The applicant’s motives 86.", "The Government further argued that the applicant’s motives had been purely selfish, namely to keep his post at the University. Moreover, as recognised by the domestic courts, the applicant had known that the requests made in the email were unlawful (see paragraph 22 above). 87. The Court observes that the domestic court explicitly invoked the whistle-blowing protection clause enshrined in the Labour Law and touched upon this question, albeit briefly (see paragraph 26 above). The Court could understand the Government’s argument regarding the applicant’s motives as relevant if the case was one of the protection of whistle-blowers.", "However, the Court does not consider that to be the case. The Court examines whether in view of the applicant’s freedom of expression exercised in the context of a labour dispute, the national courts have carried out the appropriate balancing exercise. In this regard, the Government’s arguments about the applicant’s motives for the impugned statements are relevant for the assessment of the proportionality of the interference in the applicant’s exercise of his freedom of expression. 88. The Court points to the following circumstances of the case which are of importance when addressing the motives which guided the applicant.", "Firstly, it was not disputed that it was the reorganisation of the department which prompted the applicant to raise complaints and to question the transparency of the procedure. In this connection the Court notes that before sending the impugned email the applicant came up with several proposals and explicitly asked the Rector to forward them to the members of the constituent assembly (see paragraph 11 above). Thus, the applicant attempted first to address the issues within the hierarchy (see, mutatis mutandis, Heinisch, cited above, §§ 72-76, and Guja, cited above, § 73). Secondly, in view of the structure of the University, it was not completely unreasonable to address the demands to the Rector, given that the latter was the respondent in the appeal proceedings and, in accordance with the constitution of the University, could convene the constituent assembly (see paragraph 32 above). In addition, he had a right of suspensive veto in the Senate (ibid.)", "and was the highest-ranking official managing the University, and represented it without specific authorisation. The Court also notes that in the contested email the applicant explicitly expressed his intention to inform the constituent assembly before it took its decision, and that the deadline by which the applicant asked the Rector to reply coincided with the meeting of the constituent assembly. Thirdly, as regards the calculation of the compensation, the amount requested was not unreasonable, in view of the fact that the applicant had been elected as a professor until April 2013 and that the proposed settlement was based on his average monthly income as well as on the terms laid down in his employment contract, according to which all disputes should first be settled in an amicable manner. 89. The Court cannot speculate as to how the national courts would assess the above facts but it notes that they are relevant for the purposes of the analysis of the proportionality of the alleged interference.", "In the present case, however, the Court does not have the benefit of the relevant assessment by the domestic courts. (iii) Harm to the reputation of others 90. The Government, relying on Palomo Sánchez and Others (cited above), further argued that the use of insulting or offensive expressions in the professional environment was capable of justifying sanctions. 91. The Court finds it necessary to distinguish the case of Palomo Sánchez and Others, cited above, from the present case.", "In the present case, although the Government alleged that the impugned email contained insults, this was not analysed and found to be established by the domestic courts. While the applicant’s previous remarks could raise certain questions in this regard (see paragraph 10 above), the national court did not assess the language used therein. Moreover, as the Court has already noted (see paragraph 84 above), neither in the impugned email nor in the subsequent publication did the applicant divulge any private information damaging to the honour and dignity of his colleagues or his employer in general. (iv) Severity of the measure 92. Lastly, the Government submitted that the applicant’s career had not been affected and that therefore the measure – his dismissal – could not be considered as severe.", "The Court notes that this was the harshest sanction available and, disregarding the fact that the applicant took up a post in another university soon afterwards, was liable to have a serious chilling effect on other employees of the University and to discourage them from raising criticism (see Palomo Sánchez and Others, cited above, § 75). The Court finds that it is difficult to justify the application of such a severe sanction. (c) Conclusion 93. In the light of the above the Court dismisses the Government’s preliminary objection as to the incompatibility ratione personae of the application and finds that the reasons relied on by the domestic courts, although relevant, are not sufficient to show that the interference with the applicant’s right to freedom of expression was proportionate to the legitimate aim pursued and, accordingly, was “necessary in a democratic society”. The Court concludes that there has been a violation of Article 10 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 94. 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 95. The applicant claimed 58,703.50 euros (EUR) in respect of pecuniary damage and EUR 100,000 in respect of non-pecuniary damage.", "96. The Government contested the claim and argued that the applicant’s claims were speculative and excessive. 97. The Court considers that the applicant must have suffered pecuniary and non-pecuniary damage as a result of his dismissal. Making its assessment on an equitable basis, it awards him EUR 8,000.", "B. Costs and expenses 98. The applicant also claimed EUR 2,280 for the costs and expenses incurred before the Court. 99. The Government contested the claim and argued that the sum was exorbitant.", "100. 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 were actually and necessarily incurred and were 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 2,280 covering costs for the proceedings before the Court. C. Default interest 101. 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. Joins to the merits the Government’s preliminary objection as to the compatibility ratione personae of the application, and dismisses it; 2. Declares, unanimously, the application admissible; 3. Holds, by five votes to two, that there has been a violation of Article 10 of the Convention; 4. Holds, by five votes to two, (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 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, and EUR 2,280 (two thousand two hundred and eighty euros) covering costs for the proceedings before the Court; (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, unanimously, the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 13 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıPäivi HirveläDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Mahoney and Wojtyczek are annexed to this judgment. P.H.F.A. DISSENTING OPINION OF JUDGES MAHONEY AND WOJTYCZEK 1.", "We have been unable to agree with our colleagues that the applicant has been the victim of an unjustified interference with his freedom of expression as protected by Article 10 of the Convention. In our view, the facts of the present case present the characteristics of a classic employment dispute and, in so far as any issue of freedom of expression arose, it was adequately dealt with by the national courts for the purposes of Article 10 of the Convention. As far as we are concerned, the applicant has not produced to this Court any grounds for arriving at a conclusion other than the one arrived at by the national courts. A. Paragraph 1 of Article 10: Existence of an interference with the exercise of the right to freedom of expression 2. When considering cases concerning freedom of expression in the context labour relations it is necessary to distinguish two main types of situations.", "In the first one, an employee expresses - in public or in private - views on questions of public interest, which may or may not be related to his or her employer. The employer imposes on the employee a sanction for the views expressed. In the second one, an employee communicates to the employer his or her views concerning matters directly related to his or her employment in order to influence the employer’s attitude and to shape the relations between the two parties. The employee’s utterances are an integral part of interactions between two parties within the framework of a labour relationship. The employer reacts to what it considers to be misconduct in these interactions.", "The two situations require a different approach as the legally protected values and interests at stake are different. As we explain below, the instant case belongs to the second type of situations. 3. The majority of our colleagues assert that “the allegedly unethical manner of expression used by the applicant in communication with his employer” constituted “the crux of the employment dispute” (paragraph 45 in fine of the present judgment – emphasis supplied). It is this conception of “the central issue in the dispute” and of “the nature of the dispute in question” that prompts the majority to hold that the applicant’s dismissal from his post amounted to an interference with the exercise by him of his freedom of expression (paragraphs 47 and 70 of the present judgment).", "4. In our view, however, the applicant’s e-mail of 10 March 2010 to the Rector of the University, the ensuing notice of termination of employment sent to the applicant by the University and the subsequent decisions of the national courts tell a somewhat different story. In his e-mail the applicant “proposed” as a settlement of the dispute that either he retain his post as head of department as before or receive a sizeable financial compensation for loss of post, failing which he would appeal to the courts and “make everything public”, with a reference added to “the latest news” of events which reflected badly on the management and activities of the University (see paragraph 13 of the present judgment). The ensuing notice of termination of employment (see paragraph 17 of the present judgment) for its part explained that the applicant was dismissed for what the University considered to be “blackmail” in the e-mail of 10 March 2010 in the form of threats to disseminate disparaging information concerning the University as widely and publicly as possible if the applicant did not obtain what he demanded by way of settlement. 5.", "It was the applicant’s conduct, assessed as contrary to the University’s regulations, namely the very fact of making threats amounting to “blackmail”, which was relied on as the reason for his dismissal, not, as the applicant claims, the expression by him of “a legitimate opinion about problems prevailing in the University” (see paragraph 52 of the judgment, summarising the applicant’s complaint to this Court) or, as the majority state, “the allegedly unethical manner of expression used by [him] in his communication with his employer”. The domestic appeal court (the Regional Court) thereafter examined and decided the dispute between the applicant and his employer on this basis (see paragraphs 22-26 of the judgment). 6. As the judgment in the present case itself also points out, while it may be that the impugned e-mail could be read as containing insults, this factor was not gone into by the domestic appeal court, which did not analyse the language used from this angle (see paragraph 91 of the judgment). 7.", "The majority also point out that “in reaching their conclusion about the lawfulness of the applicant’s dismissal the domestic courts relied on evidence which contained references to other activities carried out by the applicant prior to his sending the impugned mail”. From this the majority deduce that “the applicant’s prior activities in expressing criticism played some role in deciding whether the applicant’s dismissal had been lawful” (see paragraph 69 of the judgment). The domestic appeal court did indeed refer both to “other activities..., including making unfounded statements” and to the expression by the applicant of “legitimate concerns” about the reorganisation of the University and the management of its financial resources (see paragraphs 23 and 26 of the judgment). However, the incidence of such references for the exercise by the applicant of his freedom of expression was explicitly addressed by the appeal court as follows: “[The appeal court] finds that there is no evidence that prior to the letter of 20 March 2010 [the University] had obstructed the applicant’s democratic rights to inform society and the competent authorities about the alleged violations in the [University].” (see paragraph 25 of the judgment) In other words, for the domestic appeal court there was no interference by the University with the applicant’s exercise of his freedom of expression in relation to his “prior activities” in expressing criticism. In their analysis of interference, the majority pass over in silence this aspect of the domestic appeal court’s ruling on the dispute between the applicant and his employer.", "8. Consequently, our first doubt as to the majority’s analysis of the facts in terms of Article 10 of the Convention is as to the existence of an interference with the exercise of his freedom of expression by the applicant. In sum, it would appear from the material in the case-file that the applicant was not penalised by way of dismissal from his post on account of any expression by him of his opinions, whether in the e-mail of 20 March 201 or before that, the ground that the domestic appeal court relied on for his dismissal being perceived professional and ethical misconduct. B. Paragraph 2 of Article 10: Whether the interference was “necessary in a democratic society” 9. In any event, even assuming that the applicant’s dismissal entailed an interference with his exercise of his freedom of expression, we find no ground for holding that that interference, as upheld by the domestic courts, was not “necessary in a democratic society”.", "10. The “public interest” in the disclosure of information on management shortcomings and plagiarism at the University relied on by the majority of our colleagues (see paragraphs 83-85 of the judgment) turns out on closer examination of the case-file to be extremely weak in the circumstances of the present case. To begin with, the applicant was perfectly willing to forego any such disclosure “in the public interest” provided that he kept his job as head of department or received significant compensation (see his e-mail of 10 March 2010 – paragraph 13 of the judgment). The possible resort to disclosure of the disparaging information concerning the University was quite evidently mentioned by him as a bargaining tool, among others, in his employment dispute with the University. The truthfulness and authenticity of this disparaging information, to which the majority attaches some importance (see paragraph 84 of the judgment), does not at all detract from the “blackmailing” character of his threat of disclosure, that is to say, from the fact that he was using the threat of disseminating disparaging information as a lever to obtain from the University the settlement that he desired of the dispute.", "Thus, on the basis of the material before it and after having heard argument, the domestic appeal court found – again a material factual element passed over in silence by the majority – that there was “no reason to conclude that the applicant had only intended to inform [the Rector] about [his plan] to exercise his democratic rights, [that is] to submit complaints to the courts and to publish information in the media, while respecting the interests of society” (see paragraph 25 of the judgment). Rather, the appeal court found it established that what the applicant was seeking to achieve was the self-serving objective of preserving his job or obtaining significant financial compensation, not any objective of acting in the public interest. 11. It goes without saying that the lower the degree of public interest involved in the expression of opinion or the dissemination of information in question, the lower will be the level of protection afforded under Article 10 of the Convention. To this extent, the applicant’s motives – in having as his main, driving concern the maintenance of his employment and its benefits, rather than bringing to the attention of the public worrying aspects of the University’s management and activities – are indeed of primary relevance for the balancing exercise to be carried out under Article 10 and not merely, as the majority suggest (see paragraph 87 of the judgment), in the possible context of whilstle-blowing.", "12. On the other hand, the circumstances to which the majority attaches importance when addressing the issue of the applicant’s motives – such as the initial communications between the Rector of the University, the functions of the Rector within the University and the amount of compensation sought by the applicant (see paragraph 88 of the judgment) – are matters going to the actual merits of the employment dispute. 13. It is not part of this Court’s role to rejudge the merits of the employment dispute. In any event, there is no reason why this – international – Court’s assessment, at one remove, of these circumstances should be any more reliable than that of the national courts.", "14. In its judgment the appeal court did balance the applicant’s freedom of expression against the other conflicting interests in issue. In particular, the appeal court expressly recognised “the applicant’s democratic rights to inform society and the competent institutions about the alleged violations in the [University]”, while noting that “nothing prevented the applicant from expressing his opinion in a manner compatible with ethics and staff regulations” (see paragraphs 25 and 26 of the judgment). In this connection, it is difficult to understand how the majority can either say that the domestic appeal court did not at all assess the public interest and truthfulness of the disparaging information that the applicant was threatening to disseminate if he did not obtain satisfaction (see paragraph 85 of the judgment) or criticise the appeal court for not having given this Court “the benefit of [a] relevant assessment” of the factors “relevant for the purposes of the analysis of proportionality” (see paragraph 89 of the judgment). In our view, the considerations relied on by the appeal court were both relevant and sufficient.", "Given what the appeal court took to be the seriousness of the disloyal conduct of the applicant as established by the evidence before it, the sanction of dismissal cannot be regarded as disproportionate. 15. It is important to add that the assessment of the proportionality of a dismissal of an employee should take into consideration not only the rights of the employee but also the legitimate interests of the employer. The latter is, in principle, entitled to take measures to ensure the smooth running of the enterprise, including for the benefit of the employees taken as a whole, and, in that context, to choose its employees, to propose changes to the terms of their employment contract or to terminate the employment, provided that it respects the applicable national law, notably labour law and contract law. Furthermore, if the employer is a public university, the analysis should also take into account its position in the domestic law and especially the degree of autonomy it enjoys.", "Academic autonomy serves democracy in general and freedom of expression in particular. An academic institution is, in principle, entitled to exercise fully its freedom of taking employment decisions, within the limits of its autonomy as laid down in domestic law. We regret that the majority refrained from addressing these questions. C. Conclusion 16. In sum, we believe that the majority of our colleagues have misconceived the nature of the dispute (that is, the reason for the applicant’s dismissal from his post) and the content of the ruling by the national courts in order to arrive at their finding of a violation of the applicant’s right to freedom of expression.", "The approach proposed by the majority brings with it the risk of transforming the European Court of Human Rights into a higher-instance labour court adjudicating on the merits of labour disputes." ]
[ "SECOND SECTION CASE OF FRISK AND JENSEN v. DENMARK (Application no. 19657/12) JUDGMENT STRASBOURG 5 December 2017 FINAL 05/03/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Frisk and Jensen v. Denmark, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Robert Spano, President,Ledi Bianku,Işıl Karakaş,Nebojša Vučinić,Valeriu Griţco,Jon Fridrik Kjølbro,Stéphanie Mourou-Vikström, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 14 November 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "19657/12) against the Kingdom of Denmark lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Danish nationals, Ms Mette Frisk (the first applicant), and Mr Steen Jensen, (the second applicant) on 27 March 2012. 2. The applicants were born in 1977 and 1961, and live in Copenhagen and Åbyhøj respectively. They are represented before the Court by Mr Tyge Trier, a lawyer practising in Copenhagen. 3.", "The Danish Government (“the Government”) were represented by their former Agent, Mr Jonas Bering Liisberg, succeeded subsequently by their present Agent, Mr Tobias Elling Rehfelt, from the Ministry of Foreign Affairs, and their Co-agent, Mrs Nina Holst‑Christensen, from the Ministry of Justice. 4. The applicants alleged a violation of their right to freedom of expression as guaranteed by Article 10 of the Convention. 5. On 26 June 2014 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicants are journalists. At the relevant time they were employed by one of the two national television stations in Denmark, Danmarks Radio, hereafter “DR”. The first applicant produced a television programme, described as a documentary, called “When the doctor knows best”, which was broadcast at 8 p.m. on 24 September 2008, and seen by 534,000 viewers.", "The second applicant was the first applicant’s superior and responsible for the content of the programme. 7. The television programme concerned the treatment of pleural mesothelioma cancer, notably at Copenhagen University Hospital (Rigshospitalet), where Consultant S was in charge of treatment. It focused on two types of chemotherapy medication, Alimta, produced by L, and Vinorelbine, produced by F. Copenhagen University Hospital and S used Vinorelbine as first-line treatment in combination with Cisplatin or Carboplatin, depending on whether the treatment was related to an operation (operable patients) or to prolonging life and relieving pain and symptoms (inoperable patients). 8.", "Three experts participated in the programme: a medical doctor from Karolinska Hospital in Sweden, a professor from Switzerland and a medical doctor from Grosshandorf Hospital in Germany. They all used Alimta as first-line treatment, most often in combination with Cisplatin or Carboplatin. The programme followed four patients and their relatives, who told their stories, and a narrator spoke as a voice-over throughout the programme. 9. In preparation for the programme, the first applicant had carried out research on the subject which included, inter alia, the following.", "10. On 20 September 2004 the European Union had approved the marketing of Alimta in combination with Cisplatin for treatment of patients with inoperable pleural mesothelioma cancer. The background for the approval was, among others, research which had been carried out examining the effect of treatment with Alimta in combination with Cisplatin as compared to treatment with Cisplatin alone (a phase III trial, see paragraph 14 below) as first-line therapy. 11. In July 2007 the Minister for Internal Affairs and Health replied to various questions posed by Members of Parliament as to the treatment of pleural mesothelioma cancer in Denmark.", "The Minister replied, inter alia, that there was no proof that an Alimta-based treatment was more efficient than other chemotherapy-based treatments, including that offered in Denmark; that the combination of Vinorelbine and Cisplatin, which was used at Copenhagen University Hospital, resulted in a one-year survival rate of 50% and a median lifetime of 12 months, which was exactly the survival rate from using the combination of Alimta and Cisplatin, but that there had been no direct comparison of the two treatments; and that there was no internationally accepted standard chemotherapy for the treatment of pleural mesothelioma cancer, but that several single and combined treatments were used. 12. On 11 June 2008 Copenhagen University Hospital produced a memorandum about pleural mesothelioma cancer and its treatment, which was sent to DR. It stressed that international studies, including of Vinorelbine and Alimta, had not shown that any two-combination regime was superior to other two‑combination regimes. That information was confirmed by the professor from Switzerland in an email of 25 June 2008 and by the medical doctor from Grosshandorf Hospital in Germany in an email of 27 June 2008.", "The memorandum also referred to a fund aimed at developing research on pleural mesothelioma cancer, in the amount of 90,000 Danish kroner (DKK), equal to approximately 12,000 Euros (EUR), received by S from company F, which produces Vinorelbine. The money had been used to pay nurses and students and for data collection. It emerged that there had been no financial profit for the doctors involved. 13. Having received the above-mentioned memorandum, the first applicant again contacted the professor from Switzerland and the medical doctor at Grosshandorf Hospital in Germany.", "In essence, they confirmed in subsequent emails of 2 and 21 July 2008 that since there had been no direct comparative clinical studies, there was no scientific evidence that one two‑combination regime was superior to another two-combination regime. 14. Medical research studies involving human subjects are called clinical trials. They are divided into different stages, called phases. Generally, it can be said that the earliest phase trials may look at whether a drug is safe or at its side-effects.", "A later phase II trial aims to find out whether the treatment works well enough, for which types of cancer the treatment works, more about side effects and how to manage them and more about the best dose to use. A later phase III trial aims to test whether a new treatment is better than existing treatments (standard treatment). These trials may compare a completely new treatment with the standard treatment or with different doses or ways of giving a standard treatment. A. The proceedings before the courts 15.", "Subsequent to the broadcast on 24 September 2008 of the television programme, on 27 October 2008 Copenhagen University Hospital and S instituted defamation proceedings before the Copenhagen City Court (Københavns Byret) against the Director of DR and the two applicants, maintaining that the latter, in the programme in question, had made direct and indirect accusations, covered by Article 267 of the Penal Code (Straffeloven), against Copenhagen University Hospital and S, of malpractice regarding certain patients suffering from pleural mesothelioma cancer, allegedly resulting in the patients’ unnecessary death and shortening of life, in the interest of S’s professional prestige and private finances. 16. Before the City Court, the applicants, S, and Medical Director H for Copenhagen University Hospital gave evidence. 17. The first applicant stated, inter alia: “... that she had not criticised Copenhagen University Hospital for improper treatment causing death.", "Her message was only to point out that the substance of Alimta had been better documented than the substance of Vinorelbine. She had collected statements from patients and experts, but could not state herself whether Alimta was a better product than Vinorelbine ... The experts had not stated whether Alimta in combination with another product was better than Vinorelbine in combination with another product. However, all experts had emphasised that Alimta had been evaluated in a phase III trial, for which reason it was a more thoroughly tested product. ... her questions had been answered during her conversations with professor M on 19 October 2007 and S on 22 October 2007.", "Subsequently no one had been willing to answer her questions. That was the only real conversation she had had with S. The next time she had called him, he had put down the receiver. When it had not been possible for her to get any response to her many points of criticism, she had contacted H ... she had wanted statements from both H and S as the programme would be unbalanced if they were not heard ... Some found that Alimta had been better documented than Vinorelbine. She was not aware of any trial demonstrating that a combination with Alimta was better than a combination with another medicinal product ...”.", "S stated, inter alia, the following: “Alimta has been used for second-line therapy in Denmark since 2004, and since 2007 as first-line therapy. Patients had been given the impression in the media that Alimta was a miracle cure. Therefore Copenhagen University Hospital had introduced it as an option. Today, Alimta is used in combination with Carboplatin as the standard therapy for inoperable patients ... Sometimes in autumn 2008, the standard therapy for operable patients had been changed to Cisplatin in combination with Alimta.", "If some patients were offered Alimta everybody had to be offered Alimta ... After the programme had been broadcast ... patients started mistrusting the Vinorelbine therapy. Afterwards it was not possible to perform the trial [phase II] on this drug. Nor would it be possible to obtain funding for the trial. Therefore no trial had been performed of Vinorelbine ... he had provided the information included in professor M’s memorandum of 23 September 2008 ...he had talked to [the first applicant] several times and had spent a lot of time and energy on explaining cancer therapy... he had also lost confidence in [the first applicant]...” H stated, among other things: “ ...The approval of Alimta by the Danish Medicines Agency for the treatment of mesothelioma only means that a marketing authorisation has been granted for the drug, which means that advertisement of the product is permitted. Vinorelbine has also been approved by the Danish Medicines Agency, but for a wide range of oncological therapies ... in 2003 when Alimta was tested [phase III] the bar had been set quite low.", "The study compared Alimta with a clearly inferior treatment that would not actually be offered to anybody. It would have been more relevant to study Alimta in combination with Cisplatin versus Vinorelbine with Cisplatin .... S has made a phase II trial of the standard therapy [Vinorelbine] ... Subsequently the standard therapy regimen has been expanded to include Alimta, which is not a better product than Vinorelbine, but eight times more expensive ... if two drugs are equally effective, but one of them is eight times more expensive than the other, patients will be offered therapy using the cheaper drug. ... The standard therapies now offered by Copenhagen University Hospital are Vinorelbine in combination with Cisplatin for inoperable patients and Alimta in combination with Cisplatin for operable patients ... the shift to Alimta as the standard therapy at Copenhagen University Hospital did not reflect that Alimta was medically better.", "The [applicants’] programme had had a large impact as patients were asking not to be treated with Vinorelbine. Copenhagen University Hospital had therefore had to change medical products because patients had the clear impression that Vinorelbine was not as good as Alimta ... It is quite usual for Copenhagen University Hospital to surrender material to the press and to answer questions, but the questions of [the first applicant] were never-ending. Copenhagen University Hospital has spent about a man-year, or about DKK 400,000, responding to inquiries from [the first applicant], and huge efforts had been made to accommodate her requests ... the programme had created distrust towards both Copenhagen University Hospital and S and had created uncertainty in both patients and relatives. He had received 50 to 100 “hate mails” himself ...” 18.", "By a judgment of 9 April 2010, the Copenhagen City Court found against the applicants (and the Director of DR) and sentenced them each to 10 day-fines of 1,000 Danish Kroner (DKK). The allegations were declared null and void. The reasoning was as follows: “... Based on the evidence, the City Court accepts as a fact that in 2004, following a phase III trial, EMEA approved Alimta in combination with Cisplatin for treating patients suffering from inoperable malignant pleural mesothelioma and that subsequently the same was approved by the Danish Medicines Agency. The court also accept as a fact that Vinorelbine is a drug dating back more than 20 years whose effect had been documented by clinical experience and approved by the Danish Medicines Agency for a wide range of oncological therapies. Finally, the court also accepts as a fact that it has not been documented that Alimta therapy in combination with a platin medicinal product is more effective than Vinorelbine therapy in combination with a platin medicinal product.", "As regards the term “experimental drug” the court accepts as a fact that a drug administered to patients in a trial is referred to as an experimental drug, no matter whether the same drug is the standard therapy offered outside the trial setting. No matter that [the applicants] are deemed to have been aware of the above circumstances following their comprehensive research of the matter, it was said in the programme that, for dying patients, [S and Copenhagen University Hospital] had prescribed a “non-approved chemotherapy regimen” not approved for the diagnosis or which was not “the correct chemotherapy”, and that [S and Copenhagen University Hospital] used an “experimental drug”, the “worst-case scenario being that patients would die earlier than if they had been treated with an approved substance”, or that it would have “fatal consequences”. Moreover, the phrase “the only drug with a known effect” was used. Since no account was given in the programme of the above-mentioned trials and approval process and the terminology applied for that process, the court finds that it would seem to a non-professional viewer that Alimta was the only effective drug for mesothelioma, particularly because the programme linked the treatment of two patients with Vinorelbine to their death, whereas the prospect of several more years to live was held out to the one patient who had been given Alimta therapy in Germany. Moreover, the programme also linked S’s use of Vinorelbine to his personal esteem and his “personal research account”, although [the applicants] had been made aware of the research grant management procedure though Professor M’s memorandum of 23 September 2008 before the broadcast.", "Since no account was given either of the procedure for managing research grants, the court also finds in this respect that it would seem to a non-professional viewer that S had a personal financial interest in starting Vinorelbine treatment rather than Alimta. The [applicants] are therefore considered to have violated Article 267 of the Penal Code. According to the information on [the applicants’] knowledge after their comprehensive research of the matter, the court finds no basis for exempting them from punishment or remitting the penalty under Article 269 of the Penal Code, compare also Article 10 of the Convention. ... [The applicants] are furthermore jointly and severally liable for paying legal costs of DKK 62,250.” 19. On appeal, on 10 June 2011 the judgment was upheld by the High Court of Eastern Denmark (Østre Landsret) with the following reasoning: “In the introduction to the programme ‘When the doctor knows best’ a narrator states, among other things: ‘A Danish doctor is entering a medical congress to show his research results.", "For years he has gone his own way, he has treated dying patients with chemotherapy that is not approved.’ Later during the programme, it is stated at which hospitals one can receive treatment for pleural mesothelioma cancer, that these hospitals co-operate with Copenhagen University Hospital, and a reference is made to a named Consultant, S, head of the Scandinavian Centre for treatment of pleural mesothelioma cancer. During the various interviews, a narrator states, inter alia: - ‘The doctor does not give his patients the only approved medication. Instead, he uses a test medication. In the worst scenario, that may result in the patients dying earlier than if they had been given the approved substance.’ - ‘There is only one approved chemotherapy against pleural mesothelioma cancer, but that is not offered to SP [one of the patients followed in the programme]. The doctors chose to treat her with a substance that is not approved for the diagnosis, and whose effect on pleural mesothelioma cancer is not substantiated.’ - ‘However, that chemotherapy turned out to have huge consequences for her [SP].’ - ‘S can freely choose the medication that he thinks is best.", "There is only one treatment which, in comparative studies, has proved to have an effect on pleural mesothelioma cancer. Accordingly, that is the only medication which is approved as treatment. That medication is called Alimta. However, S chose not to use that medication on his patients.’ - ‘Thus, it has not been proved whether Vinorelbine works. According to the calculations made by DR, close to 300 patients in Denmark have been given test medication.", "In the worst scenario, that may result in patients dying earlier than if they had been given the approved medication.’ -’For her [SP] the lack of effect of treatment by Vinorelbine turns out to have had fatal consequences.’ - ‘The family K ask themselves why S goes his own way. They suspect that he has other interests than those of the patients. That suspicion grows, when they talk to SK’s personal doctor.’ - ‘It turns out, however, that S may also have had other reasons for choosing Vinorelbine. Because he has used this medication in medical tests on the patients. In a phase when they are fighting for their lives.’ -’The question remains: why does S carry out tests with Vinorelbine?", "Could it have something to do with the prestige which is implicit in having research articles published?’ - ‘We do not know whether it is prestige that impels S.’ - ‘Thus, S will not acknowledge what leading experts agree on; [namely] that Alimta is the only medication whose effect is substantiated.’ - ‘Here it turns out that S has received more than DKK 800,000 over the last five and a half years from the company F. That is the company behind the test medication Vinorelbine. The money has been paid into S’s personal research account. DKK 90,000 is earmarked for the tests. S withheld that information.’ The programme ends by informing us, among other things, that two of the patients who were interviewed have passed away. The narrator says, inter alia: ‘TJ, who was part of S’s tests with Vinorelbine, died on 4 January 2008.’ With these statements, [the applicants] not only passed on assertions by patients, relatives and experts, but also took a stand, so that the programme undisputedly gave the viewers the impression that malpractice has occurred at Copenhagen University Hospital, in that S has deliberately used medication (Vinorelbine), which is not approved for treatment of pleural mesothelioma cancer, and whose effect has not been substantiated, that the medication in question was part of a test, and that the test medication has resulted in patients dying or having their lives shortened.", "The way that the programme is built up with its beginning and ending, the viewers get the clear impression that the reasons behind this choice of medication [Vinorelbine] were S’s professional prestige and personal finances. Against this background, in the programme, the applicants, as producer of the programme and as chief sub-editor, have made an allegation against Copenhagen University Hospital and S of malpractice and of nourishing irrelevant considerations to the detriment of the lives and health of patients. Such an accusation is likely to disparage [Copenhagen University Hospital and S] in the eyes of their fellow citizens as set out in Article 267 of the Penal Code. It must have been clear to them [the applicants] that they were making such an allegation by way of their presentation of the programme. The applicants have not attempted to establish the truth of the allegation, but have submitted that the allegation shall be unpunishable by virtue of Article 269 (1) of the Penal Code as they acted in lawful protection of an obvious public interest or the interest of others or, in the alternative, that punishment should be remitted under Article 269 (2) of the Penal Code because they were justified in regarding the allegations as true.", "These provisions must, in connection with Article 267 of the Penal Code, be understood in the light of Article 10 of the Convention on the protection of freedom of expression. A very considerable public interest is related to journalistic discussion about risk to life and health, or suspicion thereof, as regards public hospital treatment. When balancing considerations of freedom of expression with considerations of the protection of the name and reputation of persons and companies, the former is accorded tremendous weight on the scale. That entails acknowledgement of a very far-reaching freedom of expression for the press, and accordingly the press must be permitted, as the public control- and information organ (‘public watchdog’), a certain amount of exaggeration and provocation in connection with their discussion of these questions, when factually there are reasons for expressing criticism. On the basis of the information in the case, including the research material that the applicants possessed before the broadcast of the programme, in particular the emails from [the medical doctor from Grosshandorf Hospital in Germany and the professor from Switzerland], the replies by the Minister for Internal Affairs and Health to various questions [posed by Members of Parliament], and the memorandum of 11 June 2008 produced by Copenhagen University Hospital [about pleural mesothelioma cancer], it can be established that Vinorelbine in combination with Cisplatin or Carboplatin was standard treatment at Copenhagen University Hospital, that the European Union on 20 September 2004 approved the marketing of Alimta in connection with Cisplatin for treatment of inoperable patients with pleural mesothelioma cancer, that there was no substantiation or basis for believing that an Alimta-based treatment was more efficient than the treatment offered by Copenhagen University Hospital, that some patients at Copenhagen University Hospital, who were already about to receive Vinorelbine as standard treatment, were chosen and offered the same medicine as part of a test [it is not known for what], and that S did not make any private financial profit from these tests.", "Against this background, including the fact that the word ‘approved’ was not explained during the programme, namely the difference between medication approved for treatment and [medication] approved for marketing, and by consistently using the word “test medication”, even though only one patient in the programme participated in tests, [the applicants] made allegations which were based on an incorrect factual basis, of which they must have been aware via the research material. The aim of the programme – to make a critical assessment of the treatment of patients with pleural mesothelioma cancer offered by Copenhagen University Hospital and the responsible consultant – is a legitimate part of the press’s role as ‘public watchdog’, but it cannot justify an allegation, which is built on a factually incorrect basis, and thus a wrong premise. [The applicants], who did not limit themselves to referring to or disseminating statements by experts, patients and relatives, did not have any basis for making such serious allegations against Copenhagen University Hospital and S. The allegations cannot be justified on the grounds that Copenhagen University Hospital and S refused to participate in the programme. Against this background, and since in relation to Article 10 there is no interest to protect when there is no factual basis for the accusations, the allegations are not unpunishable under Article 269 (1), nor is there any basis for remitting the punishment under Article 269 (2) [of the Penal Code]. It is an aggravating factor that the wrongful accusations were disseminated on national television during primetime and on DR’s homepage, by means of which the accusations had a significant spread.", "Accordingly, [the High Court] agrees [with the Copenhagen City Court’s judgment] that [the applicants] be fined under Article 267, and that the allegations be declared null and void by virtue of Article 273 (1). The High Court thus dismisses the appeal and upholds the judgment of the Copenhagen City Court. The applicants shall be jointly and severally liable for paying legal costs of the High Court appeal to Copenhagen University Hospital and S, in the amount of DKK 90,000, which constitutes the legal fee inclusive of VAT. In fixing the amount, the High Court took into account the scope and duration of the case.” 20. On 27 October 2011 the Appeals Permission Board (Procesbevillingsnævnet) refused the applicants’ request for leave to appeal to the Supreme Court (Højesteret).", "B. Complaints lodged with the Patient Insurance Association 21. Subsequent to the broadcast on 24 September 2008 of the television programme, four complaints were lodged with the Patient Insurance Association (Patientforsikringen) relating to the issues raised by the programme. A press release published on the Associations’ website on 9 March read as follows: “As of today, the Patient Insurance Association has received four complaints relating to the treatment of mesothelioma patients with combinatorial drugs other than Carboplatin and Alimta. That treatment was questioned by the Danish Broadcasting Corporation (DR) in a documentary programme in September 2008.", "The Patient Insurance Association has received four complaints relating to the criticism raised. This means that the persons claiming compensation are either patients or their dependants, one of the reasons being their belief that the combinatorial drugs administered to treat the disease were incorrect ones. All four complaints have been refused, one of the reasons being that the independent medical oncologists who assessed the cases found that it was in compliance with optimum medical standards to treat patients with the selected combination therapy. Two of the cases have been appealed against to the National Agency for Patients’ Rights and Complaints (Patientskadeankenævnet). The National Agency for Patients’ Rights and Complaints upheld the decision of the Patient Insurance Association, finding, inter alia:’... [patients] were offered Carboplatin and Vinorelbine, which must be considered to be as active as other combinations with a favourable profile of adverse reactions’.", "The other appeal does not concern the issue of combination therapy.” II. RELEVANT DOMESTIC LAW 22. The relevant provisions of the Danish Penal Code applicable at the time read as follows: Article 267 “Any person who tarnishes the honour of another by offensive words or conduct or by making or spreading allegations of an act likely to disparage him in the eyes of his fellow citizens shall be liable to a fine or to imprisonment not exceeding four months.” Article 268 “If an allegation has been maliciously made or disseminated, or if the author has no reasonable ground to regard it as true, he shall be guilty of defamation, and the punishment mentioned in Article 267 may increase to a term not exceeding two years.” Article 269 “1. An allegation shall not be punishable if its truth has been established or if the author of the allegation has in good faith been under an obligation to speak or has acted in lawful protection of an obvious public interest or of the personal interest of himself or of others. 2.", "The punishment may be remitted where evidence is produced which justifies the grounds for regarding the allegations as true.” Article 272 “The penalty prescribed in Article 267 of the Penal Code may be remitted if the act has been provoked by improper behaviour on the part of the injured person or if he is guilty of retaliation.” Article 273 “1. If a defamatory allegation is unjustified, a statement to that effect shall, at the request of the injured party, be included in the sentence. 2. Any person convicted of defamation may be ordered at the request of the insulted person to pay to the insulted person an amount fixed by the court to cover the costs of promulgating the judgment conclusion alone or also the grounds in one or more official gazettes. This also applies even if the judgment only provides for retraction under the provision of subsection 1.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 23. The applicants complained that the judgment of the High Court amounted to a disproportionate interference with their right to freedom of expression guaranteed by Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 24. The Government contested that argument. A. Admissibility 25. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 26.", "The applicants recognised that their conviction was prescribed by law and that, in respect of S, it pursued a legitimate aim. 27. They submitted, however, that Copenhagen University Hospital could not, in its capacity as a public body, rely on “the protection of the reputation or rights of others” under Article 10 of the Convention and referred in this respect, inter alia, to the dissenting opinion in Romanenko and Others v. Russia, no. 11751/03, 8 October 2009. In the applicants’ opinion it would seriously harm democratic principles and legal certainty if the State were able to protect itself from public scrutiny by limiting the freedom of expression of a journalist where a public body is involved.", "The judiciary is the only public authority whose protection is capable of constituting a legitimate aim within the meaning of Article 10 § 2. 28. Moreover, they maintained that the interference constituted a breach of their rights as journalists as the interference was not necessary in a democratic society. 29. The main purpose of the programme was to perform a critical assessment of the treatment of mesothelioma at Copenhagen University Hospital, compared to the treatment by other leading experts, and to raise questions about whether patients should have been informed of other therapeutic options than Vinorelbine.", "It presented the patients’ and the families’ frustrations over being denied the choice of their preferred chemotherapy, especially given the fact that Alimta had undergone phase III examination and thus was more thoroughly tested than Vinorelbine. The programme was not scientific and did not claim to give a scientific account of the advantages of one cancer treatment over the other. 30. The documentary was based on substantive and significant journalistic research carried out over a period of approximately one year. It included international medical experts and a very broad range of open source material.", "The applicants acted in good faith and in full compliance with press ethics when preparing and airing the programme. Both S and Copenhagen University Hospital were invited to comment on the allegations in the documentary on numerous occasions. The memorandum of 11 June 2008 produced by Copenhagen University Hospital was not suitable for inclusion in the documentary as it did not answer the specific questions asked by the applicants. 31. The subject matter, that the patients and their families felt that they were not being properly informed and given the choice of which chemotherapy treatment they preferred at Copenhagen University Hospital, was clearly of public interest, and the documentary gave rise to a broad public debate.", "The impact was significant and had various important consequences, inter alia, a public demand for Alimta therapy and a change in practice at Copenhagen University Hospital, all of which highlighted why this kind of journalism was essential and indispensable in a democratic society. 32. The domestic courts failed to carry out a careful balancing exercise between the right to impart information and protection of the reputation of others. They gave a distorted picture of the content of the documentary and the responsibility of the journalist reporting what was being said by others. The applicants noted, for example, that the charge against them did not relate to any specific statements in the documentary and that the domestic courts did not mention any specific statements by the applicants which were considered incorrect.", "Moreover, the voice-overs provided in the programme should not be considered in isolation, but in the context of the journalistic production as a whole with respect for the function of the documentary and of the documentary genre as a dissemination tool for statements of named third parties. The High Court performed a crucial change of the conclusions of the documentary by finding that the programme gave a defamatory impression that Alimta was a superior product and that S had caused unnecessary death for his personal benefit. This was clearly not stated in the documentary. The judicial authorities placed a disproportionate and unfair burden on the applicants requiring, under criminal law, that they provide medical documentation about Alimta compared to Vinorelbine. The wording of the High Court judgment also indicated that there had been no specific assessment by the judges of the value of the documentary to general society.", "33. Finally, the applicants submitted that the penalties imposed were disproportionate to the harm alleged and likely to deter journalists from performing their essential role as “public watchdogs” and keeping the public informed about matters of public interest. They pointed out that they had received criminal convictions, had had to pay fines and there had been the final “punishment” of paying costs to S and Copenhagen University Hospital. 34. The Government maintained that the interference was prescribed by law and pursued the legitimate aim of protecting the reputation of others.", "They referred to case-law in which the Court had presupposed that a public body could also fall within “the protection of the reputation or rights of others”, for example, Romanenko and Others v. Russia, cited above, § 39; Lombardo and Others v. Malta, no. 7333/06, §§ 50 and 54, 24 April 2007; and Thorgeir Thorgeirson v. Iceland, 25 June 1992, Series A no. 239. They further contended that since it was recognised that the reputation of the police may be a legitimate aim, the same should apply to several other public bodies. The conditions at a public hospital constitute an issue of considerable public interest and entail a need for wider limits for public scrutiny, but this is partly for other reasons than for a public body exercising power in the traditional sense.", "Public interest may therefore be deemed to be interconnected with the relevance of the activities of the hospital to the life and health of individuals. Allegations made on a factually incorrect basis will affect the patient’s confidence in the treatment offered and may weaken the possibilities of the hospital to function in an optimal manner. In addition, it would amount to unfounded arbitrariness in the protection of the health interests of the contracting States if they were to have the possibility of interfering with attacks on the reputation of private hospitals but not of public hospitals. 35. With respect to the proportionality test, the Government found it of vital importance that the case at hand did not concern dissemination of defamatory statements made by others.", "It concerned defamatory statements independently worded and made by the applicants, notably when they had used the voice-over to convey the impression to the viewers that improper treatment had been given and that this was S’s deliberate choice, motivated by his desire for professional esteem and his personal financial situation. This should lead to a stricter assessment of the applicants’ defamatory statements when balanced against the protection of the reputation or rights of S and Copenhagen University Hospital. 36. The Government also submitted that, although the High Court did not make an explicit classification of the allegations, the wording of the reasoning clearly illustrated that it considered them to be allegations of facts, at least those elements of the allegations that did not relate to S’s motives. 37.", "Referring to the High Court’s finding, the Government maintained that the applicants did not act on a factually correct basis, nor did they provide reliable and precise information in accordance with the ethics of journalism when making their very serious allegations. They did not act in good faith. Among other things, they deliberately omitted to inform the viewers that according to the research material available to them, the effect of Vinorelbine had been documented, and that there was no basis for stating that Alimta-based chemotherapy was more effective than the Vinorelbine‑based treatment offered by Copenhagen University Hospital. They also omitted to mention that Copenhagen University Hospital, in a memorandum of 11 June 2018 to the applicants, had given a thorough account of the reasons for the medical product chosen, and an explanation of the research, which emphasised that the doctors involved did not themselves benefit financially. Furthermore, as stated by the High Court, by not defining the term “approved” or the difference between a drug approved for treatment and a drug approved for marketing, and by consistently using the term “experimental drug”, the applicants made accusations resting on a factually incorrect basis, of which they must be deemed to have become aware through the research material.", "38. In the assessment of the nature and seriousness of the defamation the Government found that great importance had to be attached to the fact that audio-visual media are very effective, and that the allegations were made in a television programme by a national television company which is generally perceived as highly reliable. 39. The Government fully recognised that the subject at issue was of considerable public interest, for which reason a broader protection of the freedom of expression applies. The aim could have been achieved, however, without making the impugned accusations.", "They also pointed out that the High Court found that it had not been substantiated that there was any medical difference between Vinorelbine and Alimta, which was also the conclusion of the independent medical oncologist of the Patient Insurance Association. The changes of treatment regime at Copenhagen University Hospital caused by the programme thus illustrated that allegations made by the press on a factually incorrect basis may harm individuals’ confidence in the national health authorities. 40. Finally they pointed out that the applicants had been given very mild sentences. 2.", "The Court’s assessment (a) Whether there was an interference prescribed by law 41. It is common ground between the parties that the impugned judgment constituted an “interference by [a] public authority” with the applicants’ right to freedom of expression as guaranteed under the first paragraph of Article 10 and that it was prescribed by law. (b) Whether it pursued a legitimate aim 42. The applicants disputed that Copenhagen University Hospital, being a public body, could rely on “the protection of the reputation or rights of others” under Article 10 of the Convention and referred in this respect, inter alia, to the dissenting opinion in Romanenko and Others v. Russia (cited above). 43.", "The Court reiterates that in Thorgeir Thorgeirson v. Iceland (cited above, § 59), concerning charges for defamation of an unspecified member of the police, it was not disputed, or questioned by the Court, that the applicant’s conviction and sentence were aimed at protecting the “reputation ... of others” and thus had a legitimate aim under Article 10 § 2 of the Convention. 44. Moreover, in Romanenko and Others v. Russia (cited above, § 39), concerning a court’s management department, being a public body, the Court acknowledged “that there may be sound policy reasons to decide that public bodies should not have standing to sue for defamation in their own capacity; however, it is not its task to examine the domestic legislation in the abstract but rather to consider the manner in which that legislation was applied to, or affected, the applicant in a particular case”. Thereafter, it went on to examine the issue in the analysis of the proportionality of the interference. 45.", "Likewise, in Lombardo and Others v. Malta (cited above, § 50) although stating that it is only in exceptional circumstances that a measure proscribing statements criticising the acts or omissions of an elected body such as a council can be justified with reference to “the protection of the rights or reputations of others”, the Court was prepared to “assume that this aim can be relied on“, and went on to the proportionality test. 46. Furthermore, in Kharlamov v. Russia (no. 27447/07, § 25, 8 October 2015) concerning a University’s authority, the Court went on to consider the issue in the analysis of the proportionality of the interference. It did state, though (ibid.", "§ 29), that the protection of the University’s authority is a mere institutional interest of the University, that is, a consideration not necessarily of the same strength as “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 (see Uj v. Hungary, no. 23954/10, § 22, 19 July 2011). The latter reference concerned a State-owned company in respect of which the Court observed (ibid. § 22); “...the impugned criminal charges were pressed by a company which undisputedly has a right to defend itself against defamatory allegations. In this context the Court accepts that, in addition to the public interest in open debate about business practices, there is a competing interest in protecting the commercial success and viability of companies, for the benefit of shareholders and employees, but also for the wider economic good.", "The State therefore enjoys a margin of appreciation as to the means it provides under domestic law to enable a company to challenge the truth, and limit the damage, of allegations which risk harming its reputation (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005-II; Kuliś and Różycki v. Poland, no. 27209/03, § 35, ECHR 2009‑...). However, there is a difference between the commercial reputational interests of a company and the reputation of an individual concerning his or her social status. Whereas the latter might have repercussions on one’s dignity, for the Court interests of commercial reputation are devoid of that moral dimension.", "In the instant application, the reputational interest at stake is that of a State-owned corporation; it is thus a commercial one without relevance to moral character.” 47. Having regard to the above-cited case-law, the Court is not convinced by the applicants’ submission that the judiciary is the only public authority whose protection is capable of constituting a legitimate aim under Article 10 § 2. 48. In the present case, the High Court found that the applicants, as producer of the programme and as chief sub-editor, had made an allegation against Copenhagen University Hospital and S of malpractice and of nourishing irrelevant considerations to the detriment of the lives and health of patients, and that such an accusation was likely to disparage Copenhagen University Hospital and S in the eyes of their fellow citizens as set out in Article 267 of the Penal Code (see paragraph 19 above). 49.", "The Court notes, in addition, that the impugned allegations were strongly linked to S and his alleged motives for using the product Vinorelbine on his patients suffering from mesothelioma. The allegations were also found to be defamatory for Copenhagen University Hospital which, in the Court’s view, rather acted as the representative for its unnamed management and staff, who were also concerned by the accusations in the programme, than being a mere institution representing its interests in the form of prestige or commercial success. The case thus appears comparable to the situation in Thorgeir Thorgeirson v. Iceland (cited above). In such circumstances the Court can agree with the Government that there is no basis in the notion of “others” set out in the second paragraph of Article 10 to distinguish between attacks on the reputation of medical staff at private hospitals as opposed to public hospitals. 50.", "Having regard thereto, and to the particular circumstances of case, the Court concludes that also in respect of Copenhagen University Hospital, the applicant’s conviction and sentence were aimed at protecting the “reputation ... of others” and had a legitimate aim under Article 10 § 2 of the Convention. (c) Whether the interference was necessary in a democratic society (i) General principles 51. The principles concerning the question of whether an interference with freedom of expression is “necessary in a democratic society” are well‑established in the Court’s case-law (see, among other authorities, Delfi AS v. Estonia [GC], no. 64569/09, § 131 to 132, ECHR 2015, with further references). The Court has to examine the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’.", "In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts. 52. In this context, the Court recalls that the interference aimed at protecting the reputation of an individual, consultant S, as well as a public body in its capacity of representing its unnamed staff, the University Hospital (see paragraphs 49-50). As regards, in particular, protection of the reputation of an individual, the Court has held that a person’s reputation, even if that person is being criticised in the context of a public debate, forms part of his or her personal identity and psychological integrity and therefore falls within the scope of his or her “private life”. In order for Article 8 to come into play, though, the attack on personal honour and reputation must attain a certain level of gravity and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see, inter alia, (see Delfi, cited above, § 137; Axel Springer AG v. Germany [GC], no.", "39954/08, § 83, 7 February 2012; and A. v. Norway, no. 28070/06, § 64, 9 April 2009). 53. Having been required on numerous occasions to consider disputes requiring an examination of the fair balance to be struck between the right to respect for private life and the right to freedom of expression, the Court has developed general principles emerging from abundant case-law in this area (see, among other authorities, Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 83 to 93, ECHR 2015 (extracts)).", "The criteria which are relevant when balancing the right to freedom of expression against the right to respect for private life are, inter alia: the contribution to a debate of general interest; how well-known the person concerned is and what the subject of the report is; his or her prior conduct; the method of obtaining the information and its veracity; the content, form and consequences of the publication; and the severity of the sanction imposed (see, for example, Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 165, ECHR 2017 (extracts); Axel Springer AG v. Germany [GC], cited above, §§ 83 and 89 to 95, 7 February 2012 and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 108 to 113, ECHR 2012). 54.", "Finally, the Court reiterates that where the national authorities have weighed up the freedom of expression with the right to private life in compliance with the criteria laid down in the Court’s case-law, strong reasons are required if it is to substitute its view for that of the domestic courts (see, inter alia, Von Hannover v. Germany (no. 2) [GC], cited above, § 107, Axel Springer AG v. Germany [GC], cited above, § 88; Lillo-Stenberg and Sæther v. Norway, no. 13258/09, § 44, 16 January 2014; and Couderc and Hachette Filipacchi Associés v. France [GC], cited above, § 92). 55. Even though the interference aimed at protecting the reputation of the University Hospital, which is covered by “reputation of ... others” in Article 10 § 2, and consultant S, who is not only covered by the same provision but who may also rely on the right to respect of private life as protected by Article 8 § 1 of the Convention, the Court will proceed with assessing the proportionality of the interferences on the basis of the same criteria (see paragraph 53 above) in relation to both the University Hospital and consultant S. (ii) Application of those principles to the present case (α) The subject matter of the programme and its contribution to a debate of general interest 56.", "The applicants maintained that the main purpose of the programme was to perform a critical assessment of the treatment of mesothelioma at Copenhagen University Hospital, compared to treatment by other leading experts, and to raise questions about whether patients should have been informed of other therapeutic options than Vinorelbine. It presented the patients’ and the families’ frustrations over being denied the choice of their preferred chemotherapy, especially given the fact that Alimta had undergone phase III examination and thus had been more thoroughly tested than Vinorelbine. The programme was not scientific and did not claim to give a scientific account of the advantages of one cancer treatment over another. 57. It is evident from the judgments of the domestic courts, though, that the programme also raised the question of whether the applicants had made, directly and indirectly, allegations that S and Copenhagen University Hospital had given certain patients suffering from mesothelioma improper treatment resulting in their unnecessary death and the shortening of their lives in order to promote S’s professional esteem and personal financial situation.", "58. The domestic courts acknowledged that such a subject was of public interest. In fact, the High Court pointed out in its judgment of 10 June 2011 that the matter was an issue of very considerable public interest by stating the following: “A very considerable public interest is related to journalistic discussion about risk to life and health, or suspicion thereof, as regards public hospital treatment. When balancing considerations of freedom of expression with considerations of the protection of the name and reputation of persons and companies, the former is accorded tremendous weight on the scale. That entails acknowledgement of a very far-reaching freedom of expression for the press, and accordingly the press must be permitted, as the public control- and information organ (‘public watchdog’), a certain amount of exaggeration and provocation in connection with their discussion of these questions, when factually there are reasons for expressing criticism.” 59.", "The Court agrees with the domestic courts that the programme dealt with issues of legitimate public interest. (β) How well-known the person concerned is and his conduct prior to the programme 60. In the present case, the impugned criticism was directed at S and Copenhagen University Hospital, being a public hospital, including its unnamed management and staff, who were also concerned by the accusations in the programme (see paragraph 49 above). They were all vested with official functions. The Court reiterates in this respect that the limits of acceptable criticism are wider as concerns public figures than private individuals (see, for example, Couderc and Hachette Filipacchi Associés v. France [GC], cited above, §§ 117 to 123, with further references).", "The Government also accepted that in the present case, there was a need for wider limits for public scrutiny, not because Copenhagen University Hospital could be compared to a public body exercising power in the traditional sense, but rather because the activities of the hospital and its conditions had an impact on the life and health of individuals. A similar view was expressed by the High Court (see paragraph 58 above) when pointing out that in respect of public hospital treatment, when balancing considerations of freedom of expression with considerations of the protection of the name and reputation of persons and companies, the former is accorded tremendous weight on the scale. (γ) Content, form and consequences of the impugned programme 61. The domestic courts found that the applicants in the programme had made allegations that S and Copenhagen University Hospital had given certain patients suffering from mesothelioma improper treatment, resulting in their unnecessary death and the shortening of their lives to promote the professional esteem and personal financial situation of S. More precisely, in its judgment of 10 June 2011, the High Court found, after having seen the programme and by quoting various voice-overs that: “With these statements, [the applicants] not only passed on assertions by patients, relatives and experts, but also took a stand, so that the programme undisputedly gave the viewers the impression that malpractice has occurred at Copenhagen University Hospital, in that S has deliberately used medication (Vinorelbine), which is not approved for treatment of pleural mesothelioma cancer, and whose effect has not been substantiated, that the medication in question was part of a test, and that the test medication has resulted in patients dying or having their lives shortened. The way that the programme is built up with its beginning and ending, the viewers get the clear impression that the reasons behind this choice of medication [Vinorelbine] were S’s professional prestige and personal finances.", "On this background, in the programme, the applicants, as producer of the programme and as chief sub-editor, have made an allegation against Copenhagen University Hospital and S of malpractice and of nourishing irrelevant considerations to the detriment of the lives and health of patients. Such an accusation is likely to disparage [Copenhagen University Hospital and S] in the eyes of their fellow citizens as set out in Article 267 of the Penal Code. It must have been clear to them [the applicants] that they made such an allegation by way of their presentation of the programme.” 62. It further concluded that those accusations rested on a factually incorrect basis: “ ... On the basis of the information in the case, including the research material, that the applicants possessed before the broadcast of the programme, in particular the emails from [the medical doctor from Grosshandorf Hospital in Germany and the professor from Switzerland], the replies by the Minister for Internal Affairs and Health to various questions [posed by Members of Parliament], and the memorandum of 11 June 2008 produced by Copenhagen University Hospital [about pleural mesothelioma cancer], it can be established that Vinorelbine in combination with Cisplatin or Carboplatin was standard treatment at Copenhagen University Hospital, that the European Union on 20 September 2004 approved the marketing of Alimta in connection with Cisplatin for treatment of inoperable patients with pleural mesothelioma cancer, that there was no substantiation or basis for believing that an Alimta-based treatment was more efficient than the treatment offered by Copenhagen University Hospital, that some patients at Copenhagen University Hospital, who were already about to receive Vinorelbine as standard treatment, were chosen and offered the same medicine as part of a test [it is not known for what], and that S did not make any private financial profit from these tests. Against this background, including the fact that the word ‘approved’ was not explained during the programme, namely the difference between medication approved for treatment and [medication] approved for marketing, and by consistently using the word “test medication”, even though only one patient in the programme participated in tests, [the applicants] made allegations which were based on a wrong factual basis, of which they must have been aware via the research material.” 63.", "The Court has no reason to call into question those conclusions reached by the High Court. 64. The Court is also satisfied that the accusations against S reached the level of seriousness required to fall within the scope of Article 8 of the Convention (see paragraph 52 above). 65. The Court reiterates that the potential impact of the medium of expression concerned is an important factor in the consideration of the proportionality of an interference and that the audio-visual media have a more immediate and powerful effect than the print media (see, for example, Jersild v. Denmark, judgment of 23 September 1994, § 31, Series A no.", "298). The High Court found that it was an aggravating factor that the wrongful accusations were disseminated on national television during primetime and on DR’s homepage, by means of which the accusations had a significant spread. The Court notes, in addition, that the programme was broadcast by one of the two national television stations in Denmark and described as a “documentary”, which could add to the viewers’ expectations that they would be presented with the truth. 66. The applicants maintained that the impact of their programme was significant and had various important consequences, inter alia, a public demand for Alimta therapy and a change in practice at Copenhagen University Hospital, all of which highlighted why this kind of journalism was essential and indispensable in a democratic society.", "67. The Court points out, however, that the domestic courts assessed the material before them, which the applicants possessed, and concluded that there was no documentation to show that Alimta therapy in combination with a platin medicinal product was more effective than Vinorelbine therapy in combination with a platin medicinal product, nor was there substantiation or basis for believing that an Alimta-based treatment was more efficient than the treatment offered by Copenhagen University Hospital. The Court has found no reason to call into question those conclusions. 68. It therefore also accepts that the reason why, after the programme had been broadcast, the public demand for Alimta therapy may have increased and Copenhagen University Hospital changed its standard therapy for operable patients to Cisplatin in combination with Alimta, was that the programme, on an incorrect factual basis, had encouraged patients to mistrust Vinorelbine therapy, as also stated by S and H before the City Court.", "69. The Court further observes that before the City Court, H added that the programme had created distrust towards both Copenhagen University Hospital and S, that it had created uncertainty in patients and relatives, and that he himself had subsequently received 50 to 100 “hate mails”. (δ) Method of obtaining the information and its veracity 70. Before the domestic courts, the applicants maintained that they acted in good faith and in full compliance with press ethics when preparing and airing the programme and that the documentary was based on substantive and significant journalistic research carried out over a period of approximately one year. It included international medical experts and a very broad range of open source material.", "The first applicant also stated that S and Copenhagen University Hospital had been invited to comment on the allegations in the documentary on numerous occasions. 71. The applicants had received the memorandum of 11 June 2008 (see paragraph 12 above) about pleural mesothelioma cancer and its treatment produced by Copenhagen University Hospital, which stressed that international studies, including of Vinorelbine and Alimta, had not shown that any two-combination regime was superior to other two‑combination regimes. That information was confirmed by the professor from Switzerland in an email of 25 June 2008 and by the medical doctor from Grosshandorf Hospital in Germany in an email of 27 June 2008 (see paragraph 13 above). The memorandum also referred to a fund aimed at developing research on pleural mesothelioma cancer, in the amount of DKK 90,000 received by S from company F, and stated that the money had been used to pay nurses and students and for data collection.", "It emerged that there had been no financial profit for the doctors involved. The applicants stated that they did not find the memorandum suitable for inclusion in their documentary as it did not answer the specific questions asked by them. 72. The Court notes that the domestic courts did not dispute that the applicants had conducted thorough research. As stated above, however, based on the particulars of the case, which included the research material, which the applicants had possessed before the programme was broadcast, they found that the applicants had made accusations resting on a factually incorrect basis, of which they must be deemed to have become aware through the research material.", "In conclusion, the High Court stated: “The aim of the programme – to make a critical assessment of the treatment of patients with pleural mesothelioma cancer offered by Copenhagen University Hospital and the responsible consultant – is a legitimate part of the press’s role as ‘public watchdog’, but it cannot justify an allegation, which is built on a factually wrong basis, and thus a wrong premise. [The applicants], who did not limit themselves to referring to or disseminating statements by experts, patients and relatives, did not have any basis for making such serious allegations against Copenhagen University Hospital and S ... ” 73. Again, the Court sees no reason to call into question the High Court’s conclusions. It reiterates that the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the provision that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism (see, for example, Bédat, cited above, § 58). 74.", "It notes in particular that there is no indication that the judicial authorities placed a disproportionate and unfair burden on the applicants, including, as alleged by them, requiring under criminal law that they provide medical documentation about Alimta compared to Vinorelbine. 75. Finally, the High Court stated that the allegations made by the applicants could not be justified by the fact that Copenhagen University Hospital and S refused to participate in the programme. The Court notes in addition that it is not in dispute that Copenhagen University Hospital participated and cooperated during the preparation of the programme, by replying to questions by the applicants and furnishing them with relevant information, including the memorandum of 11 June 2008 produced by S. In this respect the Court cannot ignore the statement by H before the City Court (see paragraph 19 above) that: “It is quite usual for Copenhagen University Hospital to surrender material to the press and to answer questions, but the questions of [the first applicant] were never-ending. Copenhagen University Hospital has spent about a man-year, or about DKK 400,000, on responding to inquiries from [the first applicant], and huge efforts were made to accommodate her requests”.", "(ε) Severity of the sanction imposed 76. The defamation proceedings brought by S and Copenhagen University Hospital against the applicants ended in an order declaring the allegations null and void, a criminal conviction of the applicants and a sentence for each of them amounting to 10 day-fines of DKK 1,000 (a total of 10 000 DKK equal to approximately 1,340 euros (EUR)). 77. The Court notes that a criminal conviction is a serious sanction, having regard to the existence of other means of intervention and rebuttal, particularly through civil remedies (see for example, Perinçek v. Switzerland [GC], no. 27510/08, § 273, ECHR 2015 (extracts).", "In the circumstances of the present case, however, the Court does not find the conviction and the sentence excessive or to be of such a kind as to have a “chilling effect” on the exercise of media freedom (see, inter alia, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 93, ECHR 2004‑XI, with further references). 78. The applicants emphasised that they had also been punished by having to pay legal costs to S and Copenhagen University Hospital. Those costs amounted to DKK 62,250 (equal to approximately EUR 8,355) before the City Court and DKK 90,000 (equal to approximately EUR 12,080) before the High Court.", "The Court has found that the most careful scrutiny on the part of the Court is called for when measures taken by a national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern (see, for example, Jersild v. Denmark, cited above, § 35 and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 64, ECHR 1999‑III). In the present case, however, the Court finds that the decision that the applicants pay legal costs does not appear unreasonable or disproportionate (see, by contrast, MGN Limited v. the United Kingdom, no. 39401/04, § 219, 18 January 2011). (ζ) Conclusion 79.", "In the light of all the above-mentioned considerations, the Court considers that the domestic courts, and most recently the High Court in its judgment of 10 June 2011, balanced the right of freedom of expression with the right to respect for private life, and took into account the criteria set out in the Court’s case-law. The reasons relied upon were both relevant and sufficient to show that the interference complained of was “necessary in a democratic society” and that the authorities of the respondent State acted within their margin of appreciation in striking a fair balance between the competing interests at stake. 80. The Court therefore concludes that there has been no violation of Article 10 of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the application admissible; 2. Holds that there has been no violation of Article 10 of the Convention; Done in English, and notified in writing on 5 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithRobert SpanoRegistrarPresident" ]
[ "SECOND SECTION CASE OF SÁNDOR v. HUNGARY (Application nos. 9077/05 and 10457/05 (joined)) JUDGMENT STRASBOURG 17 July 2008 FINAL 17/10/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sándor v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Vladimiro Zagrebelsky,Danutė Jočienė,Dragoljub Popović,András Sajó,Nona Tsotsoria, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 24 June 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos.", "9077/05 and 10457/05) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Hungarian nationals, Mr László Levente Sándor and Mrs Lászlóné Sándor (“the applicants”), on 4 February 2005 and 11 February 2005, respectively. 2. The applicants were represented by Mr A. Cech, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement. 3.", "On 14 December 2007 the Court decided to give notice of the applications to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the applications at the same time. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicants, husband and wife, were born in 1928 and 1936 respectively and live in Budapest. 5.", "On 1 March 1995 the liquidation of the South Pest General Consumer and Marketing Co-operative (“ÁFÉSZ”) was ordered by the Budapest Regional Court. Each applicant was creditor in these proceedings, holding individual claims. 6. In May 1996 the liquidator prepared the interim balance sheet (közbenső mérleg) that was sent to the applicants. On 31 May 1996 the applicants raised an objection concerning the interim balance sheet.", "In January 1997 the Budapest Regional Court suspended the review of the balance sheet until a decision by the Supreme Court. In April 1997 the Regional Court again suspended its proceedings concerning the applicants’ objection. The applicants allege that the Regional Court has never decided upon their objection. 7. In the resumed proceedings, on 28 July 1999 the Budapest Regional Court accepted the closing balance sheet prepared by the liquidator.", "The applicants appealed against this decision. On 12 July 2004 the Supreme Court quashed the Regional Court’s decision and remitted the case to the first-instance. 8. In the resumed proceedings, the applicants raised an objection against an action of the liquidator, namely, the sale of real estate belonging to the debtor. In May 2005 the Budapest Regional Court dismissed the objection.", "On appeal, the Budapest Court of Appeal upheld the first-instance decision in September 2006. In May 2007 the review bench of the Supreme Court upheld the final decision. 9. In November 2007 the Regional Court ordered the bailiff to pay the applicants 3,835,643 Hungarian forints (approximately 15,577 euros) for their justified creditors’ claim. The entire sum was paid to them.", "10. According to the information in the case file, the liquidation procedure is still pending. THE LAW I. JOINDER OF APPLICATIONS 11. The Court notes that the subject matter of application nos. 9077/05 and 10457/05 is identical, since the applicants, husband and wife, are parties to the same domestic proceedings.", "It is therefore appropriate to join the cases, in application of Rule 42 of the Rules of Court. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 12. The applicants complained that the length of the liquidation proceedings had been incompatible with the “reasonable time” requirement of 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...” 13. The Government contested that argument.", "14. The period to be taken into consideration began on 1 March 1995. According to the information provided by the parties and the elements available in the case file, it has not yet ended. It has thus lasted over thirteen years and four months for three levels of jurisdiction. A. Admissibility 15.", "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 16.", "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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 17. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present application (see Frydlender, cited above). 18.", "Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present circumstances. Having regard to its case-law on the subject, the Court finds that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 19. There has accordingly been a breach of Article 6 § 1. III.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 20. The applicants further complained that the length of the proceedings had infringed their right to the peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1, which provides as follow: \"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.\" 21. The Court notes that this complaint is linked to that under Article 6 § 1 of the Convention which has already been examined above and must therefore, likewise, be declared admissible. However, having regard to its finding under Article 6 § 1 (see paragraph 19 above), the Court considers that it is not necessary to examine separately whether there has also been a violation of Article 1 of Protocol No. 1 (see Zanghì v. Italy, judgment of 19 February 1991, Series A no.", "194-C, p. 47, § 23). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 22. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 23.", "The applicants, jointly, claimed 82,781 euros (EUR) in respect of pecuniary and non-pecuniary damage. 24. The Government contested this claim. 25. The Court does not discern any casual link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.", "However, it considers that the applicants must have sustained some non-pecuniary damages. Ruling on an equitable basis, it awards each applicant EUR 11,200. B. Costs and expenses 26. The applicants also claimed EUR 1,200 for the costs and expenses incurred before the Court.", "They submitted that their claim is based on an agreement concluded with their lawyer. They filed an itemised statement of the hours billable by their lawyer, amounting to twelve hours of work at an hourly rate of EUR 100 (two hours of client consultations; four hours for studying the file; two hours for case-law research; four hours for drafting submissions). 27. The Government did not express an opinion on the matter. 28.", "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 were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court finds it reasonable to award the sum claimed in its entirety under this head, jointly to the applicants. C. Default interest 29. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Decides to join the applications; 2. Declares the application admissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds that there is no need to examine separately the complaint under Article 1 of Protocol No. 1 to the Convention; 5.", "Holds (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into Hungarian forints at the rate applicable at the date of settlement: (i) to each of the applicants EUR 11,200 (eleven thousand two hundred euros), plus any tax that may be chargeable to them, in respect of non-pecuniary damage; (ii) to the applicants jointly EUR 1,200 (one thousand two hundred euros) in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 17 July 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise TulkensRegistrarPresident" ]
[ "FOURTH SECTION CASE OF PANUSZ v. POLAND (Application no. 24322/02) JUDGMENT STRASBOURG 3 June 2008 FINAL 01/12/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Panusz v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,David Thór Björgvinsson,Ledi Bianku,Mihai Poalelungi, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 13 May 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "24322/02) against the Republic of Poland 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, Mr Ryszard Panusz (“the applicant”), on 21 October 2001. The applicant was represented by Ms S. Kałka, a lawyer practising in Racibórz. 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3.", "On 6 October 2006 the President of the Fourth Section of the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1967 and lives in Katowice.", "A. Criminal proceedings against the applicant and his detention on remand 5. On 28 June 2000 the applicant was arrested on suspicion of murder. 6. On 30 June 2000 the Tychy District Court (Sąd Rejonowy) ordered his detention on remand.", "7. The applicant’s detention was subsequently extended on 28 September, 18 December 2000 and on 26 March 2001. 8. On 8 June 2001 the bill of indictment was lodged. 9.", "On 25 June 2001 the Katowice Regional Court (Sąd Okręgowy) extended the applicant’s detention until 15 January 2002. The court relied on a strong suspicion that he had committed the offence in question, which was supported by evidence. It attached importance to the grave nature of the offence and the likelihood of a severe sentence of imprisonment being imposed on him. In addition, keeping him in custody was necessary to ensure the proper conduct of the proceedings. Lastly, the court stressed that there were 3 co‑accused and 26 witnesses involved in the proceedings.", "10. On 16 November 2001 the trial court held the first hearing. It subsequently held 7 hearings in the case. 11. On 7 January 2002 the Katowice Regional Court extended the applicant’s detention until 15 May 2002.", "The court repeated the reasons given previously. Upon an appeal by the applicant, the Katowice Court of Appeal (Sąd Apelacyjny) upheld that decision on 6 February 2002. 12. On 6 May 2002 the Regional Court again extended the applicant’s detention. The court stressed that he was likely to receive a particularly severe sentence.", "13. On 23 May 2002 the Katowice Regional Court convicted the applicant as charged and sentenced him to 15 years’ imprisonment. On 10 July 2002 the applicant’s lawyer lodged an appeal. He was kept in detention pending appeal for the 10 subsequent months. 14.", "On 6 March 2003 the Court of Appeal upheld the first-instance judgment. 15. On 18 June 2003 the applicant’s lawyer filed a cassation appeal (kasacja) with the Supreme Court (Sąd Najwyższy). 16. On 24 May 2004 the applicant informed the Registry that his cassation appeal had been rejected by the Supreme Court.", "B. Monitoring of the applicant’s correspondence 17. At the time of lodging his application with the Court the applicant was detained in the course of criminal proceedings against him. 18. On 1 February 2002 the Registry of the Court received a letter from the applicant dated 28 January 2002.", "The envelope bears a stamp “censored on...” (ocenzurowano dn....) and an illegible signature. 19. On 28 May 2002 the Registry of the Court received the application form from the applicant (dated 16 May 2002). It was delivered in an envelope bearing a stamp “censored on...” (ocenzurowano dn....). It also bears an illegible signature and a handwritten date, 20 May 2002.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. Preventive measures, including detention on remand 20. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no.", "17584/04, §§ 22-23, 4 August 2006. B. Monitoring of correspondence 21. The relevant domestic law concerning the means of monitoring the correspondence of persons involved in criminal proceedings applicable at the material time is set out in the Court’s judgment in the case of Michta v. Poland, no. 13425/02, §§ 33-39, 4 May 2006.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 22. The applicant complained that the length of his detention had been excessive. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 23.", "The Government contested that argument. A. Admissibility 24. The Government submitted in the first place that the applicant had not exhausted the remedies provided for by Polish law as regards his complaint under Article 5 § 3 of the Convention, in that he had failed to appeal against the decisions extending his detention given at the initial stage of the proceedings. They further maintained that he had failed to lodge any applications for release. 25.", "The Court reiterates that it is well established in its case-law that an applicant must make normal use of those domestic remedies which are likely to be effective and sufficient. When a remedy has been attempted, use of another remedy which has essentially the same objective is not required (see Yaşa v. Turkey judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, § 71). 26. In the present case the applicant lodged an appeal against the decision taken at the final stage of the proceedings in 2002, when the length of the detention had reached its most critical point. The Court considers that the purpose of the remedy used by the applicant was to obtain a review of his detention.", "In the circumstances of the case this remedy constituted an adequate and effective remedy within the meaning of Article 35 of the Convention, as its aim was to obtain his release. 27. The Court further notes that the arguments raised by the Government are similar to those already examined and rejected in a previous case against Poland (see Grzeszczuk v. Poland, no. 23029/93, Commission decision of 10 September 1997) and that the Government have not submitted any new circumstances which would lead the Court to depart from that finding. 28.", "It follows that this complaint cannot be rejected for non-exhaustion of domestic remedies. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "Period to be taken into consideration 29. The applicant’s detention started on 28 June 2000, when he was arrested on suspicion of murder. On 23 May 2002 the Katowice Regional Court convicted him as charged. As from that date he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and, consequently, that period of his detention falls outside the scope of Article 5 § 3 (cf. Kudła v. Poland [GC], no.", "30210/96, § 104, ECHR 2000‑XI). Accordingly, the period to be taken into consideration amounts to 1 year, 10 months and 24 days. 2. The parties’ submissions (a) The applicant 30. The applicant submitted that his detention had been inordinately lengthy and that the authorities had failed to exercise all due diligence when dealing with his case.", "(b) The Government 31. The Government considered that the applicant’s pre-trial detention satisfied the requirements of Article 5 § 3. They submitted that his detention had been duly justified and that during the entire period the authorities had given relevant and sufficient reasons for extending it. 32. They further argued that the applicant’s detention had been justified by the reasonable suspicion that he had committed the offence with which he had been charged.", "They emphasised the serious nature of the charge and the fact that the applicant had been sentenced to fifteen years’ imprisonment. The Government lastly submitted that the domestic courts had acted diligently and speedily. 3. The Court’s assessment (a) General principles 33. The Court recalls that the general principles regarding the right “to trial within a reasonable time or to release pending trial”, as guaranteed by Article 5 § 3 of the Convention were stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland, cited above, § 110 et seq, and McKay v. the United Kingdom [GC], no.", "543/03, §§ 41-44, ECHR 2006-..., with further references). (b) Application of the above principles in the present case 34. In their detention decisions, the authorities, in addition to the reasonable suspicion against the applicant, relied principally on four grounds, namely (1) the serious nature of the offence with which he had been charged, (2) the severity of the penalty to which he was liable, (3) the need to secure the proper conduct of the proceedings and 4) the complexity of the case (see paragraphs 8, 10 and 11 above). 35. The Court accepts that the reasonable suspicion against the applicant of having committed the offence with which he had been charged could initially have warranted his detention.", "However, with the passage of time, this ground became less and less relevant. The Court must then establish whether the other grounds adduced by the courts were “sufficient” and “relevant” (see, Kudła cited above, § 111). 36. In respect of the subsequent period, the Court notes that the authorities relied on the likelihood that the applicant would be given a heavy sentence, given the nature of the charges against him. In this respect, the Court notes that the severity of the possible sentence is a relevant element in the assessment of the risk of an accused absconding or re-offending.", "Nevertheless, the Court has repeatedly held that the gravity of charges cannot by itself serve to justify long periods of detention during judicial proceedings (see Ilijkov v. Bulgaria, no. 33977/96, §§ 80-81, 26 July 2001). 37. The Court next observes that the judicial authorities relied on the fact that the applicant had been charged together with other persons. It can be accepted that in cases involving several accused, the process of gathering and hearing evidence is often a difficult task.", "In these circumstances, and given the need to obtain voluminous evidence from many sources – twenty-six witnesses were heard - and to determine the facts and degree of alleged responsibility of each of the co-defendants, the grounds relied on for keeping the applicant in detention for a period of one year and ten months can be considered relevant and sufficient for the purposes of Article 5 § 3 of the Convention. 38. It remains to ascertain whether the authorities, in dealing with the applicant’s case, displayed the necessary diligence required under Article 5 § 3 (see Mc Kay, cited above, § 44). In this regard, the Court recalls that the criminal case at issue was of some complexity, which undoubtedly prolonged its examination and contributed to the length of the applicant’s detention on remand. Secondly, no periods of inactivity can be imputed to the prosecution authorities and the trial court.", "The Court observes that the investigation was completed by the prosecution authorities within an acceptable period of time, regard being had to the amount of evidence involved. It took the trial court five months to prepare the case for the first hearing. However, the court expedited the examination of the case. During the six subsequent months the court held eight hearings at regular intervals and terminated the first-instance proceedings within an acceptable time-frame (see paragraphs 9 and 12 above). For these reasons, the Court considers that the domestic authorities handled the applicant’s case with relative expedition.", "39. In view of the foregoing, the Court concludes that there has been no violation of Article 5 § 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 40. The applicant further complained under Article 8 of the Convention about the monitoring of his correspondence.", "This provision, in its relevant part, reads: “1. Everyone has the right to respect for ... 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.” A. Admissibility 1. The Government’s preliminary objection on exhaustion of domestic remedies 41.", "The Government submitted that the applicant had not exhausted all available domestic remedies. He had failed to bring an action under Article 24 § 2, in conjunction with Article 448 of the Civil Code. These provisions would have allowed him to assert that by censoring his correspondence the authorities had breached his personal rights protected by the Civil Code and to make a claim in respect of non-pecuniary damage. 42. In this connection, the Government relied on the Warsaw Regional Court’s judgment of 27 November 2006 in which a prisoner had been awarded 5,000 Polish zlotys in damages from the State Treasury for a breach of the confidentiality of his correspondence with the Central Board of the Prison Service and the Central Electoral Office.", "The Regional Court held that the confidentiality of correspondence was a personal right protected under Article 23 of the Civil Code whose breach could entitle the claimant to an award in respect of non-pecuniary damage. 43. The applicant contested the Government’s arguments and submitted that he had not had at his disposal any effective remedies as regards the monitoring of his correspondence. 2. The Court’s assessment 44.", "The Court notes that the alleged interference with the applicant’s correspondence occurred in 2002, whereas the Government relied on the Warsaw Regional Court’s judgment of 27 November 2006, which was confirmed by the Warsaw Court of Appeal on 28 June 2007 and became final. Any relevance that this judgment might possibly have in respect of the present case is therefore reduced by the fact that it was given long after the relevant time (see, for example, V. v. the United Kingdom [GC], no. 24888/94, § 57, ECHR 1999‑IX). 30. For these reasons, the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed.", "3. Conclusion as to admissibility 45. 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. Existence of an interference 46. The Court notes that the envelopes in which the applicant’s letter of 28 January 2002 and the application form dated 16 May 2002 were sent to the Court bear a stamp “censored on...” (ocenzurowano dn....) and an illegible signature (see paragraphs 18 and 19 above). 47.", "The Court has held on many occasions that as long as the Polish authorities continue the practice of marking detainees’ letters with the “censored” stamp, the Court has no alternative but to presume that those letters have been opened and their contents read (see Matwiejczuk v. Poland, no. 37641/97, § 99, 2 December 2003; Pisk-Piskowski v. Poland, no. 92/03, § 26, 14 June 2005; and Michta v. Poland, cited above, § 58). It follows that in respect of both of the applicant’s letters there was an “interference” with his right to respect for his correspondence under Article 8. 2.", "Whether the interference was “in accordance with the law” 48. The Government did not indicate a specific legal basis in domestic law for the impugned interference. The Court notes that the interference took place on two occasions when the applicant was in detention. 49. The Court observes that, according to Article 214 of the Code of Execution of Criminal Sentences, detained persons should enjoy the same rights as those convicted by a final judgment.", "Accordingly, the prohibition of censorship of correspondence with the European Court of Human Rights contained in Article 103 of the same Code, which expressly relates to convicted persons, was also applicable to detained persons (see Michta v. Poland, cited above, § 61, and Kwiek v. Poland, no. 51895/99, § 44, 30 May 2006). Thus, the censorship of the applicant’s two letters to the Court’s Registry was contrary to domestic law. It follows that the interference in the present case was not “in accordance with the law”. 50.", "Having regard to that finding, the Court does not consider it necessary to ascertain whether the other requirements of paragraph 2 of Article 8 were complied with. Consequently, the Court finds that there has been a violation of Article 8 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 51. The applicant further complained that the proceedings in his case had been unfair.", "In particular, he alleged that errors of fact and law had been committed by the courts. He alleged a breach of Articles 6 § 3 and 13 of the Convention. This complaint falls to be examined under Article 6 § 1 of the Convention which, in its relevant part, reads: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” 52. The Court notes that it appears that the applicant’s cassation appeal was rejected by the Supreme Court on procedural grounds (see paragraph 16 above). However, even assuming that the applicant had exhausted domestic remedies, the Court reiterates that it is not called upon to deal with errors of fact and law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no.", "30544/96, § 28, ECHR 1999-I). 53. The applicant complained that the proceedings in his case had been unfair. In particular, he complained that he had not been confronted with co-defendants during the investigation and that the courts had wrongly assessed evidence. In the light of all the material in its possession and in so far as the applicant’s complaint about the outcome has been substantiated, the Court observes that the applicant took an active part in the proceedings, he was represented by a lawyer and he had the possibility to examine witnesses and verify the testimonies of co-defendants during the trial.", "Therefore, assessing the circumstances of the case as a whole, the Court finds no indication that the impugned proceedings were conducted unfairly. 54. It follows that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 55.", "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 56. The applicant claimed 100,000 Polish zlotys (PLN) in respect of non-pecuniary damage related to the protracted length of his detention and unfairness of the criminal proceedings. Furthermore, he claimed PLN 10,000 in respect of non-pecuniary damage related to the monitoring of his correspondence. 57.", "The Government did not comment on the applicant’s claims. 58. The Court notes that it has found no violation of Article 5 § 3 and the applicant’s complaint under Article 6 § 1 has been declared inadmissible. Thus, there is no basis for making any award under these heads. The Court further considers that in the particular circumstances of the case, the finding of a violation of Article 8 of the Convention would not constitute sufficient just satisfaction for the non‑pecuniary damage sustained by the applicant.", "Having regard to the extent of the violation found, the Court awards the applicant EUR 1,000 under this head. B. Costs and expenses 59. The applicant claimed costs and expenses in an unspecified amount for the proceedings before the Court. However, the Court observes that neither he nor his lawyer had produced any documents in support of the claim.", "In those circumstances, the Court rejects the claim for costs and expenses (see, Adamiak v. Poland, no. 20758/03, § 49, 19 December 2006). C. Default interest 60. 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 unreasonable length of detention and the monitoring of the applicant’s correspondence admissible and the remainder of the application inadmissible; 2. Holds that there has been no violation of Article 5 § 3 of the Convention; 3. Holds that there has been a violation of Article 8 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, to be converted into Polish zlotys 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 3 June 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident" ]
[ "GRAND CHAMBER CASE OF KOZACIOĞLU v. TURKEY (Application no. 2334/03) JUDGMENT STRASBOURG 19 February 2009 This judgment is final but may be subject to editorial revision. In the case of Kozacıoğlu v. Turkey, The European Court of Human Rights, sitting as a Grand Chamber composed of: Jean-Paul Costa, President,Christos Rozakis,Peer Lorenzen,Josep Casadevall,Giovanni Bonello,Karel Jungwiert,Nina Vajić,Rait Maruste,Ljiljana Mijović,Dean Spielmann,Renate Jaeger,George Nicolaou,Mirjana Lazarova Trajkovska,Nona Tsotsoria,Ann Power,Işıl Karakaş,Mihai Poalelungi, judges,and Michael O'Boyle, Deputy Registrar, Having deliberated in private on 2 July 2008 and 28 January 2009, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 2334/03) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr İbrahim Kozacıoğlu (“the applicant”) on 11 November 2002.", "The applicant died on 9 May 2005. On 10 April 2007 his heirs, Mr Sait Kozacıoğlu, Mr Aydın Kozacıoğlu, Mr Kenan Kozacıoğlu, Ms Necla Kozacıoğlu (Güzey), Ms Perihan Kozacıoğlu (Çetin), Ms Süheyla Kozacıoğlu (Tuna) and Ms Keriman Kozacıoğlu (Milli), expressed their wish to pursue the case before the Court. For practical reasons this judgment will continue to refer to Mr İbrahim Kozacıoğlu as the “applicant” although his heirs are today to be regarded as having that status (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999‑VI). 2.", "The applicant was represented by Mr T. Akılloğlu, Mr A. Aktay and Mr Ö. Yılmaz of the Ankara Bar. The Turkish Government (“the Government”) were represented by their Agent. 3. Relying on Article 1 of Protocol No. 1, the applicant complained that there had been an interference with his right to the peaceful enjoyment of his possessions.", "He also alleged that there had been a violation of Article 6 of the Convention. 4. The application was allocated to a Chamber of the Second Section of the Court (Rule 52 § 1 of the Rules of Court), composed of Françoise Tulkens, Ireneu Cabral Barreto, Rıza Türmen, Mindia Ugrekhelidze, Vladimiro Zagrebelsky, Antonella Mularoni and Dragoljub Popović, judges, and Sally Dollé, Section Registrar. On 31 July 2007 the Chamber delivered a judgment in which it held, by a majority, that the application was admissible; by four votes to three that there had been a violation of Article 1 of Protocol No. 1; and, by four votes to three, that it was not necessary to examine separately the complaint under Article 6 of the Convention.", "5. On 31 March 2008, following a request by the Government dated 31 October 2007, the panel of the Grand Chamber decided to refer the case to the Grand Chamber in accordance with Article 43 of the Convention. 6. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. 7.", "The applicant and the Government each filed written observations on the merits of the case. 8. A hearing took place in public in the Human Rights Building, Strasbourg, on 2 July 2008 (Rule 59 § 3). There appeared before the Court: – for the GovernmentMsD. Akçay,co-Agent,MsÖ.", "Gazİalem,MsA. Emüler,MsV. Sİrmen,MsD. Akpak,MrA. Demİr,MrM.", "Gürül,MsF. Karaman,MrT. Sariaslan,Advisers; – for the applicantMrT. Akillioğlu,MrA. Aktay,MrÖ.", "Yilmaz,Counsel. The Court heard addresses by Mr Akıllıoğlu, Mr Aktay and Ms Akçay and their replies to questions put by several judges. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9. The applicant, a Turkish national who was born in 1903 and died in 2005, was resident in Adana at the relevant time.", "10. During the 1930s he acquired for value a two-floor freestone building, constructed in 1906, in the sub-prefecture of Tarsus, İçel province. The building, which had a total floor space of 516.34 m², was of architectural interest in its own right. 11. On 1 November 1990 the Committee for the Protection of Adana's Cultural and Natural Heritage decided to classify the property as a “cultural asset” within the meaning of the Cultural and Natural Heritage (Protection) Act (Law no.", "2863 of 21 July 1983). On 23 November 1998 it was included in the project for protection of the urban environment. It was also included on the Council of Europe's inventory for the protection of the cultural and natural heritage. 12. On 4 April 2000 the executive council of İçel province issued an expropriation order in respect of the property in the context of the “Project for the environmental rehabilitation and regeneration of the streets around St Paul's Well”.", "On the basis of a valuation report submitted on 21 March 2000 by a panel of experts (hereafter “panel no. 1”) made up of three representatives of the authorities and two representatives of property owners, and in line with the “high-grade building” category in the construction price index published by the Ministry of Urban Planning, the council determined the building's value at 36,856,865,000 Turkish liras (TRL) (about 65,326 euros (EUR)[1]). This amount was paid to the applicant on the date of transfer of ownership. 13. On 12 October 2000 the applicant lodged an application for increased compensation for the expropriated building with the Tarsus District Court.", "He requested that a new panel of experts, to include a qualified art historian, re-assess the property, taking into account its historical and architectural value. He claimed TRL 1,000,000,000,000 (about EUR 1,728,750) in additional compensation. 14. On 26 February 2001 the court held a hearing and dismissed the applicant's request for re-valuation of the building on the ground of its historical value. The court held, inter alia, that under section 11 (1) of the Expropriation Act (Law no.", "2942) (see paragraph 29 below), the panel of experts responsible for the building's valuation could only determine its value on the basis of clearly defined objective data. At the same time, it agreed to the appointment of a new panel of experts, to be made up of a civil engineer, an architect and a representative of property owners. 15. On 10 May 2001, after visiting the site, the court-appointed panel of experts (hereafter panel no. 2) submitted its report.", "With regard to those features and factors which had a bearing on the property's value, it reached the following conclusions: “The property in question is located in the Camicedit neighbourhood, within the territory of Tarsus, in the Mersin District. It is recorded in the land register as a solid structure house with a courtyard. Situated in an urban area, it is classed as a listed building in the project for protection of the urban heritage. The decision to classify the building was adopted by the Committee for the Protection of Adana's Cultural and Natural Heritage on 1 November 1990... The property under dispute... is located ... in the town centre, at the corner of two streets, and its south- and east-facing façades give onto the road..", "It is situated in a high-density business and retail area... It borders the north side of the plot of land on which St Paul's well is located. The latter, a site of considerable importance in terms of history and tourism, has long been considered sacred, and visited, by Christians. Thus, before its expropriation, the property was at the centre of “religious tourism”. Archaeological research indicates that the district of Tarsus is an area that was settled in the period 10,000–4,000 B.C.", "It is therefore of historical and cultural value. In addition to the historical monuments which are visible above ground, the ruins of an ancient town have been discovered in the course of excavation works alongside the law courts..., and the area has been placed under protection.” 16. In determining the value of the building, panel no. 2 based its findings primarily on the construction price index published by the Ministry of Urban Planning, specifically the category “buildings requiring restoration”. It stated its findings as follows: “The building which is located on the disputed land is composed of two floors, each with a living floor space of 258.17 m², its total living floor space being therefore 516.34 m².", "It has been constructed from dressed stone and the architecture of the linking pieces is in the Baghdad style. It was designed as a residential building. The ground floor is in a simple [architectural] style, and the first floor has the features of dressed stone buildings. There is a balcony ... on the first floor. The dressed stone of the window arches and balcony is highly embellished.", "Thus, the disputed property has the features of buildings... constructed in line with the Mediterranean tradition, known as 'Tarsus houses' (Tarsus evleri). It has also been included in the Council of Europe's inventory for the protection of the cultural and natural heritage. It was in this building that Ataturk stayed during his visit to Tarsus in the 1930s. In spite of its age, and having regard to the above-mentioned features, the building has been protected and maintained in good condition by its owners. In those circumstances, a depreciation rate of 50 % has been decided on.", "As the building comes within class V, group D (buildings requiring restoration) under the Ministry of Urban Planning's circular of 2000..., the approximate cost of construction per square metre ... has been set at TRL 351,413,000.” 17. Panel no. 2 concluded that panel no. 1 (see paragraph 12 above) had valued the disputed building as an ordinary dressed-stone building, without taking account of its architectural features. It decided not to adopt those valuation criteria and assessed the building's value at an initial TRL 181,448,588,000.", "It then reduced this amount to TRL 90,724,294,000, noting that the building's depreciation justified a reduction of 50%. However, it then increased this sum to TRL 181,448,588,000, holding that, in view of the building's architectural, historical and cultural features, its value should be increased by 100 %. After deduction of the expropriation compensation already paid to the applicant, the panel decided that the additional compensation should be TRL 144,591,723,000. 18. A third panel of experts (hereafter “panel no.", "3”) submitted a report on 12 June 2001, confirming all of the conclusions in the second expert report. 19. On 14 June 2001 the applicant requested a further expert report, on the ground that the two previous reports had failed to take sufficient account of the building's architectural and historical features in assessing its value. 20. On 15 June 2001 the court, after dismissing the request for an additional expert report, allowed part of the applicant's claim and instructed the authorities to pay him TRL 144,591,723,000 (about EUR 139,728) in additional compensation, with interest at the statutory rate, to be calculated from 3 October 2000.", "21. On 19 November 2001 the Court of Cassation set aside that judgment. It held that under section 15 (d) of the Cultural and Natural Heritage (Protection) Act (Law no. 2863), neither a building's architectural or historical features nor those resulting from its rarity could enter into play in the assessment of its value. Consequently, a 100 % increase in the amount of additional compensation could not be considered justified.", "22. On 4 December 2001 the applicant petitioned for rectification of the Court of Cassation's judgment. He contested the amount of expropriation compensation and emphasised, inter alia, the absence of a legal criterion that would enable the value of buildings making up the country's cultural and historical heritage to be calculated. He relied on Article 6 of the Convention and Article 1 of Protocol No. 1.", "23. On 21 January 2002 the Court of Cassation dismissed the applicant's request for rectification. 24. On 15 February 2002 the District Court complied with the Court of Cassation's judgment and fixed the amount of additional compensation at TRL 53,867,429,000 (about EUR 45,980), with interest, to be calculated from 3 October 2000. 25.", "On 27 May 2002 the Court of Cassation upheld the judgment of the first-instance court. 26. On 23 December 2002 the Ministry of Finance issued a payment order for TRL 124,807,810,000 (about EUR 91,905), broken down as TRL 53,867,429,000 in respect of additional compensation and TRL 70,940,390,000 in respect of interest. 27. The case file shows that, following judicial proceedings which ended in 2005, the applicant received separate compensation for the land on which the building was constructed.", "According to information submitted by the Government and uncontested by the applicant's representatives, the compensation received following the expropriation of the land was 145,460 new Turkish liras (TRY)[2] (about EUR 87,101). II. RELEVANT DOMESTIC LAW AND PRACTICE A. Cultural and Natural Heritage (Protection) Act (Law no. 2863 of 21 July 1983) 28.", "Section 15 of the Cultural and Natural Heritage (Protection) Act provides: “Real property which forms part of the cultural heritage may be expropriated in accordance with the principles set out below: ... (d) in calculating the compensation to be awarded for expropriation, the value resulting from a property's age, rarity and artistic features shall not be taken into consideration.” B. The Expropriation Act (Law no. 2942 of 4 November 1983) 29. Section 11 of the Expropriation Act provides: “The criteria for determining expropriation compensation After having visited, with the judges, the site on which the property to be expropriated is situated... and having obtained the opinion of the interested parties, the panel of experts formed in accordance with section 15 shall draw up a report, taking into account: (a) the type and nature of the property under consideration; (b) its area; (c) the features and factors likely to influence its value, and the valuation of each factor; (d) the tax declaration in respect of the property, where one exists; (e) the values determined by the authorities at the date of expropriation; (f) for farmland, the potential profit on the date of expropriation if account is taken of the existing land-use and the site; (g) for construction land, the market value as determined by comparison with that of other equivalent plots of land sold under normal conditions prior to the date of expropriation; (h) for buildings, the official unit amount, the construction costs and the depreciation rate; (i) all other objective criteria likely to influence the value ... of the property to be expropriated. The panel shall determine the value of the property by mentioning in its report its finding in respect of each of the above-mentioned criteria, taking account of the statements of the interested parties and basing its findings on a reasoned valuation report.", "In determining the value of the property, no account shall be taken of the added value created by the initiative of the urban-planning or other department which lay behind the expropriation, nor of future profits arising from the various uses envisaged for it. ...” C. Case-law of the Court of Cassation 30. In numerous cases the 18th Civil Division of the Court of Cassation has quashed judgments delivered by lower courts which did not take account of the depreciation that the properties in question might have incurred as a result of their status as listed buildings (see, for example, the judgments of 30 November 2004 -2004/8082 E., 2004/8946 K.-, 20 December 2004 -2004/9692 E., 2004/9893 K.-, 5 May 2006 -2005/3263 E., 2005/4696 K.- and 16 June 2006 -2005/3064 E., 2005/6355 K.-). D. Council of Europe Conventions 1. The Council of Europe Convention for the Protection of the Architectural Heritage of Europe, adopted on 3 October 1985 31.", "The relevant parts of the Convention provide: Article 3 “Each Party undertakes: 1. to take statutory measures to protect the architectural heritage; 2. within the framework of such measures and by means specific to each State or region, to make provision for the protection of monuments, groups of buildings and sites.” Article 4 “Each Party undertakes: ... 2. to prevent the disfigurement, dilapidation or demolition of protected properties. To this end, each Party undertakes to introduce, if it has not already done so, legislation which: ... (d) allows compulsory purchase of a protected property.” 2. The Council of Europe Framework Convention on the Value of Cultural Heritage for Society, adopted on 27 October 2005, and its Explanatory Report 32. To date, thirteen countries have signed this convention, and only three countries have ratified it. Turkey has not signed it.", "The text includes the following provisions: Article 1 – Aims of the Convention “The Parties to this Convention agree to: (a) recognise that rights relating to cultural heritage are inherent in the right to participate in cultural life, as defined in the Universal Declaration of Human Rights; ... (c) emphasise that the conservation of cultural heritage and its sustainable use have human development and quality of life as their goal; ...” Article 4 – Rights and responsibilities relating to cultural heritage “The Parties recognise that: ... (c) exercise of the right to cultural heritage may be subject only to those restrictions which are necessary in a democratic society for the protection of the public interest and the rights and freedoms of others.” Article 6 – Effects of the Convention “No provision of this Convention shall be interpreted so as to: (a) limit or undermine the human rights and fundamental freedoms which may be safeguarded by international instruments, in particular, the Universal Declaration of Human Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms; (b) affect more favourable provisions concerning cultural heritage and environment contained in other national or international legal instruments; (c) create enforceable rights.” 33. The relevant sections of the explanatory report state, inter alia: Article 4 – Rights and responsibilities relating to cultural heritage “Article 4 deals with the rights and responsibilities of individuals in respect of cultural heritage. ... (c) The clause approving a restriction on the exercise of rights and corresponding freedoms relies for its interpretation clearly upon the spirit and arrangements of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Public interest considerations (see Article 5 (a)), for example to protect important elements of the cultural heritage, must always be balanced against the need to protect individual property rights.” E. Comparative law 34. In the Council of Europe's member States, it is accepted in principle that, in order to satisfy the requirements of the principle of proportionality, an amount of compensation that is “fair and just” (Cyprus), “fair and payable in advance” (France), “fair and payable immediately” (Estonia), “adequate” (Slovakia) or “appropriate” (Germany and Austria), or that is based on the “value” (Lithuania), “full value” (Albania), “current value” (Finland), “market value” (Sweden) or the “fair price” (Italy) of the expropriated property must be determined.", "In the United Kingdom, a property's historical value is held to be one of the criteria used in assessing its “intrinsic qualities” (see Tadcaster Tower Brewery Co v. Wilson [1897] 1 Ch 705, and Belton v. LCC (1893) 68 LT 411). In Greece, the State must take account of the building's possible historical status in assessing the level of compensation. In Latvia, the expropriation legislation provides that the public authorities must take account of any particular feature of the building in determining the level of compensation. In Spain, the expropriation of buildings that are of artistic, archaeological or historical value is subject to a special procedure, and the amount of compensation cannot be fixed at an amount lower than that which would result from application of the general procedure set out in the legislation on expropriation. None of the above States, nor Belgium or the Netherlands, specifically rules out taking an expropriated property's architectural and historical features into account when determining the compensation to be awarded.", "THE LAW I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS A. The parties' submissions to the Grand Chamber 35. The Government raised several objections before the Chamber, and maintained them before the Grand Chamber. They argued, firstly, that the applicant had failed to exhaust domestic remedies, in that he had not raised before the domestic courts his complaint that competent experts had not been appointed to evaluate his property.", "They further submitted that, following the expropriation, the applicant could have challenged the failure to take the historical value of his building into account in calculating compensation by seeking judicial review or bringing an action for damages in the administrative courts. 36. Lastly, considering that if damage there were, then it resulted from a legislative provision, the Government criticised the applicant for failing to lodge his application within the six months following the expropriation. 37. The applicant, who had contested these submissions before the Chamber, did not submit any observations concerning them to the Grand Chamber.", "B. The Chamber's decision 38. The Chamber concluded that the applicant had done everything that could reasonably have been expected of him in order to exhaust the domestic remedies and that he had complied with the six-month rule as required by Article 35 § 1 of the Convention. C. The Court's assessment 39. The Court reiterates that the rule of the exhaustion of domestic remedies contained in Article 35 § 1 of the Convention is based on the assumption that there is an effective remedy available in respect of the alleged breach in the domestic system.", "The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time; that is to say, that the remedy was accessible, was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see V. v. the United Kingdom [GC], no. 24888/94, § 57, ECHR 1999‑IX). 40. The Court also emphasises that the application of the exhaustion of domestic remedies rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism.", "It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in monitoring compliance with this rule, it is essential to have regard to the circumstances of the individual case. This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the context in which they operate as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see İlhan v. Turkey [GC], no. 22277/93, § 59, ECHR 2000‑VII). It should also be reiterated that an applicant must have made normal use of domestic remedies which are likely to be effective and sufficient and that, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see Riad and Idiab v. Belgium, nos.", "29787/03 and 29810/03, § 84, ECHR 2008‑...). 41. The Court notes that the applicant attempted to obtain an increase in the expropriation compensation through applications to the civil courts, a legal remedy that was not contested as a domestic remedy for the purposes of the exhaustion rule. It therefore remains to be determined whether he should also have brought an action before the administrative courts. 42.", "In this respect it is to be noted that the Turkish courts, to which the applicant had submitted a request for invalidation of the criteria used to evaluate his property and the appointment of a qualified expert to determine the latter's historical value, gave judgment against him, basing their rulings on section 15 (d) of the Cultural and Natural Heritage (Protection) Act (Law no. 2863). 43. In consequence, and having regard to the circumstances of the case, the Court considers that it would be excessive to criticise the applicant for failing to use the remedies referred to by the Government when he had already brought an action seeking an increase in the expropriation compensation, in the context of which he had criticised the absence of a qualified expert in the panel that assessed the value of his property. 44.", "As regards the objection that the application was lodged out of time, the Court notes that the applicant lodged his application in the six months following the judgment by the Court of Cassation which confirmed, with final effect, the first-instance judgment. 45. In the light of the foregoing, the Court concludes that the applicant did everything that could reasonably be expected of him to exhaust domestic remedies and that he complied with the six-month rule as required by Article 35 § 1 of the Convention. 46. The Government's preliminary objections are accordingly dismissed.", "II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 47. The applicant alleged that there had been a violation of Article 1 of Protocol No. 1, which provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.” A. Whether there was an interference with the applicant's right to the peaceful enjoyment of his possessions 48. The Court reiterates that Article 1 of Protocol No. 1 comprises three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The three rules are not, however, distinct in the sense of being unconnected.", "The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, inter alia, James and Others v. the United Kingdom, 21 February 1986, § 37, Series A no. 98, which reproduces in part the analysis given by the Court in its judgment in Sporrong and Lönnroth v. Sweden (23 September 1982, § 61, Series A no. 52); see also The Holy Monasteries v. Greece, 9 December 1994, § 56, Series A no. 301-A; Iatridis v. Greece ([GC], no. 31107/96, § 55, ECHR 1999-II; and Beyeler v. Italy [GC], no.", "33202/96, § 106, ECHR 2000‑I). 49. The Court notes that the Chamber's conclusion that there had been in this case a deprivation of possessions within the meaning of the second sentence of Article 1 of Protocol No. 1 was not disputed (paragraph 32 of the Chamber judgment). 50.", "The Court agrees with the Chamber's finding on this point. It must therefore now determine whether the deprivation complained of was justified under that provision. B. Whether the deprivation of possessions was justified 1. “Subject to the conditions provided for by law” 51.", "It is not disputed that the applicant was deprived of his possessions “subject to the conditions provided for by law”. 2. “In the public interest” 52. Nor was it disputed that the deprivation in issue pursued a legitimate aim, namely the protection of the country's cultural heritage. 53.", "The Court also considers that the protection of a country's cultural heritage is a legitimate aim capable of justifying the expropriation by the State of a building listed as “cultural property”. It reiterates that the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues. Finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, the Court will respect the legislature's judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation (see James and Others, cited above, § 46, and Beyeler, cited above, § 112). This is equally true, mutatis mutandis, for the protection of the environment or of a country's historical or cultural heritage. 54.", "The Court points out in this respect that the conservation of the cultural heritage and, where appropriate, its sustainable use, have as their aim, in addition to the maintenance of a certain quality of life, the preservation of the historical, cultural and artistic roots of a region and its inhabitants. As such, they are an essential value, the protection and promotion of which are incumbent on the public authorities (see, mutatis mutandis, Beyeler, cited above, § 112; SCEA Ferme de Fresnoy v. France (dec.), no. 61093/00, ECHR 2005‑XIII ; and Debelianovi v. Bulgaria, no. 61951/00, § 54, 29 March 2007; see also, mutatis mutandis, Hamer v. Belgium, no. 21861/03, § 79, ECHR 2007‑...).", "In this connection the Court refers to the Convention for the Protection of the Architectural Heritage of Europe, which sets out tangible measures, specifically with regard to the architectural heritage (see paragraph 30 above). 55. It remains to be determined whether the total failure in the instant case to take into consideration the disputed property's architectural and historical features and its rarity in calculating the expropriation compensation may nonetheless be considered proportionate. 3. Whether the impugned measure was proportionate (a) The Chamber judgment 56.", "The Chamber considered that the total failure to take into consideration the above-mentioned features of the property in calculating the compensation for expropriation had upset the requisite fair balance and deprived the applicant of that part of the property's value which was attributable to those features. It found that an amount reasonably related to those features ought to have been determined, in order to maintain a relationship of proportionality between the deprivation of the disputed property and the public interest pursued. (b) The parties' submissions i. The applicant 57. The applicant complained that there had been an interference with his right to the peaceful enjoyment of his possessions within the meaning of Article 1 of Protocol No.", "1, in that the overall amount of expropriation compensation awarded by the domestic courts did not correspond, in his opinion, to the real value of the expropriated property. He submitted, inter alia, that Turkish legislation did not enable him to obtain adequate compensation, in the absence of legal criteria for determining the value of buildings making up the country's cultural and historical heritage, such as the one which he formerly owned. ii. The Government 58. The Government noted at the outset that the instant case related exclusively to the building previously owned by the applicant.", "At the close of judicial proceedings the latter had received separate compensation for the land on which the building was situated. This was an important factor, not only for valuation of the alleged damage, but also for the assessment of the various proceedings brought by the applicant. 59. The Government specified that under the Cultural and Natural Heritage (Protection) Act (Law no. 2863 of 21 July 1983) buildings of cultural or artistic interest which belonged to individuals were considered to be State property, in the same way as those that belonged to public establishments, on the ground that they were part of the population's common heritage.", "Consequently, their owners had only limited property rights over them, in the sense that such rights applied only to the land on which the buildings were situated. 60. The Government further relied on the necessity for the public authorities to take appropriate measures to preserve such properties for future generations. To this end, they could either expropriate them and assume responsibility for their conservation and restoration, or they could classify them as “historical sites”; however, the latter procedure entailed multiple restrictions on the right of property, as the owners were then subject to draconian obligations concerning the use of the property in question. 61.", "The Government submitted that the building in question, which was located in a classified zone, had been expropriated in the context of the “Project for the environmental rehabilitation and regeneration of the streets around St Paul's Well”. They alleged that even if the authorities had not expropriated it, its value would have diminished considerably on account of its classification as a protected property. The applicant would thus have been obliged to sell it at a price significantly lower than the amount received in compensation for the expropriation. 62. In conclusion, the Government considered that, having regard to the margin of appreciation left by Article 1 of Protocol No.", "1 to the national authorities, the compensation awarded by the domestic courts had been reasonably related to the value of the expropriated property, which, on account of its historical and/or artistic features, was, they argued, part of the common heritage. (c) The Court's assessment i. General considerations 63. An interference with the right to the peaceful enjoyment of possessions must achieve a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (see, among other authorities, Sporrong and Lönnroth, cited above, § 69). The concern to achieve this balance is reflected in the structure of Article 1 of Protocol No.", "1 as a whole, including, therefore, the second sentence, which is to be read in the light of the general principle enunciated in the first sentence. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measures applied by the State, including measures depriving a person of his of her possessions (see Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, § 38, Series A no. 332; The former King of Greece and Others v. Greece [GC], no. 25701/94, §§ 89‑90, ECHR 2000‑XII; Sporrong and Lönnroth, cited above, § 73; and Beyeler, cited above, § 107). 64.", "Compensation terms under the relevant domestic legislation are material to the assessment whether the contested measure respects the requisite fair balance and, notably, whether it imposes a disproportionate burden on the applicant. In this connection, the Court has previously held that the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference. Article 1 of Protocol No. 1 does not, however, guarantee a right to full compensation in all circumstances. Legitimate objectives of “public interest” may call for less than reimbursement of the full market value of the expropriated property (see, mutatis mutandis, Lithgow and Others v. the United Kingdom, 8 July 1986, § 121, Series A no.", "102; Broniowski v. Poland [GC], no. 31443/96, § 182, ECHR 2004‑V; and Scordino v. Italy (no. 1) [GC], no. 36813/97, § 95, ECHR 2006‑...). In the Court's view, the protection of the historical and cultural heritage is one such objective.", "ii. Application of the above principles 65. In the instant case, having regard to the fact that it has already been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary, the lack of full compensation does not make the taking of the applicant's property eo ipso wrongful (see, mutatis mutandis, Scordino (no. 1), cited above, § 99), particularly as the measure was adopted in the context of a programme for the protection of the country's cultural heritage. It therefore remains to be determined whether, in deciding the criteria and arrangements for compensation of the applicant in this case, the domestic authorities upset the requisite fair balance and whether the applicant had to bear a disproportionate and excessive burden.", "66. The Court notes that a panel of experts initially set the expropriation compensation to be awarded to the applicant at TRL 39,186,865,000, without taking into account the historical and cultural value of the building in question (see paragraph 12 above). In a judgment of 15 June 2001, the district court, to which the applicant had appealed, endorsed the valuation made by two panels of experts, which had assessed the value of the building at TRL 90,724,294,000, a sum that they subsequently increased to TRL 181,448,588,000, stating that the building's architectural, historical and cultural features justified a 100% increase in its value (see paragraphs 15‑18 above). This judgment, however, was quashed by the Court of Cassation, which, referring to section 15 (d) of the Cultural and Natural Heritage (Protection) Act (Law no. 2863), held that a building's architectural or historical features, or those arising from its rarity, could not be taken into consideration in determining its value (see paragraph 13 above).", "67. Thus, in application of section 15 (d) of Law no. 2863 (see paragraph 28 above), neither the rarity of the expropriated building nor its architectural or historical features were taken into consideration in calculating the amount of expropriation compensation. In this regard, the Court can accept the Government's argument emphasising the difficulties inherent in calculating the market value of properties classed as being of cultural, historical, architectural or artistic value. The determination of this amount may depend on numerous factors, and it is not always easy to assess it through comparisons with properties on the market that do not have the same status or the same architectural and historical features.", "It considers, however, that these difficulties cannot justify a failure to take these features into consideration in any way. 68. In this connection, the Court notes that, in application of section 11 of Law no. 2942 (see paragraph 29 above), the experts responsible for assessing the price of a property that is to be expropriated take into consideration all the objective criteria likely to influence its value. It further notes that, in the instant case, two expert reports concluded that the features of the property in question justified a 100% increase in its valuation (see paragraphs 15‑18 above) and that, accordingly, the expropriation compensation fixed by the first panel of experts, which had not taken its architectural and historical features into account, was insufficient, especially given the good condition in which the building had been maintained by its owners.", "It follows that the applicant could have obtained a compensation award considerably higher than that which he received had the specific features of his property been taken into account in calculating the expropriation compensation. 69. The Court considers that the issue at the heart of the case is the fact that, when calculating the expropriation compensation for a listed property, it is impossible under Turkish law to take into account that part of a property's value that results from its rarity and its architectural and historical features. The Turkish legislature has deliberately set limits on such valuations by excluding the taking into account of such features. Thus, even where the latter seem to imply an increase in the price of the listed property, the domestic courts cannot take them into consideration.", "In contrast, however, it appears from the Court of Cassation's case-law that where the value of an expropriated property has decreased on account of its registration as a listed building, the courts take such depreciation into account in determining the compensation to be awarded (see paragraph 30 above). 70. The Court notes that this valuation system is unfair, in that it places the State at a distinct advantage. It enables the depreciation resulting from a property's listed status to be taken into account during expropriation, while any eventual appreciation is considered irrelevant in determining the compensation for expropriation. Thus, not only is such a system likely to penalise those owners of listed buildings who assume burdensome maintenance costs, it deprives them of any value that might arise from the specific features of their property.", "71. Moreover, the Court, like the Chamber, observes that the practice of a number of Council of Europe member States in the area of expropriation of listed buildings indicates that, despite the absence of a precise rule or common criteria for valuation (see paragraph 34 above), the option of taking into account the specific features of the properties in question when ascertaining appropriate compensation is not categorically ruled out. 72. In the light of the foregoing, the Court therefore considers that, in order to satisfy the requirements of proportionality between the deprivation of property and the public interest pursued, it is appropriate, in the event of expropriation of a listed building, to take account, to a reasonable degree, of the property's specific features in determining the compensation due to the owner. 73.", "There has accordingly been a violation of Article 1 of Protocol No. 1. III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 74. The applicant further complained that the proceedings before the domestic courts had been unfair, in that they had refused to appoint a qualified art historian to assess the cultural and historical features of the disputed building.", "He relied on Article 6 of the Convention. 75. Having regard to its findings under Article 1 of Protocol No. 1 (see paragraph 73 above), the Court finds that it is not necessary to examine separately the allegation of a breach of Article 6 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 76. 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 1. The Chamber judgment 77. The Chamber found that a “fair balance” had not been struck, on account of the total failure to take account of the expropriated building's historical value in calculating the amount of compensation.", "It further held that an award of EUR 75,000 constituted just satisfaction, having regard to the conclusions of the expert reports prepared for the domestic courts and to the consideration that legitimate “public interest” aims, such as those pursued by measures for the conservation of the cultural heritage, could justify reimbursement below the full value of expropriated properties, that is, the value if all their features were taken into account. 2. The parties' submissions 78. The applicant claimed 1,392,000 US dollars (USD) (the equivalent of TRL 907,242,940,000 under the exchange rate at the relevant time) in respect of pecuniary damage. He pointed out that, according to the experts, the building's architectural features justified a 100% increase in its value, which should thus be set at TRL 181,448,588,000, without taking into account the property's age.", "In his opinion, the historical, artistic and cultural value of his building would in reality justify an increase of about 400%. Thus, in his submission, the sum of TRL 181,448,588,000 should be multiplied by five in order to establish the pecuniary damage he had sustained. 79. The Government, who did not accept that the expropriated building was in good condition, considered that the applicant's claims were exaggerated. They maintained that the applicant had received a total of TRY 307,124,67 (about EUR 243,104) for the expropriation of his building and the underlying land.", "They also considered that the assessment of a property's market value was not the correct method to use in establishing just satisfaction, bearing in mind the particular nature of the property. 3. The Court's assessment 80. 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 (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000‑XI).", "The Contracting States that are parties to a case are in principle free to choose the means whereby they will comply with a judgment in which the Court has found a breach. This discretion as to the manner of execution of a judgment reflects the freedom of choice attaching to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1). If the nature of the breach allows of restitutio in integrum, it is for the respondent State to effect it, the Court having neither the power nor the practical possibility of doing so itself. If, on the other hand, national law does not allow – or allows only partial – reparation to be made for the consequences of the breach, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see Brumarescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2000‑I).", "81. In the instant case, the Court has just found that the “fair balance” was not struck (see paragraph 72 above). However, the action by the State which the Court held to be incompatible with Article 1 of Protocol No. 1 was not the taking of the applicant's property, which was not inherently unlawful, but the application of section 15 (d) of Law no. 2863, which excluded consideration of the value linked to the property's historical and cultural features in determining the expropriation compensation.", "In those circumstances, it considers that the nature of the violation found does not enable it to take the premise of restitutio in integrum as its starting point (see, mutatis mutandis, Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, Series A no. 330‑B, and Scordino v. Italy (no. 1), cited above, § 249). 82. In determining the appropriate amount of compensation, the Court must have regard to the general criteria laid down in its case-law concerning Article 1 of Protocol No.", "1, according to which the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference under Article 1 of Protocol No. 1 (see James and Others, cited above, § 54). In addition, it has just found that legitimate “public interest” aims, such as those pursued by measures for the conservation of a country's historical or cultural heritage, may call for less than reimbursement of the full market value of the expropriated properties (see paragraph 64 above). 83. Nevertheless, the Court considers that the level of compensation must take into account the value arising from the expropriated building's specific features.", "Considering that, in the instant case, those features were such as to increase the value of the disputed property (see paragraph 68 above), it does not accept the Government's argument that the sum of TRY 307,124.67 (about EUR 243,104) received by the applicant for the expropriation of his building and the underlying land represents fair compensation. It should be emphasised that this amount includes not only interest, namely TRL 70,940,390,000 (about EUR 52,240), but also TRL 145,460 (about EUR 87,101) in compensation for the expropriation of the plot of land itself. In any event, the fact that the applicant received expropriation compensation for his land has no bearing on the value arising from the specific features of the building in question. 84. As to the valuation method proposed by the applicant (see paragraph 78 above), the Court notes that it is not based on any objective data or supported by any expert report.", "It cannot therefore be accepted. 85. In order to determine the compensation that should be awarded to the applicant, the Court, like the Chamber, considers it appropriate to base its findings on the conclusions of the expert reports drawn up in the course of the domestic proceedings, although it does not consider itself bound by their findings. Having regard to these factors, including the legitimate public interest aim pursued by the disputed expropriation, and ruling on an equitable basis, it considers, like the Chamber, that it is reasonable to award the applicant the sum of EUR 75,000, together with any tax that may be chargeable on this amount. 86.", "As to non-pecuniary damage, the Court considers that, in the circumstances of the case, the finding of a violation of Article 1 of Protocol No. 1 constitutes in itself sufficient just satisfaction. B. Costs and expenses 1. The parties' submissions 87.", "The applicant claimed USD 5,000 (about EUR 3,837) for the costs and expenses incurred by him in the domestic proceedings and in those before the Court, without however submitting a single document in support of his claim. It is to be noted that the applicant has repeated the claim submitted by him to the Chamber. 88. The Government contested the claim, arguing that it had not been substantiated. 2.", "The Chamber judgment 89. The Chamber awarded the applicant EUR 1,000 in respect of costs and expenses, together with any tax chargeable on that amount. 3. The Court's assessment 90. According to the Court's well-established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum.", "Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Rule 60 and, among other authorities, Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002, and Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003‑VIII). 91. In the light of the foregoing, the Court awards the applicant the sum that the Chamber awarded, namely EUR 1,000, together with any tax that may be chargeable on this amount to the applicant.", "C. Default interest 92. 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 1. Dismisses, unanimously the Government's preliminary objections; 2. Holds, by 16 votes to 1, that there has been a violation of Article 1 of Protocol No.", "1; 3. Holds, unanimously that it is not necessary to consider the complaint under Article 6 of the Convention; 4. Holds, unanimously that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant; 5. Holds, by 16 votes to 1 (a) that the respondent State is to pay the applicant, within three months, the following sums, to be converted into Turkish liras at the rate applicable on the date of settlement: i. EUR 75,000 (seventy-five thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage; ii. EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, for costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6.", "Dismisses, unanimously, the remainder of the applicant's claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 19 February 2009. Michael O'BoyleJean-Paul CostaDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Maruste is annexed to this judgment. J.-P.C.M.O'B. DISSENTING OPINION OF JUDGE MARUSTE The applicant in this case has argued that he did not obtain appropriate compensation for the cultural and historical value of his property.", "The Grand Chamber agrees with him. It holds that there is a clear entitlement to such compensation, that there exist certain objective grounds for assessing a property's unique value and that an international court is a forum which can rule on such an issue. The Grand Chamber seems to state that the relevant Turkish legislation was clearly defective and, accordingly, that the outcome of the domestic judicial proceedings was in contradiction with the Convention. I have serious reservations about such a conclusion. The applicant purchased the house sometime in the 1930s.", "It is not clear whether its cultural and historical value played any pecuniary role at the material time, and this point was never argued by the applicant. What is clear is that the cultural value argument came into play after the State's decision on 1 November 1990 to classify the property as a “cultural asset” and, subsequently, to expropriate it. What is also crystal clear is that the applicant himself did not create the asset's extra value – he simply took proper care of it, as every responsible and good citizen would. Thus, the specific status of a cultural asset was accorded to the property by the State in the general (and not commercial) interest. The parties agreed - and this was also the view of the Grand Chamber – that the expropriation had been lawful.", "Consequently, it falls under the second paragraph of Article 1 of Protocol No. 1. Before dealing with that issue, however, I should like to put a general question: does an asset's unique cultural and historical value create an extra entitlement (right) to pecuniary compensation under international law generally and under the Convention in particular? A brief examination of the relevant references in paragraphs 31‑34 of the judgment does not provide clear confirmation of such a view. The relevant Council of Europe documents indicate, inter alia, that States are called on to allow “compulsory purchase of a protected property” (paragraph 31) and that protection of the cultural heritage does not “create enforceable rights” (paragraph 32).", "Nor does the very superficial comparative law overview (paragraph 34) indicate a clear common approach in the Council of Europe's member States; more importantly, the references are to ordinary situations and only a few of the examples given are related to situations and circumstances similar to those in the present case. The reason there are no clear rules and common standards is the obvious difficulty – if not impossibility – of assessing and calculating the pecuniary value of unique historical and cultural objects[3]. In respect of ordinary property the value is evident and clear – it is the market value average, which can be calculated on the basis of a statistical analysis of the market. In respect of a unique item that forms part of the cultural heritage, this method cannot be used. Its value is a matter of (subjective) assessment and, if not agreed, is subject to litigation.", "Here, I have to point out that the applicant had ample opportunity to make use of three independent expert reports and had the opportunity to bring his case before the domestic courts. The result was that the initial sum offered by the State was doubled and the final amount paid was EUR 243,104 (paragraph 79 of the judgment). But the applicant wanted more. Even assuming that the sum offered and paid was not adequate, sufficient or fair, we must compare it with something. An appropriate comparison would have been the price per square metre of nearby houses in a similar or comparable condition.", "No such comparison has been carried out. How can an international judge, who sits thousands of kilometres away from the site in Adana, has not seen the site and knows nothing about the context and market situation in that region determine the amount of proper just satisfaction? In my opinion, this is simply impossible. This does not mean that I am against a fair balance and adequate compensation. My argument is that, given the unique and very specific nature of the problem, it must be left to the discretion of the national authorities, and our task should be limited to verifying that a fair procedure is followed in such disputes.", "We should certainly not enter into the assessment of evidence and award “proper” or “fair” sums under those circumstances, unless the unfairness is evident and striking. This seems not to be the case at hand, or at least we have no evidence to that effect. It is not accidental that in property matters the Convention has left a wide margin of appreciation to the States. As we know from the text of the second paragraph of Article 1 of Protocol No. 1, the provisions on the protection of property “...shall not...in any way impair the right of the State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest...”.", "The respondent State in the given case adopted a specific law as it considered best. Even if the law appears highly restrictive at first sight, excluding a building's architectural and historical features and its rarity from the assessment of its value, it is still for the State to decide how it handles this problem and compensates interested parties. The Court's well-established position is that it is not its task to assess the relevant legislation of Contracting Parties. As was clear from the facts, the experts had de facto considerable freedom in making their assessments and proposals, as did the courts in using them. All of this produced a sensible and meaningful result.", "Lastly, I cannot but note that the Court has awarded EUR 1,000 for costs and expenses without any single document having been submitted by the applicant in support of his claim for the costs incurred. I find this very unfortunate and misleading, since it is a self-evident rule in any judicial proceedings that costs must be shown (proven). Our Rules of Court (Rule 60.2) set out the same requirement, stipulating expressis verbis that the applicant “must submit itemised particulars of all claims, together with any relevant supporting documents, within the time-limit fixed...”. In this property case and under the circumstances, no award should have been made under the head of costs and expenses, and the claim should have been left to be settled between the applicant and his lawyers. [1].", "All conversions into euros in this judgment have been calculated on the basis of the exchange rate in force at the relevant time. [2]. On 1 January 2005 the Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL). TRY 1 = TRL 1,000,000. [3].", "What is the rarity value of the Eiffel Tower or the Palace of Westminster? The answer is that no such rarity value exists, because there are no other Eiffel Towers or Palaces of Westminster on the market." ]
[ "THIRD SECTION[1] CASE OF BRUDNICKA AND OTHERS v. POLAND (Application no. 54723/00) JUDGMENT STRASBOURG 3 March 2005 FINAL 03/06/2005 In the case of Brudnicka and Others v. Poland, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrG. Ress, President,MrI. Cabral Barreto,MrR. Türmen,MrJ.", "Hedigan,MrsM. Tsatsa-Nikolovska,MrK. Traja,MrL. Garlicki, judges, and Mr V. Berger, Section Registrar, Having deliberated in private on 1 February 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "54723/00) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by sixteen Polish nationals, Irena Brudnicka, Maria Janicka, Anna Korzeniowska, Gabriela Łastowska, Mieczysław Okupiński, Bernadeta Olesz, Krystyna Ostrzyniewska, Stefania Subicka, Urszula Lejbschand, Celina Wawrzak, Anna Szpilman, Maria Pacek, Bożena Kolberg, Leonarda Cikota, Alicja Szczęśniak and Maria Sobocińska (“the applicants”), on 11 January 2000. 2. The applicants were represented by Mrs R. Orlikowska-Wrońska, a lawyer practising in Sopot. The Polish Government (“the Government”) were represented by their Agent, Mr K. Drzewicki, followed by Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs. 3.", "The applicants alleged, in particular, a violation of Article 6 § 1 of the Convention. 4. A hearing on the admissibility and merits (Rule 54 § 3 of the Rules of Court) took place in public in the Human Rights Building, Strasbourg, on 16 January 2003 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMrK. Drzewicki, Agent,MrsR.", "Kowalska, MrE. Jabłoński, MrJ. Młynarczyk, Advisers; (b) for the applicantsMrsR. Orlikowska-wrońska, Counsel,MrZ. Brodecki, Adviser,MrP.", "Rybiński, Assistant. 5. By a decision of 16 January 2003, the Chamber declared the application admissible with regard to Maria Janicka, inadmissible with regard to Maria Pacek, Bożena Kolberg, Leonarda Cikota, Alicja Szczęśniak and Maria Sobocińska and admissible, without prejudging the merits, with regard to Irena Brudnicka, Anna Korzeniowska, Gabriela Łastowska, Mieczysław Okupiński, Bernadeta Olesz, Krystyna Ostrzyniewska, Stefania Subicka, Urszula Lejbschand, Celina Wawrzak and Anna Szpilman, and joined the question of their status as victims to the merits. 6. The applicants and the Government each filed observations on the merits (Rule 59 § 1).", "The latter also filed additional observations on 6 August 2003 on the admissibility of the application. 7. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1), but this case remained with the Chamber constituted within the former Third Section. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8.", "The applicants are relatives of sailors who lost their lives in a shipwreck. 9. On 14 January 1993 the vessel Jan Heweliusz sank in the Baltic Sea. It belonged to the company Polskie Linie Oceaniczne, whose registered office is in Gdynia, and was operated by the company Euroafrica, with its registered office in Szczecin. Of the 35 passengers and 29 crew members on board, 55 died in the shipwreck and 9 survived.", "10. Several commissions of inquiry were set up to establish the cause of the shipwreck. The commission set up by the Prime Minister suspended its inquiry in March 1993 without producing a report. The commission set up by the Ministry of Transport and Maritime Affairs submitted a report in April 1993 in which it found that the shipwreck had been due to force majeure. The special commission set up within the National Labour Inspectorate concluded in May 1993 that the owner of the vessel and the crew were jointly responsible.", "11. The Maritime Chamber attached to the Szczecin Regional Court (Izba Morska przy Sądzie Wojewódzkim) instituted proceedings seeking to establish the cause of the shipwreck. The relatives of the crew members who had died took part in the proceedings. 12. On 11 January 1994 the Maritime Chamber delivered its decision, attributing liability to the ship's captain, its technical team, the Polish Shipping Registry, which had inspected the vessel before the disaster, and the Polish rescue services.", "13. On 18 November 1994 the Maritime Appeals Chamber of the Gdańsk Regional Court (Odwoławcza Izba Morska przy Sądzie Wojewódzkim), sitting in Gdynia, set aside the decision of 11 January 1994 and referred the case to the Maritime Chamber for a fresh examination. 14. The Gdańsk Maritime Chamber, sitting in Gdynia, examined the case between 20 March 1995 and 9 February 1996. On 23 February 1996 it gave a decision in which it held that the crew had been partly liable, that the vessel's operator had been at fault for failing to undertake the necessary repair work, and that the natural elements had also played a part.", "15. The operator, the ship's owner, the representative of the Ministry of Transport and Maritime Affairs and the other parties to the proceedings appealed. In a decision delivered on 26 January 1999 and served on the parties on 19 November 1999, the Gdańsk Maritime Appeals Chamber partly upheld the finding of liability with regard to the operator. It also upheld the finding that certain acts of negligence on the part of the crew, in particular the captain and the chief officer, had contributed to the disaster, as had the fact that the rescue operation had not been properly coordinated. The relevant passages of the decision read as follows: page 2 “The most likely cause of the capsize of the car and train ferry the Jan Heweliusz and of the death by drowning and hypothermia of 27 passengers and 18 crew members and the disappearance of 8 passengers and 2 crew members was: ... the fact that the ferry turned into the wind while unevenly ballasted (towards the port side), resulting in the shifting of the ballast towards the port side; violent gusts of wind on that side; the shifting of the vehicles' loads and the vehicles themselves to the port side; the discharge of bilge water to the outside on the port side of the ferry.” page 4 “The Jan Heweliusz left the port of Świnoujście at 11.35 p.m. on 13 January 1993, bound for the port of Ystad, in an unseaworthy condition, as the safety requirements were not met in the following respects: 1. measures to stabilise the vessel in the event of an accident; 2. measures to ensure that the rear door was watertight; 3. the securing of the vehicles to the deck in accordance with maritime best practice.” page 6 “Irregularities have been found in the conduct of: 1. the operator of the Jan Heweiusz, Euroafrica Shipping Lines, a limited liability company based in Szczecin, which allowed the ferry to be operated while in an unseaworthy condition owing to the damage sustained to the door on 10 January 1993 in Ystad, following which its class had been suspended and the safety certificate had ceased to be valid, in that it (a) omitted to declare the ferry to the Szczecin Maritime Bureau for an interim inspection and to the Polish Shipping Registry for immediate inspection; (b) failed to take the agreed action to repair the rear door in the proper manner; 2. the captain of the above-mentioned ferry, a Master Mariner ... who, on 13 January 1993, left the port of Świnoujście, bound for the port of Ystad, while the ferry was in an unseaworthy condition, in that he (a) omitted to declare the ferry to the Consulate in Malmö and later to the Szczecin Maritime Bureau for an interim inspection following the damage sustained to the rear door on 10 January 1993 in Ystad, the suspension of class after the accident and the cessation of validity of the ship's safety certificate; (b) allowed the vessel to depart without the vehicles being secured to the deck, in spite of the gale warning that had been issued; 3. the chief officer, a Master Mariner ... who, on 13 January 1993, before the ferry left the port of Świnoujście bound for Ystad, and despite the issuing of a gale warning, did not supervise the securing of the vehicles to the deck before the ferry left port.” page 8 “The lack of effectiveness of the rescue operation was the result of ... 3. the clothing of the passengers and some crew members, which did not protect them against hypothermia; 4. the inadequate training of the crew in the use of the life-saving equipment.” page 109 “ ...", "In the Chamber's view, the evidence cited demonstrates that ... (ii) the cargo was not secured before the vessel left dock despite the gale warning issued by the meteorological office...” pages 129-30 “... The causes of the vessel's having turned into the wind can only be established with a high degree of probability; the possibility that the persons steering the ferry failed to observe the rules cannot be discounted ...” page 162 “... The rescue operation revealed that, in a situation of the utmost danger, some members of the crew did not know how to use the lifejackets ...” II. RELEVANT DOMESTIC LAW 16. The maritime chambers were introduced into the Polish legal system by an Act of 18 March 1925 which provided for the establishment of chambers at two levels of jurisdiction, attached to the courts and with jurisdiction “in cases relating to maritime incidents and accidents at sea”.", "The maritime chambers were considered as maritime administrative bodies. 17. The Maritime Chambers Act of 1 December 1961 incorporated most of the rules laid down in the 1925 Act and transferred powers to them which had previously been vested in the courts. Its relevant provisions read: Section 7 “The maritime chambers shall be composed of a president, one or more vice‑presidents and lay members.” Section 8 “(1) The president and vice‑president shall be appointed and removed from office by the Minister of Justice, in agreement with the Minister of Transport and Maritime Affairs, from among the judges of the ordinary courts who have knowledge of the maritime issues dealt with in the cases before the maritime chambers. (2) The other members [pracownicy] of the maritime chambers shall be recruited and dismissed by the president of the chamber concerned.” Section 9 “(1) The presidents and vice‑presidents of the maritime chambers shall retain their judicial posts and, unless the law stipulates otherwise, the rights and duties set out in the legislation applicable to judges.", "(2) The status of the other members of the maritime chambers shall be governed by the legislation governing officials of State administrative bodies.” Section 10(2) “The Minister of Justice, in agreement with the Minister of Transport and Maritime Affairs, shall determine, by decree, the extent of the participation of the presidents and vice‑presidents of the maritime chambers in the activities of the courts, taking account of the extent of their involvement in the maritime chambers and the need to have working professional judges involved in the administration of justice.” Section 20 “Subject to contrary provisions of the present Act, the provisions of the Code of Criminal Procedure shall apply to proceedings in cases before the maritime chambers concerning accidents at sea.” Section 27(1) “Once a case has been brought before the maritime chamber, it shall be investigated by the president or the vice‑president either directly or through the intermediary of the harbourmaster's office.” Section 28(1) “The investigation shall be aimed at establishing the sequence of events and the causes and circumstances of the accident by gathering the necessary information and preserving the evidence.” Section 37(2) “After the decision has been signed by the members of the bench who decided the case, the president shall deliver the decision, citing the main grounds. The grounds of the decision shall then be set down in writing ...” Section 39(1) “The decision and the reasons shall be communicated to the Minister of Transport and Maritime Affairs, his or her deputy, the maritime department concerned and the individuals concerned. In the cases referred to in section 15(4), they shall also be communicated to the Labour Inspectorate.” 18. The regulations adopted by the Minister of Transport and Maritime Affairs on 12 November 1996 incorporated the rules set down in the 1961 Act. However, no express provisions were laid down concerning appeals to the maritime appeals chambers against decisions given by the maritime chambers at first instance.", "The chief task of the maritime chambers remains the determination of cases concerning maritime incidents and accidents at sea. Under the terms of the 1996 regulations, in cases relating to accidents at sea not governed by the 1961 Act, the rules of ordinary law and the Code of Criminal Procedure apply. 19. On 12 July 2001 a preliminary question was referred to the Supreme Court in a different case from the one before the Court, concerning the possibility of an appeal on points of law against a decision given by a maritime appeals chamber. The Supreme Court replied that no such possibility existed (IIICZP 22/01 OSNC 2001, no.", "158). It observed that there had been a long‑running debate among Polish commentators on the legal status of the maritime chambers, which were sometimes regarded as administrative bodies and sometimes as judicial bodies. 20. On 18 December 2002 the Government communicated to the Court a bill on maritime chambers, indicating that it would be put before the Council of Ministers for approval in early 2003, before being tabled in the Sejm. The Act of 5 March 2004 was published in the Official Gazette on 14 April 2004.", "It provides a detailed definition of maritime disasters, listing in detail the conduct and facts falling within the remit of the maritime chambers. The only possibility of appeal is with the Gdańsk Court of Appeal against decisions of the maritime appeals chamber withdrawing navigation rights. Finally, it includes a new chapter on the procedure for enforcing decisions of the maritime chambers concerning the withdrawal of navigation rights. However, the new legislation has not made provision for an appeal on points of law against decisions of the maritime appeals chambers and has not amended the procedure for appointing and removing from office the presidents and vice‑presidents of the maritime chambers. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 21. Relying on Article 6 § 1 of the Convention, the applicants complained that the maritime chambers which had heard their case had not been independent and impartial tribunals within the meaning of the Convention. Article 6 § 1, in its relevant parts, provides: “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. The Government's preliminary objections 1.", "Failure to exhaust domestic remedies 22. On 6 August 2003 the Government submitted additional observations challenging the decision of 16 January 2003 on the admissibility of the application. They emphasised in particular the effectiveness of a constitutional complaint, a remedy which, they argued, had to be exercised in order to remedy the applicants' situation. 23. The Court notes first that it dismissed this objection on 16 January 2003.", "It also points out that, in the meantime, it has reaffirmed the principles of its case-law concerning Poland with regard to the effectiveness of constitutional complaints (see, conversely, Szott‑Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003; see also Międzyzakładowa Spółdzielnia Mieszkaniowa Warszawscy Budowlani v. Poland (dec.), no. 13990/04, 26 October 2004). It sees no reason, therefore, to review its decision. 2.", "Lack of “victim” status of the applicants Irena Brudnicka, Anna Korzeniowska, Gabriela Łastowska, Mieczysław Okupiński, Bernadeta Olesz, Krystyna Ostrzyniewska, Stefania Subicka, Urszula Lejbschand, Celina Wawrzak and Anna Szpilman 24. The Government noted at the outset that the applicants had been unable to quote any passages from the decisions implicating members of the crew by name. The Government considered that nobody had been found guilty of the shipwreck and that irregularities had simply been noted in the conduct of, among others, the captain and the chief officer. In their view, that did not give rise to a presumption that other members of the crew had contributed to it directly or indirectly. They took the view that, as the crew members had individual liability, irregularities in the professional conduct of one or more members could not be attributed to the others.", "25. The applicants pointed out that the only members of the crew mentioned by name had been the captain (whose widow had not made an application to the Court) and the chief officer. However, the maritime chambers had not held either of them liable for any act or omission, but had called them to account in their supervisory and inspection capacity. Hence, the decision of the Gdańsk Maritime Chamber, without naming each crew member, had held the crew collectively liable through those who had been in charge. That had been borne out by the fact that the decision of the maritime appeals chamber had listed in detail the charges against the crew.", "26. The Court reiterates that, in order to rely on Article 34 of the Convention, an applicant must meet two conditions: he or she must fall into one of the categories of petitioners mentioned in Article 34 and must be able to make out a case that he or she is the victim of a violation of the Convention. According to the Court's established case-law, the concept of “victim” must be interpreted autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act. In addition, in order for an applicant to be able to claim to be a victim of a violation of the Convention, there must be a sufficiently direct link between the applicant and the harm which they consider they have sustained on account of the alleged violation (see, among other authorities, Tauira and Others v. France, no. 28204/95, Commission decision of 4 December 1995, Decisions and Reports (DR) 83-B, p. 112; Association des amis de Saint-Raphaël et de Fréjus and Others v. France, no.", "38192/97, Commission decision of 1 July 1998, DR 94-B, p. 124; Comité des médecins à diplômes étrangers v. France and Ettahiri and Others v. France (dec.), nos. 39527/98 and 39531/98, 30 March 1999; and Gorraiz Lizarraga and Others v. Spain, no. 62543/00, ECHR 2004-III). 27. In its admissibility decision, the Court joined to the merits the question of whether the applicants Irena Brudnicka, Anna Korzeniowska, Gabriela Łastowska, Mieczysław Okupiński, Bernadeta Olesz, Krystyna Ostrzyniewska, Stefania Subicka, Urszula Lejbschand, Celina Wawrzak and Anna Szpilman could claim the status of victims.", "28. The Court considers that the proceedings did not concern only the liability of the crew members and were not aimed solely at determining whether each member was individually liable. The crew came under criticism for, among other things, not having secured the load correctly and having been inadequately trained in rescue operations. Some of its members were also criticised for failing to comply with the rules when steering the vessel and not knowing how to use the lifejackets. 29.", "The Court is of the opinion that the status of victim cannot be made conditional solely on a finding that an applicant's reputation has been harmed. Everyone has the right to defend his or her reputation if there is a possibility that it may be compromised. The Court also considers that the applicability of the Convention in this case should not depend on establishing whether each individual crew member was at fault. 30. In the instant case, the Court accepts that the final decision of the maritime appeals chamber upheld the charges against the crew as a whole, although it mentioned only certain members by name.", "31. Accordingly, having regard to the particular circumstances of the case, the Court considers that the applicants Irena Brudnicka, Anna Korzeniowska, Gabriela Łastowska, Mieczysław Okupiński, Bernadeta Olesz, Krystyna Ostrzyniewska, Stefania Subicka, Urszula Lejbschand, Celina Wawrzak and Anna Szpilman, the heirs of sailors who died in the shipwreck, can claim to be victims within the meaning of Article 34 of the Convention of the violation which they alleged. B. The merits 1. Applicability of Article 6 § 1 32.", "The Government contested the applicability of Article 6 to the impugned proceedings, taking the view that they did not relate to a civil right or obligation or to the determination of a criminal charge. The applicants disputed that argument. 33. The Court reiterates that the “civil” nature of the right to enjoy a good reputation is not in dispute and has been established in its case-law (see Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, p. 13, § 27).", "34. In the instant case, given that it dismissed the Government's preliminary objection, finding that the proceedings before the maritime chambers related to the right of the victims of the disaster to enjoy a good reputation, the Court considers that Article 6 § 1 applies to the proceedings before the maritime chambers. 2. Compliance with Article 6 § 1 35. The applicants contended that the maritime chambers which had heard the case had not been independent and impartial tribunals within the meaning of the Convention.", "They argued that the lack of fairness was a direct result of the provisions of the 1961 Maritime Chambers Act. 36. The Government argued that the application was manifestly ill‑founded. They submitted that, during the proceedings before the maritime chambers, the applicants had enjoyed all the guarantees of a fair trial. That was borne out by the fact that the proceedings had provided the guarantees laid down in the Code of Criminal Procedure.", "37. The Court notes that the decisions given by the maritime chambers are final, and that they are not amenable under Polish law to any form of judicial review. Its task is therefore to determine whether, in the instant case, the independence and impartiality of the maritime chambers were open to question. 38. In order to establish whether a tribunal can be considered to be “independent” within the meaning of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence (see, among many other authorities, Findlay v. the United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997‑I, p. 281, § 73).", "39. There are two aspects to the requirement of “impartiality”. Firstly, the tribunal must be subjectively impartial, that is, no member of the tribunal should hold any personal prejudice or bias. Secondly, the tribunal must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect (see Pullar v. the United Kingdom, judgment of 10 June 1996, Reports 1996‑III, p. 792, § 30). 40.", "As the concepts of independence and objective impartiality are closely linked, the Court will consider them together as they relate to the instant case. 41. In maintaining confidence in the independence and impartiality of a tribunal, appearances may be important. Given that the members of the maritime chambers (the president and vice‑president) are appointed and removed from office by the Minister of Justice in agreement with the Minister of Transport and Maritime Affairs, they cannot be regarded as irremovable, and they are in a subordinate position vis-à-vis the Ministers. Accordingly, the maritime chambers, as they exist in Polish law, cannot be regarded as impartial tribunals capable of ensuring compliance with the requirement of “fairness” laid down by Article 6 of the Convention.", "In the Court's view, the applicants were entitled to entertain objective doubts as to their independence and impartiality (see, mutatis mutandis, Sramek v. Austria, judgment of 22 October 1984, Series A no. 84, p. 20, § 42). There has therefore been a violation of Article 6 § 1 of the Convention. 42. The Court notes that Poland has recently amended its legislation on the maritime chambers (see paragraph 20 above).", "However, it also notes that the new legislation still makes no provision for an appeal on points of law against the decisions of the maritime appeals chamber; nor has it altered the manner in which the presidents and vice‑presidents of the maritime chambers are appointed and removed from office. Accordingly, the legislation does not answer the applicants' complaint concerning the lack of independence and impartiality of these tribunals. 43. The conclusion reached by the Court in paragraph 41 above makes it unnecessary for it to examine the other complaints under Article 6 § 1, set forth in its admissibility decision of 16 January 2003. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 44. 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 45. The applicants claimed 4,600 euros (EUR) each in respect of non‑pecuniary damage. 46.", "The Government requested the Court to hold, should it find that there has been a violation, that such a finding would constitute sufficient just satisfaction. 47. Making its assessment on an equitable basis, the Court considers that the applicants should be awarded EUR 4,600 each in respect of non‑pecuniary damage. B. Costs and expenses 48.", "The applicants, who received legal aid from the Council of Europe, did not submit any claim for the reimbursement of costs and expenses. C. Default interest 49. 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. Dismisses the Government's preliminary objection of failure to exhaust domestic remedies; 2.", "Dismisses the Government's preliminary objection regarding the lack of victim status of the applicants Irena Brudnicka, Anna Korzeniowska, Gabriela Łastowska, Mieczysław Okupiński, Bernadeta Olesz, Krystyna Ostrzyniewska, Stefania Subicka, Urszula Lejbschand, Celina Wawrzak and Anna Szpilman; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds (a) that the respondent State is to pay each of the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,600 (four thousand six hundred euros) in respect of non-pecuniary damage, to be converted into Polish zlotys 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. Done in French, and notified in writing on 3 March 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerGeorg RessRegistrarPresident [1].", "In its composition prior to 1 November 2004." ]
[ "FOURTH SECTION CASE OF OFERTA PLUS S.R.L. v. MOLDOVA (Application no. 14385/04) JUDGMENT STRASBOURG 19 December 2006 FINAL 23/05/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Oferta Plus S.R.L.", "v. Moldova, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG. Bonello,MrM. Pellonpää,MrK. Traja,MrS.", "Pavlovschi,MrJ. Šikuta, judges, and Mrs F. Elens-Passos, Deputy Section Registrar, Having deliberated in private on 28 November 2006, Delivers the following judgment, which was adopted in its final form, after further consideration, on 5 December 2006. PROCEDURE 1. The case originated in an application (no. 14385/04) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by “Oferta Plus” S.R.L., a company incorporated under Moldovan law (“the applicant company”), on 13 April 2004.", "2. The applicant company was represented by Mr Vladislav Gribincea, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr Vitalie Pârlog. 3. The applicant company initially complained that a final judgment in its favour had not been enforced for several years and was subsequently quashed following a misuse of revision proceedings.", "It later added a complaint under Article 34 of the Convention of being hindered by the domestic authorities in bringing its case before the Court. 4. The application was allocated to the Fourth Section. On 15 February 2006 the President of that Section decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility.", "5. The applicant company and the Government each filed observations on the admissibility and merits of the application (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant, Oferta Plus S.R.L., is a company incorporated under Moldovan law.", "1. Background to the case 7. The background to this case lies in a series of complex contractual arrangements made in 1997 concerning importation of electricity from Ukraine to Moldova and involving, in addition to the applicant company, a Moldovan State-owned power distribution company called Moldtranselectro, a Ukrainian State-owned power distribution company and a Ukrainian private company. The agreement to which Oferta Plus was a party provided, inter alia, that it would pay the Ukrainian private company for the electricity supplied to Moldtranselectro in United States dollars (USD) and would later be paid back by Moldtranselectro in Moldovan lei (MDL) at the official exchange rate on the day of payment. 8.", "On unspecified dates between 1997 and 1998 the applicant company paid over USD 33,000,000 for the electricity supplied to Moldtranselectro from Ukraine. 9. On an unspecified date Moldtranselectro paid the applicant company MDL 189,869,277. 10. On 3 March 1998 the Government of Moldova adopted Decision no.", "243 by which the Ministry of Finance was authorised to issue nominative Treasury bonds in favour of private companies for the payment of debts arising from the importation of electricity supplied to state institutions. 11. On 25 March 1998 Moldtranselectro wrote a letter to the Ministry of Finance asking it to issue a nominative Treasury bond (“Treasury bond”) with a value of MDL 20,000,000 in favour of Oferta Plus. 12. On 27 March 1998 the Ministry of Finance issued a Treasury bond valued at MDL 20,000,000[1] in favour of the applicant company, payable by 10 July 1998.", "The Treasury bond provided that the applicant company had to present it to the Ministry of Finance at least ten banking days before the date of payment. It also provided that Moldtranselectro had to present, by that date, to the Ministry of Finance, documents proving the supply of electricity to state institutions. 13. The applicant company presented the Treasury bond to the Ministry of Finance ten banking days before the date of payment. However, the latter refused to pay, on the ground that Moldtranselectro had failed to submit evidence concerning the payment by Oferta Plus for the imported electricity.", "2. The court proceedings between Oferta Plus and the Ministry of Finance and the subsequent enforcement proceedings 14. In October 1998 the applicant company initiated civil proceedings against both the Ministry of Finance and Moldtranselectro. The Ministry of Finance defended the action on the grounds set out in paragraph 13 above while Moldtranselectro declined all responsibility. 15.", "On 27 October 1999 the Chisinau Economic Court found in favour of the applicant company and confirmed its right to be paid MDL 20,000,000 by the Ministry of Finance, in accordance with the Treasury bond. It based its judgment on the finding that Oferta Plus had paid for energy supplied to Moldtranselectro from Ukraine in accordance with the agreement between them and that that energy had been consumed by state institutions. The court considered that the fact that Moldtranselectro had failed to comply with its obligation in the Treasury bond was not in itself enough to absolve the Ministry of Finance from its obligation to pay. The court also decided to absolve Moldtranselectro of any responsibility. 16.", "Since an appeal by the Ministry of Finance was dismissed on 25 November 1999 for failure to pay court fees, a warrant for the enforcement of the judgment of 27 October 1999 was issued to the applicant company in November 1999. 17. On 14 February 2000 the applicant company officially requested a bailiff to start the enforcement procedure under the warrant. 18. On 27 April 2000 the Ministry of Finance requested an extension of the time-limit for lodging an appeal against the judgment of 27 October 1999 and its request was granted.", "The appeal was examined on its merits and dismissed by a judgment of the Appeals Chamber of the Economic Court of the Republic of Moldova on 4 October 2000. The Ministry of Finance lodged an appeal on points of law, reiterating that Moldtranselectro had not complied with its obligation in the Treasury bond. 19. On 7 February 2001 the Supreme Court of Justice dismissed the appeal and upheld the judgments of 27 October 1999 and 4 October 2000. It found it undisputed that Oferta Plus had paid for electricity supplied from Ukraine to Moldtranselectro and consumed, inter alia, by state institutions.", "The failure of Moldtranselectro, which was a State company, to fulfil its obligations vis-à-vis the Ministry of Finance by presenting it with the documents required by the latter, could not affect the rights of the applicant company, which had paid for electricity supplied from Ukraine. It noted that the Treasury bond did not contain any provision making the payment dependent on the fulfilment of Moldtranselectro's obligations towards the Ministry of Finance. The court also noted that the applicant company had on many occasions asked the Ministry of Finance for payment, but that the Ministry had refused and had asked for the documents which should have been presented by Moldtranselectro. The court considered the Ministry of Finance's request to be unlawful and argued that, according to the law, it was Moldtranselectro that should have presented the documents. 20.", "In March 2001, following a request by the Ministry of Finance, the Prosecutor General's Office introduced a request for annulment of the final judgment of the Supreme Court of Justice. On 7 May 2001 the Plenary Supreme Court of Justice dismissed the request and upheld the judgments favourable to the applicant company. It found, inter alia, that both during the proceedings before the lower courts and before the Plenary Supreme Court, it had been established that over MDL 20,000,000 worth of electricity had been supplied to state institutions. The fact that Moldtranselectro had failed to comply with its obligations to the Ministry of Finance could not have had any influence on the right of the applicant company to be paid. 21.", "On 19 June 2003 the applicant company sold a part of the Ministry's debt, amounting to MDL 291,801, to a third company. 22. Since the judgment of 27 October 1999 had still not been enforced, on 26 December 2003, at the applicant company's request, the Ministry of Finance agreed to conclude an agreement according to which the Ministry would pay MDL 2,000,000 each month from January to October 2004 in exchange for the applicant's promise not to initiate further claims for damages. 23. Between January and March 2004 the Ministry paid MDL 4,000,000 to the applicant company.", "24. On an unspecified date the Ministry paid MDL 291,801 to a third company (see paragraph 21 above). 25. The Ministry of Finance then stopped making the payments, and on 14 April 2004 the applicant company informed the Government Agent that it had introduced an application with the Court complaining of the failure to enforce the judgment. 26.", "On 26 April 2004 the Government Agent informed the Ministry of Finance about the applicant company's application with the Court and requested it to “take all the necessary steps in order to avoid a finding of a violation against the State by the Court, with the consequent impairment of the country's image”. 27. On 11 May 2004 the Ministry of Finance paid MDL 1,000,000 to the applicant company. There were no further payments after that date. 3.", "The revision of the final judgment of 7 February 2001 28. On 7 June 2004 the Ministry of Finance wrote to the Prosecutor General's Office, informing it, inter alia, that it considered the judgment in favour of the applicant company to be unlawful, but that it had complied with it partially, so that Oferta Plus would not complain to the Court. The Government Agent had informed it that Oferta Plus had already complained to the Court. The Ministry asked the Prosecutor General's Office for advice. 29.", "On 8 June 2004 the Prosecutor General's Office wrote to the Ministry as follows: “...during the proceedings [between the applicant company, Moldtranselectro and the Ministry of Finance] the applicant company and Moldtranselectro presented invoices for MDL 15,608,692, of which by 24 April 1998 only MDL 6,226,504 had been paid. No other evidence as to the extent to which Oferta Plus had fulfilled its obligations under the agreement [of 1997] has been presented. Despite this the courts ruled in its favour. In that respect the Prosecutor General's Office has ordered an audit to verify the supply of electricity and the payments between Oferta Plus, Moldtranselectro and state institutions. A final decision will be adopted by the Prosecutor General's Office after the results of the audit become available to it and the Ministry of Finance will be informed accordingly.” An attempt to carry out this audit was made in August 2004 by a representative of the Ministry of Finance at the request of the Prosecutor General's Office.", "However, it was unsuccessful because, in accordance with book-keeping legislation, the applicant company had destroyed the accounting documents after three years. 30. The Ministry of Finance did not wait for a final reply from the Prosecutor General's Office and on 15 June 2004 lodged with the Plenary Supreme Court of Justice a request for revision of the judgments in favour of the applicant company. The request referred to Article 449 of the Code of Civil Procedure (see paragraph 61 below) but did not specify any reasons for revision. 31.", "On 12 July 2004 the applicant company submitted to the Supreme Court its observations on the revision request, in which it argued, inter alia, that the Ministry had not indicated any reasons for revision, that the revision request was time-barred and if the request were to be upheld this would amount to a breach of the principle of legal certainty. 32. On the same date the Plenary Supreme Court of Justice upheld the revision request, following a hearing at which the Ministry of Finance was represented by the Deputy Prosecutor General. It quashed the judgments in favour of the applicant company and ordered the reopening of the proceedings. It relied on the Prosecutor General's office's letter of 8 June 2004 (see paragraph 29 above), which had been submitted by the Ministry during the hearing.", "The Plenary considered the letter to be a new and essential fact or circumstance which was unknown and could not have been known earlier, in accordance with the provisions of Article 449 (c) of the Code of Civil Procedure. In particular it considered new and essential the submission of the Prosecutor General's Office that “by 24 April 1998 only MDL 6,226,504 had been paid”. The Supreme Court of Justice did not address in its judgment the objections raised by the applicant company. 4. The reopened proceedings 33.", "On 3 November 2004 the Economic Court of Appeal held a hearing in the reopened proceedings. In contrast with the first round of proceedings, Moldtranselectro sided this time with the Ministry of Finance and argued that Oferta Plus's action should be dismissed because it (Moldtranselectro) had already covered the entire debt for the electricity supplied, including MDL 20,000,000 provided in the Treasury bond, by paying Oferta Plus MDL 189,869,272 on an unspecified date. The court upheld the applicant company's action and ordered the Ministry of Finance to pay it MDL 20,000,000 in accordance with the Treasury bond. It based its judgment on the fact that the supply of the electricity and the cost of the energy supplied were not disputed by the parties. Referring to the electricity supplied to state institutions, it found that by 1 March 1998 they had consumed MDL 27,551,000 worth of electricity imported from Ukraine with the participation of Oferta Plus.", "In the court's view, the Treasury bond constituted an incontestable obligation on the Ministry of Finance towards Oferta Plus, which could not depend on the fulfilment of third-party obligations. Referring to the submissions of Moldtranselectro concerning the payment of MDL 189,869,272 to the applicant company, the court argued that that amount represented USD 33,133,404 at the date of supply of the electricity, but not at the date of payment of the MDL 189,869,272. The court held that at the date of payment of the above amount by Moldtranselectro, USD 33,133,404 was worth MDL 210,692,688. Referring to the amounts indicated by the Prosecutor General's Office in its letter dated 8 June 2004, which served as a basis for the revision of the final judgment of 27 October 1999 (see paragraph 29 above), the court found that those figures were related to a completely different matter and were irrelevant to the case before it. The Ministry of Finance appealed against this judgment to the Supreme Court of Justice.", "34. On 10 February 2005 the Supreme Court of Justice upheld the Ministry's appeal and dismissed the applicant company's action against it. While not contesting the findings of the first-instance court (see paragraph 33 above) and while confirming that electricity was supplied to Moldtranselectro and consumed, inter alia, by state institutions, it made its own calculations directly in USD without converting the amounts to MDL, and came to the conclusion that the entire debt owed by the State to the applicant company had been covered by the payment of MDL 189,869,272 by Moldtranselectro to the former. The Supreme Court also ordered the applicant company to pay the court fees of MDL 600,000. 35.", "On 17 March 2005 the Ministry of Finance lodged with the Economic Court of Appeal a request for the return of the MDL 5,291,801 which had been paid in accordance with the judgment of 7 February 2001. The applicant company argued, inter alia, that the request had been lodged out of time and that in any event the amount of MDL 291,801 had never been paid to it, but had instead been paid to a third person (see paragraphs 21 and 24 above). 36. By a final judgment of 29 September 2005 the Supreme Court of Justice upheld the request of the Ministry of Finance. It dismissed the applicant company's submission concerning the time-limit and ignored its submission concerning the MDL 291,801 which had been paid to a third person.", "5. Facts related to the applicant company's complaints under Article 34 of the Convention 37. On 19 October 2004, the Prosecutor General's Office, having examined the letter from the Ministry of Finance of 7 June 2004 (see paragraph 28 above) initiated criminal proceedings against the applicant company and against the head of Moldtranselectro on charges of large-scale embezzlement of State property. The Prosecutor General's Office referred to the results of the audit which it had attempted to carry out in August 2004 (see paragraph 29 above) and stated, inter alia, that according to the results of that audit, Oferta Plus had not paid for electricity supplied to state institutions. 38.", "On 15 April 2005 the Chief Executive Officer of the applicant company (“C.T.”) was questioned by the Prosecutor General's Office. 39. On 20 April 2005 the offices of the applicant company were searched and some documents seized. 40. On 25 October 2005 the criminal proceedings were discontinued.", "The prosecutor in charge of the criminal case stated in his decision of discontinuation, inter alia, the following: “According to the evidence obtained during the audit, between 1997 and 2000 Moldtranselectro's debt to Oferta Plus reached MDL 202,644,866... The materials gathered [during the investigation] and the audit prove the existence of the debt of Moldtranselectro to Oferta Plus for the electricity supplied. The transfers [of MDL 5,000,000 by the Ministry of Finance] to Oferta Plus's accounts were carried out in accordance with court judgments... Taking into consideration the evidence gathered, [the prosecution concludes] that the acts of Oferta Plus's management do not disclose any signs of the offence [of large-scale embezzlement] or of other offences.” 41. On 8 December 2005 all the bank accounts of the applicant company were frozen by a bailiff to ensure the restitution of MDL 5,291,801.", "The company had to make all of its employees redundant, except for C.T. 42. On 15 February 2006 the Court communicated the present case to the Moldovan Government. 43. On 26 April 2006 the Deputy Prosecutor General quashed the decision of 25 October 2005.", "He submitted, inter alia, that on 1 January 2001 Moldtranselectro's debt to the applicant company for the electricity supplied had been MDL 38,454,671. He argued that while Oferta Plus had paid the Ukrainian partner more than MDL 20,000,000 for the electricity supplied to Moldtranselectro, it appeared that the energy for which it had paid had not been supplied exclusively to state institutions. He also noted that Oferta Plus had transferred a part of the debt to third companies in exchange for money and goods. He requested, in particular, that an international fact-finding mission be sent to Ukraine and that the books of the applicant company be seized. 44.", "On 11 May 2006 C.T. was declared a suspect in the criminal proceedings. In a decision of the same date, it was reiterated that on 1 January 2001 Moldtranselectro's debt to Oferta Plus for the electricity supplied had been MDL 38,454,671. However, the electricity for which Moldtranselectro owed this amount had not been supplied to state institutions. 45.", "On 9 August 2006 a prosecutor issued a decision by which C.T. was officially indicted for misappropriation of MDL 5,000,000 and attempted misappropriation of MDL 15,000,000. The charges against him were based on the fact that the energy supplied to Moldtranselectro, for which the applicant company had paid the Ukrainian private company, had not been consumed by state institutions. The prosecution argued that a Treasury bond could be issued by the Ministry of Finance only for energy supplied to state institutions. Contrary to that provision, Moldtranselectro had asked the Ministry of Finance on 25 March 1998 to issue a Treasury bond in favour of Oferta Plus and such a bond had been issued by the Ministry of Finance on 27 March 1998.", "After that, Oferta Plus, in the person of V.L, its former chief executive, making use of the favourable environment created for his company by the illegal actions of Moldtranselectro, and seeking to obtain MDL 20,000,000, had initiated civil proceedings against the Ministry of Finance, and in the absence of any proof that electricity had been supplied to state institutions, illegally obtained judgments in its favour. However V.L. could not fulfil his criminal intention of misappropriating MDL 20 million for reasons beyond his control (he was killed). The criminal intention to misappropriate MDL 20,000,000 was continued by C.T., the present Chief Executive Officer of Oferta Plus. Despite the fact that on 23 May 2002 Moldtranselectro owed Oferta Plus only MDL 3,948.49, C.T.", "had pursued his criminal intention by pressing the Ministry of Finance repeatedly to comply with the judgment of 27 October 1999. As a result, on 26 December 2003 the Ministry of Finance had concluded an agreement with him and later transferred MDL 5,000,000 to Oferta Plus. Later, C.T. transferred the money to the account of a third company, which also belonged to him, from where it was transferred to his wife's personal account and later withdrawn in cash. Referring to the reopened proceedings which followed the judgment of the Plenary Supreme Court of 12 July 2004, the prosecutor noted that, despite being well aware that Oferta Plus had not paid for energy supplied to state institutions, C.T.", "had managed to obtain a judgment in favour of Oferta Plus before the first-instance court. C.T. had presented evidence which, while showing the payment for electricity, did not prove that the electricity had been supplied to state institutions. 46. Also, on 9 August 2006, according to the applicant company, C.T.", "was told by the investigating officer, Eugen Bîcu, that no criminal charges against him would have been brought had he contented himself with MDL 5,000,000. 47. On the same date C.T. was arrested and a request for him to be remanded in custody for thirty days was addressed to the Buiucani District Court. 48.", "A detention order for a period of thirty days was issued by the investigating judge of the Buiucani District Court on the same day. The judge argued, inter alia, that C.T. had attempted to influence a witness. He relied on a transcript of a telephone conversation of 12 May 2006, which, however, was never disclosed to the defence, despite the latter's requests. 49.", "C.T. appealed against the detention order and argued, inter alia, that the criminal proceedings against him had been a form of pressure to persuade Oferta Plus to abandon its application before the Court. He complained that he and his lawyers had not been allowed to see the transcript of the telephone conversation which was the main reason for his detention and insisted that he had not made any attempt to influence any witnesses. He also argued that he had become the CEO of Oferta Plus only in late 2003 and thus had not even been involved in the transaction between the applicant company and Moldtranselectro and that in any event the electricity had been supplied to Moldtranselectro, which was a State company and held a monopoly on distribution of electricity at that time. The applicant company could not know who were the final consumers of the electricity.", "50. On 15 August 2006 C.T. 's appeal was dismissed. The Court of Appeal did not give any assessment of the argument concerning C.T. 's lack of access to the transcript of the telephone conversation.", "51. In the meantime, on 14 August 2006, the applicant company's lawyer in the present case applied to the Centre for Fighting Economic Crimes and Corruption (“CFECC”) to visit C.T. He pointed out that he was Oferta Plus's lawyer in the proceedings before the Court and submitted that he needed to see C.T. in order to prepare with him the observations due on 22 August 2006. He asked that the meeting between them take place without a glass partition separating them, since he knew that there was such a partition in the CFECC lawyer-client meeting room.", "He submitted that both he and C.T. had reason to believe that conversations through the glass partition in the CFECC meeting room were intercepted and that they were convinced that the criminal proceedings against C.T. had been instituted in order to discourage Oferta Plus from pursuing its application before the Court. He argued that their separation by the glass partition, especially in such conditions, would not allow them to speak freely and would seriously hinder his ability to represent the applicant company before the Court. The lawyer further argued that C.T.", "was not a violent person and that there was no risk that he would attack his lawyer. In any event he, the lawyer, would bear responsibility for any attack. He also declared that he would allow the CFECC representatives to search him, except for the documents he would be carrying, in order to ensure that he had no forbidden objects on his person. 52. After repeated requests by telephone, on 18 August 2006 the lawyer was finally allowed to see C.T.", "in the CFECC lawyer-client meeting room, separated by the glass partition. In these circumstances, C.T. refused to discuss any matters relating to pecuniary damage and asked his lawyer to do likewise because the conversation would have related to the whereabouts of the company's accounting documents. During the conversation with C.T., the lawyer informed him that the charges against him were not consistent with the findings of the civil courts in the civil proceedings between Oferta Plus, the Ministry of Finance and Moldtranselectro. The next working day, on 21 August 2006, the criminal investigator E. Bîcu went to the archives of the Economic Court of Appeal and took the case file in the civil proceedings.", "The case file was returned to the archives on 4 September 2006. 53. On 18 August 2006, in the afternoon, the applicant's lawyer telephoned the Government Agent's Office and asked for assistance in seeing C.T. without a glass partition. His request was not successful.", "54. On 21 August 2006 the lawyer telephoned the investigating officer, and asked him for another meeting with C.T. He repeated his request to see C.T. without the glass partition, but this request was again rejected. He was told that the conditions for meetings between lawyers and clients in the CFECC detention centre were not contrary to the law.", "A meeting between the lawyer and C.T. took place the next day. 55. On the same day the CFECC made public a press release according to which it had discovered, in the context of the criminal investigation against C.T., an illegal scheme for misappropriation of budgetary funds. A similar item, with images of C.T., was broadcast on the evening news bulletin of Moldovan national television.", "56. On 29 August 2006, the applicant company's lawyer wrote to the Buiucani District Court that he was the representative of Oferta Plus in the proceedings before the Court. He submitted that, since his client believed that the criminal proceedings against C.T. and his subsequent detention served the purpose of discouraging the pursuit of the Oferta Plus v. Moldova application before the Court, on 22 August 2006 a formal complaint under Article 34 of the Convention had been lodged with the Court. He noted that the main piece of evidence relied upon by the courts in placing C.T.", "in detention was a transcript of a telephone conversation which allegedly proved his attempt to influence a witness. Since C.T. 's defence had not been presented with a copy of that transcript during the pre-trial detention proceedings, he formally requested a copy of it for the purpose of presenting it to the Court in support of the Article 34 complaint. 57. On 5 September 2006 Mr Gribincea's request was rejected by the Buiucani District Court on the ground that he was not C.T.", "'s lawyer in the criminal proceedings against him. The court also noted that in any event the materials of the criminal case file were not usually disclosed to the defence unless the criminal investigator decided otherwise. 58. On 7 September 2006 the investigation was completed in the criminal proceedings and the case was sent for examination on its merits to the Centru District Court. On the same date, C.T.", "told the applicant company's lawyer that he had been told that he would be convicted before the Court adopted a judgment in the present case. 59. In a letter of 29 November 2006, the applicant company's representative informed the Court that C.T. had been released from detention on 14 November 2006. II.", "RELEVANT NON-CONVENTION MATERIALS A. Enforcement and revision of final judgments 60. The relevant provisions of the old Code of Civil Procedure, concerning enforcement, read as follows: Article 338. The issuing of an enforcement warrant An enforcement warrant shall be issued to the plaintiff by a court, after the judgment has become final... Article 343.", "The request for enforcement The bailiff shall start the enforcement of a judgment upon the request of [one of the parties to the proceedings]... Article 361. The adjournment of the enforcement The bailiff can adjourn the enforcement only at the request of the plaintiff or on the basis of a court order. 61. The provisions of the new Code of Civil Procedure concerning the revision of final judgments read as follows: Article 449 “Grounds for revision Revision may be requested: c) When new and essential facts or circumstances have been discovered that were unknown and could not have been known earlier;” Article 450 “A revision request may be lodged: ... c) within three months from the date on which the person concerned has come to know essential circumstances or facts of the case which were unknown to him/her earlier and which could not have been known to him/her earlier....” B.", "Confidentiality of lawyer-client communications in the CFECC detention centre 62. It appears from the photographs submitted by the Government that in the lawyer-client meeting room of the CFECC detention centre the space for detainees is separated from the rest of the room by a door and a window. The window appears to be made of two plates of glass. Both plates have small holes pierced with a drill; however the holes do not coincide, so that nothing can be passed though the window. Moreover, there is a dense green net made either of thin wire or plastic between the glass plates, covering the pierced area of the window.", "There appears to be no space for documents to be passed between the lawyer and his client. 63. The domestic courts have ruled on complaints about lack of confidentiality in the CFECC lawyer-client meeting room in the cases of Modârcă (no. 14437/05) and Sarban v. Moldova, no. 3456/05, 4 October 2005.", "On 2 November 2004 a judge of the Buiucani District Court ordered the CFECC authorities to eliminate the glass partition separating lawyers from their clients; however, the CFECC authorities refused to comply with the court order. On 3 December 2004 the same judge revoked the decision of 2 November 2004, arguing that in the meantime she had been informed by the CFECC authorities that there were no recording devices mounted in the wall separating the lawyers from their clients and that the wall was necessary to ensure the security of the detainees. On 15 February 2005 Mr Sarban's lawyer complained again to the Buiucani District Court under Article 5 § 4 of the Convention that he could not confer with his client under conditions of confidentiality. On 16 February the same judge from the Buiucani District Court dismissed the complaint without examining it and referred to her previous decision of 3 December 2004. 64.", "Between 1 and 3 December 2004 the Moldovan Bar Association held a strike, refusing to attend any proceedings regarding persons detained in the CFECC detention centre until the administration had agreed to provide lawyers with rooms for confidential meetings with their clients. The demands of the Bar Association were refused (see Sarban, cited above, § 126). 65. On 26 March 2005 the Moldovan Bar Association held a meeting at which the President of the Bar Association and another lawyer informed the participants that they had taken part, together with representatives of the Ministry of Justice, in a committee of inspection of the CFECC detention centre. During the inspection they had asked that the glass wall be taken down in order to check that there were no listening devices.", "They had pointed out that it would only be necessary to remove a few screws and proposed that all the expenses linked to the verification be covered by the Bar Association. The CFECC administration had rejected the proposal. C. Recommendation Rec (2006) 2 of the Committee of Ministers to member states on the European Prison Rules 66. Recommendation Rec (2006)2 of the Committee of Ministers to member states on the European Prison Rules (adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers' Deputies), in so far as relevant, reads as follows: 23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice. ... 23.4 Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential.", "... 23.6 Prisoners shall have access to, or be allowed to keep in their possession, documents relating to their legal proceedings. THE LAW 67. The applicant company complained that the non-enforcement of the final judgment in its favour between 14 February 2000 and 12 July 2004 and the quashing of that judgment by the Supreme Court of Justice on the latter date violated Article 6 § 1 of the Convention. The relevant part of Article 6 § 1 reads as follows: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” 68.", "The applicant company also submitted that the non-enforcement and the subsequent quashing of the final judgment in its favour had the effect of infringing its right to peaceful enjoyment of its possessions as secured by Article 1 of Protocol No. 1 to the Convention, which provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.” 69. Finally, the applicant company complained under Article 34 of the Convention that the criminal proceedings against its CEO had been brought in order to discourage it from pursuing the present application before the Court. The refusal of the authorities to give it a copy of the transcript of the telephone conversation which was the main ground for C.T.", "'s detention and their refusal to allow its lawyer to see C.T. in conditions of confidentiality had also hindered the preparation of the observations in the present case. The relevant part of Article 34 reads: “...The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” I. ADMISSIBILITY OF THE COMPLAINTS 70. The Court considers that the applicant company's complaints under Article 6 § 1 of the Convention, Article 1 of Protocol No. 1 to the Convention and Article 34 of the Convention raise questions of fact and law which are sufficiently serious that their determination should depend on an examination of the merits, and no other grounds for declaring them inadmissible have been established.", "The Court therefore declares these complaints admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 4 above), the Court will immediately consider the merits of these complaints. II. ALLEGED VIOLATION OF ARTICLE 6 §1 OF THE CONVENTION A. The Court's findings of fact and law 1.", "Concerning the non-enforcement of the judgment of 27 October 1999 (a) Submissions of the parties 71. The Government argued that the non-enforcement of the judgment in question had not been intentional but had resulted from the administration of public funds within a State authority. The Ministry of Finance had kept the applicant company informed as to the progress of the enforcement proceedings and taken all the necessary steps in order to enforce the judgment within a reasonable time. 72. After 12 July 2004, when the Supreme Court of Justice upheld the Ministry of Finance's revision request, the State was no longer under an obligation to enforce the judgment of 27 October 1999.", "73. According to the Government, the State's obligation to enforce the judgment of 27 October 1999 had started only on 7 February 2001, when the Supreme Court of Justice had rejected the Ministry's appeal on points of law, and ended on 12 July 2004, when the judgment was quashed. Accordingly, the period of non-enforcement had been thirty-one months and had not been unreasonable in the Government's view, taking into account the large amount of money in question. 74. The Government cited in their favour the cases of Probstmeier v. Germany (judgment of 1 July 1997, Reports of Judgments and Decisions 1997‑IV) and Pammel v. Germany (judgment of 1 July 1997, Reports 1997‑IV) in which the Court had found a violation of Article 6 on the ground of excessive length of proceedings which had lasted seven years and four months and five years and three months respectively.", "75. The applicant company disagreed and submitted that the authorities' obligation to enforce the judgment of 27 October 1999 had begun on 14 February 2000, when the applicant company had formally requested the enforcement of the warrant, and had ended on 12 July 2004, when the Supreme Court of Justice had upheld the revision request lodged by the Ministry of Finance and quashed the final judgment of 27 October 1999. 76. The applicant company stressed that the State authorities had been under an obligation to enforce the judgment between 14 February 2000 and 7 February 2001 since there had been no formal decision to stay the enforcement proceedings. 77.", "The applicant company cited the case of OOO Rusatommet v. Russia, no. 61651/00, 14 June 2005, in which the Court had found that the failure of the Russian authorities to enforce a judgment concerning payment to the applicant company of USD 100,000 for one year and three months had constituted a violation. 78. Relying on Popov v. Moldova (no. 1) (no.", "74153/01, § 55, 18 January 2005), the applicant company claimed that the subsequent reopening of the proceedings could not call into question the final nature of the judgment of 27 October 1999, which had remained unenforced for a period of more than four years up to the commencement of the revision proceedings. 79. Since on 19 June 2003 the applicant company had sold a part of the Ministry's debt to a third party (see paragraph 21 above), thereafter the authorities had been under an obligation to enforce the judgment of 27 October 1999 only in respect of MDL 19,709,199. 80. After 26 December 2003, when the applicant company concluded an agreement with the Ministry of Finance (see paragraph 22 above), the authorities were under no obligation to enforce the judgment as long as the agreement was respected by the Ministry.", "81. The applicant company concluded that by failing for more than four years to take the necessary measures to comply with the final judgment in its favour, the Moldovan authorities had deprived the provisions of Article 6 § 1 of the Convention of all useful effect and thus that provision had been violated. (b) The Court's assessment 82. The general principles concerning the non-enforcement of final judgments were set out in Prodan v. Moldova, no. 49806/99, §§ 52-53, ECHR 2004‑III (extracts).", "83. The Court notes that the judgment of 27 October 1999 remained unenforced at least until 26 December 2003, when the applicant company and the Ministry of Finance concluded an agreement for payment of the outstanding debt by instalments (see paragraph 22 above). 84. While the Government argued that the State's obligation to enforce the judgment started only on 7 February 2001, when the Supreme Court dismissed the Ministry of Finance's appeal on points of law, the Court notes that pursuant to Article 343 of the Code of Civil Procedure in force at the material time (see paragraph 60 above), the obligation of the bailiff to initiate the enforcement procedure started once the plaintiff had lodged an official request in that respect. The Government have not disputed that such a request was lodged in the present case on 14 February 2000 or that after that date the enforcement was adjourned in accordance with Article 361 of the Code of Civil Procedure.", "In such conditions the Court finds that the State's obligation to enforce the judgment of 27 October 1999 started on 14 February 2000 and lasted until at least 26 December 2003, when the applicant company signed an agreement with the Ministry of Finance (compare Istrate v. Moldova, no. 53773/00, § 40, 13 June 2006). 85. By failing to take adequate measures to enforce the judgment during a period of some three years and eight months when the judgment was enforceable, the Moldovan authorities prevented the applicant company from enjoying the benefits of the judgment which had been delivered in its favour on 27 October 1999. As it is argued by the Government that the Supreme Court of Justice quashed that judgment on 12 July 2004, the Court considers that the non-execution of the judgment is closely connected with the subsequent revision proceedings.", "Therefore the relevance of the non-execution will be taken into account in the overall assessment of the proceedings which culminated in the quashing of the judgment of 27 October 1999 (see Istrate, cited above, § 43). 2. Concerning the quashing of the judgment of 27 October 1999 (a) Submissions of the parties 86. The Government argued that revision was an efficient way of challenging a judgment where new facts were discovered after the judgment had become final. They gave the example of the International Court of Justice, which could revise its judgments if new facts or circumstances of decisive importance were discovered after adoption of a judgment.", "The revision request had to be made within six months of the date on which the new facts or circumstances were discovered, but not later than ten years from the date of adoption of the judgment. 87. A similar situation could be found in the Rules of the European Court of Human Rights. If new facts concerning a case which had been concluded were discovered, and those facts could have had a decisive effect on the outcome of the case, and were unknown or could not reasonably have been known, a party could request the Court, within a period of six months after that party had acquired knowledge of the fact, to revise that judgment. 88.", "The Government also invoked a recommendation of the Committee of Ministers according to which the Governments of the member States were advised to guarantee a procedure for revision and reopening of cases. 89. The Supreme Court of Justice considered the Prosecutor General's Office's letter dated 8 June 2004 addressed to the Ministry of Finance as a new and essential fact or circumstance which was unknown and could not have been known earlier in the sense of Article 449 (c) of the Code of Civil Procedure. 90. The Government stressed that admissibility of evidence was primarily a matter for regulation by national law and that as a general rule it was for the national courts to assess the evidence before them.", "The Court's task under the Convention was not to give a ruling as to whether statements of witnesses had been properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, had been fair. 91. In the present case the applicant company had had the opportunity to see the case materials, to make copies of them, to present evidence, to put questions to other participants in the proceedings, to make requests, to submit to the court oral and written submissions, etc. Accordingly, in the Government's view, the proceedings had been fair. 92.", "The applicant company disagreed and argued that the quashing of the judgment of 27 October 1999 had violated its right to a fair trial as guaranteed by Article 6 of the Convention. The letter of the Prosecutor General's Office of 8 June 2004 had not disclosed any “new and essential facts or circumstances which were unknown and could not have been known earlier” in the sense of Article 449(c) of the Code of Civil Procedure. The submissions made by the Prosecutor General's Office in that letter, namely that Oferta Plus had not presented enough evidence concerning the electricity supplied, had already been made by the Ministry of Finance and by the Prosecutor General's Office and had been dismissed by the Supreme Court of Justice in its judgments of 7 February 2001 and 7 May 2001. 93. Moreover, the argument in the Prosecutor General Office's letter could not have been essential for the examination of the dispute, since the Supreme Court of Justice, in ruling in the reopened proceedings on 10 February 2005, had not even taken it into account.", "94. The applicant also argued that, in upholding the Ministry of Finance's revision request, the Supreme Court of Justice had totally ignored the three-month time-limit. Furthermore, the Supreme Court had rejected, without giving any reason, the applicant's arguments presented to it, including the argument about the time-limit. 95. The applicant company concluded that the revision request had in essence been an appeal in disguise and breached the principle of legal certainty.", "(b) The Court's assessment 96. The Court reiterates that Article 6 § 1 of the Convention obliges the courts to give reasons for their judgments. In Ruiz Torija v. Spain (judgment of 9 December 1994, Series A no. 303‑A), the Court found that the failure of a domestic court to give reasons for not allowing an objection that an action was time-barred amounted to a violation of that provision. 97.", "The right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999‑VII, and Roşca v. Moldova, no. 6267/02, § 24, 22 March 2005). 98.", "Legal certainty presupposes respect for the principle of res judicata (see Brumarescu, cited above, § 62), that is, the principle of the finality of judgments. This principle insists that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Higher courts' power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination. The review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character (see Roşca, cited above, § 25).", "99. The above conclusion in Roşca was drawn in connection with the request for annulment procedure under which the Prosecutor General's Office could seek review of final judgments it disagreed with. The Court held that this procedure, although possible under domestic law, was incompatible with the Convention because it resulted in a litigant's “losing” a final judgment in his favour. 100. As to the reopening of the proceedings owing to newly discovered circumstances, the Court recalls that this issue was considered in Popov v. Moldova (no.", "2), where it had found a violation of Article 6 § 1 on account of a misuse of revision proceedings. The Court held in that case that reopening is not, as such, incompatible with the Convention. However, decisions to revise final judgments must be in accordance with the relevant statutory criteria; and the misuse of such a procedure may well be contrary to the Convention, given that its result – the “loss” of the judgment – is the same as that of a request for annulment. The principles of legal certainty and the rule of law require the Court to be vigilant in this area (see Popov (no. 2), cited above, § 46).", "101. The same general principles were applied by the Court in the above-mentioned case of Istrate, in which it found a violation of the rule of finality of judgments on account of misuse of appeal proceedings. 102. In the present case the Court notes that the revision procedure provided for by Articles 449-53 of the Code of Civil Procedure does indeed serve the purpose of correcting judicial errors and miscarriages of justice. The Court's task, exactly as in Popov (no.", "2), is to determine whether this procedure was applied in a manner which was compatible with Article 6 of the Convention, and thus ensured respect for the principle of legal certainty. In doing so, the Court must bear in mind that it is in the first place the responsibility of national courts to interpret provisions of national law (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999-I). 103. It is noted that, under Article 449 (c) of the Moldovan Code of Civil Procedure, proceedings can be reopened “when new and essential facts or circumstances have been discovered, that were unknown and could not have been known earlier”.", "Under Article 450 of the same Code, a revision request can be lodged “within three months from the date on which the person concerned has come to know essential circumstances or facts of the case which were unknown to him or her earlier and which could not have been known to him or her earlier”. 104. The decision of the Supreme Court of Justice of 12 July 2004 cited as grounds for reopening the proceedings the letter from the Prosecutor General's Office of 8 June 2004 addressed to the Ministry of Finance in reply to its letter of 7 June 2004, in which the former presented some figures which allegedly proved that Oferta Plus and Moldtranselectro had failed to demonstrate during the proceedings that the applicant company had paid for the electricity mentioned in the Treasury bond (see paragraph 29 above). 105. As to the qualification of “new and essential facts or circumstances” given by the Supreme Court to the “information” in the Prosecutor General's letter, the Court notes that it was the very essence of the final judgments in favour of the applicant company that the Ministry of Finance's obligation to pay in accordance with the Treasury bond had not been dependent on the presentation of any documentary evidence by Moldtranselectro or by the applicant company.", "Not only was this implied in those judgments, it was even stated in very clear terms in all the judgments and especially in the Supreme Court's judgment of 7 February 2001 (see paragraph 19 above). 106. The Court further notes that there is no indication in the judgment of 12 July 2004 whether the Prosecutor General Office's letter contained “information” that could not have been obtained earlier by the Ministry of Finance. Nor is there any indication that the Ministry of Finance unsuccessfully tried to obtain such “information” earlier than 7 June 2004 (see paragraph 28 above). Moreover, there is no mention in the Supreme Court's judgment of the three-month time-limit for revision requests or of any ground found by the Supreme Court to justify extending the time-limit (see, mutatis mutandis, Ruiz Torija, cited above).", "107. In such circumstances the Court considers that it cannot be said that the letter from the Prosecutor General's Office of 8 June 2004 qualified as “new facts or circumstances that were unknown and could not have been known earlier” by the parties to the proceedings. This conclusion is reinforced by the fact that the courts which examined the case after the reopening of 12 July 2004 considered the “information” in the Prosecutor General Office's letter irrelevant and based their judgments on grounds which did not have even a remote connection with that “information”. B. Conclusion concerning the fairness of the proceedings 108.", "The Court reiterates that during the period starting in February 2000 and ending in December 2003 the Moldovan authorities did not take adequate measures with a view to the enforcement of the final judgment of 27 October 1999. 109. Later, by granting the Ministry of Finance's revision request, the Supreme Court of Justice infringed the principle of legal certainty and the applicant company's “right to a court” under Article 6 § 1 of the Convention (see Popov (no. 2), cited above, § 53). Moreover, by not giving any reasons for extending the Ministry's time-limit for filing its revision request, the Supreme Court of Justice breached the applicant company's right to a fair hearing (see paragraph 96 above).", "110. The non-enforcement together with the subsequent wrongful quashing of the judgment meant that the applicant company was deprived of most of the benefits of an enforceable judgment for a period of almost four years. 111. Having regard to all these circumstances and making an overall assessment of the proceedings, the Court concludes that they failed to meet the requirement of a fair trial contained in Article 6 § 1 of the Convention. 112.", "Accordingly, there has been a violation of Article 6 § 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 113. The Court reiterates that a judgment debt may be regarded as a “possession” for the purposes of Article 1 of Protocol No.", "1 (see, among other authorities, Burdov v. Russia, no. 59498/00, § 40, ECHR 2002-III, and the cases cited therein). Furthermore, quashing such a judgment after it has become final and unappealable will constitute an interference with the judgment beneficiary's right to the peaceful enjoyment of that possession (see Brumărescu, cited above, § 74). 114. The Court notes that the applicant had an enforceable claim deriving from the judgment of 27 October 1999, which remained unenforced at least until December 2003.", "It follows that the inability of the applicant company to obtain the enforcement of the judgment between February 2000 and December 2003 constituted an interference with its right to peaceful enjoyment of its possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 to the Convention. The situation was perpetuated by the quashing of that judgment on 12 July 2004. Having regard to its findings concerning Article 6, the Court considers that the Moldovan authorities failed to strike a fair balance between the applicant's interests and the other interests involved. 115.", "There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention. IV. ALLEGED FAILURE TO OBSERVE ARTICLE 34 OF THE CONVENTION A. The submissions of the parties 1.", "The applicant companty's submissions 116. According to the applicant company, the Government had no dispute with the legality of the judgment of 27 October 1999 until they found out about the present application to the Court in April 2004. Thereafter, the Ministry of Finance initiated revision proceedings which were unfair and breached the principle of legal certainty. During those proceedings the Deputy Prosecutor General represented the Ministry of Finance, without even being a party to the proceedings. The Supreme Court of Justice disregarded all the objections raised by the applicant company and, as a result, the outcome of the reopened proceedings amounted to a flagrant denial of justice.", "117. Moreover, criminal proceedings against C.T. were instituted on 19 October 2004, also at the request of the Ministry of Finance. The criminal proceedings were initiated by the same prosecutor who had signed the letter of 8 June 2004 that served as a basis for the revision of the final judgment of 27 October 1999. 118.", "The criminal proceedings were discontinued on 25 October 2005, only to be resumed six months later after the communication of the present case by the Court. 119. On 9 August 2006 C.T. was arrested and placed in custody. According to the applicant company, the pre-trial detention proceedings were unfair and the decisions to remand C.T.", "in custody were unreasoned. While the central ground for ordering the detention was a telephone conversation during which C.T. had allegedly attempted to influence a witness, the domestic courts refused to give him and his defence lawyer a copy of the transcript of that telephone conversation. According to the applicant company, nothing had been said to suggest that C.T. wanted to influence the witness in any way.", "Moreover, while the telephone conversation took place on 12 May 2006, C.T. was not arrested until three months later, only thirteen days before the deadline for submitting the observations in the present case. 120. The applicant company argued that C.T. had agreed with the applicant company's lawyer over the telephone to work together on the Article 41 claims after 10 August 2006.", "C.T. 's arrest only one day before that date looked suspicious in the applicant company's opinion, since C.T. 's telephone conversations were officially intercepted by the CFECC (see paragraph 48 above). 121. The applicant company claimed that the charges brought against C.T.", "were absurd. He was charged with misappropriating MDL 5,000,000 and with attempted misappropriation of MDL 15,000,000. The charge against C.T. was contrary to the principle nullum crimen sine lege, because at the time when the company had obtained MDL 5,000,000 and was claiming another MDL 15,000,000, the judgment of 27 October 1999 was in force. Accordingly, the claims of Oferta Plus were not fraudulent but based on a final judgment of the Supreme Court of Justice.", "Moreover, he was charged on the basis that the applicant company had not presented evidence that the energy supplied with its participation in 1997-98 had been consumed by state institutions. In this respect, the Treasury bond itself provided that it was for Moldtranselectro to present to the Ministry of Finance evidence concerning the electricity supplied and not for Oferta Plus. That view had been supported by the domestic courts in the proceedings which culminated in the final judgment of the Supreme Court of Justice of 10 February 2001. In any event, the applicant company could never present any such evidence, because the electricity had been supplied to Moldtranselectro and it could not know who the final consumers were. Finally, C.T.", "became the head of the applicant company only in 2003. 122. The applicant company concluded that there was a clear link between the criminal proceedings and the proceedings before the Court. It drew the Court's attention to the statements of the criminal investigator, E. Bîcu (see paragraph 46 above), to the fact that the criminal proceedings were commenced at the request of the Ministry of Finance and to the very absurdity, it stated, of the criminal charges against C.T. 123.", "According to the applicant company, the refusal of the Buiucani District Court to give its lawyer a copy of the transcript of the telephone conversation, on which the detention of C.T. had been based, also breached its right of petition. That transcript was necessary in the proceedings before the Court in order to prove that the criminal proceedings against C.T. and his detention were arbitrary and that there were ulterior motives for them. 124.", "The applicant company also submitted that the unreasoned refusal to allow its lawyer to see C.T. in the CFECC detention centre without being separated by a glass partition also breached its right of petition. It indicated the fact that C.T. was so convinced that his conversation with the lawyer was being intercepted that he refused to give the lawyer any information concerning the place where the company's accounting documents were kept. He feared that once the CFECC had got its hands on the documents, they would disappear, and the company would lose the opportunity to regain its property.", "According to the applicant company, such things had happened in the past to other CFECC detainees. The applicant company argued that access to the accounting documents was imperative for the evaluation of the pecuniary damage it had suffered. 125. According to the applicant company, this case should be distinguished from Sarban (cited above). In the present case, unlike in Sarban, the effective representation of the applicant company before the Court was seriously affected by the glass partition, to the extent that the applicant company was unable to present its observations under Article 41 of the Convention.", "Moreover, in this case there was proof of interception of C.T. 's communications with the lawyer, namely the facts described in paragraph 52 above. 126. In the light of the above submissions, the applicant company's representative asked the Court to indicate to the Government in its judgment that the immediate release of C.T. should be secured At a later stage, the representative informed the Court that C. T. had been released on 14 November 2006 (see paragraph 59 above).", "2. The Government's submissions 127. The Government denied that there was any connection between the criminal proceedings against C.T. and the proceedings before the Court in the present case. They argued that the criminal proceedings had been instituted following an objective and multilateral analysis of the elements of the affair and of an audit report.", "C.T. 's pre-trial detention had been ordered in compliance with the relevant provisions of the Code of Criminal Procedure and had been based on the following considerations: - C.T. was accused of having committed a serious offence punishable by more than two years' imprisonment (10 to 25 years' imprisonment); - On 12 May 2006 C.T. had received a telephone call from A.C., who was the former accountant of the applicant company and a witness in the criminal proceedings against him. During the telephone conversation, C.T.", "suggested to the former what to tell the investigators during her interrogation. That was proof of the fact that C.T. had attempted to influence witnesses; - The investigation discovered that the MDL 5,000,000 paid by the Ministry of Finance to Oferta Plus on the basis of the judgment of 27 October 1999 had been transferred to the accounts of a third company, owned by C.T., and later transferred to the private accounts of his wife and subsequently withdrawn in cash; - C.T. had refused to present to the investigating officers documents requested by them, concerning the transfers between Oferta Plus, the third company and C.T. 's wife's personal accounts.", "128. Accordingly, C.T. 's detention had had the aim of ensuring the efficiency of the criminal proceedings and had not been intended by any means to impede the presentation of the applicant company's observations to the Court on 22 August 2006 or to hinder in any other way the representation of the applicant company before the Court. The applicant company's lawyer was able to meet with C.T. as many times as he wished.", "129. During the proceedings it had been established that while Oferta Plus had supplied electricity to Moldtranselectro, there was no evidence that it had been supplied to state institutions. Accordingly, the issuing of the Treasury bond by the Ministry of Finance on 27 March 1998 for the payment for electricity which had not been supplied to state institutions had not been in accordance with the provisions of the Government's Decision no. 243 of 3 March 1998. 130.", "The meetings between C.T. and the applicant company's lawyer had been confidential and no investigation officers had been present at those meetings. Their number and duration had not been limited. The statements of the applicant company's lawyer that the conversations had been intercepted in the meeting room were ill-founded and based on the lawyer's personal illusions. The Government referred the Court to pictures and a video sent by them in the Sarban case, which in their opinion proved that the meeting room was not equipped with any video or audio-recording devices.", "131. The glass partition in the meeting room was necessary for security reasons and in order to prevent crime and the fact that it did not violate the confidentiality of the lawyer-client discussion had been confirmed by the Court in the Sarban judgment. 132. As to the applicant company's statement concerning the refusal by the Government Agent's Office to assist the lawyer with the problem concerning the confidential meetings with C.T., the Government argued that that was not part of the powers of the Government Agent's Office and that in any event the Office could not interfere with the work of the criminal investigation bodies and courts of law. 133.", "Finally, as to the applicant company's complaint about the refusal of the Buiucani District Court to give its lawyer a copy of the transcript of the telephone conversation which had served as a basis for C.T. 's pre-trial detention, the Government argued that it was normal for a person who was not a party to criminal proceedings to be refused access to one of the main pieces of evidence in those proceedings. B. The Court's assessment 1. The criminal proceedings against C.T.", "134. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see, among other authorities, Akdivar and Others v. Turkey, judgment of 16 September 1996, § 105, Reports of Judgments and Decisions 1996‑IV, and Aksoy v. Turkey, judgment of 18 December 1996, § 105, Reports 1996‑VI, p. 2288). In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy (see Kurt v. Turkey, judgment of 25 May 1998, § 159, Reports 1998‑III, p. 1192). Whether or not contacts between the authorities and an applicant are tantamount to unacceptable practices from the standpoint of Article 34 must be determined in the light of the particular circumstances of the case (see the Akdivar and Others and Kurt judgments, cited above, p. 1219, § 105, and pp. 1192-93, § 160, respectively).", "135. C.T. was charged with misappropriation of MDL 5,000,000 and attempted misappropriation of MDL 15,000,000. The accusation was based on the allegation that the applicant company had paid for energy not only supplied to state institutions and had thus fraudulently obtained first the Treasury bond in its favour and later the civil judgments in its favour. C.T.", "'s alleged guilt consisted in the fact that in his capacity as Chief Executive Officer of the applicant company, he insisted that the Economic Court's judgment of 27 October 1999 be enforced, while allegedly knowing that his company had paid for electricity not only supplied to state institutions and that later, after the reopening of the proceedings, he managed to obtain a judgment in his company's favour at first instance, without presenting evidence that energy had been supplied to state institutions (see paragraph 45 above). 136. The Court notes that besides being the Chief Executive Officer of the applicant company, C.T. was the person who signed the present application to the Court and the only company employee left after the company's activity was blocked by the State authorities (see paragraph 41 above). In these circumstances, the Court considers that any undue pressure put on him, in connection with the present case, could be considered an interference with the applicant company's right of petition.", "137. The Court further notes that C.T. was charged with an offence which was closely connected with the subject matter of the present application to the Court. In particular, while the application was initially concerned with the non-enforcement of the final judgment of 27 October 1999, C.T. was in essence charged with the offence of having sought and partially obtained the enforcement of that final judgment.", "138. Analysing the judgments adopted by the civil courts in the dispute between the applicant company and the Ministry of Finance, the Court notes that it is an established fact that the former had paid over USD 33,000,000 for the electricity imported by Moldova from Ukraine and that the Treasury bond issued by the Ministry of Finance on 27 March 1998 was intended to cover a small part of that amount. This was confirmed by the civil courts both before and after the proceedings were wrongfully reopened on 12 July 2004 (see paragraphs 15, 19, 20, 33 and 34 above). 139. Some of the electricity imported to Moldova with the participation of the applicant company was supplied to state institutions.", "The civil courts established that the applicant company had paid more than MDL 20,000,000 for that electricity. This finding was made by the Plenary Supreme Court in its judgment of 7 May 2001 (see paragraph 20 above). 140. The court rulings which followed the reopening of the proceedings on 12 July 2004 must, in principle, be disregarded, in view of the Court's earlier finding that the reopening was wrongful (see paragraph 109 above). However, it is of some interest to note, for instance, that the Court of Appeal in its judgment of 3 November 2004 found that the applicant company had paid more than MDL 27,000,000 for electricity supplied to state institutions (see paragraph 33 above).", "The Supreme Court of Justice, in reversing that judgment, on 10 February 2005, did not dispute this finding but made only a general statement that the electricity supplied with the participation of the applicant company had been supplied, inter alia, to state institutions (see paragraph 34 above). 141. In those circumstances, the accusation against C.T. based on the premise that his company had not paid for electricity supplied to state institutions appears to be inconsistent with the above findings of the civil courts. 142.", "Against this background, the Court notes that C.T. was charged with a criminal offence for the first time after the Government had been informed about the present application (see paragraphs 25, 26 and 37 above). Later the criminal proceedings were discontinued, but reactivated shortly after the communication of the present case to the Government (see paragraphs 40, 42 and 43 above). 143. In view of the above, the Court considers that, on the basis of the materials before it, there are sufficiently strong grounds for drawing an inference that the criminal proceedings against C.T.", "were aimed at discouraging the company from pursuing the present case before the Court. Accordingly, there has been a breach of Article 34 of the Convention. 144. As regards the pre-trial detention proceedings against C.T., the complaints made by the applicant company about them, and the request for an injunction ordering his immediate release, the Court considers that it would not be appropriate to address these matters in the context of the instant application, it being noted, moreover, that C.T. was released from detention on 14 November 2006 (see paragraph 59 above).", "2. Confidentiality of discussions in the CFECC lawyer-client meeting room 145. One of the key elements in a lawyer's effective representation of a client's interests is the principle that the confidentiality of information exchanged between them must be protected. This privilege encourages open and honest communication between clients and lawyers. The Court recalls that it has previously held that confidential communication with one's lawyer is protected by the Convention as an important safeguard of one's right to defence (see, for instance, Campbell v. the United Kingdom, judgment of 25 March 1992, Series A no.", "233, § 46, and Recommendation Rec (2006) 2 (see paragraph 66 above)). 146. Indeed, if a lawyer were unable to confer with his client and receive confidential instructions from him without surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective (see, inter alia, Artico v. Italy, judgment of 13 May 1980, Series A no. 37, § 33). 147.", "The Court considers that an interference with the lawyer-client privilege and, thus, with the right of petition guaranteed by Article 34 of the Convention, does not necessarily require an actual interception or eavesdropping to have taken place. A genuine belief held on reasonable grounds that their discussion was being listened to might be sufficient, in the Court's view, to limit the effectiveness of the assistance which the lawyer could provide. Such a belief would inevitably inhibit a free discussion between lawyer and client and hamper the client's right to be effectively defended or represented. 148. The Court must therefore establish whether C.T.", "and the lawyer had a genuine belief held on reasonable grounds that their conversation in the CFECC lawyer-client meeting room was not confidential. It appears from the applicant company's submissions that the fear of having C.T. 's conversations with the lawyer intercepted was genuine. The Court will also consider whether an objective, fair-minded and informed observer would have feared interception of lawyer-client discussions or eavesdropping in the CFECC meeting room. 149.", "The Court notes that the problem of alleged lack of confidentiality of lawyer-client communications in the CFECC detention centre has been a matter of serious concern for the entire community of lawyers in Moldova for a long time and that it has even been the cause of a strike organised by the Moldovan Bar Association (see paragraph 64 above). The Bar's requests to verify the presence of interception devices in the glass partition were rejected by the CFECC administration (see paragraph 65 above), and that appears to have contributed to the lawyers' suspicion. Such concern and protest by the Bar Association would, in the Court's view, have been sufficient to raise a doubt about confidentiality in the mind of an objective observer. 150. The Court also notes that the Government have not disputed the applicant company's submission that the events described in paragraph 52 above proved that the conversation between C.T.", "and the lawyer had been intercepted. 151. Accordingly, the Court concludes that C.T. and the lawyer could reasonably have had grounds to fear that the conversation in the CFECC lawyer-client meeting room was not confidential. 152.", "Moreover, the Court notes that, contrary to the Government's contention to the effect that C.T. and the lawyer could easily exchange documents, the pictures provided by the Government (see paragraph 62 above) show that this was not the case because of the lack of any aperture in the glass partition. This, in the Court's view, rendered the lawyer's task even more difficult. 153. The Court recalls that in the case of Sarban v. Moldova it dismissed a somewhat similar complaint, examined under Article 8 of the Convention, because the applicant had failed to furnish evidence in support of his complaint and because the Court considered that the obstacles to effective communication between the applicant and his lawyer did not impede the applicant from mounting an effective defence before the domestic authorities.", "Having regard to the further information at its disposal concerning the impediments created by the glass partition to confidential discussions and exchange of documents between lawyers and their clients detained in the CFECC, the Court cannot exclude that it would reach a different conclusion in a subsequent similar case. Indeed, the Court now considers that the glass partition might affect the exercise by other individuals of their defence rights. 154. In the present case, the effective representation of the applicant company by its lawyer before the Court was seriously hampered in such a way that it was unable to present its claims under Article 41 of the Convention. 155.", "The security reasons invoked by the Government are not convincing, in the Court's view, since visual supervision of the lawyer-client meetings would be sufficient for such purposes. 156. In the light of the above, the Court considers that the impossibility for C.T. to discuss with the lawyer issues concerning the present application before the Court without being separated by a glass partition affected the applicant company's right of petition. Accordingly, there has been a violation of Article 34 of the Convention in this respect also.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 157. 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.” 158. The applicant company submitted that since its lawyer was not able to receive instructions from C.T. because of the glass partition in the CFECC detention centre, it was unable to present any observations concerning the pecuniary damage sustained. Accordingly, it asked the Court to reserve this question.", "159. The applicant company claimed 100,000 euros (EUR) for non-pecuniary damage. It noted that the judgment in its favour was not enforced for more than four years. The failure to enforce it had seriously disrupted the management of the company and that had been aggravated by the subsequent wrongful quashing of the judgment on 27 October 1999. The bank accounts of the company had been frozen and its entire activity blocked.", "Later, after the communication of the case, the company's chief executive officer had been imprisoned on the basis of wrongful criminal charges. 160. The applicant company's lawyer claimed EUR 57 for postal expenses, EUR 9,917 for representation costs and EUR 8,917 for court fees which the applicant company would incur if it applied for a revision of the judgment of the Supreme Court of Justice of 10 February 2005. 161. The Government argued that since the applicant company had failed to adduce evidence in support of the alleged violations, its alleged non-pecuniary damage had also been unsubstantiated.", "They also argued that since the applicant was a company, it could not have experienced suffering or mental anguish, and cited the case of Immobiliare Saffi v. Italy ([GC], no. 22774/93, ECHR 1999‑V). In the alternative, if the Court were to find a violation, then that finding alone would be sufficient just satisfaction for the applicant. 162. The Government disagreed with the amount claimed for representation, calling it excessive and unrealistic in the light of the economic situation of the country and of the average monthly salary.", "They disputed the number of hours spent by the applicant's lawyer and the hourly fees charged by him. 163. In view of its findings above, the Court considers that the question of the application of Article 41 is not ready for decision. The question must accordingly be reserved and the further procedure fixed with due regard to the possibility of agreement being reached between the Moldovan Government and the applicant company FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 4. Holds that there has been a violation of Article 34 of the Convention on account of the decision to institute criminal proceedings against the chief executive officer of the applicant company and to place him in detention; 5. Holds that there has been a violation of Article 34 of the Convention on account of the inability of the applicant company's representative to confer with the chief executive officer of the applicant company without being separated by a glass partition; 6.", "Holds unanimously (a) that the question of the application of Article 41 of the Convention is not ready for decision; accordingly, (b) reserves the said question; (c) invites the Moldovan Government and the applicant company to submit, within the forthcoming three months, their written observations on the matter and, in particular, to notify the Court of any agreement they may reach; (d) reserves the further procedure and delegates to the President of the Chamber power to fix the same if need be. Done in English, and notified in writing on 19 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyNicolas BratzaRegistrarPresident [1] USD 4,240,702 as of 27 March 1998" ]
[ "CASE OF ROTARU v. ROMANIA (Application no. 28341/95) JUDGMENT STRASBOURG 4 May 2000 In the case of Rotaru v. Romania, The European Court of Human Rights, sitting as a Grand Chamber composed of the following judges: MrL. Wildhaber, President,MrsE. Palm,MrA. Pastor Ridruejo,MrG.", "Bonello,MrJ. Makarczyk,MrR. Türmen,MrJ.-P. Costa,MrsF. Tulkens,MrsV. Strážnická,MrP.", "Lorenzen,MrM. Fischbach,MrV. Butkevych,MrJ. Casadevall,MrA.B. Baka,MrR.", "Maruste,MrsS. Botoucharova,MrsR. Weber, ad hoc judge, and also of Mr M. de Salvia, Registrar, Having deliberated in private on 19 January and 29 March 2000, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case was referred to the Court in accordance with the provisions applicable prior to the entry into force of Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”)[1] by the European Commission of Human Rights (“the Commission”) and by a Romanian national, Mr Aurel Rotaru (“the applicant”), on 3 and 29 June 1999 respectively (Article 5 § 4 of Protocol No.", "11 and former Articles 47 and 48 of the Convention). 2. The case originated in an application (no. 28341/95) against Romania lodged with the Commission on 22 February 1995 under former Article 25 of the Convention. The applicant alleged a violation of his right to respect for his private life on account of the holding and use by the Romanian Intelligence Service of a file containing personal information and an infringement of his right of access to a court and his right to a remedy before a national authority that could rule on his application to have the file amended or destroyed.", "3. The Commission declared the application admissible on 21 October 1996. In its report of 1 March 1999 (former Article 31 of the Convention), it expressed the opinion that there had been a violation of Articles 8 and 13 of the Convention. The full text of the Commission's opinion is reproduced as an annex to this judgment. 4.", "On 7 July 1999 a panel of the Grand Chamber determined that the case should be decided by the Grand Chamber (Rule 100 § 1 of the Rules of Court). Mr Bîrsan, the judge elected in respect of Romania, who had taken part in the Commission's examination of the case, withdrew from sitting in the Grand Chamber (Rule 28). The Romanian Government (“the Government”) accordingly appointed Mrs R. Weber to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 5. The applicant and the Government each filed a memorial.", "6. A hearing took place in public in the Human Rights Building, Strasbourg, on 19 January 2000. There appeared before the Court: (a) for the GovernmentMrsR. Rizoiu,Agent,MrM. Selegean, Legal Adviser, Ministry of Justice,MrT.", "Corlăţean, Administrative Assistant, PermanentDelegation of Romania to the Council of Europe,Advisers; (b) for the applicantMrI. Olteanu,Counsel,MrF. Rotaru,Representative and son of the applicant. The Court heard addresses by Mrs Rizoiu, Mr Selegean, Mr Olteanu and Mr F. Rotaru. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE A. The applicant's conviction in 1948 7. The applicant, who was born in 1921, was a lawyer by profession. He is now retired and lives in Bârlad. 8.", "In 1946, after the communist regime had been established, the applicant, who was then a student, was refused permission by the prefect of the county of Vaslui to publish two pamphlets, “Student Soul” (Suflet de student) and “Protests” (Proteste), on the ground that they expressed anti‑government sentiments. 9. Dissatisfied with that refusal, the applicant wrote two letters to the prefect in which he protested against the abolition of freedom of expression by the new people's regime. As a result of these letters, the applicant was arrested on 7 July 1948. On 20 September 1948 the Vaslui People's Court convicted the applicant on a charge of insulting behaviour and sentenced him to one year's imprisonment.", "B. The proceedings brought under Legislative Decree no. 118/1990 10. In 1989, after the communist regime had been overthrown, the new government caused Legislative Decree no. 118/1990 to be passed, which granted certain rights to those who had been persecuted by the communist regime and who had not engaged in Fascist activities (see paragraph 30 below).", "11. On 30 July 1990 the applicant brought proceedings in the Bârlad Court of First Instance against the Ministry of the Interior, the Ministry of Defence and the Vaslui County Employment Department, seeking to have the prison sentence that had been imposed in the 1948 judgment taken into account in the calculation of his length of service at work. He also sought payment of the corresponding retirement entitlements. 12. The court gave judgment on 11 January 1993.", "Relying on, among other things, the statements of witnesses called by the applicant (P.P. and G.D.), the 1948 judgment and depositions from the University of Iaşi, it noted that between 1946 and 1949 the applicant had been persecuted on political grounds. It consequently allowed his application and awarded him the compensation provided for in Legislative Decree no. 118/1990. 13.", "As part of its defence in those proceedings, the Ministry of the Interior submitted to the court a letter of 19 December 1990 that it had received from the Romanian Intelligence Service (Serviciul Român de Informaţii – “the RIS”). The letter read as follows: “In reply to your letter of 11 December 1990, here are the results of our checks on Aurel Rotaru, who lives in Bârlad: (a) during his studies in the Faculty of Sciences at Iaşi University the aforementioned person was a member of the Christian Students' Association, a 'legionnaire' [legionar]-type[[2]] movement. (b) in 1946 he applied to the Vaslui censorship office for permission to publish two pamphlets entitled 'Student Soul' and 'Protests' but his request was turned down because of the anti-government sentiments expressed in them; (c) he belonged to the youth section of the National Peasant Party, as appears from a statement he made in 1948; (d) he has no criminal record and, contrary to what he maintains, was not imprisoned during the period he mentions; (e) in 1946-48 he was summoned by the security services on several occasions because of his ideas and questioned about his views ...” C. The action for damages against the RIS 14. The applicant brought proceedings against the RIS, stating that he had never been a member of the Romanian legionnaire movement, that he had not been a student in the Faculty of Sciences at Iaşi University but in the Faculty of Law and that some of the other information provided by the RIS in its letter of 19 December 1990 was false and defamatory. Under the Civil Code provisions on liability in tort he claimed damages from the RIS for the non-pecuniary damage he had sustained.", "He also sought an order, without relying on any particular legal provision, that the RIS should amend or destroy the file containing the information on his supposed legionnaire past. 15. In a judgment of 6 January 1993 the Bucharest Court of First Instance dismissed the applicant's application on the ground that the statutory provisions on tortious liability did not make it possible to allow it. 16. The applicant appealed.", "17. On 18 January 1994 the Bucharest County Court found that the information that the applicant had been a legionnaire was false. However, it dismissed the appeal on the ground that the RIS could not be held to have been negligent as it was merely the depositary of the impugned information, and that in the absence of negligence the rules on tortious liability did not apply. The court noted that the information had been gathered by the State's security services, which, when they were disbanded in 1949, had forwarded it to the Securitate (the State Security Department), which had in its turn forwarded it to the RIS in 1990. 18.", "On 15 December 1994 the Bucharest Court of Appeal dismissed an appeal by the applicant against the judgment of 18 January 1994 in the following terms: “... the Court finds that the applicant's appeal is ill-founded. As the statutory depositary of the archives of the former State security services, the RIS in letter no. 705567/1990 forwarded to the Ministry of the Interior information concerning the applicant's activities while he was a university student, as set out by the State security services. It is therefore apparent that the judicial authorities have no jurisdiction to destroy or amend the information in the letter written by the RIS, which is merely the depositary of the former State security services' archives. In dismissing his application, the judicial authorities did not infringe either Article 1 of the Constitution or Article 3 of the Civil Code but stayed the proceedings in accordance with the jurisdictional rules laid down in the Code of Civil Procedure.” D. The action for damages against the judges 19.", "On 13 June 1995 the applicant brought an action for damages against all the judges who had dismissed his application to have the file amended or destroyed. He based his action on Article 3 of the Civil Code, relating to denials of justice, and Article 6 of the Convention. According to the applicant, both the County Court and the Vaslui Court of Appeal refused to register his action. In this connection, the applicant lodged a fresh application with the Commission on 5 August 1998, which was registered under file no. 46597/98 and is currently pending before the Court.", "E. The application for review 20. In June 1997 the Minister of Justice informed the Director of the RIS that the European Commission of Human Rights had declared the applicant's present application admissible. The Minister consequently asked the Director of the RIS to check once again whether the applicant had been a member of the legionnaire movement and, if that information proved to be false, to inform the applicant of the fact so that he could subsequently make use of it in any application for review. 21. On 6 July 1997 the Director of the RIS informed the Minister of Justice that the information in the letter of 19 December 1990 that the applicant had been a legionnaire had been found by consulting their archives, in which a table drawn up by the Iaşi security office had been discovered that mentioned, in entry 165, one Aurel Rotaru, a “science student, rank-and-file member of the Christian Students' Association, legionnaire”.", "The Director of the RIS mentioned that the table was dated 15 February 1937 and expressed the view that “since at that date Mr Rotaru was only 16, he could not have been a student in the Faculty of Sciences. [That being so,] we consider that there has been a regrettable mistake which led us to suppose that Mr Aurel Rotaru of Bârlad was the same person as the one who appears in that table as a member of a legionnaire-type organisation. Detailed checks made by our institution in the counties of Iaşi and Vaslui have not provided any other information to confirm that the two names refer to the same person.” 22. A copy of that letter was sent to the applicant, who on 25 July 1997 applied to the Bucharest Court of Appeal to review its decision of 15 December 1994. In his application he sought a declaration that the defamatory documents were null and void, damages in the amount of one leu in respect of non-pecuniary damage and reimbursement of all the costs and expenses incurred since the beginning of the proceedings, adjusted for inflation.", "23. The RIS submitted that the application for review should be dismissed, holding that, in the light of the RIS Director's letter of 6 July 1997, the application had become devoid of purpose. 24. In a final decision of 25 November 1997 the Bucharest Court of Appeal quashed the decision of 15 December 1994 and allowed the applicant's action, in the following terms: “It appears from letter no. 4173 of 5 July 1997 from the Romanian Intelligence Service ... that in the archives (shelf-mark 53172, vol.", "796, p. 243) there is a table which lists the names of the members of legionnaire organisations who do not live in Iaşi, entry 165 of which contains the following: 'Rotaru Aurel – science student, rank‑and-file member of the Christian Students' Association, legionnaire'. Since the applicant was barely 16 when that table was drawn up, on 15 February 1937, and since he did not attend lectures in the Iaşi Faculty of Sciences, and since it appears from subsequent checks in the documents listing the names of the members of legionnaire organisations that the name 'Aurel Rotaru' does not seem to be connected with an individual living in Bârlad whose personal details correspond to those of the applicant, the Romanian Intelligence Service considers that a regrettable mistake has been made and that the person mentioned in the table is not the applicant. Having regard to this letter, the Court holds that it satisfies the requirements of Article 322-5 of the Code of Civil Procedure as it is such as to completely alter the facts previously established. The document contains details which it was not possible to submit at any earlier stage in the proceedings for a reason beyond the applicant's control. That being so, the date on which the Securitate was formed and the way in which the former security services were organised are not relevant factors.", "Similarly, the fact, albeit a true one, that the Romanian Intelligence Service is only the depositary of the archives of the former security services is irrelevant. What matters is the fact that letter no. 705567 of 19 December 1990 from the Romanian Intelligence Service (Military Unit no. 05007) contains details which do not relate to the applicant, so that the information in that letter is false in respect of him and, if maintained, would seriously injure his dignity and honour. In the light of the foregoing and in accordance with the aforementioned statutory provision, the application for review is justified and must be allowed.", "It follows that the earlier decisions in this case must be quashed and that the applicant's action as lodged is allowed.” 25. The court did not make any order as to damages or costs. II. RELEVANT DOMESTIC LAW A. The Constitution 26.", "The relevant provisions of the Constitution read as follows: Article 20 “(1) The constitutional provisions on citizens' rights and liberties shall be interpreted and applied in accordance with the Universal Declaration of Human Rights and with the covenants and other treaties to which Romania is a party. (2) In the event of conflict between the covenants and treaties on fundamental human rights to which Romania is a party and domestic laws, the international instruments shall prevail.” Article 21 “(1) Anyone may apply to the courts for protection of his rights, liberties and legitimate interests. (2) The exercise of this right shall not be restricted by any statute.” B. The Civil Code 27. The relevant provisions of the Civil Code are worded as follows: Article 3 “A judge who refuses to adjudicate, on the pretext that the law is silent, obscure or defective, may be prosecuted on a charge of denial of justice.” Article 998 “Any act committed by a person who causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.” Article 999 “Everyone shall be liable for damage he has caused not only through his own act but also through his failure to act or his negligence.” C. The Code of Civil Procedure 28.", "The relevant provision of the Code of Civil Procedure reads as follows: Article 322-5 “An application may be made for review of a final decision ... where written evidence which has been withheld by the opposing party or which it was not possible to submit for a reason beyond the parties' control is discovered after the decision has been delivered ...” D. Decree no. 31 of 1954 on natural and legal persons 29. The relevant provisions of Decree no. 31 of 1954 on natural and legal persons are worded as follows: Article 54 “(1) Anyone whose right ... to honour, reputation ... or any other non-economic right has been infringed may apply to the courts for an injunction prohibiting the act which is infringing the aforementioned rights. (2) Similarly, anyone who has been the victim of such an infringement of rights may ask the courts to order the person responsible for the unlawful act to carry out any measure regarded as necessary by the court in order to restore his rights.” Article 55 “If a person responsible for unlawful acts does not within the time allowed by the court perform what he has been enjoined to do in order to restore the right infringed, the court may sentence him to pay a periodic pecuniary penalty to the State ...” E. Legislative Decree no.", "118 of 30 March 1990 on the granting of certain rights to persons who were persecuted on political grounds by the dictatorial regime established on 6 March 1945 30. At the material time, the relevant provisions of Legislative Decree no. 118/1990 read: Article 1 “The following periods shall be taken into account in determining seniority and shall count as such for the purpose of calculating retirement pension and any other rights derived from seniority: periods during which a person, after 6 March 1945, for political reasons – (a) served a custodial sentence imposed in a final judicial decision or was detained pending trial for political offences; ...” Article 5 “A committee composed of a chairman and at most six other members shall be set up in each county ... in order to verify whether the requirements laid down in Article 1 have been satisfied ... The chairman must be legally qualified. The committee shall include two representatives from the employment and social-welfare departments and a maximum of four representatives from the association of former political detainees and victims of the dictatorship.", "...” Article 6 “The persons concerned may establish that they satisfy the conditions laid down in Article 1 by means of official documents issued by the relevant authorities or ... of any other material of evidential value. ...” Article 11 “The provisions of this decree shall not be applicable to persons who have been convicted of crimes against humanity or to those in respect of whom it has been established, by means of the procedure indicated in Articles 5 and 6, that they engaged in Fascist activities within a Fascist-type organisation.” F. Law no. 14 of 24 February 1992 on the organisation and operation of the Romanian Intelligence Service 31. The relevant provisions of Law no. 14 of 24 February 1992 on the organisation and operation of the Romanian Intelligence Service, which was published in the Official Gazette on 3 March 1992, read as follows: Section 2 “The Romanian Intelligence Service shall organise and carry out all activities designed to gather, verify and utilise the information needed for discovering, preventing and frustrating any actions which, in the eyes of the law, threaten Romania's national security.” Section 8 “The Romanian Intelligence Service shall be authorised to hold and to make use of any appropriate resources in order to secure, verify, classify and store information affecting national security, as provided by law.” Section 45 “All internal documents of the Romanian Intelligence Service shall be secret, shall be kept in its own archives and may be consulted only with the consent of the Director as provided in law.", "Documents, data and information belonging to the Romanian Intelligence Service shall not be made public until forty years after they have been archived. The Romanian Intelligence Service shall, in order to keep and make use of them, take over all the national-security archives that belonged to the former intelligence services operating on Romanian territory. The national-security archives of the former Securitate shall not be made public until forty years after the date of the passing of this Act.” G. Law no. 187 of 20 October 1999 on citizens' access to the personal files held on them by the Securitate, enacted with the intention of unmasking that organisation's nature as a political police force 32. The relevant provisions of Law no.", "187 of 20 October 1999, which came into force on 9 December 1999, are worded as follows: Section 1 “(1) All Romanian citizens, and all aliens who have obtained Romanian nationality since 1945, shall be entitled to inspect the files kept on them by the organs of the Securitate ... This right shall be exercisable on request and shall make it possible for the file itself to be inspected and copies to be made of any document in it or relating to its contents. (2) Additionally, any person who is the subject of a file from which it appears that he or she was kept under surveillance by the Securitate shall be entitled, on request, to know the identity of the Securitate agents and collaborators who contributed documents to the file. (3) Unless otherwise provided by law, the rights provided in subsections (1) and (2) shall be available to the surviving spouses and relatives up to the second degree inclusive of a deceased.” Section 2 “(1) In order to provide for a right of access to information of public interest, all Romanian citizens ..., the media, political parties ... shall be entitled to be informed ... if any of the persons occupying the following posts or seeking to do so have been agents or collaborators of the Securitate: (a) the President of Romania; (b) member of Parliament or of the Senate; ...” Section 7 “A National Council for the Study of the Archives of the Securitate ... (hereinafter 'the Council'), with its headquarters in Bucharest, shall be set up to apply the provisions of this Act. The Council shall be an autonomous body with legal personality, subject to supervision by Parliament.", "...” Section 8 “The Council shall consist of a college of eleven members. The members of the college of the Council shall be appointed by Parliament, on a proposal by the parliamentary groups, according to the political composition of the two Chambers ... for a term of office of six years, renewable once.” Section 13 “(1) The beneficiaries of this Act may, in accordance with section 1(1), request the Council – (a) to allow them to consult the files ... compiled by the Securitate up to 22 December 1989; (b) to issue copies of ... these files ...; (c) to issue certificates of membership or non-membership of the Securitate and of collaboration or non-collaboration with it; ...” Section 14 “(1) The content of certificates under section 13(1)(c) may be challenged before the college of the Council ...” Section 15 “(1) The right of access to information of public interest shall be exercisable by means of a request sent to the Council. ... ... (4) In response to requests made under section 1, the Council shall verify the evidence at its disposal, of whatever form, and shall immediately issue a certificate ...” Section 16 “(1) Any beneficiary or person in respect of whom a check has been requested may challenge before the college of the Council a certificate issued under section 15. ... The college's decision may be challenged ... in the Court of Appeal ...” THE LAW I. the government's preliminary objections A.", "Applicant's victim status 33. As their primary submission, the Government maintained – as they had done before the Commission – that the applicant could no longer claim to be the “victim” of a violation of the Convention within the meaning of Article 34. They pointed out that the applicant had won his case in the Bucharest Court of Appeal, since that court had, in its judgment of 25 November 1997, declared null and void the details contained in the letter of 19 December 1990 from the Romanian Intelligence Service (Serviciul Român de Informaţii – “the RIS”), and, in the Government's view, the only infringement of the applicant's rights stemmed from that letter. At all events, the Government continued, the applicant now had available to him the procedure put in place by Law no. 187 of 20 October 1999, which afforded him all the safeguards required by the Convention for the protection of his rights.", "34. The applicant requested the Court to continue its consideration of the case. He argued that the circumstances that had given rise to the application had not fundamentally changed following the decision of 25 November 1997. Firstly, the mere fact of acknowledging, after the Commission's admissibility decision, that a mistake had been made could not amount to adequate redress for the violations of the Convention. Secondly, he had still not had access to his secret file, which was not only stored by the RIS but also used by it.", "It was consequently not to be excluded that even after the decision of 25 November 1997 the RIS might make use of the information that the applicant had supposedly been a legionnaire and of any other information in his file. 35. The Court reiterates, as to the concept of victim, that an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him (see the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, pp. 18-19, § 34).", "Furthermore, “a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a 'victim' unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention” (see the Amuur v. France judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). 36. In the instant case the Court notes that the applicant complained of the holding of a secret register containing information about him, whose existence was publicly revealed during judicial proceedings. It considers that he may on that account claim to be the victim of a violation of the Convention.", "The Court also notes that in a judgment of 25 November 1997 the Bucharest Court of Appeal found that the details given in the letter of 19 December 1990 about the alleged fact that the applicant had been a legionnaire were false, in that they probably related to someone else with the same name, and declared them null and void. Assuming that it may be considered that that judgment did, to some extent, afford the applicant redress for the existence in his file of information that proved false, the Court takes the view that such redress is only partial and that at all events it is insufficient under the case-law to deprive him of his status of victim. Apart from the foregoing considerations as to his being a victim as a result of the holding of a secret file, the Court points to the following factors in particular. The information that the applicant had supposedly been a legionnaire is apparently still recorded in the RIS's files and no mention of the judgment of 25 November 1997 has been made in the file concerned. Furthermore, the Court of Appeal expressed no view – and was not entitled to do so – on the fact that the RIS was authorised by Romanian legislation to hold and make use of files opened by the former intelligence services, which contained information about the applicant.", "A key complaint made to the Court by the applicant was that domestic law did not lay down with sufficient precision the manner in which the RIS must carry out its work and that it did not provide citizens with an effective remedy before a national authority. Lastly, the Bucharest Court of Appeal in its judgment of 25 November 1997 did not rule on the applicant's claim for compensation for non‑pecuniary damage and for costs and expenses. 37. As to Law no. 187 of 20 October 1999, which the Government relied on, the Court considers, having regard to the circumstances of this case, that it is not relevant (see paragraph 71 below).", "38. The Court concludes that the applicant may claim to be a “victim” for the purposes of Article 34 of the Convention. The objection must therefore be dismissed. B. Exhaustion of domestic remedies 39. The Government also submitted that the application was inadmissible for failure to exhaust domestic remedies.", "They argued that the applicant had had a remedy which he had not made use of, namely an action based on Decree no. 31/1954 on natural and legal persons, under which the court may order any measure to restrain injury to a person's reputation. 40. The Court notes that there is a close connection between the Government's argument on this point and the merits of the complaints made by the applicant under Article 13 of the Convention. It accordingly joins this objection to the merits (see paragraph 70 below).", "ii. alleged violation of article 8 of the convention 41. The applicant complained that the RIS held and could at any moment make use of information about his private life, some of which was false and defamatory. He alleged a violation of 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.” A. Applicability of Article 8 42. The Government denied that Article 8 was applicable, arguing that the information in the RIS's letter of 19 December 1990 related not to the applicant's private life but to his public life. By deciding to engage in political activities and have pamphlets published, the applicant had implicitly waived his right to the “anonymity” inherent in private life. As to his questioning by the police and his criminal record, they were public information.", "43. The Court reiterates that the storing of information relating to an individual's private life in a secret register and the release of such information come within the scope of Article 8 § 1 (see the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 22, § 48). Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings: furthermore, there is no reason of principle to justify excluding activities of a professional or business nature from the notion of “private life” (see the Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, pp.", "33-34, § 29, and the Halford v. the United Kingdom judgment of 25 June 1997, Reports 1997-III, pp. 1015-16, §§ 42-46). The Court has already emphasised the correspondence of this broad interpretation with that of the Council of Europe's Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which came into force on 1 October 1985 and whose purpose is “to secure ... for every individual ... respect for his rights and fundamental freedoms, and in particular his right to privacy with regard to automatic processing of personal data relating to him” (Article 1), such personal data being defined in Article 2 as “any information relating to an identified or identifiable individual” (see Amann v. Switzerland [GC], no. 27798/95, § 65, ECHR 2000-II). Moreover, public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities.", "That is all the truer where such information concerns a person's distant past. 44. In the instant case the Court notes that the RIS's letter of 19 December 1990 contained various pieces of information about the applicant's life, in particular his studies, his political activities and his criminal record, some of which had been gathered more than fifty years earlier. In the Court's opinion, such information, when systematically collected and stored in a file held by agents of the State, falls within the scope of “private life” for the purposes of Article 8 § 1 of the Convention. That is all the more so in the instant case as some of the information has been declared false and is likely to injure the applicant's reputation.", "Article 8 consequently applies. B. Compliance with Article 8 1. Whether there was interference 45. In the Government's submission, three conditions had to be satisfied before there could be said to be interference with the right to respect for private life: information had to have been stored about the person concerned; use had to have been made of it; and it had to be impossible for the person concerned to refute it.", "In the instant case, however, both the storing and the use of the information relating to the applicant had occurred before Romania ratified the Convention. As to the alleged impossibility of refuting the information, the Government maintained that, on the contrary, it was open to the applicant to refute untrue information but that he had not made use of the appropriate remedies. 46. The Court points out that both the storing by a public authority of information relating to an individual's private life and the use of it and the refusal to allow an opportunity for it to be refuted amount to interference with the right to respect for private life secured in Article 8 § 1 of the Convention (see the following judgments: Leander cited above, p. 22, § 48; Kopp v. Switzerland, 25 March 1998, Reports 1998-II, p. 540, § 53; and Amann cited above, §§ 69 and 80). In the instant case it is clear beyond peradventure from the RIS's letter of 19 December 1990 that the RIS held information about the applicant's private life.", "While that letter admittedly predates the Convention's entry into force in respect of Romania on 20 June 1994, the Government did not submit that the RIS had ceased to hold information about the applicant's private life after that date. The Court also notes that use was made of some of the information after that date, for example in connection with the application for review which led to the decision of 25 November 1997. Both the storing of that information and the use of it, which were coupled with a refusal to allow the applicant an opportunity to refute it, amounted to interference with his right to respect for his private life as guaranteed by Article 8 § 1. 2. Justification for the interference 47.", "The cardinal issue that arises is whether the interference so found is justifiable under paragraph 2 of Article 8. That paragraph, since it provides for an exception to a right guaranteed by the Convention, is to be interpreted narrowly. While the Court recognises that intelligence services may legitimately exist in a democratic society, it reiterates that powers of secret surveillance of citizens are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions (see the Klass and Others judgment cited above, p. 21, § 42). 48. If it is not to contravene Article 8, such interference must have been “in accordance with the law”, pursue a legitimate aim under paragraph 2 and, furthermore, be necessary in a democratic society in order to achieve that aim.", "49. The Government considered that the measures in question were in accordance with the law. The information concerned had been disclosed by the RIS in connection with a procedure provided in Legislative Decree no. 118/1990, which was designed to afford redress to persons persecuted by the communist regime. By the terms of Article 11 of that legislative decree, no measure of redress could be granted to persons who had engaged in Fascist activities.", "50. In the applicant's submission, the keeping and use of the file on him were not in accordance with the law, since domestic law was not sufficiently precise to indicate to citizens in what circumstances and on what terms the public authorities were empowered to file information on their private life and make use of it. Furthermore, domestic law did not define with sufficient precision the manner of exercise of those powers and did not contain any safeguards against abuses. 51. The Commission considered that domestic law did not define with sufficient precision the circumstances in which the RIS could archive, release and use information relating to the applicant's private life.", "52. The Court reiterates its settled case-law, according to which the expression “in accordance with the law” not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see, as the most recent authority, Amann cited above, § 50). 53. In the instant case the Court notes that Article 6 of Legislative Decree no. 118/1990, which the Government relied on as the basis for the impugned measure, allows any individual to prove that he satisfies the requirements for having certain rights conferred on him, by means of official documents issued by the relevant authorities or any other material of evidential value.", "However, the provision does not lay down the manner in which such evidence may be obtained and does not confer on the RIS any power to gather, store or release information about a person's private life. The Court must therefore determine whether Law no. 14/1992 on the organisation and operation of the RIS, which was likewise relied on by the Government, can provide the legal basis for these measures. In this connection, it notes that the law in question authorises the RIS to gather, store and make use of information affecting national security. The Court has doubts as to the relevance to national security of the information held on the applicant.", "Nevertheless, it reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see the Kopp judgment cited above, p. 541, § 59) and notes that in its judgment of 25 November 1997 the Bucharest Court of Appeal confirmed that it was lawful for the RIS to hold this information as depositary of the archives of the former security services. That being so, the Court may conclude that the storing of information about the applicant's private life had a basis in Romanian law. 54. As to the accessibility of the law, the Court regards that requirement as having been satisfied, seeing that Law no. 14/1992 was published in Romania's Official Gazette on 3 March 1992.", "55. As regards the requirement of foreseeability, the Court reiterates that a rule is “foreseeable” if it is formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate his conduct. The Court has stressed the importance of this concept with regard to secret surveillance in the following terms (see the Malone v. the United Kingdom judgment of 2 August 1984, Series A no. 82, p. 32, § 67, reiterated in Amann cited above, § 56): “The Court would reiterate its opinion that the phrase 'in accordance with the law' does not merely refer back to domestic law but also relates to the quality of the 'law', requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention ... The phrase thus implies – and this follows from the object and purpose of Article 8 – that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph 1 ...", "Especially where a power of the executive is exercised in secret, the risks of arbitrariness are evident ... ... Since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.” 56. The “quality” of the legal rules relied on in this case must therefore be scrutinised, with a view, in particular, to ascertaining whether domestic law laid down with sufficient precision the circumstances in which the RIS could store and make use of information relating to the applicant's private life. 57.", "The Court notes in this connection that section 8 of Law no. 14/1992 provides that information affecting national security may be gathered, recorded and archived in secret files. No provision of domestic law, however, lays down any limits on the exercise of those powers. Thus, for instance, the aforesaid Law does not define the kind of information that may be recorded, the categories of people against whom surveillance measures such as gathering and keeping information may be taken, the circumstances in which such measures may be taken or the procedure to be followed. Similarly, the Law does not lay down limits on the age of information held or the length of time for which it may be kept.", "Section 45 of the Law empowers the RIS to take over for storage and use the archives that belonged to the former intelligence services operating on Romanian territory and allows inspection of RIS documents with the Director's consent. The Court notes that this section contains no explicit, detailed provision concerning the persons authorised to consult the files, the nature of the files, the procedure to be followed or the use that may be made of the information thus obtained. 58. It also notes that although section 2 of the Law empowers the relevant authorities to permit interferences necessary to prevent and counteract threats to national security, the ground allowing such interferences is not laid down with sufficient precision. 59.", "The Court must also be satisfied that there exist adequate and effective safeguards against abuse, since a system of secret surveillance designed to protect national security entails the risk of undermining or even destroying democracy on the ground of defending it (see the Klass and Others judgment cited above, pp. 23-24, §§ 49-50). In order for systems of secret surveillance to be compatible with Article 8 of the Convention, they must contain safeguards established by law which apply to the supervision of the relevant services' activities. Supervision procedures must follow the values of a democratic society as faithfully as possible, in particular the rule of law, which is expressly referred to in the Preamble to the Convention. The rule of law implies, inter alia, that interference by the executive authorities with an individual's rights should be subject to effective supervision, which should normally be carried out by the judiciary, at least in the last resort, since judicial control affords the best guarantees of independence, impartiality and a proper procedure (see the Klass and Others judgment cited above, pp.", "25-26, § 55). 60. In the instant case the Court notes that the Romanian system for gathering and archiving information does not provide such safeguards, no supervision procedure being provided by Law no. 14/1992, whether while the measure ordered is in force or afterwards. 61.", "That being so, the Court considers that domestic law does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities. 62. The Court concludes that the holding and use by the RIS of information on the applicant's private life were not “in accordance with the law”, a fact that suffices to constitute a violation of Article 8. Furthermore, in the instant case that fact prevents the Court from reviewing the legitimacy of the aim pursued by the measures ordered and determining whether they were – assuming the aim to have been legitimate – “necessary in a democratic society”. 63.", "There has consequently been a violation of Article 8. iii. alleged violation of article 13 of the convention 64. The applicant complained that the lack of any remedy before a national authority that could rule on his application for destruction of the file containing information about him and amendment of the inaccurate information was also contrary to Article 13, which provides: “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.” 65. The Government argued that the applicant had obtained satisfaction through the judgment of 25 November 1997, in which the details contained in the RIS's letter of 19 December 1990 had been declared null and void. As to the destruction or amendment of information in the file held by the RIS, the Government considered that the applicant had not chosen the appropriate remedy.", "He could have brought an action on the basis of Decree no. 31 of 1954, Article 54 § 2 of which empowered the court to order any measure to restore the right infringed, in the instant case the applicant's right to his honour and reputation. The Government further pointed out that the applicant could now rely on the provisions of Law no. 187 of 1999 to inspect the file opened on him by the Securitate. Under sections 15 and 16 of that Law, the applicant could challenge in court the truth of the information in his file.", "66. In the Commission's opinion, the Government had not managed to show that there was in Romanian law a remedy that was effective in practice as well as in law and would have enabled the applicant to complain of a violation of Article 8 of the Convention. 67. The Court reiterates that it has consistently interpreted Article 13 as requiring a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, Çakıcı v. Turkey [GC], no. 23657/94, § 112, ECHR 1999-IV).", "Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. This Article therefore requires the provision of a domestic remedy allowing the “competent national authority” both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligation under this provision. The remedy must be “effective” in practice as well as in law (see Wille v. Liechtenstein [GC], no. 28396/95, § 75, ECHR 1999-VII). 68.", "The Court observes that the applicant's complaint that the RIS held information about his private life for archiving and for use, contrary to Article 8 of the Convention, was indisputably an “arguable” one. He was therefore entitled to an effective domestic remedy within the meaning of Article 13 of the Convention. 69. The “authority” referred to in Article 13 may not necessarily in all instances be a judicial authority in the strict sense. Nevertheless, the powers and procedural guarantees an authority possesses are relevant in determining whether the remedy before it is effective (see the Klass and Others judgment cited above, p. 30, § 67).", "Furthermore, where secret surveillance is concerned, objective supervisory machinery may be sufficient as long as the measures remain secret. It is only once the measures have been divulged that legal remedies must become available to the individual (ibid., p. 31, §§ 70-71). 70. In the instant case the Government maintained that the applicant could have brought an action on the basis of Article 54 of Decree no. 31/1954.", "In the Court's view, that submission cannot be accepted. Firstly, it notes that Article 54 of the decree provides for a general action in the courts, designed to protect non-pecuniary rights that have been unlawfully infringed. The Bucharest Court of Appeal, however, indicated in its judgment of 25 November 1997 that the RIS was empowered by domestic law to hold information on the applicant that came from the files of the former intelligence services. Secondly, the Government did not establish the existence of any domestic decision that had set a precedent in the matter. It has therefore not been shown that such a remedy would have been effective.", "That being so, this preliminary objection by the Government must be dismissed. 71. As to the machinery provided in Law no. 187/1999, assuming that the Council provided for is set up, the Court notes that neither the provisions relied on by the respondent Government nor any other provisions of that Law make it possible to challenge the holding, by agents of the State, of information on a person's private life or the truth of such information. The supervisory machinery established by sections 15 and 16 relate only to the disclosure of information about the identity of some of the Securitate's collaborators and agents.", "72. The Court has not been informed of any other provision of Romanian law that makes it possible to challenge the holding, by the intelligence services, of information on the applicant's private life or to refute the truth of such information. 73. The Court consequently concludes that the applicant has been the victim of a violation of Article 13. iv. alleged violation of article 6 of the convention 74.", "The applicant complained that the courts' refusal to consider his applications for costs and damages infringed his right to a court, contrary to Article 6 of the Convention, which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] ... tribunal ...” 75. The Government made no submission. 76. The Commission decided to consider the complaint under the more general obligation, imposed on the States by Article 13, of affording an effective remedy enabling complaints to be made of violations of the Convention. 77.", "The Court observes that apart from the complaint, examined above, that there was no remedy whereby an application could be made for amendment or destruction of the file containing information about him, the applicant also complained that the Bucharest Court of Appeal, although lawfully seised of a claim for damages and costs, did not rule on the matter in its review judgment of 25 November 1997. 78. There is no doubting that the applicant's claim for compensation for non-pecuniary damage and costs was a civil one within the meaning of Article 6 § 1, and the Bucharest Court of Appeal had jurisdiction to deal with it (see the Robins v. the United Kingdom judgment of 23 September 1997, Reports 1997-V, p. 1809, § 29). The Court accordingly considers that the Court of Appeal's failure to consider the claim infringed the applicant's right to a fair hearing within the meaning of Article 6 § 1 (see the Ruiz Torija v. Spain judgment of 9 December 1994, Series A no. 303-A, pp.", "12-13, § 30). 79. There has therefore been a violation of Article 6 § 1 of the Convention also. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 80. The applicant sought just satisfaction under Article 41 of the Convention, which 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 81. The applicant claimed 20,000,000,000 Romanian lei (ROL) in compensation for non-pecuniary damage caused by the discredit associated with the public disclosure of false and defamatory information about him and with the authorities' refusal for several years to admit the mistake and correct it. 82. The Government objected to this claim, which they considered unreasonable, especially as the applicant had not raised the point in the domestic courts. 83.", "The Court draws attention to its settled case-law to the effect that the mere fact that an applicant has not brought his claim for damages before a domestic court does not require the Court to dismiss those claims as being ill-founded any more than it raises an obstacle to their admissibility (see the De Wilde, Ooms and Versyp v. Belgium judgment of 10 March 1972 (Article 50), Series A no. 14, pp. 9-10, § 20). Furthermore, the Court notes in the instant case that, contrary to what the Government maintained, the applicant did seek compensation in the domestic courts for the non‑pecuniary damage he had sustained, in the form of payment of a token sum of 1 Romanian leu, a claim which was not addressed by the Romanian courts. It notes, further, that the Bucharest Court of Appeal declared the allegedly defamatory information null and void, thereby partly meeting the applicant's complaints.", "The Court considers, however, that the applicant must actually have sustained non-pecuniary damage, regard being had to the existence of a system of secret files contrary to Article 8, to the lack of any effective remedy, to the lack of a fair hearing and also to the fact that several years elapsed before a court held that it had jurisdiction to declare the defamatory information null and void. It therefore considers that the events in question entailed serious interference with Mr Rotaru's rights and that the sum of 50,000 French francs (FRF) will afford fair redress for the non-pecuniary damage sustained. That amount is to be converted into Romanian lei at the rate applicable at the date of settlement. B. Costs and expenses 84.", "The applicant sought reimbursement of ROL 38,000,000 (FRF 13,450) which he broke down as follows: (a) ROL 30,000,000 corresponding to costs incurred in the domestic proceedings, including ROL 20,000,000 for travel and subsistence in respect of visits to Iaşi and Bucharest and ROL 10,000,000 for sundry expenses (stamp duty, telephone calls, photocopying, etc. ); (b) ROL 8,000,000 corresponding to expenses incurred before the Convention institutions, including ROL 6,000,000 for translation and secretarial expenses, ROL 1,000,000 for travel expenses between Bârlad and Bucharest and ROL 1,000,000 for a French visa for the applicant's son. 85. The Government considered that sum excessive, especially as the applicant had, they said, sought judgment in default in all the domestic proceedings. 86.", "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, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II). In this connection, it should be remembered that the Court may award an applicant not only the costs and expenses incurred before the Strasbourg institutions, but also those incurred in the national courts for the prevention or redress of a violation of the Convention found by the Court (see Van Geyseghem v. Belgium [GC], no. 26103/95, § 45, ECHR 1999-I). 87.", "The Court notes that the applicant was not represented in the domestic courts, that he presented his own case to the Commission and that in the proceedings before the Court he was represented at the hearing. It also notes that the Council of Europe paid Mr Rotaru the sum of FRF 9,759.72 by way of legal aid. The Court awards the full amount claimed by the applicant, that is to say FRF 13,450, less the sum already paid by the Council of Europe in legal aid. The balance is to be converted into Romanian lei at the rate applicable at the date of settlement. C. Default interest 88.", "The Court considers it appropriate to adopt the statutory rate of interest applicable in France at the date of adoption of the present judgment, that is to say 2.74% per annum. FOR THESE REASONS, THE COURT 1. Dismisses unanimously the Government's preliminary objection that the applicant was no longer a victim; 2. Joins to the merits unanimously the Government's preliminary objection of failure to exhaust domestic remedies and dismisses it unanimously after consideration of the merits; 3. Holds by sixteen votes to one that there has been a violation of Article 8 of the Convention; 4.", "Holds unanimously that there has been a violation of Article 13 of the Convention; 5. Holds unanimously that there has been a violation of Article 6 § 1 of the Convention; 6. Holds unanimously (a) that the respondent State is to pay the applicant, within three months, FRF 50,000 (fifty thousand French francs) in respect of non‑pecuniary damage and FRF 13,450 (thirteen thousand four hundred and fifty French francs) for costs and expenses, less FRF 9,759.72 (nine thousand seven hundred and fifty-nine French francs seventy-two centimes) to be converted into Romanian lei at the rate applicable at the date of settlement; (b) that simple interest at an annual rate of 2.74% shall be payable from the expiry of the above-mentioned three months until settlement; 7. Dismisses unanimously the remainder of the applicant's claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 4 May 2000.", "Luzius WildhaberPresidentMichele de SalviaRegistrar In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Mr Wildhaber joined by Mr Makarczyk, Mr Türmen, Mr Costa, Mrs Tulkens, Mr Casadevall and Mrs Weber; (b) concurring opinion of Mr Lorenzen; (c) partly dissenting opinion of Mr Bonello. L.W.M. de S. 1Rotaru v. Romania JUDGMENT Concurring opinion of Judge Wildhaberjoined by JUDGES MAKARCZYK, TÜRMEN, COSTA, TULKENS, CASADEVALL AND WEBER In the instant case, the applicant complained of a violation of his right to respect for his private life on account of the holding and use, by the Romanian Intelligence Service (RIS), of a file containing personal information, dating mostly from the years 1946-48. One specific entry in the file stated that in 1937, during his studies (when the applicant in fact was barely 16 years old), he had been a member of a “legionnaire-type” movement, i.e. of an extreme right-wing, nationalist, anti-Semitic and paramilitary movement.", "The information in this entry, which was revealed in a letter from the Ministry of the Interior at the end of 1990, was declared to be false in 1997 by the Bucharest Court of Appeal. Nevertheless, it is apparently still recorded in the RIS's files, whereas the 1997 judgment is not mentioned there. Furthermore, no damages or costs were awarded. An action for damages against the RIS was dismissed in 1994. It would seem that Romanian law still does not make it possible to challenge the holding, by the RIS, of information on the applicant's private life, or to refute the truth of such information, or to claim that such information should be destroyed.", "Against this background, our Court finds violations of Articles 8, 13 and 6 § 1. In accordance with its settled case-law (see the Malone v. the United Kingdom judgment of 2 August 1984, Series A no. 82, pp. 36 and 38-39, §§ 80 and 87-88; the Kruslin and Huvig v. France judgments of 24 April 1990, Series A nos. 176-A, pp.", "24-25, §§ 36-37, and 176-B, pp. 56-57, §§ 35-36; the Halford v. the United Kingdom judgment of 25 June 1997, Reports of Judgments and Decisions 1997-III, p. 1017, § 51; the Kopp v. Switzerland judgment of 25 March 1998, Reports 1998-II, p. 543, §§ 75‑76; and Amann v. Switzerland [GC], no. 27798/95, §§ 61-62 and 77-81, ECHR 2000-II), it finds that the domestic law rules providing that information affecting national security may be gathered, recorded and archived in secret files do not afford a sufficient degree of foreseeability. The holding and use by the RIS of information on the applicant's private life were therefore not “in accordance with the law”, so that Article 8 was violated. I fully subscribe to these findings.", "However, I wish to add that in the instant case – irrespective of the adequacy of the legal basis – I have serious doubts whether the interference with the applicant's rights pursued a legitimate aim under Article 8 § 2. There is moreover no doubt in my mind that the interference was not necessary in a democratic society. As regards the legitimate aim, the Court has regularly been prepared to accept that the purpose identified by the Government is legitimate provided it falls within one of the categories set out in paragraph 2 of Articles 8 to 11. However, in my view, in respect of national security as in respect of other purposes, there has to be at least a reasonable and genuine link between the aim invoked and the measures interfering with private life for the aim to be regarded as legitimate. To refer to the more or less indiscriminate storing of information relating to the private lives of individuals in terms of pursuing a legitimate national security concern is, to my mind, evidently problematic.", "In the Rotaru case, data collected under a previous regime in an unlawful and arbitrary way, concerning the activities of a boy and a student, going back more than fifty years and in one case sixty-three years, some of the information being demonstrably false, continued to be kept on file without adequate and effective safeguards against abuse. It is not for this Court to say whether this information should be destroyed or whether comprehensive rights of access and rectification should be guaranteed, or whether any other system would be in conformity with the Convention. But it is hard to see what legitimate concern of national security could justify the continued storing of such information in these circumstances. I therefore consider that the Court would have been entitled to find that the impugned measure in the present case did not pursue a legitimate aim within the meaning of Article 8 § 2. This finding would have rendered it unnecessary to determine whether the measure in question was necessary in a democratic society, because that test depends on the existence of a legitimate aim.", "If, however, the Court had preferred to accept the existence of a legitimate national security aim, it would have recalled that States do not enjoy unlimited discretion to subject individuals to secret surveillance or a system of secret files. The interest of a State in protecting its national security must be balanced against the seriousness of the interference with an applicant's right to respect for his or her private life. Our Court has repeatedly stressed “the risk that a system of secret surveillance for the protection of national security poses of undermining or even destroying democracy on the ground of defending it” (see the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 25, § 60; see also the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, pp.", "21 and 23, §§ 42 and 49, and, mutatis mutandis, the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, pp. 1866-67, § 131, and the Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom judgment of 10 July 1998, Reports 1998-IV, pp. 1662-63, § 77). This is why the Court must be satisfied that the secret surveillance of citizens is strictly necessary for safeguarding democratic institutions and that there exist adequate and effective safeguards against its abuse. In all the circumstances of this case and in the light of what has been said above in connection with the legitimate aim, it has to be concluded that the interference in question was not remotely necessary in a democratic society to attain an aim relating to national security.", "In sum then, even if a foreseeable legal basis had existed in the Rotaru case, our Court would have had to find a violation of Article 8 nevertheless, either on the ground that there was no legitimate aim for continuing an abusive system of secret files, or because such continuation was clearly not necessary in a democratic society. 1Rotaru v. Romania JUDGMENT Concurring opinion of Judge Lorenzen In this case I have voted for the conclusions of the majority as well as for the reasons behind them. However, this does not mean that I disagree in substance with what is said in the concurring opinion of Judge Wildhaber concerning the other requirements under Article 8 § 2. The reason why I have not joined it is solely that the Court has consistently held that when an interference with the rights under Article 8 is not “in accordance with the law”, it is not necessary to examine whether the other requirements of Article 8 § 2 are fulfilled. I consider it essential to maintain that case-law.", "1Rotaru v. Romania JUDGMENT Partly dissenting opinion of Judge Bonello 1. The majority found a violation of Article 8, having held its provisions applicable to the facts of the present case. I voted with the majority in finding other violations of the Convention, but I cannot endorse the applicability of Article 8. 2. Article 8 protects the individual's private life.", "At the core of that protection lies the right of every person to have the more intimate segments of his being excluded from public inquisitiveness and scrutiny. There are reserved zones in our person and in our spirit which the Convention requires should remain locked. It is illegitimate to probe for, store, classify or divulge data which refer to those innermost spheres of activity, orientation or conviction, sheltered behind the walls of confidentiality. 3. On the other hand, activities which are, by their very nature, public and which are actually nourished by publicity, are well outside the protection of Article 8.", "4. The secret data held by the State security services which the applicant requested to see related in substance to: (a) the active membership of one Aurel Rotaru in a political movement; (b) his application to publish two political pamphlets; (c) his affiliation to the youth movement of a political party; and (d) the fact that he had no criminal record (see paragraph 13 of the judgment). 5. The first three items of information refer exclusively to public pursuits. Eminently public, I would add, in so far as political and publishing activism requires, and depends on, the maximum publicity for its existence and success.", "The records did not note that the applicant voted for some particular political party – that, of course, would have invaded his no-entry zone of confidentiality. The records, in substance, register how Aurel Rotaru manifested publicly his public militancy in particular public organisations. 6. In what way does the storage of records relating to the eminently public pursuits of an individual violate his right to privacy? Until now the Court has held, unimpeachably in my view, that the protection of Article 8 extends to confidential matters, such as medical and health data, sexual activity and orientation, family kinship and, possibly, professional and business relations and other intimate areas in which public intrusion would be an unwarranted encroachment on the natural barriers of self.", "Public activism in public political parties has, I suggest, little in common with the ratio which elevates the protection of privacy into a fundamental human right. 7. The fourth element contained in the applicant's file referred to an annotation that he had no criminal record. The Court found even that to be a violation of the applicant's right to privacy. The Court underlined that the security services' notes (including some information which was over fifty years old) contained the applicant's criminal record, and concluded that “such information, when systematically collected and stored in a file held by agents of the State, falls within the scope of 'private life' for the purposes of Article 8 § 1 of the Convention” (see paragraph 44 of the judgment).", "8. This, in my view, overreaches dangerously the scope of Article 8. Stating that the storage of a person's criminal record by police authorities (even when, as in the present case, it proves that the individual has no criminal antecedents) calls Article 8 into play can have frighteningly far‑reaching consequences vis-à-vis “the interests of national security, public safety and the prevention of disorder or crime” – all values that Article 8 expressly sets out to protect. 9. I would accept, albeit on sufferance, that the storage of criminal records by the police may possibly amount to an interference with the right to privacy, but would hasten to add that such interference is justified in the interest of combating crime and of national security.", "The Court did not find it necessary to do so. 10. Of course, my unease is only focused on the censure by the Court of the storage of criminal records. The wanton and illegitimate disclosure of the contents of those records could very well raise issues under Article 8. 11.", "The Court seems to have given particular weight to the fact that “some of the information has been declared false and is likely to injure the applicant's reputation” (see paragraph 44 of the judgment). These concerns pose two separate questions: that of the falsity of the information, and that of its defamatory nature. 12. Some of the data in the applicant's security file actually referred to another person sharing the applicant's name, and not to him. This, undoubtedly, rendered that information “false” in the applicant's regard.", "But does falsity relating to matters in the public domain alchemise that public information into private data? The logic behind this sequence of propositions simply passes me by. 13. Again, I have no difficulty in acknowledging that the “false” data about the applicant, stored by the security services, were likely to injure his reputation. Quite tentatively, the Court seems lately to be moving towards the notion that “reputation” could well be an issue under Article 8[3].", "Opening up Article 8 to these new perspectives would add an exciting extra dimension to human rights protection. But the Court, in my view, ought to handle this reform frontally, and not tuck it in, almost surreptitiously, as a penumbral fringe of the right to privacy. 14. Had I shared the majority's views that the right to privacy also protects outstandingly public data, I would then have proceeded to find a violation of Article 8, as I fully subscribe to the Court's conclusion that the holding and use by security forces of the information relating to the applicant were not “in accordance with the law” (see paragraphs 57-63 of the judgment). [1].", "Note by the Registry. Protocol No. 11 came into force on 1 November 1998. [2]. That is, belonging to the Legion of Archangel Michael, an extreme right-wing, nationalist, anti-Semitic and paramilitary Romanian movement created in 1927 as a breakaway movement from a movement of similar tendencies, the League for Christian National Defence.", "The legionnaire movement gave birth to a number of political parties which influenced Romanian politics during the 1930s and 1940s. [3]. See the Fayed v. the United Kingdom judgment of 21 September 1994, Series A no. 294-B, pp. 50‑51, § 66-68, and the Niemietz v. Germany judgment of 16 December 1992, Series A no.", "251‑B, pp. 35-36, § 37." ]
[ "SECOND SECTION CASE OF GÜLER AND KEKEÇ v. TURKEY (Applications nos. 33994/06 and 36271/06) JUDGMENT STRASBOURG 7 June 2011 FINAL 07/09/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Güler and Kekeç v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Danutė Jočienė,Dragoljub Popović,Giorgio Malinverni,Işıl Karakaş,Guido Raimondi,Paulo Pinto de Albuquerque, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 17 May 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos.", "33994/06 and 36271/06) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Mahmut Güler and Mr Ahmet Kekeç (“the applicants”), on 1 August 2006. 2. The applicants were represented by Mr A. Özçelik and Mr M. Okutan, lawyers practising in Gaziantep. The Turkish Government (“the Government”) were represented by their Agent. 3.", "On 16 September 2009 the President of the Second Section decided to give notice of the applications to the Government. Under the provisions of Article 29 § 3 of the Convention, it was also decided to examine the merits of the applications at the same time as their admissibility. THE FACTS THE CIRCUMSTANCES OF THE CASES 4. The applicants were born in 1956 and 1946 respectively and live in İslahiye, Gaziantep. 1.", "The first set of proceedings 5. Each of the applicants, who were employees of the İslahiye Municipality, brought proceedings before the İslahiye Civil Court of First Instance acting as a labour court, claiming unpaid wages and other pecuniary rights on 10 October 2001 and 21 November 2001, respectively. 6. On 21 May 2004 and 23 May 2003, respectively, the İslahiye Civil Court of First Instance granted the applicants’ requests partially and ordered the payment of 14,288 Turkish Liras (TRY)[1] to the first applicant and TRY 18,514[2] to the second applicant, together with interest. These judgments became final as no appeal was filed against them.", "7. The first applicant further initiated execution proceedings before the İslahiye Execution Office to obtain the amount ordered by the İslahiye Civil Court of First Instance (file no. 2005/8415). 8. At the date of introduction of the applications, the aforementioned judgment debts were still outstanding.", "2. The second set of proceedings 9. On 14 November 2002 and 14 September 2002, respectively, the applicants retired from their jobs at the İslahiye Municipality. The town council calculated the applicants’ severance benefits accordingly. 10.", "On 18 March 2003, not having been paid the amounts awarded, the applicants brought proceedings before the İslahiye Civil Court of First Instance acting as a labour court, claiming severance benefits and other pecuniary rights. 11. On 15 July 2004 the labour court ordered the Municipality to pay TRY 11,918[3] to the first applicant and TRY 12,119[4] to the second applicant, together with interest. These judgments became final as no appeal was filed against them. 12.", "The applicants further initiated execution proceedings before the İslahiye Execution Office to obtain those amounts ordered by the İslahiye Civil Court of First Instance (file nos. 2004/351 and 2004/352). 13. At the date of introduction of the applications, the aforementioned judgment debts were still outstanding. THE LAW I. JOINDER 14.", "Given the similarity of the applications, both as regards fact and law, the Court deems it appropriate to join them. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 15. The applicants complained that the authorities’ failure to pay them their severance benefits, unpaid wages and indemnities ordered by the domestic courts violated their rights guaranteed by Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1 to the Convention. A. Admissibility 16. The Government asked the Court to dismiss the applicants’ complaints for failure to exhaust domestic remedies, as required by Article 35 § 1 of the Convention. The Government argued that the applicants had in particular failed to bring compensation proceedings against the relevant administration and/or public servants who had not complied with the requirements of the domestic courts’ decisions. The Government further maintained that the judgments of the first instance court remained valid despite the inability of the İslahiye Municipality to pay the awards made.", "In this regard, the Government also contended that the rates of statutory interest which were applicable to the awards of the applicants were higher than the inflation rates. Accordingly, the Government claimed that the applicants could not be considered to have been deprived of any rights under Article 1 of the Protocol No.1. 17. As regards the preliminary objection concerning non‑exhaustion of domestic remedies, the Court recalls in the first place that a person who has obtained an enforceable judgment against the State as a result of successful litigation cannot be required to resort to additional remedies to have it executed (see Metaxas v. Greece , no. 8415/02, § 19, 27 May 2004, and Arat and Others v. Turkey, nos.", "42894/04, 42904/04, 42905/04, 42906/04, 42907/04, 42908/04, 42909/04 and 42910/04, § 19, 13 January 2009). In the same vein, the applicants were not required to bring compensation proceedings against the administrative bodies or public servants for the purposes of Article 35 § 1 of the Convention. In any event, none of the remedies that the Government pointed to was capable of offering the applicants any prospects of success in obliging the national authorities to pay the due amounts. In this regard, the Court further observes that the execution proceedings initiated by the applicants also remained fruitless. The Government’s preliminary objection must therefore be rejected.", "18. As for the second objection, that the complaints under Article 1 of the Protocol No. 1 are manifestly ill-founded, the Court observes that it has dismissed similar objections in its previous case-law (Çiçek and Öztemel and Others, nos. 74069/01, 74703/01, 76380/01, 16809/02, 25710/02, 25714/02 and 30383/02, § 37, 3 May 2007; Ekici and Others v. Turkey (no. 28877/03, § 26, 23 September 2008).", "It sees no reason to do otherwise in the present case and therefore rejects the Government’s objection. In this regard, the Court also recalls that the applicants’ complaints relate to the authorities’ failure to execute binding judgments, not to the question whether the applicable interest rates were higher than the inflation rates. 19. The Court considers moreover that this 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 III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS TO THE NON‑ENFORCEMENT OF THE DOMESTIC COURTS’ JUDGMENTS 20. The applicants complained under Article 6 § 1 of the Convention of the State authorities’ failure to execute the judgments of 21 May 2004 and 15 July 2004 with regard to the first applicant as well as the judgments of 23 May 2003 and 15 July 2004, respectively, with regard to the second applicant.", "In the absence of any appeal, these judgments became final on different dates. 21. The Court reiterates that the right to a fair hearing includes the right to have a binding judicial decision enforced. That right would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. The execution of a judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 (Hornsby v. Greece, 19 March 1997, § 40, Reports 1997-II).", "22. It is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment debt. Whilst a delay in the execution of a judgment may be justified in particular circumstances, it may not be such as to impair the essence of the right protected by Article 6 § 1 (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 74, ECHR 1999-V). In the instant case, the applicants should not have been prevented from benefiting from the success of the litigation on the ground of the alleged financial difficulties experienced by the İslahiye Municipality.", "23. The Court considers that by failing for around seven and eight years to ensure the execution of the binding judgments of 23 May 2003, 21 May 2004 and 15 July 2004, respectively, the Turkish authorities deprived the provisions of Article 6 § 1 of the Convention of all useful effect (see, among many others, Burdov v. Russia (no. 2), no. 33509/04, §§ 62-88, ECHR 2009‑...). 24.", "There has accordingly been a violation of Article 6 § 1 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 25. The Court reiterates that a “claim” may constitute a “possession”, within the meaning of Article 1 of Protocol No.", "1, if it is sufficiently established as enforceable (see Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, § 59, Series A no. 301-B). 26. The İslahiye Civil Court of First Instance’s judgments of 23 May 2003, 21 May 2004 and 15 July 2004, respectively, provided the aforementioned applicants with enforceable claims and not simply a general right to receive support from the State. The judgments had become final as no appeal was filed against them and enforcement proceedings had been instituted.", "It follows that the impossibility for these applicants to have the judgments in their favour enforced constituted an interference with their right to the peaceful enjoyment of their possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1. 27. By failing to comply with the judgments of the labour court, the national authorities prevented the applicants from receiving the money to which they were entitled. The Government have not advanced any convincing justification for this interference and the Court considers that a lack of funds cannot justify such an omission (see, mutatis mutandis, Ambruosi v. Italy, no.", "31227/96, §§ 28-34, 19 October 2000, and Burdov v. Russia, no. 59498/00, §§ 35 and 41, ECHR 2002-III, Çiçek and Öztemel and Others, nos. 74069/01, 74703/01, 76380/01, 16809/02, 25710/02, 25714/02 and 30383/02, § 42, 3 May 2007; Ekici and Others v. Turkey (no. 28877/03, 23 September 2008, § 32). 28.", "It follows that there has been a violation of Article 1 of Protocol No. 1. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION A. Damage 29. Each of the applicants claimed 100,000 euros (EUR), in respect of pecuniary damage, corresponding to the potential financial benefits they had been deprived of on account of the non-payment of amounts ordered by the domestic courts.", "As regards non-pecuniary damage, each applicant claimed that he had suffered distress and hardship on account of the non-payment of the domestic judgment debts and requested EUR 100,000. 30. The Government contested these sums, alleging that they were based on fictitious calculations. They also submitted that, were the Court to find violations in the present cases, this would constitute sufficient compensation for any non-pecuniary damage allegedly suffered by the applicants. 31.", "The Court notes that it has found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 by reason of the non-execution of final judicial decisions. The Court considers in the light of its case-law that the payment by the Government of the outstanding judgment debts would satisfy the applicants’ claim for pecuniary damage (see, among others, Basoukou v. Greece, no. 3028/03, § 26, 21 April 2005; Ahmet Kılıç v. Turkey, no. 38473/02, § 39, 25 July 2006; Akıncı v. Turkey, no.", "12146/02, § 21, 8 April 2008; Kaçar and Others, cited above, § 30). The Court therefore considers that the respondent Government should ensure that the İslahiye Civil Court of First Instance’s judgments of 23 May 2003, 21 May 2004 and 15 July 2004, respectively, are executed by the administration in full. 32. The Court further considers that the applicants must have suffered some non-pecuniary damage which cannot be sufficiently compensated by the finding of a violation alone. Consequently, taking into account the circumstances of the case and making its assessment on an equitable basis, the Court awards each of the applicants EUR 9,400 in respect of non-pecuniary damage.", "B. Costs and expenses 33. Each of the applicants also claimed EUR 30,000 for the costs and expenses incurred before the domestic courts and the Court. They did not produce any supporting documents. 34.", "The Government contested this claim. 35. According to the Court’s case law, an applicant is entitled reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, the applicants have neither substantiated nor documented that they have actually incurred the costs claimed. Accordingly, the Court makes no award under this head.", "C. Default interest 36. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join the applications; 2. Declares the applications admissible; 3.", "Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1; 4. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final: (i) the amounts of the domestic judgment debts still owed to them, plus statutory interest applicable under domestic law; (ii) EUR 9,400 (nine thousand four hundred euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 7 June 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stanley NaismithFrançoise Tulkens RegistrarPresident [1]1. Approximately EUR 7,858 at the material time. [2]2. Approximately EUR 10,944 at the material time. [3]3.", "Approximately EUR 6,814 at the material time. [4]4. Approximately EUR 6,929 at the material time." ]
[ "FOURTH SECTION CASE OF KRZYCH AND GURBIERZ v. POLAND (Application no. 35615/03) JUDGMENT STRASBOURG 13 February 2007 FINAL 09/07/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Krzych and Gurbierz v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrG. Bonello, MrK.", "Traja,MrL. Garlicki,MrsL. Mijović,MrJ. Šikuta, MrsP. Hirvelä, judges, and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 23 January 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 35615/03) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Polish nationals, Mr Władysław Krzych and Mr Tadeusz Gurbierz (“the applicants”), on 31 October 2003. 2. The Polish Government (“the Government”) were represented by their Agent, Agent Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.", "3. On 1 September 2005 the President of the Fourth Section decided to communicate the applicant’s complaint concerning the length of proceedings to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1942 and 1946 respectively and live in Rybnik, Poland.", "5. In 1992 and 1993 the prosecutor conducted an investigation in connection with the applicants’ allegedly illegal business activities. 6. On 16 December 1993 they were charged with fraud. 7.", "In July 1994 the applicants were indicted before the Katowice Regional Court (Sąd Wojewódzki). 8. On 18 October 1994 the trial court held the first hearing. 9. In 1995 the court held nine hearings.", "Some of them were adjourned or cancelled due to the absence of witnesses. In 1996, 1997 and 1998 the trial court scheduled numerous hearings. However, most of them were either adjourned due to the absence of witnesses or cancelled. 10. On 10 December 1998 the Katowice Regional Court gave judgment.", "The court convicted the applicants and sentenced them to suspended prison terms of one year and six months and two years respectively. 11. The applicants appealed against the judgment. 12. The Katowice Court of Appeal (Sąd Apelacyjny) held one hearing on 27 April 2000 and on the same date gave judgment.", "The court quashed the impugned judgment and remitted the case. 13. On 6 September 2000 the Katowice Regional Court (Sąd Okręgowy) held the first hearing. 14. In January 2001 the court decided that the Gliwice Regional Court was competent to examine the case.", "15. The trial court held hearings in May, July and November 2001. Subsequently, hearings were held at year-long intervals: in October 2002 and September 2003. The hearing in September 2003 was held before the Racibórz District Court (Sąd Rejonowy) to which, in the meantime, the case had been transferred. 16.", "The Racibórz District Court held several hearings and on 28 September 2004 it gave judgment. The trial court convicted the applicants but reduced the suspended prison terms to which they had been sentenced. 17. The applicants appealed. 18.", "On 2 November 2004 the applicants lodged with the Katowice Court of Appeal (Sąd Apelacyjny) a complaint about a breach of the right to have their case heard within a reasonable time. They relied on the 2004 Act on complaints about a breach of the right to a trial within a reasonable time. On 14 December 2004 the Katowice Court of Appeal dismissed the complaints. The court examined the course of the impugned proceedings only as regards the period between 2002 and 2004 when the case had been pending before the District Court and established that the proceedings had been conducted diligently. It further held that the trial courts could not be held responsible for delays caused by the absence of witnesses or illness of the parties.", "19. On 21 February 2005 the Gliwice Regional Court dismissed their appeal against the judgment of 28 September 2004. The judgment is final. II. RELEVANT DOMESTIC LAW 20.", "The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12‑23, ECHR 2005‑V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005‑VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34‑46, ECHR 2005‑V. THE LAW I.", "ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 7 OF THE CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS 21. The applicants first complained that the proceedings in their case had been unfair. In particular, they alleged that the courts had committed errors of fact and law. This complaint falls to be examined under Article 6 § 1 of the Convention which, in its relevant part, reads: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” 22. The Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention.", "In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. 23. In the present case the applicants did not allege any particular failure to respect his right to a fair hearing on the part of the relevant courts. Indeed, their complaints are limited to a challenge to their allegedly wrongful conviction. Assessing the circumstances of the case as a whole, the Court finds no indication that the impugned proceedings were conducted unfairly.", "It follows that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF PROCEEDINGS 24. The applicants complained that the length of the 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 ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 25. The Government contested that argument.", "26. The applicants submitted that they had been charged on 16 December 1993. The Government did not contest that date. However, they submitted that the proceedings at issue started on 18 October1994 when the first hearing took place. Having regard to its extensive case‑law on the subject, the Court considers that the period to be taken into consideration began on 16 December 1993 when the applicants were charged, and ended on 21 February 2005 when the Gliwice Regional Court dismissed their appeal.", "It thus lasted 11 years, 2 months and 9 days for two levels of jurisdiction. A. Admissibility 27. 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 28. 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 applicants and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II) 29. 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).", "Furthermore, the Court considers that, in dismissing the applicants’ complaint that the proceedings in their case had exceeded a reasonable time, the Katowice Court of Appeal failed to apply standards which were in conformity with the principles embodied in the Court’s case-law (see Majewski v. Poland, no. 52690/99, § 36, 11 October 2005). 30. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "There has accordingly been a breach of Article 6 § 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 31. 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 32.", "The applicants claimed in total over 700,000 Polish zlotys (PLN) in respect of pecuniary damage. They also claimed PLN 54,000 each in respect of non‑pecuniary damage. 33. The Government contested their claims. 34.", "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 each of the applicants 6,000 euros (EUR) in respect of non‑pecuniary damage. B. Costs and expenses 35. The applicants also claimed over PLN 80,000 for the costs and expenses incurred before the domestic courts and before the Court.", "36. The Government contested these claims. 37. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award to each of the two applicants, who were not represented by a lawyer, the sum of EUR 100 covering costs under all heads.", "C. Default interest 38. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the excessive length of the proceedings 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 each 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 Polish zlotys at the rate applicable at the date of settlement: (i) EUR 6,000 (six thousand euros) in respect of non-pecuniary damage; (ii) EUR 100 (one hundred euros) in respect of costs and expenses; (iii) any tax that may be chargeable on the above amounts; (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 applicants’ claim for just satisfaction. Done in English, and notified in writing on 13 February 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyNicolas Bratza RegistrarPresident" ]
[ "FIFTH SECTION CASE OF KIRINS v. LATVIA (Application no. 34140/07) JUDGMENT STRASBOURG 12 January 2017 FINAL 12/04/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kirins v. Latvia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President,Erik Møse,Khanlar Hajiyev,Faris Vehabović,Yonko Grozev,Carlo Ranzoni,Mārtiņš Mits, judges,and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 29 November 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "34140/07) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Mr Andrejs Kirins (“the applicant”), on 30 July 2007. 2. The applicant, who had been granted legal aid, was represented by Mrs J. Kvjatkovska, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Mrs K. Līce. 3.", "The applicant alleged, in particular, that contrary to Articles 13 and 3 of the Convention he had not been awarded appropriate compensation for bodily injuries inflicted on him by a police officer. He also complained under Article 6 of the Convention that the damages proceedings had been unfair and had not complied with the reasonable time requirement. 4. On 15 June 2010 the above complaints were communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1971 and lives in Daugavpils. A. Background information 6. On 16 January 1995 Inspector S.K.", "of the Daugavpils City Police arrested the applicant and took him to the police station. The applicant, who had category 2 disability status in relation to his eyesight, did not offer any resistance. Subsequently, S.K. beat up the applicant by delivering several blows to his head, near to his eyes. When the applicant fell to the ground, S.K.", "kicked him at least once in the chest. 7. After this injury, the deterioration of the applicant’s sight accelerated, leading to retinal detachment. In 1995 and 1996 he had several eye operations, including three in a hospital in Moscow, but the retinal detachment continued to progress. In April 1996 he was granted category 1 disability status for complete loss of vision.", "B. Criminal proceedings against S.K. 8. On 30 January 1995 criminal proceedings were initiated against S.K. On the same date the applicant was joined as a civil party to those proceedings.", "9. In February 1995 a forensic medical report was drawn up. It stated that on 16 January the applicant had sustained numerous injuries, which by their nature were considered moderate, resulting in long-term health problems of more than twenty-one days and permanently reducing his capacity to work by at least a third. 10. On 22 March 1995 charges were brought against S.K.", "and on 8 August 1995 the case was sent to the Daugavpils Court for adjudication. 11. S.K. did not appear at the first hearing on 1 November 1995. The Daugavpils Court held that the case could not be heard in his absence and issued a warrant for his arrest.", "In December 1995 the warrant was sent to the Daugavpils police station. 12. During the same hearing the applicant’s lawyers asked the trial court to order a second forensic medical report in an attempt to establish the nature and seriousness of the injuries sustained. The prosecutor supported the request and the Daugavpils Court ordered a report. 13.", "In January 1998, January 1999 and August 1999 the Daugavpils Court asked the Daugavpils police station for information about the measures taken and results achieved in executing the arrest warrant. In reply to each request the police sent identical responses stating that S.K. was wanted and that the trial court would be informed when he was caught. In August 1999 the police informed the Daugavpils Court that, according to information received, S.K. had left Latvia.", "14. In December 1996 the forensic medical service reminded the Daugavpils Court that it had not received any original medical documents. In July 1998 and January 1999 the Daugavpils Court asked the Russian authorities for assistance in obtaining originals of medical records relating to the applicant’s operations (see paragraph 7 above). For unknown reasons the documents were not obtained and as a result, the report could not be drawn up. 15.", "On 16 November 1999 the prosecutor asked the trial court to order a forensic medical examination to confirm the classification of the offence. After the initial forensic medical report the applicant’s health had deteriorated and he had completely lost his sight. According to the prosecutor, there were therefore grounds to consider that that might be related to the injuries which had been inflicted on the applicant in 1995. The Daugavpils Court upheld the prosecutor’s request and ordered the third forensic medical examination. A medical panel was asked to comment on what kind of trauma had caused the injuries; whether the applicant had lost his sight as a result of the injuries inflicted on him in 1995; to what extent he had been incapacitated before the injuries and their severity.", "16. On 7 December 1999 a medical report was drawn up. It stated that on 16 January 1995 the applicant had sustained injuries which by their nature were considered minor, resulting in health problems of no more than six days. The report continued that prior to the injuries the applicant had had serious and progressively deteriorating myopia. The applicant’s sight problems had become worse as a result of the head injuries sustained on 16 January 1995, and that had led to further deterioration of his sight.", "It was also noted that, under domestic law, the worsening of a pre‑existing condition did not as such serve as grounds for reclassifying the seriousness of an injury. Serious eye disorders could develop and result in the loss of sight even without trauma. In the light of the above, the report did not establish a direct causal link between the injuries inflicted on the applicant in 1995 and his loss of sight. 17. In April 2000 the Daugavpils Court refused to grant the applicant’s request for another medical report for lack of reasoning.", "18. From June 2000 to February 2003 a total of five hearings were postponed because experts, doctors, including an ophthalmologist, did not attend and several medical experts needed to be called. In particular, on two occasions between 27 September 2001 and 9 January 2002 and between 18 December 2002 and 24 February 2003 hearings were postponed at the request of the applicant, as he had asked for a doctor and a forensic expert to be summoned. 19. On 10 April 2002, at the request of Daugavpils Court, a panel of experts drew up the fourth medical report which stated that the applicant had suffered at least one blow to his right eye and to his thorax.", "The injuries sustained by him were considered minor. The report continued by stating that on 16 January 1995 the applicant had suffered injuries to his head that had resulted in a serious worsening of his eye disorder (myopia) with the recurrence of retinal detachments in both eyes followed by further deterioration of his sight. The worsening of a pre-existing condition, including after earlier injuries, did not in itself provide a basis for determining a more serious classification of bodily injury. A severe and progressive eye disorder (myopia) could deteriorate and lead to retinal detachment even if no injuries had been suffered, and eventually lead to complete loss of vision. The experts concluded that the applicant’s head injuries of 16 January 1995 had no direct causal link with the subsequent deterioration of his vision and his category 1 disability status.", "20. On 23 February 2003 the applicant lodged a claim with the trial court for compensation for pecuniary and non-pecuniary damage. 21. On 27 February 2003 the Daugavpils Court found guilty S.K. in absentia for abusing his official power in a violent and disrespectful manner.", "He was sentenced to three years’ imprisonment. 22. In relation to the applicant’s civil claim the Daugavpils Court held that the total amount claimed, namely 156,853 Latvian lati (LVL) (around 224,075 euros (EUR)) and 8,400 United States dollars (USD) had not been supported by evidence. The majority of the documents confirming payment of the medical expenses had been submitted in German and English, and in order to invite a translator it would have to delay the adjudication. In addition, the applicant had not stated which part of the expenses related to the consequences of the injuries sustained.", "Accordingly, the trial court decided as follows: “To recognise the [applicant’s] rights to compensation from the State for material, pecuniary and non-pecuniary damage caused by the criminal offence, and to remit (nodot) the question of the precise amount to be awarded/enforced (piedzīt) to the court to decide in civil proceedings”. The judgment became final on 11 March 2003. C. Civil proceedings for damages 23. On 20 April 2004 the Riga Regional Court registered the applicant’s civil claim dated 23 March 2003 against the Ministry of the Interior and the State Police. The applicant claimed compensation for damage caused by the criminal offence committed by Inspector S.K.", "In the claim the applicant relied on the operative part of the judgment of the Daugavpils Court (see above), section 27 of the Law on Police and various provisions of the Civil Law which regulated tort liability. Relying on sections 2347 and 2349 of the Civil Law in particular, the applicant claimed pecuniary and non-pecuniary (morālo kaitējumu) damages of LVL 197,624.31 (EUR 282,320) for blindness, mutilation and disfigurement (sakropļojums un izķēmojums), loss of future income (atrautā peļņa) and medical expenses. 24. On 2 February 2006 the Riga Regional Court, acting as a first‑instance court, relied, amongst other provisions, on Article 92 of the Constitution and section 27 of the Law on Police, and accepted the applicant’s civil claim in part. He was awarded LVL 90,000 (EUR 128,500) in non-pecuniary damages for the damage caused to his health and LVL 4,502.81 (EUR 6,432.58) in pecuniary damages from both defendants on a pro rata basis for his medical expenses.", "25. According to the Riga Regional Court, the applicant’s claim for compensation for non-pecuniary damage came within the scope of section 2349 of the Civil Law, a lex specialis providing no specific criteria for awarding compensation. The court referred to the findings of the experts in the criminal proceedings and stated that the applicant’s bodily injuries caused by the police officer might have been the reason for the worsening of his eye disorder (myopia) that had resulted in a rapid deterioration of his sight and eventually complete loss of vision. 26. On 27 September 2006 the Supreme Court reviewed the case following appeals by the applicant, the State Police and the Ministry of the Interior.", "It ruled that the first-instance court had been incorrect in concluding that the applicant’s injuries had amounted to mutilation and disfigurement under section 2349 of the Civil Law. The applicant’s claim for compensation for non-pecuniary damage was dismissed. The pecuniary damages were reduced to LVL 4,427.81 (EUR 6,325.44). 27. Regarding the applicant’s claim for pecuniary damages, the Supreme Court ruled that the judgment adopted in the criminal proceedings against S.K.", "only proved that he had committed a crime using violence against the applicant. The four usual criteria for establishing tort liability and compensation thus had to be satisfied (see paragraph 30 below). In the judgment of 27 February 2003 the first and fourth criteria had been established. The Supreme Court analysed all the medical data before it concerning the applicant’s health and concluded that the State Police were liable to pay pecuniary damages to the applicant for his medical expenses under section 2347 of the Civil Law. 28.", "Regarding the applicant’s claim for non-pecuniary damages, the Supreme Court concluded that the loss of the applicant’s sight had occurred under specific circumstances, including his previous state of health. It was also noted that the loss of his sight was not directly linked to the bodily injuries sustained by him on 15 January 1995. There was therefore no evidence to prove that his bodily injuries had amounted to mutilation or disfigurement, as provided in section 2349 of the Civil Law. 29. In a preparatory meeting on 22 February 2007 the Senate of the Supreme Court dismissed an appeal on points of law by the applicant as not raising any relevant legal issues.", "D. Other relevant information 30. In a letter dated 21 October 2010 addressed to the Government, the Supreme Court stated that there were no grounds for the national courts to extend the scope of the applicant’s claim and decide on the awarding of non-pecuniary damages on the following grounds. The applicant had claimed pecuniary and non-pecuniary damages for injuries sustained as a result of police ill-treatment. In this regard he had relied on sections 2347 to 2349 of the Civil Law, which provided that compensation could be claimed for mutilation and disfigurement. In order to determine whether the consequences of the alleged injuries were those stipulated in the legal provision, the domestic courts had to establish the essential conditions of tort liability, namely (i) unlawful conduct, (ii) damage, (iii) a causal link between the unlawful conduct and damage claimed and (iv) fault.", "In the applicant’s case, no such conclusions could be drawn on the basis of the medical documents. The applicant had lost his sight owing to various coexisting circumstances, not as a result of the injuries sustained in January 1995. 31. The Supreme Court also stated that with the amendments of 1 March 2006 the Civil Law contained a general legal provision (section 1635 of the Civil Law) for claiming non-pecuniary damages. Nevertheless, it did not have retroactive effect and therefore the national courts could not apply it in the applicant’s case.", "According to the Supreme Court, no such obligation could be inferred from any other legal acts on the account that the subject matter of the present civil dispute did not concern the public law obligation which the Latvian State had undertaken in the area of human rights. 32. Furthermore, the Supreme Court indicated that in the applicant’s case the ten-year statutory limitation period for claiming damages had started to run on 11 March 2003, the day the final judgment in the criminal case became effective. The Supreme Court therefore considered that the applicant still had the right to rely on Article 92 of the Constitution and lodge a claim for compensation for damage caused by a criminal offence. In that regard the Supreme Court referred to the judgment of 16 December 2009 in the so-called “Talsi tragedy” case, in which it ruled that a person has the right to receive compensation for violations of his or her human rights.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. Legislation on the right to compensation 33. The relevant Articles of the Constitution (Satversme) and provisions of the Civil Law (Civillikums) (before and after the amendments that were effective from 1 March 2006) pertaining to compensation for pecuniary and non-pecuniary damage are quoted in full in Zavoloka v. Latvia (no. 58447/00, §§ 15-19, 7 July 2009).", "Sections 1635 and 1779 are also mentioned in the case of Holodenko v. Latvia (no. 17215/07, § 45, 2 July 2013). B. Criminal Code/Code of Criminal Procedure 34. The Criminal Code (Latvijas Kriminālkodekss), in force at the material time and effective until 1 April 1999, provided that any abuses of power connected with violence, firearms or actions that could cause anguish and offend a victim’s dignity were punishable by two to ten years’ deprivation of liberty (Article 1621(2)).", "35. Under Article 307 of the former Code of Criminal Procedure (Latvijas Kriminālprocesa kodekss), in force until 1 October 2005, the courts in criminal proceedings may, in exceptional circumstances, recognise a victim’s right to receive compensation and leave the civil courts to decide the precise amount of the claim. C. Civil Law 36. Before the amendments of 1 March 2006, section 1635 of Civil Law (Civillikums), provided as follows: “1635 Any infringement, i.e. any unlawful act by its nature, gives to the victim the right to seek compensation from the person who had caused it, insofar as he or she may be held responsible for such an act.", "Note: the concept of an act is understood in the broad sense and encompasses not only action but also an omission”. 37. After the amendments of 1 March 2006, section 1635 provides as follows: “1635 Any infringement, i.e. any unlawful act by its nature which has caused damage (including moral harm) gives to the victim the right to seek compensation from the person who had caused it, insofar as he or she may be held responsible for such an act. By moral harm should be understood any physical or mental suffering resulting from the infringement ... .", "When the unlawful act under the second paragraph of this article takes the form of a criminal offense against life, health, morals, sexual integrity, freedom, honor or dignity of a person, against family or against a minor, it is presumed that the victim has suffered mental harm as a result of such an act. In all other cases, the victim must prove the existence of a moral harm. Note: the concept of an act is understood in the broad sense and encompasses not only action but also an omission.” 38. Under section 2347 of the Civil Law, if a person is responsible for inflicting bodily injury upon another person through an illegal action, the respective person shall compensate the victim the medical expenses and the loss of future income. Under section 2349 of the Civil Law, the domestic courts shall award compensation for bodily injuries which had caused mutilation and disfigurement.", "D. Civil Procedure Law 39. Section 7(2)) of Civil Procedure Law (Civilprocesa likums) provides that if a civil claim has not been examined in the criminal proceedings, the victim may apply to the civil courts. 40. Section 74(2)(6) provides that in civil proceedings parties have the right to submit requests to court. 41.", "Under section 96(3) a judgment that has come into effect in criminal proceedings is binding on the court adjudicating a case regarding the civil liability of the person against whom the judgment was made only with respect to the issues of whether a criminal act occurred and whether it was committed by that person. E. Law on Police 42. The Law on Police (Likums par policiju), as in force at the material time, provided that a police officer was liable for any unlawful actions in accordance with the procedures specified by law. If a police officer violated an individual’s rights and lawful interests, the police authorities are to take measures to redress the violation and award compensation for damage caused (section 27(1)). F. Examples of domestic case-law concerning claims against the State for non-pecuniary damages 43.", "In one of the so-called “Talsi tragedy” cases, in September 2006 the claimants brought a civil claim against the Ministry of Interior and the State Rescue Service. They claimed compensation for non-pecuniary damage caused by an incident in 1997 in which the claimants’ child died owing to the negligence of State officials. The claimants relied, inter alia, on Article 92 of Constitution and section 1635 of the Civil Law. 44. On 16 December 2009 the Senate of the Supreme Court (case no.", "SKC-579/2009) examined the case in an extended composition (paplašinātā tiesas sastāvā) of seven judges instead of the usual three and awarded compensation for the non-pecuniary damage caused in 1997. The Senate dismissed an appeal on points of law by the defendants, who had argued that the fundamental rights chapter of the Constitution, which had come into effect on 6 November 1998, could not be applied retroactively. The Senate established that the State’s obligation to guarantee respect for human rights derived from the Convention and from Article 1 of the Constitution, which established that the Republic of Latvia was a democratic republic. Even before the amendments to the Constitution, the Constitutional Law of 10 December 1991 had set out similar principles. Accordingly, since there had been a violation of the claimants’ rights protected both under the Convention and the Constitution, the State was obliged to award compensation for non-pecuniary damage.", "45. In another civil case (no. SKC-315, final decision adopted by the Senate on 25 April 2007), a claimant initiated civil proceedings against the State in September 2005 for pecuniary and non-pecuniary damages for serious injuries he had sustained at the hands of prison guards in June 1995, before the Convention came into effect in Latvia. In the claim he relied, inter alia, on section 2349 of the Civil Law and Articles 3 and 13 of the Convention. The domestic courts partly upheld the claim and awarded him LVL 10,000 in non-pecuniary damages under section 2349 for his injuries.", "They dismissed the remainder of the applicant’s claim for non-pecuniary (moral) damages, stating that section 1635 of the Civil Law provided for compensation for moral damage from 1 March 2006, but did not have retroactive effect. The domestic courts also dismissed as unfounded the applicant’s reliance on the Convention, which was not binding for the Republic of Latvia at the time of the events in question. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 46. The applicant complained that the domestic proceedings in which his damages claim had been adjudicated had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, the relevant part of 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 ...” A. Admissibility 1.", "The parties’ observations 47. The Government raised several inadmissibility arguments in relation to the criminal and civil proceedings in which the applicant’s damages claim had been examined. In relation to both sets of proceedings they argued, firstly, that the applicant had not had victim status as he had never expressed any oral or written complaints pertaining to any delays. Accordingly, the applicant had not considered himself to be a victim of a violation of Article 6. 48.", "Secondly, the Government argued that the applicant had failed to exhaust domestic remedies. In their view, he could have asked the domestic courts to expedite both sets of proceedings by relying on section 74(2)(6) of the Civil Procedure Law (see paragraph 40 above). He could have also asked for disciplinary measures to be taken against the judges who had failed to ensure compliance with his rights under Article 6 § 1 of the Convention. 49. Lastly, in relation to the criminal proceedings the Government argued that the applicant had not complied with the six-month rule as they had already concluded on 11 March 2003.", "50. The applicant argued that he had had no effective remedies and that the six-month time-limit should be calculated from the date of adoption of the final judgment in the second set of proceedings. 2. The Court (a) Victim status and the exhaustion of domestic remedies 51. The Court reiterates that, in principle, an applicant’s ability to claim to be a victim of a violation of a Convention right will depend on the redress the domestic remedy will have afforded him or her (see Scordino v. Italy (no.", "1) [GC], no. 36813/97, § 182, ECHR 2006‑V). In terms of a breach of the reasonable time requirement, remedies are considered effective if they can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (see Sürmeli v. Germany [GC], no. 75529/01, § 99, ECHR 2006‑VII and the case-law cited therein). 52.", "In respect of complaints concerning the excessive length of judicial proceedings in Latvia, the Court has already found that owing to its discretionary character, the remedy under section 74(2)(6) of the Civil Procedure Law cannot be considered a mechanism for accelerating the proceedings (see Veiss v. Latvia, no. 15152/12, § 68, 28 January 2014). Similarly, the Court has already concluded that at the material time there were no compensatory remedies for excessively lengthy proceedings (ibid. § 71). 53.", "Given that there were no effective remedies in place which could deprive the applicant of his victim status, the Court dismisses the Government’s objection concerning the applicant’s alleged lack of victim status and the non-exhaustion of domestic remedies. (b) Six-month rule 54. With regard to observance of the six-month rule, the Court reiterates that Article 6 § 1 is applicable to civil parties in criminal proceedings if from the moment the applicants are joined as civil parties until the conclusion of the criminal proceedings the civil and criminal limbs remain closely linked (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 62, ECHR 2002‑I). 55.", "In the course of the criminal proceedings the domestic courts recognised the applicant’s right to compensation for the ill-treatment inflicted by the police officer and decided to transfer the assessment of the amount of compensation to the civil courts (see paragraph 22 above). As in the case of Liģeres v. Latvia (no. 17/02, § 58, 28 June 2011), the Court also finds in this case that both sets of proceedings, criminal and civil, were closely linked. The Court therefore considers that it would be inappropriate to separate them and assess their length in isolation. Accordingly, the Government’s objection in this regard must be rejected.", "56. The Court considers that the applicant’s complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ observations 57. In relation to the criminal proceedings the applicant argued that in 1999 the trial court had already been aware that the defendant had been evading justice, but it had taken four more years to convict him in absentia. Moreover, the delays he had caused had been based on justified requests which had not required the courts to delay the case for such long periods. In any event, he had raised his two requests when the proceedings had already been pending for six years. 58.", "In relation to the length of the civil proceedings the applicant disagreed with certain facts and contended that he had submitted his civil claim as early on as 23 March 2003, not 20 April 2004 as incorrectly stated by the Government. 59. The Government pointed to several factors which contributed to delays in the criminal proceedings, such as the defendant’s absence, the applicant’s requests to have several hearings adjourned and the complexity of the case. They noted that it was necessary to clarify whether the injuries sustained by the applicant had caused his blindness. In relation to the civil proceedings, the Government noted that they had been concluded in two years and ten months and had therefore fully complied with the speediness requirement.", "2. The Court (a) Period to be taken into consideration 60. The Court reiterates that in cases where an applicant is first joined as a civil party claiming damages in the criminal proceedings and then institutes separate civil proceedings, the combined length of proceedings is relevant for the purposes of Article 6 § 1 of the Convention (see, mutatis mutandis, Codarcea v. Romania, no. 31675/04, §§ 78-85, 2 June 2009). 61.", "The Court observes that the applicant’s damages claim was first examined in criminal proceedings which lasted a total of eight years, one month and eleven days at one level of jurisdiction. It was later examined in civil proceedings which lasted a total of two years, ten months and four days at three levels of jurisdiction. 62. In the combined proceedings the period to be taken into consideration for the purposes of this complaint is eight years, six months and nineteen days at four levels of civil and criminal courts. The period began on 27 June 1997 when the Convention entered into force in respect of Latvia, and ended on 22 February 2007 when a final decision in respect of the applicant was taken in the civil proceedings.", "63. The Court has excluded the period from 30 January 1995 to 27 June 1997 which falls outside the Court’s temporal jurisdiction, and the period from 11 March 2003 to 20 April 2004 when no proceedings were pending. Nevertheless, in assessing the reasonableness of the length, account must be taken of the state of the proceedings at the time the Convention entered into force in respect of Latvia (see Lavents v. Latvia, no. 58442/00, § 86, 28 November 2002). The Court therefore notes that on that date the proceedings had been already pending for two years, four months and twenty-seven days.", "(b) Reasonableness of the length of proceedings 64. 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 as well as what was at stake for the applicant (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII, and Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). Moreover, given the absolute nature of the rights guaranteed under Article 3 of the Convention and the interests at stake for alleged victims of Article 3 violations, in proceedings related to the alleged excessive use of force by State officials the domestic authorities are under a positive obligation to carry out an effective investigation into the allegations with particular diligence (see Krastanov v. Bulgaria, no.", "50222/99, §§ 68 and 70, 30 September 2004). 65. The Court observes at the outset that the criminal case concerned charges brought against a police officer for excessive use of physical force, which proved to be uncontested, against the applicant who had category 2 disabled status at the material time. 66. The criminal case had two elements adding to its complexity.", "Namely, the evading of justice by the accused S.K., and the need to invite forensic medical experts to report on the seriousness of the injuries sustained, including on the causal link between these injuries and the alleged deterioration of the applicant’s health. 67. As to the conduct of the applicant, the Court observes that the proceedings were postponed twice at his request so that witnesses could be summoned (see paragraph 18 above). The overall period of delays attributable to him did not exceed six months which, given the overall length of the combined proceedings, is not significant. Moreover, there is nothing to suggest that he made use of his procedural rights with undue delay (contrast Idalov v. Russia [GC], no.", "5826/03, § 189, 22 May 2012). 68. The Court however notes the long period of delay attributable to the authorities. Firstly, the most significant delay of nearly three years was due to the absence of the accused S.K. at the initial stages of adjudication of the criminal case.", "In this connection, apart from the standard annual letters in which the police informed the trial court that the accused was wanted (see paragraph 13 above), there is no information about the measures taken in the search for his whereabouts. Secondly, even though the second forensic medical report was ordered as early as December 1995 and the medical experts soon after repeatedly asked the Daugavpils Court to produce various medical documents, it appears from the case file that any activities in that regard had not been carried out until 1998 (see paragraphs 12 and 14 above). 69. The applicant’s subsequent claim for damages in the civil courts was examined in two years and ten months at three levels of jurisdiction (see paragraphs 23-29 above). Nevertheless, this period must be examined in the light of all the circumstances of the case.", "To this effect the Court observes that overall the combined proceedings lasted eleven years, including the two-year period which fell outside the Court’s jurisdiction (see paragraph 63 above). Given that the aim of the proceedings was to provide compensation for excessive use of force by a police officer, the domestic authorities did not act with the requisite diligence expected from them in this type of cases. 70. In the light of the above, the Court finds that the proceedings exceeded a reasonable time within the meaning of Article 6 and that there has, accordingly, been a violation of that Article. II.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION 71. Relying on Article 6, the applicant complained that the domestic proceedings in which his damages claim had been adjudicated had been unfair. In particular, even though the trial court had recognised his right to compensation from the State for both pecuniary and non-pecuniary damage, in the course of subsequent civil proceedings his claim for non-pecuniary damages had been dismissed. The applicant also relied on Articles 3 and 13 of the Convention, complaining that he had not been awarded appropriate compensation for the bodily injuries inflicted on him by a police officer. 72.", "The Court observes from the applicant’s initial complaints (see paragraph 3 above) and the parties’ observations that the applicant primarily complained that he had not been able to receive compensation from the State in the form of non-pecuniary damages for an alleged Article 3 violation committed by a State official. Being master of the characterisation to be given in law to the facts of the case and having regard to the similarity of the issues raised, the Court decides to examine the applicant’s complaints under Article 13 in conjunction with Article 3 of the Convention, which read as follows: 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 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 73. The Government argued that the applicant had failed to exhaust domestic remedies. Notably, he could have relied on Article 92 of the Constitution or, from 1 March 2006, on section 1635 of the Civil Law and asked for compensation for non-pecuniary damage caused by ill-treatment at the hands of a police officer. In this connection, the Government referred to one of the “Talsi tragedy” cases (see paragraph 43 above).", "74. The applicant did not comment on this issue. 75. The Court considers that the non-exhaustion arguments raised by the Government are closely related to the very substance of the complaint under Article 13 of the Convention, and should be joined to the merits. 76.", "The Court, having regard to the conviction of the perpetrator S.K. for abusing his official power by inflicting numerous injuries on the applicant, notes that it is not in dispute that the applicant had an arguable complaint under Article 13 in conjunction with Article 3 of the Convention. 77. Accordingly, the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. The parties’ observations (a) The applicant 78. The applicant maintained that he had not received any compensation for damage caused by his ill-treatment by the police, apart from a small amount in respect of medical expenses. 79.", "He contended that the final judgment in the criminal proceedings entitled him to pecuniary and non-pecuniary damages. In this connection, he argued that the Government had provided a misleading translation of the pertinent pieces of national legislation. Namely, section 307 of the Criminal Procedure Code provided that a victim in criminal proceedings had the right “to receive compensation”, and therefore the civil courts did not have discretion to award or not award pecuniary and non-pecuniary damages. They only had to decide the exact amount of compensation. 80.", "Next, the applicant argued in essence that the domestic courts had arbitrarily interpreted the domestic law when they had decided to dismiss his claim for non-pecuniary damages. In this connection, he submitted that reference to the wrong legal provision in his claim could not have deprived him of compensation for non-pecuniary damage. He relied on the jura novit curia doctrine and contended that in his particular case, taking into consideration the fact that the damages proceedings had altogether lasted twelve years, it had been for the domestic courts to associate the facts raised by him with the correct legal provision in a manner compatible with the general principles of national and international law. 81. The applicant also contended that the alleged lack of a causal link between the injuries and his blindness could have only affected the amount of compensation.", "In this connection, he referred to various medical reports indicating that the injuries had accelerated the loss of his sight, but claimed that the national courts had overlooked that evidence. 82. Lastly, the applicant pointed to the fact that the explanations provided by the Supreme Court and relied on by the Government had been drafted by one of the judges who had adopted the contested decision in the civil proceedings. (b) The Government 83. The Government argued that the domestic courts in the criminal and civil proceedings had assessed different issues in relation to the applicant’s compensation claim.", "They referred to section 307 of the Criminal Procedure Code and contended that in the course of the criminal proceedings the Daugavpils Court – owing to the applicant’s own failure to submit documents substantiating his claim as a victim – had only recognised his right “to claim compensation” for pecuniary and non-pecuniary damage. The amount of the claim had been left to the civil courts to decide (see paragraph 22 above). 84. The Government also referred to section 96 of the Civil Procedure Law, arguing that civil courts were bound by the findings of criminal courts only insofar as they directly concerned the nature of the crime committed and the defendant’s guilt. Therefore, when establishing the State’s civil liability in the civil proceedings, the civil court had to establish whether there was a causal link between the injuries inflicted on the applicant by the State agent and the alleged deterioration of the applicant’s health.", "85. In respect of the applicant’s claim for non-pecuniary damages, the Government argued that the national authorities should not bear responsibility for legal errors made by the applicant, whose claim had been too narrow in scope. In his claim he had relied on legislation which provided for compensation for pecuniary and non-pecuniary damage for mutilation or disfigurement only (see paragraph 33 above). On this head the applicant’s civil claim for pecuniary damages (medical expenses) had been partly upheld but the claim for non-pecuniary damages had been dismissed on the grounds that the domestic courts could not establish a causal link between the unlawful actions of the State authorities and the applicant’s loss of sight. Consequently, the civil court could not conclude that the applicant had either been mutilated or disfigured.", "Furthermore, the Government referred to the Supreme Court’s letter of 21 October 2010 (see paragraphs 30‑32 above) and asserted that the applicant would have had much better prospects of success if he had claimed compensation for non‑pecuniary damage for an unjustified violation of his rights, as done by the claimants in the “Talsi tragedy” case. Moreover, the applicant could still use this remedy. 2. The Court (a) General principles 86. The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured.", "The effect of that provision is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and grant appropriate relief. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint. However, the remedy required by Article 13 must be “effective” in practice as well as in law (see Jeronovičs v. Latvia [GC], no. 44898/10, § 107, 5 July 2016). Where an applicant alleges ill-treatment at the hands of a State agent in breach of Article 3, the Court has repeatedly found that two measures are necessary to provide sufficient redress.", "Firstly, the State authorities must have conducted a thorough and effective investigation capable of leading to the identification and punishment of those responsible. Secondly, an award of compensation to the applicant is required where appropriate or, at least, the possibility of seeking and obtaining compensation for the ill-treatment, with a level of compensation awarded at domestic level commensurate to the alleged violation (see Gäfgen v. Germany [GC], no. 22978/05, §§ 116 and 118, ECHR 2010). 87. In relation to compensation, the Court reiterates that in the event of a breach of Articles 2 and 3 of the Convention, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should, in principle, be available as part of the range of possible remedies (see McGlinchey and Others v. the United Kingdom, no.", "50390/99, § 66, ECHR 2003‑V). (b) Application of the general principles (i) Effective investigation 88. As to the existence of a thorough and effective investigation, the Court observes that the applicant was a civil party to criminal proceedings initiated against a police officer for the use of excessive force against him. The trial court recognised the State official’s guilt and sentenced him to imprisonment. 89.", "In the light of the above, the Court is satisfied that the above mechanism provided an investigation into the alleged ill-treatment in compliance with the standards of Article 3 of the Convention. (ii) Award of compensation 90. The applicant initiated civil proceedings against the State for pecuniary and non-pecuniary damages. He relied on the judgment of the trial court which had found the police officer guilty of willful ill-treatment. He also relied on various tort liability provisions of the Civil Law (see paragraph 23 above).", "91. In relation to the claim for pecuniary damages, the Court observes that in the civil proceedings referred to above the applicant was partly successful to the extent that he recovered his medical expenses (see paragraph 26 above). As far as it may be understood from the applicant’s observations that he was dissatisfied with the amount of compensation for pecuniary damage (see paragraph 78 above), the Court reiterates that the domestic courts are clearly in a better position to determine the existence and quantum of such damages (see Burdov v. Russia (no. 2), no. 33509/04, § 100, ECHR 2009).", "In the present case the Court sees no reason to call into question the domestic courts’ assessment of the evidence and their conclusions in that regard. 92. Turning next to the availability of non-pecuniary damages, the Court observes that the remainder of the applicant’s claim was dismissed by the appellate court on the grounds that it could not establish the necessary conditions of tort liability under section 2349 of the Civil Law for mutilation and disfigurement (see paragraph 27 above). 93. According to the applicant, the civil courts had to rely on the findings of the criminal courts and award him non-pecuniary damages.", "The Government however noted the strictly distinct nature of criminal and civil proceedings, and blamed the applicant for diminishing his prospects of successful redress by relying on a specific tort liability provision under section 2349 of the Civil Law (see paragraph 85 above). 94. The Court does not consider that it should make an assessment on the question to what extent under domestic law civil courts in damages proceedings were bound by criminal courts’ findings, or whether in the present case the actions of a State official could have triggered tort liability under section 2349 of the Civil Law for disfigurement. In this connection, the Court reiterates that it is primarily for the national authorities, notably the courts, to resolve problems with the interpretation of national legislation (see, among other authorities, Perez v. France [GC], no. 47287/99, § 82, ECHR 2004‑I).", "What the Court finds important to assess is whether, given that in the civil proceedings the applicant brought to the domestic court’s attention an “arguable complaint” under the Convention, national law did allow the substance of that complaint to be dealt with and reparation to be made for the non-pecuniary damage caused (see, mutatis mutandis, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000‑XI). To that effect the Court will examine in turn the mechanisms which, according to the Government, provided or could have provided more success to the applicant’s claim for non-pecuniary damages for his Article 3 grievances (see paragraph 73 above). (α) Strict liability provision under the Constitution 95. As to the Government’s first argument that the applicant had to claim compensation under Article 92 of the Constitution, the Court reiterates at the outset that the issue of exhaustion of remedies is normally determined by reference to the date the application was lodged with the Court, unless the specific circumstances of a case justify an exception (see Baumann v. France, no.", "33592/96, § 47, ECHR 2001-V (extracts)). 96. In the present case the final decision in the compensation proceedings in the applicant’s case was adopted in February 2007 and the application was lodged in July 2007. The Court notes that even though the first-instance court had in February 2006 awarded the applicant non‑pecuniary damages under, inter alia, Article 92 of Constitution (see paragraph 24 above), that judgment was quashed by a higher court on the grounds that the conditions of liability had not been met (see paragraph 26 above). The Court further notes that in the case of Bazjaks v. Latvia (no.", "71572/01, § 133, 19 October 2010), the Government failed to demonstrate that claiming compensation under Article 92 of the Constitution was an effective remedy with regard to Article 3 complaints. In the present case, however, the Government referred to a judgment in one of the “Talsi tragedy” cases (see paragraph 43 above). That example of case‑law shows that it was not until 2009 that the Senate, in a plenary session, decided for the first time the legal grounds for awarding compensation for non-pecuniary damage caused in the circumstances that happened before the Convention came into effect. Noting that the general statutory provision providing the right to claim non-pecuniary damages did not have retroactive effect prior to 1 March 2006 (see paragraph 31 above), at the time the applicant’s case was reviewed by the civil courts the legal grounds for claiming non-pecuniary damages cannot be established in cases where, as in the case of the applicant, specific tort liability provisions could not be invoked. 97.", "Noting that there are no examples of domestic case-law in which the national courts had at the material time applied Article 92 of the Constitution alone for awarding non-pecuniary compensation, the Court is not persuaded that at the relevant time that remedy was effective and available to the applicant in theory and practice. (β) General tort liability provision under the Civil Law 98. As regards the Government’s next argument that the applicant had failed to rely on section 1635 of the Civil Law (as effective from 1 March 2006) and claim compensation for non-pecuniary damage in the civil courts, the Court reiterates that, as it had been confirmed by the Supreme Court, the invoked provision did not have retroactive effect (see paragraph 31 above). 99. To the extent it could be understood from the Government’s arguments that the applicant had to rely on section 1635 of the Civil Law and institute new damages proceedings following the change in the domestic case-law in 2009 (see paragraphs 43-44 and 84 above), the Court reiterates that the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism, examining whether, given all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see Akdivar and Others v. Turkey, 16 September 1996, § 69, Reports of Judgments and Decisions 1996‑IV).", "100. As held above, at the material time, i.e. before March 2006, the applicant invoked damages proceedings which provided him a redress to his pecuniary losses (see paragraph 91 above). There were no other provisions which, if relied on by the applicant before 1 March 2006, would have given him more success in obtaining pecuniary or non-pecuniary damages. 101.", "Furthermore, the Court emphasises that the applicant sought non-pecuniary damages for willful ill-treatment by State officials in breach of Article 3. Given the fundamental importance of the prohibition of torture and inhuman and degrading treatment (see, for example, Jeronovičs v. Latvia, cited above, § 105), it would be even more important that the authorities put in place a compensatory remedy the exhaustion of which does not impose a disproportionate burden on the applicant. To this effect, the Court notes its findings in relation to the length of the compensatory remedy the applicant had already exhausted (see paragraphs 64‑69 above) and does not observe that there were any mechanisms in place which had allowed the domestic courts to expedite any subsequent civil proceedings. In these circumstances, the Court considers that the requirement for the applicant to bring further civil proceedings would impose on him a disproportionate burden. 102.", "It follows that the Government’s preliminary objection of non‑exhaustion of domestic remedies must be dismissed. (c) Conclusion 103. In the light of the above, the Court dismisses the Government’s objection that the applicant had failed to exhaust domestic remedies. 104. The foregoing considerations are sufficient to enable the Court to conclude that the applicant was not provided with a remedy within the meaning of Article 13 of the Convention by which he at the material time could obtain appropriate redress for his Article 3 grievances.", "105. Accordingly, there has been a violation of Article 13 in conjunction with Article 3 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 106. Lastly, the applicant also made other complaints under Articles 3 and 5 of the Convention in relation to facts which had occurred before the Convention entered into force in respect of Latvia on 27 June 1997.", "107. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that the remaining complaints are incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 108. 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 109. The applicant claimed 300,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. 110. The Government contested this claim. 111.", "The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects the claim. On the other hand, it awards the applicant EUR 9,200 in respect of non‑pecuniary damage. B. Costs and expenses 112. The applicant also claimed LVL 75 (EUR 107) for the costs and expenses incurred before the domestic courts.", "113. The Government contested this claim, arguing that the applicant had failed to prove that he had actually incurred the expenses claimed. 114. 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, given that no documents were submitted pertaining to the expenses claimed, the Court rejects the claim.", "C. Default interest 115. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Joins to the merits the Government’s preliminary objection in relation to the admissibility of the complaint about the alleged violation of Article 13 in conjunction with Article 3 of the Convention, and dismisses it; 2. Declares the application admissible regarding the complaints under Article 6 (reasonable time requirement) and Article 13 in conjunction with Article 3 of the Convention, and the remainder of the application inadmissible; 3.", "Holds that there has been a violation of Article 6 of the Convention; 4. Holds that there has been a violation of Article 13 in conjunction with Article 3 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 9,200 (nine thousand two hundred euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 12 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Milan BlaškoAngelika NußbergerDeputy RegistrarPresident" ]
[ "FIFTH SECTION CASE OF FROLOVS v. LATVIA (Application no. 13289/06) JUDGMENT STRASBOURG 15 June 2017 FINAL 15/09/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Frolovs v. Latvia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President,Erik Møse,André Potocki,Faris Vehabović,Yonko Grozev,Carlo Ranzoni,Mārtiņš Mits, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 23 May 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "13289/06) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a permanently resident non-citizen of the Republic of Latvia, Mr Vladimirs Laptevs (“the applicant”), on 25 March 2006. On 27 April 2010 the applicant changed his surname to Frolovs. 2. The applicant was represented by Mr V. Leščinskis, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agents, Mrs I. Reine and later Mrs K. Līce.", "3. The applicant complained under Article 6 of the Convention that the domestic courts had refused to examine an appeal lodged by his lawyer, as the applicant had not attended the appeal hearings. Relying on Article 3, he also complained of the unfairness of these proceedings, alleging that his conviction had been based on evidence obtained from his co-accused through the use of torture. 4. On 17 October 2011 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1963 and is detained in Riga. A. First-instance proceedings 6. The applicant was charged with several counts of organising, inciting and aiding various crimes against persons and property.", "Two of his eleven co-accused, A.D. and V.P., had given evidence against him when questioned by the police between January and May 2001; when giving that evidence they stated that the applicant had incited them to engage in certain criminal activities. They also gave evidence as regards the alleged involvement of their co-accused, P.B., in some of those criminal activities. According to the records of the police questioning, on all but one occasion A.D. and V.P. were questioned by L.Z., a police officer, and they did not ask for a lawyer. Subsequently, when questioned by a prosecutor on 17 October 2001, A.D. stated that police officers had coerced him into incriminating his co-accused, including the applicant; V.P.", "told the prosecutor that he would testify in court. 7. The trial commenced before the Kurzeme Regional Court (Kurzemes apgabaltiesa) on 16 April 2003 and lasted until 16 July 2003. During that period at least ten court hearings were held in the presence of the applicant and his defence council. At the trial, A.D. and V.P.", "testified that they had never before met the applicant, and that P.B., who had died in the meantime, had been the instigator of some of the crimes. The court read out the pre-trial statements of A.D. and V.P. When invited to explain the discrepancies between those initial pre-trial statements and their subsequent evidence, they claimed that they had been forced to sign the initial pre-trial statements. A.D. submitted that the statements had been illegible and that he had not been given the opportunity to engage a lawyer. V.P.", "stated that police officer L.Z. had been writing a record of his questioning while another police officer had questioned him. On 3 May 2003 V.P. lodged with the first-instance court a written request for the court to take into account his submission that the police had coerced him into incriminating the applicant. 8.", "On 5 May 2003 L.Z. appeared before the first-instance court. She testified that she had taken statements from the accused. She stated that it was possible that another police officer, R.S., had participated in their questioning. On the same day, R.S.", "appeared before the first-instance court. He testified that while he had questioned A.D. and V.P., L.Z. had been keeping a record of their respective questioning. L.Z. and R.S.", "denied the allegations of physical or psychological coercion. The applicant’s lawyer, A.V., was given an opportunity to put questions to them. 9. On 7 May 2003 A.D. submitted a written request to the first-instance court for it to disregard his pre-trial statements as he had been ill-treated and tortured during the pre-trial investigation in order to force him to incriminate his co-accused, including the applicant. Specifically, he had been constantly beaten and ridiculed: electric currents had been applied to his body through his handcuffs, and narcotic substances had been forcibly injected into his veins.", "Nobody had offered to assign him a lawyer. He had not complained about these incidents at the time because he had been afraid of retribution. However, after the completion of the pre-trial investigation he had complained to the prosecutor, who had ignored his complaint. 10. In his closing statement, the prosecutor denied the allegations of A.D. and V. P., emphasising that they had not lodged any complaints prior to the first-instance proceedings.", "During their initial questioning A.D. and V.P. had given evidence in respect of facts which at that stage had not been known to the police. The credibility of their allegations of coercion was further diminished by the fact that following the death of P.B. they had stated that he had been the instigator of some of the criminal activities in question. 11.", "On 14 July 2003 the Kurzeme Regional Court delivered judgment. The court cited the initial pre-trial statements of A.D. and V.P. incriminating the applicant. It did not regard as credible their submissions that police officers had pressured them into giving those statements. The police officers had also questioned another co-accused, I.T., who, unlike A.D. and V.P., had not incriminated the applicant.", "Furthermore, had the police officers pressurised them into giving their statements, they would have contained more details as regards the applicant’s involvement. A.D. and V.P had signed the statements. The court did not find that their right to legal assistance had been restricted. No complaints as regards the alleged ill-treatment had been submitted or noted down in procedural documents by A.D. or V.P., or their lawyers. A.D. and V.P.", "had made the allegations of coercion in an attempt to explain why they had subsequently given evidence in favour of their other co-accused, including the applicant, and against their late co-accused, P.B. 12. The Kurzeme Regional Court found the applicant guilty and sentenced him to six years’ imprisonment. It also ordered his detention. As the applicant was not present at the delivery of judgment, he could not be arrested in the courtroom.", "He was subsequently declared wanted by the police and arrested more than six years later – on 23 November 2009. B. Appeal proceedings 1. The applicant’s absence 13. On 23 July 2003 the applicant’s lawyer, A.V., lodged an appeal against the first-instance judgment.", "He argued that the police officers had pressurised A.D. and V.P. into incriminating the applicant. 14. On 17 March 2004 the appeal hearing was held before the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta). The applicant did not attend the hearing.", "A.V. submitted that he did not know his whereabouts. The court adjourned the hearing. At the following hearing, held on 25 October 2004, the applicant was represented by a different lawyer, V.K., who had been retained by the applicant’s wife. 2.", "Refusal to examine the appeal lodged by the applicant’s lawyer 15. On 25 October 2004 the Criminal Cases Chamber of the Supreme Court, referring to Article 442(7) of the Code of Criminal Procedure (Kriminālprocesa kodekss), declined to examine the appeal lodged by A.V. It noted that the applicant, even though he had been summoned, had failed to appear at the two appeal hearings without a valid reason. Similarly, he had failed to attend the closing hearing before the first-instance court. He had been declared wanted and was at large.", "Given that the applicant had retained V.K. to represent him, he had been aware of the proceedings and had intentionally failed to attend, thereby showing disrespect towards the court. In the applicant’s absence the court was unable to ascertain whether he wished to maintain the appeal lodged by his lawyer. Lastly, proceedings in the case – which required the examination of voluminous material – could not be delayed simply because of the applicant’s unjustified absence. 16.", "On 5 November 2004 V.K. appealed against the aforementioned decision to the Criminal Cases Division of the Senate of the Supreme Court (Augstākās tiesas Senāta Krimināllietu departaments). He argued that he had not been retained by the applicant but by his wife, on the applicant’s instructions (uzdevumā). The applicant had not received any summons and his family had no information about his whereabouts or the reasons for his absence. V.K.", "relied on Article 6 § 1 of the Convention and complained of an infringement of the applicant’s defence rights. 17. On 30 September 2005 the Senate of the Supreme Court by a final decision refused to examine the appeal lodged by A.V. It noted that the applicant had repeatedly failed to attend the appeal hearings and that “in the criminal case at hand only the accused could maintain the appeals lodged by their lawyers”. This decision was sent to the applicant’s address and to V.K.", "on 7 October 2005. 3. Appeal judgment concerning the applicant’s co-accused 18. On 27 October 2004 the Criminal Cases Chamber of the Supreme Court delivered judgment with respect to the appeals lodged by the applicant’s co-accused. It found that the first-instance court had correctly assessed the allegations of A.D. and V.P.", "as regards coercion. It also found that they had made those allegations in an attempt to explain why they had subsequently given evidence in favour of their co-accused, including the applicant. 19. On 30 September 2005 the aforementioned judgment was upheld by the Senate of the Supreme Court. II.", "RELEVANT DOMESTIC LAW 20. At the relevant time criminal proceedings were governed by the Code of Criminal Procedure, which on 1 October 2005 was replaced by the Criminal Procedure Law (Kriminālprocesa likums). 21. Under Article 247 of the Code of Criminal Procedure a first-instance court examined a case in the presence of the accused. It could examine the case in the accused’s absence if the accused was not in Latvia and was evading the proceedings.", "22. Under Article 433(2) an appeal against the first-instance judgment could be submitted by, inter alia, the accused and the accused’s lawyer. Article 440 provided that legal provisions concerning proceedings before a first-instance court also applied to proceedings before the appeal court, unless the law provided otherwise. 23. Article 442, which concerned persons participating in appeal proceedings, provided as follows: “... [4] An accused ... who has not submitted an appeal shall be informed of the time of the hearing but [his or her] non-appearance shall not prevent the examination of the case.", "... [5] ... an accused ... who has not submitted an appeal shall be summoned to a hearing when deemed necessary by the appeal court. In such case [his or her] lawyer ... shall also be summoned. ... [7] If an accused who has submitted an appeal fails to appear at a hearing without a valid reason, the court shall refuse to [examine] his or her appeal. A decision refusing to examine an appeal for examination may be appealed against within seven days at a higher level of jurisdiction.” 24. Under Article 446(1) an appeal court could exceed the scope of an appeal if it had doubts about the first-instance court’s findings as regards the accused’s guilt or aggravating circumstances.", "THE LAW I. SCOPE OF THE CASE 25. In his reply to the Government’s observations the applicant lodged two new complaints under Article 6 of the Convention – firstly asserting his right to participate in the hearing and secondly that his conviction had been based on the evidence of his co-accused. The Court notes that these new, belated complaints are not an elaboration of the applicant’s original complaints, on which the parties have commented. The Court considers, therefore, that it is not appropriate now to take up these matters in the context of the present case (see, for example, Kapustyak v. Ukraine, no.", "26230/11, § 52, 3 March 2016). II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF THE DOMESTIC COURTS’ REFUSAL TO EXAMINE THE APPEAL LODGED BY THE APPLICANT’S LAWYER 26. The applicant complained under Article 6 of the Convention that the domestic courts had refused to examine the appeal lodged by his lawyer because he had been absent from the appeal hearings. 27.", "The relevant part of Article 6 of the Convention reads: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing ...” A. Admissibility 1. The parties’ submissions 28. The Government submitted that the applicant had failed to comply with the six-month rule.", "The application to the Court was dated 5 June 2006, which was more than six months after 15 October 2005, the date on which the applicant must have received the final domestic decision of 30 September 2005 (see paragraph 17 above). 29. The Government also argued that the applicant could not claim the protection of Article 6 of the Convention as he had evaded the trial. Relying on Article 35 § 3 (a) of the Convention, the Government invited the Court to reject the application as abusive. 30.", "As regards the six-month rule, the applicant argued that he had lodged the application prior to 7 April 2006, at the very latest, as on that date the Court had sent him a letter confirming receipt of his complaint. 2. The Court’s assessment 31. The Court reiterates that Article 35 § 1 of the Convention permits it to deal with a matter only if the application in question has been lodged within six months of the date of the final decision in the process of exhaustion of domestic remedies. The Court further observes that under Rule 47 § 5 of the Rules of Court, in its wording as at the material time, the date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall as a general rule be considered to be the date of the first communication from the applicant setting out, even summarily, the subject matter of the application (see Anđelković v. Serbia, no.", "1401/08, § 18, 9 April 2013, and Sergey Kuznetsov v. Russia, no. 10877/04, § 27, 23 October 2008). 32. Turning to the present case, the Court notes that in his first letter to the Court of 25 March 2006 the applicant complained that the domestic courts had refused to examine the appeal lodged by his lawyer. By a letter of 7 April 2006 the Registry instructed the applicant to submit a duly completed and signed application form and supporting documents within six weeks of the date of his receipt of that letter.", "The six-week time-limit was indicative, rather than mandatory (see Belov v. Russia [Committee], no. 27623/06, § 23, 16 October 2014). Given that the applicant submitted the completed application form without excessive delay, on 6 June 2006, the Court confirms that the date of his first letter to the Court is the date of the introduction of the application (see Kozlitin v. Russia, no. 17092/04, § 43, 14 November 2013). 33.", "It follows that this complaint was submitted within six months of the delivery of the final decision in the case. Accordingly, the Court dismisses the Government’s objection on this point. 34. Concerning the Government’s argument that the application was abusive, the Court notes that the question of whether or not the applicant, having failed to appear before the appeal court, has been entitled to rely on Article 6 of the Convention is closely linked to the merits of the complaint. This objection should therefore be joined to the merits.", "35. The Court considers that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions (a) The applicant 36. The applicant submitted that Article 442(4) of the Code of Criminal Procedure had required the appeal court to examine the appeal lodged by his lawyer, even if the applicant was absent from the appeal hearings. The court’s decision not to examine the appeal had been unlawful. Furthermore, the court had taken that decision without knowing the reasons for the applicant’s absence. It had wrongly concluded that he had been evading the proceedings or that he himself had retained V.K., the lawyer.", "37. Even if, as argued by the Government, the domestic law had required the applicant’s presence in order for his lawyer to maintain the appeal, the appeal court could have adjourned the proceedings or disjoined the proceedings against him from the case. (b) The Government 38. The Government emphasised that the appeal proceedings had been introduced into the Latvian legal system only in 1995 within the framework of the legislative transition that had followed the restoration of Latvia’s independence. As a newly developed judicial institute it had not been devoid of deficiencies.", "39. Article 442(7) of the Code of Criminal Procedure did not explicitly govern a situation where an accused’s lawyer had lodged an appeal but the accused had failed to appear without a valid reason. At the same time, the appeal courts had developed case-law according to which in such circumstances they could refuse to consider such an appeal. 40. The appeal court had declined to consider the appeal lodged by A.V.", "not because the applicant had failed to surrender to custody or to punish him for having done so. It had made that decision because there had been no valid reason for the applicant’s absence and it had been unable to establish his stance on the appeal, as subsequently the applicant had been represented by V.K., who had not been the author of the appeal and had not been instructed by the applicant but by his wife. According to V.K., the applicant’s wife had not been aware of his whereabouts. The present case therefore had to be distinguished from the cases of Omar v. France (29 July 1998, Reports of Judgments and Decisions 1998‑V), Khalfaoui v. France (no. 34791/97, ECHR 1999‑IX), and Papon v. France (no.", "54210/00, ECHR 2002‑VII). Furthermore, the applicant, without having provided any valid reason, had chosen not to attend the appeal hearings. Therefore, he had waived this right, as well as the right to make submissions. 41. In any event, if the appeal court had had any concerns regarding the first-instance court’s findings regarding the applicant’s guilt it could have addressed them under Article 446 of the Code of Criminal Procedure.", "In fact, it had examined in sufficient detail the lower court’s conclusions concerning the applicant’s guilt and A.D.’s and V.P.’s allegations of coercion. Therefore, by refusing to examine the appeal lodged by A.V. the appeal court had not adversely affected the applicant and had not impaired the very essence of his right to a fair trial. 2. The Court’s assessment 42.", "The Court notes that the applicant in the present case complained that the domestic courts had declined to examine the appeal lodged by his lawyer because the applicant had been absent from the appeal hearings. It considers that the complaint essentially raises an issue in respect of the applicant’s right to defend himself through a lawyer. As a consequence of the domestic courts’ refusal to allow the applicant’s lawyer to defend the applicant in his absence, the case further raises an issue in respect of the applicant’s right of access to court. The Court shall therefore examine the complaint under Article 6 §§ 1 and 3 (c) taken together (see Neziraj v. Germany, no. 30804/07, § 52, 8 November 2012).", "43. As regards the applicant’s right to defend himself through a lawyer, the Court notes the Government’s submission that V.K., who had appeared before the appeal court, had not been the author of the appeal and had not been instructed by the applicant but by his wife (see paragraph 40 above). The Court observes in this respect that the domestic courts never expressed any doubts that V.K. was empowered to act as the applicant’s lawyer. In fact, the Criminal Cases Chamber of the Supreme Court held against the applicant the fact that he had retained V.K.", "Furthermore, the Criminal Cases Division of the Senate of the Supreme Court examined V.K.’s complaint regarding the lower court’s refusal to examine the appeal lodged by A.V. and sent him its decision on that complaint (see paragraphs 15-17 above). It follows that V.K. was present and ready to defend the applicant in appeal court. 44.", "In so far as the domestic courts refused to examine the appeal lodged by A.V. against the first-instance judgment convicting the applicant because he had failed to attend the appeal hearings without a valid reason, the Court notes that, in the interests of a fair criminal process, it is of capital importance that an accused should appear, both because of his right to a hearing and because of the need to verify the accuracy of his statements and compare them with those of the victim, whose interests need to be protected, and of the witnesses (see Poitrimol v. France, 23 November 1993, § 35, Series A no. 277‑A; Lala v. the Netherlands, 22 September 1994, § 33, Series A no. 297‑A; and Van Geyseghem v. Belgium [GC], no. 26103/95, § 33, ECHR 1999‑I).", "However, it is also of crucial importance for the fairness of the criminal justice system that the accused be adequately defended, both at first instance and on appeal. In the Court’s view the latter interest prevails. Consequently, the fact that the accused, in spite of having been properly summoned, does not appear, cannot – even in the absence of an excuse – justify depriving him of his right under Article 6 § 3 of the Convention to be defended by a lawyer (see Lala, cited above, § 33, and Pelladoah v. the Netherlands, 22 September 1994, § 40, Series A no. 297‑B). 45.", "In reply to the Government’s argument that the applicant had evaded the trial and therefore he had lost his entitlement to rely on Article 6 of the Convention (see paragraph 29 above), the Court reiterates that while, indeed, the legislature must be able to discourage unjustified absences, it cannot penalise an accused by creating exceptions to the right to legal assistance, and the legitimate requirement that accused must attend court hearings can be satisfied by means other than deprivation of the right to be defended (see Van Geyseghem, cited above, § 34, and Neziraj, cited above, § 51, with further case-law references). The Court observes that an arrest warrant had been issued against the applicant (see paragraph 12 above) and that Article 442(7) of the Code of Criminal Procedure contained an explicit duty for the accused to be present at the appellate hearing. Nevertheless, the above provision did not provide for an explicit restriction on the defence lawyer to represent a client who had failed to appear before the appellate court (ibid.). In any event, an accused cannot be obliged to surrender to custody in order to secure the right to be tried in conditions that comply with Article 6 of the Convention (see Krombach v. France, no. 29731/96, § 87, ECHR 2001‑II).", "It follows that the Government’s objection of abuse must be dismissed. 46. With regard to the Government’s argument that the appeal court could have examined of its own motion the first-instance court’s findings regarding the applicant’s guilt, which it actually did (see paragraph 41 above), the Court refers to its findings in the case of Van Geyseghem, where the appeal court in that case had to examine of its own motion, for example, the issue of statutory limitation (ibid., §§ 31 and 35). The Court stressed in this respect that, nevertheless, the fact remained that a lawyer’s assistance was indispensable for resolving conflicts and his role was necessary in order for the rights of the defence to be exercised (ibid., § 35). Accordingly, the guarantees of Article 6 required that the applicant’s lawyer should have an opportunity to put forward the arguments in the applicant’s defence and to have them addressed by the domestic courts, irrespective of the question whether the domestic courts could examine certain issues of their own motion (see Van Geyseghem, cited above, § 35, and Neziraj, cited above, § 61).", "47. Assuming that the applicant waived his right to take part in the appeal hearings – an issue which the Court does not need to determine in the present case – there is nothing to indicate that he waived his right to be defended through legal assistance, a distinct right protected under Article 6 § 3 (c) of the Convention (see Tolmachev v. Estonia, no. 73748/13, § 53, 9 July 2015). 48. In the light of the above, the Court considers that the domestic court’s refusal to examine the appeal lodged by the applicant’s lawyer against the first-instance judgment was not compatible with the applicant’s right to a fair hearing under Article 6 of the Convention.", "49. There has accordingly been a violation of Article 6 §§ 1 and 3 (c) of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF THE USE OF EVIDENCE ALLEGEDLY OBTAINED BY TORTURE 50. Relying on Article 3 of the Convention, the applicant complained that the first-instance court had convicted him on the basis of evidence obtained from his co-accused through the use of torture.", "51. The complaint falls to be examined under Article 6 § 1 of the Convention (see, for example, Cēsnieks v. Latvia, no. 9278/06, § 51, 11 February 2014). A. The parties’ submissions 52.", "The Government did not contest that the applicant had been convicted on the basis of the pre-trial statements of A.D. and V.P. They argued that the applicant and his lawyer had had ample opportunity to challenge that evidence. During the pre-trial stage they could have asked the prosecutor to carry out investigative actions in respect of A.D.’s and V.P.’s allegations of coercion, which they did not. During the first-instance proceedings they had had an opportunity to question A.D. and V.P., as well as the two police officers who had taken the statements in question. Furthermore, the first-instance court had adequately examined the allegations of ill-treatment.", "53. The applicant submitted that during the pre-trial proceedings the police had tortured A.D. and V.P. to make them incriminate him. With regard to the Government’s argument that the applicant and his lawyer had had an opportunity to challenge their evidence, the applicant submitted that, in line with the principle of presumption of innocence, it had fallen to the prosecution to prove his guilt and that he had not had to prove his innocence. B.", "The Court’s assessment 54. It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair (see Gäfgen v. Germany [GC], no. 22978/05, § 163, ECHR 2010). However, particular considerations apply in respect of the use in criminal proceedings of evidence obtained in a manner that is in breach of Article 3.", "55. In particular, the use of evidence secured as a result of a violation of one of the core and absolute rights guaranteed by the Convention always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction. Accordingly, the admission of statements obtained as a result of torture or of other ill-treatment in breach of Article 3 as evidence to establish the relevant facts in criminal proceedings renders the proceedings as a whole unfair (see Gäfgen, cited above, §§ 165 and 166; Cēsnieks, cited above, §§ 64-66, with further case-law references; and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, § 254 in fine, ECHR 2016). 56.", "Turning to the present case, the Court observes that, according to the findings of the first-instance court, the allegations of A.D. and V.P. that they had incriminated the applicant under pressure from the police officers had lacked credibility. The first-instance court reached that conclusion after having heard as witnesses two police officers who had questioned them (see paragraph 8 above). It further considered that another co-accused, I.T., who had also been questioned by the police, had made no such allegations. It also referred to the low level of detail of the initial pre-trial statements of A.D. and V.P.", "and the absence in procedural documents of any complaints by them or their lawyers as regards the alleged ill-treatment (see paragraph 11 above). 57. The Court therefore considers that the domestic courts advanced convincing reasons for their finding that the police officers had not ill-treated A.D. or V.P. to obtain the pre-trial statements incriminating the applicant (see Baybasin v. Germany (dec.), no. 36892/05, 3 February 2009).", "In reaching this conclusion the Court has also taken account of the circumstances in which A.D. and V.P. changed their pre-trial statements. In particular, it was after P.B. had passed away that they claimed that he had been the instigator of some of the criminal activities, even though initially they had stated that it had been the applicant. In addition, the case file contains no indication that A.D. or V.P.", "lodged any complaints with the investigating authorities regarding the alleged coercion. While they claimed before the first-instance court that they had been forced to sign their pre-trial statements, they gave no further details in that regard (see paragraph 7 above). Only subsequently did they submit some details (see paragraph 9 above). 58. Furthermore, the applicant and his lawyer had an opportunity to put questions to A.D. and V.P.", "in order to establish the circumstances in which they had given the incriminating pre-trial statements. They also had an opportunity to examine the two police officers who had questioned A.D. and V.P. (see Baybasin, cited above, and contrast with Erkapić v. Croatia, no. 51198/08, § 78, 25 April 2013). However, no further details of the alleged coercion or evidence corroborating those allegations emerged in the course of the questioning.", "59. It follows that this complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 60. The Court therefore does not need to examine the Government’s further objections concerning the admissibility of this complaint. IV.", "OTHER ALLEGED VIOLATION OF THE CONVENTION 61. Relying on Article 3 of the Convention the applicant complained that the domestic courts had disregarded the fact that also he had been threatened and psychologically ill-treated. 62. In the light of all the material before it, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 63.", "Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 64. 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.” 65. The applicant claimed 10,000 euros (EUR) in respect of non‑pecuniary damage. He made no claim in respect of pecuniary damage or costs and expenses.", "66. The Government submitted that this claim was exorbitant and unsubstantiated. Alternatively, they considered that the finding of a violation would constitute adequate compensation. 67. The Court agrees with the Government that given the particular circumstances of the case the finding of a violation constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage sustained by the applicant and accordingly makes no award under this head (see Tolmachev, cited above, § 61).", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join to the merits the Government’s objection as to abuse of the right to individual application concerning the complaint about the domestic courts’ refusal to examine the appeal lodged by the applicant’s lawyer under Article 6 of the Convention, and dismisses it; 2. Declares the complaint under Article 6 of the Convention about the domestic courts’ refusal to examine the appeal lodged by the applicant’s lawyer admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention; 4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant; Done in English, and notified in writing on 15 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Milan BlaškoAngelika NußbergerDeputy RegistrarPresident" ]
[ "FOURTH SECTION CASE OF BOGDANOWICZ v. POLAND (Application no. 38872/03) JUDGMENT STRASBOURG 16 January 2007 FINAL 16/04/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bogdanowicz v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG.", "Bonello,MrK. Traja,MrS. Pavlovschi,MrL. Garlicki,MsL. Mijović, judges,and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 12 December 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 38872/03) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr. J. Bogdanowicz (“the applicant”). The applicant was represented by Mr. K. Woliński, a lawyer practising in Gdańsk. 2.", "The Polish Government (“the Government”) were represented by their Agent, Mr. J. Wołąsiewicz of the Ministry of Foreign Affairs. 3. On 26 September 2005 the Court decided to give notice of the application 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 1953 and lives in Gdynia. The applicant’s detention for the purpose of the first set of criminal proceedings 5. On 5 September 2003 the applicant was arrested and placed in custody. He was suspected of having committed offences of kidnapping and acting in an organisation of a criminal character. 6.", "On an unknown date the Gdańsk District Court ordered that the applicant be detained until 14 December 2003. The court based its detention order on a reasonable suspicion that the applicant had committed the offences and on the severity of the likely penalty, which gave rise to a fear that the applicant would obstruct the proceedings. The court also stressed his relapse into crime. 7. Subsequent decisions as to the extension of the applicant’s pre-trial detention were taken on 25 November 2003, 18 December 2003, 17 February 2004, 3 June 2004, 28 September 2004, 22 December 2004 and 30 March 2005.", "8. In all the above-mentioned decisions the courts mainly relied on the same grounds for detention as those given for the making of the first detention order. In addition, they indicated the need to conduct further investigations and the probable collusion of the accused. 9. On many occasions the applicant unsuccessfully requested his release from detention and, also unsuccessfully, appealed against decisions extending his pre-trial detention.", "10. On 4 February 2004 a bill of indictment was filed against the applicant and thirteen co-accused. The applicant was charged with kidnapping and acting in an organisation of a criminal character. 11. From 30 September 2004 to 4 May 2005 the applicant was serving a prison sentence in respect of another conviction.", "12. On 30 June 2004 the first hearing was held before the Gdańsk Regional Court. Hearings scheduled for 14 and 22 September 2004 were postponed due to the necessity of replacing one of the judges. 13. On 6 October 2004 a new judge was assigned to the case.", "14. Subsequent hearings were held on 5 January 2005, 12 January 2005, 2 March 2005, 9 March 2005, 16 March 2005, 30 March 2005, 6 April 2005, 13 April 2005, 27 April 2005, 4 May 2005, 18 May 2005, 30 May 2005, 1 June 2005, 15 June 2005, 29 June 2005, 19 July 2005, 17 August 2005, 7 September 2005, 21 September 2005, 13 October 2005, 9 November 2005, 7 December 2005, 21 December 2005, 11 January 2006, 8 February 2006, 1 March 2006 and 29 March 2006. 15. The applicant’s pre-trial detention ended on 1 June 2005. 16.", "The proceedings are pending before the first-instance court. The length of the second set of criminal proceedings and the applicant’s pre-trial detention in their respect 17. On 18 April 2002 the applicant was arrested and placed in custody. 18. On 19 April 2002 the Gdańsk District Court ordered that the applicant be detained for three months on suspicion of having committed armed robbery and having acted in an organisation of a criminal character.", "The court based its detention order on a reasonable suspicion that the applicant had committed the offences and on the severity of the likely penalty, which gave rise to a fear that the applicant would obstruct the proceedings. 19. From 18 April 2002 to 28 August 2003 the applicant was serving a prison sentence in respect of another conviction. 20. The applicant’s detention was extended on the following dates: 9 July 2002, 12 September 2002, 23 May 2003, 25 July 2003, 28 November 2003, 23 March 2004, 7 April 2004 and 22 June 2004.", "21. In all the above-mentioned decisions the courts mainly relied on the same grounds for detention as those given for the making of the first detention order. In some of the decisions, the courts also indicated the need to conduct further investigations. 22. On 12 December 2002 a bill of indictment was filed against the applicant and eighteen co-accused.", "The applicant was charged with armed robbery and acting in an organisation of a criminal character. 23. The first hearing, scheduled for 25 April 2005, was cancelled due to a judge’s illness. 24. Subsequent hearings were held on 16 May 2003, 23 May 2003, 13 June 2003, 24 June 2003, 27 June 2003, 1 December 2003, 19 December 2003, 29 December 2003.", "In January and February 2004 altogether five hearings were held. Hearings scheduled for 18 March 2004 and 1 April 2004 were cancelled due to a judge’s illness. Subsequently, hearings were held on 21 May 2004, 28 May 2004, 18 June 2004, 23 July 2004, 17 September 2004, 22 October 2004, 19 November 2004, 28 January 2005, 25 February 2005, 25 March 2005, 15 April 2005 and 22 April 2005. 25. On 30 September 2004 the applicant was released from detention.", "26. On 14 December 2004 the applicant’s complaint lodged under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time was rejected on formal grounds. 27. On 29 April 2005 the Gdańsk Regional Court convicted the applicant of the offences and sentenced him to three years’ imprisonment. On 13 February 2006 the applicant appealed.", "28. The proceedings are pending before the Gdańsk Court of Appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Length of pre-trial detention 29.", "For a description of the relevant domestic law, see Kozik v. Poland, no. 25501/02, judgment of 18 July 2006. B. Length of proceedings [1] 30. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) entered into force (“the 2004 Act”).", "It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under section 2 read in conjunction with section 5(1) of the 2004 Act. 31. On 18 January 2005 the Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date, but only when they had not yet been remedied.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 32. The applicant complained that the length of his pre-trial detention was in breach of Article 5 § 3, which provides: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 33. The Government acknowledged that the applicant had exhausted domestic remedies in respect of both sets of proceedings.", "34. 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 35. The Government conceded that the applicant’s pre-trial detention lasted from 5 September 2003 to 1 June 2005, which amounts to one year, eight months and twenty-six days (in respect of the first set of proceedings), and from 18 April 2002 to 30 September 2004, which amounts to over two years, five months and fourteen days (in respect of the second set of proceedings). However, the period of his pre-trial detention in respect of those two sets of proceedings overlapped between 5 September 2003 and 30 September 2004. 36. The Government stressed that from 30 September 2004 to 4 May 2005 (in respect of the first set of proceedings) and from 18 April 2002 to 28 August 2003 (in respect of the second set of proceedings) the applicant was serving prison sentences as a result of other convictions.", "Accordingly, after the deduction of these periods, the applicant was detained for the purpose of the first set of proceedings for one year and twenty-six days and for the purpose of the second set of proceedings for one year, one month and four days. As the periods of the applicant’s pre-trial detention overlapped, the Government concluded that the applicant had been deprived of his liberty in respect of both sets of proceedings from 28 August 2003 to 30 September 2004, which amounted to one year, one month and two days. 37. The Government were of the opinion that the whole period of the applicant’s detention had been justified. The evidence obtained in the proceedings indicated that there was a reasonable suspicion that the applicant had committed the offences.", "38. The Government drew the Court’s attention to the serious nature of the charges against the applicant, in particular that he had been charged with acting in an organisation of a criminal character. They also underlined that the applicant had relapsed into crime. 39. The Government also argued that the applicant’s detention had been aimed at securing the proper conduct of the investigation, as there had been a risk that he would obstruct the proceedings and influence witnesses and other co-accused.", "40. With regard to the review of the applicant’s detention, the Government pointed out that the applicant’s detention had been reviewed at regular intervals. On each occasion the decisions had been reasoned in a relevant and sufficient manner. 41. With regard to the proceedings on the merits, the Government maintained that these had been very complex (there had been thirteen co‑accused in the first set of proceedings and eighteen in the second).", "The case files had amounted to thirty and ninety volumes, respectively. 42. The Government further stressed that the investigative phase of the proceedings had been conducted speedily. They further noted that hearings had been held at regular and brief intervals. 43.", "The applicant stated that he did not wish to present observations in reply. 1. Principles established under the Court’s case-law 44. Under the Court’s case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed 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 (see, among other authorities, the W. v. Switzerland judgment of 26 January 1993, Series A no. 254-A, p. 15, § 30). 45. It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions dismissing the applications for release.", "It is essentially on the basis of the reasons given in these decisions and of the established facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see the Contrada v. Italy judgment of 24 August 1998, Reports 1998-V, p. 2185, § 54; Mc Kay v. the United Kingdom [GC], no. 543/03, § 43, ECHR 2006‑...). 46. The persistence of a 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. In such cases, the Court must 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 ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, ECHR 2000‑IV, § 153). 2. Application of those principles to the circumstances of the present case 47. At the outset, the Court notes that the applicant’s pre-trial detention was not of a very significant length.", "It agrees with the Government’s view (see paragraphs 35 to 36 above) that the period to be taken into consideration lasted one year and one month. 48. The Court notes that pre-trial detention was imposed on the applicant in view of a reasonable suspicion that he had committed the offences, the severity of the likely penalty and the risk of the applicant’s hampering the proper conduct of the proceedings. 49. The applicant’s detention was subsequently reviewed by the courts at regular intervals.", "In their decisions extending the detention the domestic authorities relied on the need to conduct further investigations, the reasonable suspicion that the applicant had committed the offences and the risk that he would obstruct the proper course of justice by influencing witnesses and other accused. 50. The Court therefore considers that, in the particular circumstances of the instant case, the grounds given by the judicial authorities for the applicant’s detention satisfied the requirement of being “relevant” and “sufficient”. 51. The Court accepts the Government’s opinion that the case was very complex, regard being had to the nature of the charges against the accused and the scope of the evidence to be taken.", "52. The Court also notes that hearings were held regularly and at short intervals, notwithstanding the fact that some of them had to be postponed, and the investigative phase of the proceedings was conducted speedily. 53. For these reasons, it considers that the domestic authorities cannot be criticised for a failure to observe “special diligence” in the handling of the applicant’s case. 54.", "Furthermore, the Court notes that during a significant period of the applicant’s pre-trial detention, he was serving prison sentences in respect of other convictions and that periods of his pre-trial detention imposed in two sets of proceedings overlapped. 55. Finally, the Court observes that the overall period of detention was not unreasonable in the circumstances of the case. 56. In view of the above considerations, the Court considers that the applicant’s prolonged detention was not in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention.", "57. There has, accordingly, been no violation of Article 5 § 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 58. The applicant’s complaint relates to the length of the proceedings, which began on 18 April 2002 and are still pending.", "Therefore, they have lasted four years and seven months so far before two instances. 59. According to the applicant, the length of the proceedings was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. 60. The Government noted that the applicant had not exhausted domestic remedies, as his complaint under the 2004 Act had been rejected on formal grounds.", "61. The applicant stated that he did not wish to present observations in reply. 62. The Court’s accepts the Government’s view and considers that the applicant did not exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention, having regard to the effectiveness of the remedy under the 2004 Act in the circumstances of cases such as the applicant’s (see, Charzyński v. Poland (dec.), no. 15212/03, ECHR 2005).", "This complaint must therefore be declared inadmissible according to Article 35 § 4 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the length of the applicant’s pre-trial detention admissible and the remainder of the application inadmissible; 2. Holds that there has been no violation of Article 5 § 3 of the Convention. Done in English, and notified in writing on 16 January 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "T.L. EarlyNicolas BratzaRegistrarPresident [1] For a more detailed presentation of the relevant domestic law see Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005; Charzyński v. Poland (dec.), no. 15212/03, ECHR 2005." ]
[ "CASE OF SCOZZARI AND GIUNTA v. ITALY (Applications nos. 39221/98 and 41963/98) JUDGMENT STRASBOURG 13 July 2000 In the case of Scozzari and Giunta v. Italy, The European Court of Human Rights, sitting as a Grand Chamber composed of the following judges: MrL. Wildhaber, President,MrJ.-P. Costa,MrL. Ferrari Bravo,MrGaukur Jörundsson,MrL. Caflisch,MrI.", "Cabral Barreto,MrW. Fuhrmann,MrK. Jungwiert,MrM. Fischbach,MrB. Zupančič,MrsN.", "Vajić,MrJ. Hedigan,MrsM. Tsatsa-Nikolovska,MrT. Panţîru,MrE. Levits,MrK.", "Traja,MrC. Russo, ad hoc judge, and also of Mr M. de Salvia, Registrar, Having deliberated in private on 26 January and 5 July 2000, Delivers the following judgment, which was adopted on the last‑ mentioned date: PROCEDURE 1. The case was referred to the Court, in accordance with the provisions applicable prior to the entry into force of Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”)[1], by the European Commission of Human Rights (“the Commission”) and by the Italian Government (“the Government”) on 4 December 1998 and 21 January 1999 respectively (Article 5 § 4 of Protocol No. 11 and former Articles 47 and 48 of the Convention).", "2. The case originated in two applications (nos. 39221/98 and 41963/98, which have been joined) against the Italian Republic. The first applicant, Mrs Dolorata Scozzari, a Belgian and Italian national currently living at Figline Valdarno, is also acting on behalf of her children, G., who was born in 1987 and has dual Belgian and Italian nationality, and M., who was born in 1994 and has Italian nationality. The second applicant, Mrs Carmela Giunta, is an Italian national, who was born in 1939 and lives in Brussels.", "Since the end of 1998 she has also had a home in Italy. She is the first applicant's mother. 3. The first applicant lodged the first application with the Commission on 9 December 1997 under former Article 25 of the Convention. Both applicants subsequently lodged the second application with the Commission on 16 June 1998.", "The applications were joined on 8 July 1998. 4. The first applicant alleged a violation of Article 8 of the Convention on account of the decision of the Florence Youth Court to suspend all relations between her and her children and to place them with “Il Forteto”, a community, and of the fact that she was unable to see her younger son. The second applicant complained that no consideration had been given to the possibility of her being given the care of the children. The applicants also complained of violations of Article 6 § 1 and Article 14 of the Convention, on account of the delay in hearing their appeals and of allegedly discriminatory treatment.", "Lastly, the first applicant complained of a violation of Article 3 of the Convention on account of allegedly inhuman treatment inflicted on the children in the community, and of Article 2 of Protocol No. 1 on the ground that the arrangements made for the children's schooling were, in her submission, insufficient. 5. On 10 March 1998 the Commission declared part of the first application (no. 39221/98) inadmissible.", "On 15 September 1998 it declared the second application (no. 41963/98) and the remainder of the first application admissible. In its report of 2 December 1998 (former Article 31 of the Convention)[2], it expressed the opinion that there had been no violation of Article 8 of the Convention as a result of the suspension of the first applicant's parental rights or of the fact that her children had been taken into care (twenty-four votes to one); there had been no violation of Article 8 as a result of the children being placed at “Il Forteto” (thirteen votes to twelve); there had been a violation of Article 8 as a result of the suspension of all contact between the first applicant and her children (twenty-one votes to four). The Commission also expressed the unanimous opinion that there had been no violation of Article 3 of the Convention or of Article 2 of Protocol No. 1 as regards the second applicant, and that no separate issue arose under Article 6 § 1 and Article 14 of the Convention.", "6. The Government were represented by their Agent, Mr U. Leanza, Head of the Diplomatic Disputes Department, Ministry of Foreign Affairs. 7. On 3 February 1999 a panel of the Grand Chamber determined that the case would be decided by the Grand Chamber (Rule 100 § 1 of the Rules of Court). Mr B. Conforti, the judge elected in respect of Italy, who had taken part in the Commission's examination of the case, withdrew from sitting in the Grand Chamber (Rule 28).", "The Government accordingly appointed Mr C. Russo to sit in his place as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 8. The applicants filed memorials on 3 March, 16 July and 22 September 1999 and the respondent Government on 9 December 1998, 1 March, 6 and 10 April, 5 and 19 July, and 10 September 1999. Observations were also received from the Belgian Government, which had exercised its right to intervene (Article 36 § 1 of the Convention and Rule 61 § 2). 9.", "A hearing took place in private in the Human Rights Building, Strasbourg, on 26 January 2000. There appeared before the Court: (a) for the Italian GovernmentMrV. Esposito, magistrato, on secondment to the Diplomatic Disputes Department, Ministry of Foreign Affairs,Co-Agent, (b) for the applicantsMrsA Mazzarri, of the Livorno BarCounsel,MrsD. Scozzari, MrsC. Giunta,Applicants; (c) for the Belgian GovernmentMrsA.", "Davis,MrsM. Gillet,Counsel. The Court heard addresses by them. 10. On 8 March 2000 the Court viewed video recordings of the contact visits on 29 April and 9 September 1999, which the respondent Government had produced on 2 February 2000.", "The Court considered that the case was ready for decision and that it was not necessary to accede to the further request of the parties and the Belgian Government for additional investigations. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Events leading up to the intervention of the authorities in the first applicant's family life 11. The first applicant met N.A., the father of her children, in Belgium while he was in prison.", "He had been sentenced on 17 February 1984 to a life term of forced labour for offences that included robbery and attempted murder. He had several previous convictions for offences including theft, indecent exposure in the presence of a child aged under 15 and rape of a minor aged between 10 and 14 (for the latter two offences he was given a pardon and his sentence was reduced). The sentence of forced labour for life was subsequently reduced to twenty-seven years' forced labour following a pardon in 1991. 12. The elder child was born while N.A.", "was still in prison. Subsequently, the first applicant and N.A. married. On an unspecified date in 1993 N.A. failed to return to the prison and has remained on the Belgian authorities' wanted list ever since.", "In fact, N.A. and the first applicant had travelled to Italy with their child. 13. In February 1994 the younger son was born. However, the atmosphere in the family had begun to deteriorate.", "Arguments between the parents became worse and ended in outbursts of violence against the first applicant, who subsequently lodged a complaint against her husband (the Court has not been informed of the outcome of those proceedings). 14. In the meantime, M.L., a social worker employed by social services in the Florence region, had built up a good relationship with the first applicant's family. He was a former drug addict and was responsible for counselling a number of children from problem families who had been taken into care. He offered to look after the first applicant's elder son without payment at weekends.", "She accepted, since both she and her husband were working, she had to look after the baby, and social services did not provide assistance with children over weekends without charge. 15. Shortly afterwards the elder son started to have health problems. The first applicant took him to hospital several times but the problems were initially attributed to an inadequate diet. 16.", "In November 1996 the first applicant said that she did not want M.L. to visit her son any more. He then started to see the child at the first applicant's home and only in the presence of his parents. The first applicant sought to stop him seeing her son, but that had psychological repercussions on the boy, who tried to see M.L. without his parents' knowledge.", "17. A short while later the boy informed a friend of the family about “unusual games” in which M.L. had persuaded him to participate on several occasions. On learning of their son's admission, the first applicant and her husband lodged a formal complaint with the police on 2 February 1997. 18.", "An investigation was started. The investigators rapidly discovered a number of factors showing M.L. to be at the centre of a paedophile ring. In particular, he was accused of having indecently assaulted several children since 1986 by taking advantage of his connections with social services and his role as a social worker (some of his presumed victims had been placed in homes and one even entrusted into his care by the Palermo Youth Court). M.L.", "was also accused of selling photographs taken during his sexual encounters with children, including the first applicant's elder son, and of running a drug-trafficking ring. 19. On 6 June 1997 the investigating judge ordered, inter alia, M.L. 's arrest. The judge noted that M.L., a former drug addict, had feigned a desire to reform and thereby succeeded in gaining access to public institutions responsible for the protection of children and had taken advantage of the children that both individuals and the public authorities had entrusted into his care.", "He was convicted at the end of the proceedings at first instance. 20. Meanwhile, social services began to examine the situation of the first applicant's family more closely. In a report of 30 January 1997, the case worker, Mrs S.G., stated that there was a serious conflict between the parents (the first applicant had complained about the situation to various authorities the previous summer) and difficulties in securing their effective cooperation. In a second report of 7 February 1997 a deterioration in the situation was noted.", "Furthermore, Mrs S.G. said that the younger child was not attending nursery school regularly because of minor ailments, while the elder child was described by his teachers as an intelligent and very active child. 21. On 25 February 1997 the Florence Youth Court ordered that the children and their mother should stay in a home designated by social services. It referred in particular to the complaint concerning the sexual abuse allegedly suffered by the first applicant's elder son. 22.", "In a report of 12 March 1997, social services indicated that it was difficult to find a home ready to accommodate both the children and their mother. Moreover, the first applicant had refused to be separated from her children and the elder boy had said that he wanted to stay with her. All three were provisionally accommodated in a hostel ran by Caritas, a charity. On the first applicant's initiative, the children began to attend school again. Social services also described the first applicant in that report as being unstable and fragile.", "23. In March 1997 social services noted that it was impossible for Caritas to continue to provide a home for the first applicant. They also said that she seemed incapable of following a suitable programme for the protection of the children and that there were doubts as to her effective capacity to look after them. In addition, she had continued to see a man both on and off the premises and indicated that she wanted to return home, as her husband was no longer violent towards her. 24.", "A neuropsychiatrist employed by the local health authority stated in a report of 9 June 1997 that the first applicant appeared to be suffering from personality disorders. The relevant passages from the report read as follows: “... Mrs ... appears incapable of gauging reality and adapting her behaviour appropriately. She seems very confused about how to recount matters and about irrational acts. She is incapable of distinguishing between what is good and what is bad for the child and therefore incapable of protecting him; she alternates between times when she appears very childlike, in accordance with the idealised image of the mother, and times when she places G. in an adult role with seductive and subtly perverse traits. I can conclude that Mrs ... presents a serious personality disorder that at times affects the sphere of knowledge and ideation and at others the emotional and relational sphere, and that the hypothesis of a clinical 'borderline case' can be advanced.", "As matters stand, Mrs ... shows that she is not capable of managing the extremely complex family situation and G.'s particularly sensitive situation, still less of creating a sufficiently positive environment for him.” 25. It was noted in a school report of 10 June 1997 that the elder boy was becoming increasingly agitated and that the first applicant's attitude to both her son and school staff had tended to be highly erratic: at times aggressive, at others attentive. According to the school, it had proved very difficult to establish a constructive dialogue with her. A report by the social worker the following day confirmed the elder boy's increasing difficulties. 26.", "On 22 July 1997 the Youth Court ordered the elder son's placement in another home. The parents challenged that decision on 30 July 1997. On 8 August 1997 the Youth Court stipulated that the placement would last three months and was intended to provide an opportunity for the child's behaviour to be monitored. However, the boy manifested his dislike of that solution and ran away from the home, returning to his parents. Social services nonetheless insisted that he should remain in the home.", "27. It was stressed in a private medical report lodged at the time that the boy, who was in terror of the priest who ran the home, needed a peaceful environment rather than to be surrounded by other children whose past was just as tragic as his own. 28. The younger child was transferred to another home in the meantime. 29.", "On 8 September 1997, at the end of a meeting attended by, inter alia, social workers and specialists who had been supervising the first applicant and her children, the representatives of the relevant social-services department concluded that the children needed to be separated from their natural family and recommended their placement in a community, “Il Forteto”, which was organised as an agricultural cooperative. 30. On 9 September 1997 the Florence Youth Court ordered the two children's placement at “Il Forteto”, pursuant to Article 333 of the Civil Code (Condotta del genitore pregiudizievole ai figli – “parental behaviour harmful to the children”), suspended the father's and the mother's parental rights pursuant to Article 330 of the Civil Code (Decadenza dalla potestà sui figli – “lapse of parental rights”), ordered that if the parents refused to comply, the decision was to be enforced with police assistance, and granted the parents the right to visit the younger son only, such visits to take place on the cooperative's premises and in the presence of members of its staff. The Youth Court observed, inter alia, that the parents had been uncooperative and had on one occasion taken the elder child from the home where he had previously been staying despite the protests of his carers. It also criticised the parents for having exposed the elder boy to a tragic situation – of which he had been the victim – over a lengthy period, without exercising the supervision which was expected of them as parents, or being alert to the alarm signals given by the child.", "Conversely, those signals had not escaped the attention of school staff, who had tried in vain to establish a dialogue with the family. Lastly, the Youth Court ordered social services to monitor the children's situation closely and to produce a proposal for the children's rehabilitation, based on what was observed. B. Matters relating the “Il Forteto” community 31. The case file reveals that at the end of the 1970s the cooperative was the subject matter of a criminal investigation into acts of bestiality and paedophilia allegedly committed there by three of its founder members.", "Two of them, L.R.F. and L.G., were arrested and later released, but nevertheless committed for trial. 32. On 3 January 1985 the Florence Court of Appeal convicted L.R.F. and L.G.", "of, inter alia, the ill-treatment and sexual abuse of persons who had stayed in the home (they were acquitted on the other counts as there was insufficient evidence). The Court of Appeal considered it appropriate to examine the evidence against the accused in the light of the situation at “Il Forteto”: leaders at the home sought to sever relations between the children in their care and their natural parents, while homosexuality was rife. Relying, inter alia, on the evidence of witnesses and partial confessions by the accused, the Court of Appeal found the case proved, in particular, on the following counts: (i) both L.R.F. and L.G. were guilty of ill-treating a handicapped 18-year-old girl who had stayed at the home for a few days by, inter alia, hitting her several times a day, insulting her in the presence of others, preventing her from communicating with the outside world and mocking her physical appearance.", "In addition, L.R.F. had spat in her face and, as an act of contempt, exposed himself to her. (ii) L.R.F. was also found guilty of having sexually abused (atti di libidine violenti) two mentally handicapped males, on one occasion in the presence of a 13-year-old minor. 33.", "L.R.F. was sentenced to two years' imprisonment and L.G. to ten months' imprisonment. They were nonetheless granted a stay of execution and the order banning them from holding public office was quashed. They also received an amnesty for an offence of wrongfully holding themselves out (usurpazione di titolo) as psychologists holding diplomas from the universities of Berne and Zürich.", "34. Their appeal to the Court of Cassation was dismissed on 8 May 1985. 35. Both men remain on the staff working at the cooperative. In addition, one of them, L.R.F., was present during the aforementioned contact visit on 8 September 1997, which ended with the relevant social services department recommending to the Florence Youth Court that the first applicant's children be placed at “Il Forteto”.", "According to the most recent information available to the Court, L.R.F. is currently the president of that community. 36. The case file and, in particular, one of the books published on “Il Forteto” (Ritratti di famiglia, Florence, 1997), revealed that some of the people working in the community, or who have been staying there, come from problem families and have suffered violence at the hands of paedophiles. 37.", "In support of her allegations, the first applicant has also produced various statements in writing, beginning with statements by three people who have given their identity and whose respective niece, sister and daughter stayed, for various reasons, at the community in question. The relevant extracts are set out below. 38. Statement of the first witness: “... the little girl recognised me and came towards me; a man standing next to her, came towards us and told us to leave ... I went to 'Il Forteto' on another occasion in 1997 ...", "I tried a number of times but always received negative replies ...” 39. Statement of the second witness: “... the girls who went to 'Il Forteto' were malnourished and demoralised. My sister was one of them. When she returned to my mother's house she didn't speak and couldn't express her ideas coherently; my mother and I had to feed her with a teaspoon for several months ...” 40. Statement of the third witness: “... in May 1991, late in the evening in the presence of other members of the family, she was so frightened that she could not even manage to explain and kept repeating that she did not want to go back to 'Il Forteto'.", "That made us aware that terrible things are going on at 'Il Forteto'. She had to go back because they were blackmailing her ... She had in the past been hit by ... G. ... L. ... for refusing to participate in certain acts of violence which she did not want ... I am prepared to give evidence before the European Court.” 41. The applicants have also produced two other witness statements in writing. Both are signed.", "42. The first is by a municipal councillor from a village in the region. She affirmed that the children's guardian, whom she already knew and to whom she had referred for information on the case, had advised her not to get involved. Furthermore, according to her statement, L.R.F. had invited her to visit the community after she had expressed doubts about it in public at a ceremony for the presentation of one of the books published on the community.", "Despite her repeatedly expressed wish to meet the children, she was consistently denied an opportunity to do so, various reasons being given. 43. The second statement was made by two officially assigned experts working for the Florence Youth Court who had had a role in the case concerning the first applicant's children. According to their statement, the two experts – one a neurologist, the other a psychiatrist, and both directors of a family-therapy medical centre in Florence – had asked “Il Forteto” to allow trainees from the centre to work at the community or at least to visit it. On each occasion, their requests were turned down for reasons which the experts found “absurd”, such as, for example, the fact that the community was not a public institution.", "A student from the centre, attending a training course recognised by the Tuscany Region in 1996/97, had nonetheless managed to gain access to the community during his studies. During his visit he learnt from one of the leaders of the home that the families looking after the children were not necessarily the ones formally named in the court order. 44. The applicants also referred to passages taken from one of the books published on the community (Il Forteto, Florence, 1998). 45.", "They quote, inter alia, the following passages relating to the vexed issue of the presence of certain adults at the home: “Therefore, they each decided to share a mutually enriching experience with the others which would assuage the affective deficiency which had been their driving force” (p. 94). “Thus each member found and continues to find, through this experience, a sense of belonging, cohesion and love which elsewhere, in his family of origin, was lacking” (p. 95) 46. The applicants also quote the following passage, which refers to the authorities implicated in the criminal proceedings against some of the leaders of the community: “Many years have passed and the case has become clearer as the evidence of the machinations against them, which even today is kept in the villa, has been gathered. Even in that regard they display a Christian attitude which, frankly, I envy. Today, they could easily bring criminal proceedings or an action in damages against certain judicial officers, but do not do so ... At the time, the behaviour of the judicial authorities was schizophrenic.", "While making accusations against 'Il Forteto' via the Florence Public Prosecutor's Office, they continued to place children in the care of that structure through the Youth Court. S ... was put into R ... at precisely that time” (p. 31) C. Suspension of contact between the first applicant and her children until the decision of the Florence Youth Court of 22 December 1998 47. Within the community, the children were put into the care of Mr G.C. and Mrs M.G., the couple designated in the court order of 9 September 1997. The applicants allege that by October 1997 the first applicant's elder son, despite being of school age, had still not started school.", "In fact, he was enrolled on 23 October 1997 and began lessons on 4 November 1997. 48. On 10 and 14 October 1997 respectively the children's guardian and the public prosecutor applied to the Court for an order temporarily suspending contact with the younger boy, too. 49. On 4 November 1997 the first applicant complained to Judge S. of the Youth Court that since that court's decision of 9 September 1997 she had been given no further opportunity to see her children.", "50. On the same day the psychology unit at the local health authority (Unità sanitaria locale) certified that the first applicant was in good psychological health. 51. On 18 November 1997 the Youth Court noted that contact between the parents and the younger son had not yet begun. In view of the pending applications by the guardian and the public prosecutor, it ordered the appropriate child-neuropsychiatric centre to verify whether the time was ripe for a resumption of parental contact.", "52. On 25 November 1997 the first applicant made representations to the guardianship judge requesting execution of the Youth Court's decision concerning contact with the younger son. 53. Other attempts by the first applicant to see her younger son by going directly to “Il Forteto” were unsuccessful. Subsequently, there was a deterioration in relations between the first applicant and certain leaders of the community responsible for her children.", "The latter lodged a complaint against her accusing her of having threatened and assaulted them verbally and physically. They alleged that, on at least one occasion, she had done so with the assistance of her former husband, whom, they said, she continued to see (a letter relating the incidents was sent on 7 January 1998 to the public prosecutor and to the Youth Court; it bore the signature of L.G.). 54. On 3 December 1997 the first applicant requested the Youth Court to rescind its decision of 9 September 1997 because of a change of circumstances in the interim, she and her husband having just separated. She added that the realities of children's homes were often “ambiguous”.", "55. On 7 December 1997 the first applicant made a further complaint to the Youth Court. She said that “Il Forteto” had repeatedly refused to allow her to see her younger son and had disregarded the court's decisions. She requested it to obtain the information needed to establish whether the community was really defending the children's interests, not just private ones. 56.", "On 15 December 1997 the elder child was questioned by the public prosecutor's office. According to the record, the interview took place in the presence of the foster parents, Mr G.C. and Mrs M.C., though one of them (probably Mrs M.C.) signed the record using L.G. 's surname (see paragraph 114 below).", "57. On 15 January 1998 the first applicant was served with notice to attend a hearing before Judge S. of the Youth Court. At that hearing, she informed the judge that certain leaders of “Il Forteto” had been prosecuted in the past for abuse and violence against people who had stayed in the community. 58. Following the various steps taken by the first applicant, the Florence Youth Court noted in an order of 6 March 1998, firstly, that the initial examinations conducted by the child-neuropsychiatric centre showed that, while displaying open-mindedness, the younger child had at the same time denied his past and his parents.", "In particular, he had referred to his mother only on repeated prompting by staff from the centre. Observing that the child appeared to be in the process of coming to terms with a particularly difficult first phase in his past, the Youth Court considered it necessary for contact between the first applicant and her younger son to be preceded by preparatory sessions for both mother and child. The child was to be counselled by the social services department already responsible for his supervision, and the mother by the relevant psychology department. The court also ruled that contact could start once the preparatory work had been completed and the child had shown himself ready to resume relations with his mother. Lastly, it said that the contact was to be supervised by the social workers concerned, while the relevant authorities were to inform it when contact could begin and to advise on progress.", "59. On 30 March 1998 the first applicant informed the Belgian embassy in Italy of the danger presented by the community. She requested the intervention of the Belgian authorities. 60. On 6 April 1998 the younger child was examined by a specialist.", "He was accompanied by Mr M.S. and Mrs M.G., as foster parents. 61. Subsequently, the relevant social services department held preparatory sessions with the first applicant on 21 April, 19 May and 9 June 1998. The children attended several sessions with a neuropsychiatrist and were also required to take part in a number of logopaediatric sessions.", "62. There was a meeting of all the services concerned on 6 June 1998, at the end of which two initial contact visits between the first applicant and the younger child, each lasting an hour, were arranged for 8 and 14 July 1998. The visits were to take place in the presence of various specialists, including a social worker from the area in which “Il Forteto” was located, who was to accompany the child. The specialists were to observe the visits from behind a two-way mirror. 63.", "The first applicant had requested that her lawyer also be allowed to attend the visits and informed the Youth Court of that request. However, it was turned down on the ground that the presence of undesignated persons was not envisaged and, in addition, the therapeutic nature of the arrangements made it necessary to restrict attendance to the specialists from public bodies. 64. On 22 June 1998, however, the first applicant said that she was unwilling to see the younger child without his brother in view of the probable suffering that the elder child would endure on learning that only his younger brother was to be allowed to meet their mother. On 25 June 1998, Mrs C.C., a psychologist from social services, invited the first applicant to inform her whether she intended to stand by that decision and warned her that, unless she received a response, the contact visit would be cancelled.", "At that point, the first applicant changed her mind. 65. On 29 June 1998 L.R.F., one of the two leaders of “Il Forteto” convicted in 1985, sent a letter to the deputy public prosecutor at the Florence Court of First Instance concerning the first applicant's children. In the letter, he stated, inter alia: “... we do not want the children to nurture absences which could develop into internal fantasies and consequently bring contact with their parents to an abrupt and definitive end, but we consider it very important to put off such contact to a more suitable moment and to give the children sufficient time to absorb the negative and guilt-ridden images which their parents evoke ...” 66. On 2 July 1998 the deputy public prosecutor informed the Florence Youth Court that an investigation had been opened concerning the first applicant and her former husband, who were suspected of abusing the children.", "The deputy public prosecutor also drew the Youth Court's attention to the fact that the scheduled contact visits between the first applicant and the younger son, which he said he was aware of, could jeopardise the investigation as an expert examination due to continue throughout September 1998 was under way in order to determine whether that child presented symptoms of sexual abuse. He indicated that during recent interviews with a specialist, the child had begun to reveal matters of relevance to the accusation against his father, and added that he could not exclude a like accusation subsequently being made against the mother. 67. On 6 July 1998 the Youth Court decided provisionally to suspend the contact visits scheduled for 8 and 14 July, pending the outcome of the new investigation. It considered that the investigation, in connection with which an expert psychological examination of the younger son had been ordered, might be hindered by the visits.", "68. On 14 July 1998 the elder son was questioned. Mr G.C. and Mrs M.C. were once again present as the “foster parents”.", "69. In a note of 31 October 1998, the public prosecutor repeated that it was necessary for the children to be heard in connection with the investigation and desirable for them to be kept safe from any intimidating behaviour on the part of the parents that might undermine their recently recovered composure and compromise the results of future examinations. He stated in his memorandum that the children would be questioned as soon as possible regarding the matters disclosed in the psychologist's report, which matters would be communicated to the Youth Court once the confidentiality obligations that attached to the proceedings under way had been lifted. 70. In addition, R.L., a neuropsychiatrist responsible for assessing the children, stated in a report of 11 November 1998 that a programme designed to help them renew contact with their parents was being prepared with the foster parents.", "D. Action taken by the second applicant 71. On 14 October 1997 the second applicant lodged an initial application for an order granting her parental rights over the children. 72. On 4 March 1998 she requested permission to see the children at least twice weekly. 73.", "On 15 May 1998 she made a further application to the Youth Court for permission to see the children. She said that she had not seen them since June 1997 and had learnt of the events that had resulted in the Youth Court placing the children in a community indirectly (de relato). 74. At the end of the hearing on 12 June 1998, which the second applicant attended, the Florence Youth Court instructed the relevant child-psychology and neuropsychiatry departments to provide preparatory counselling to the children and their grandmother before contact began. The Youth Court noted that the latter had shown a real interest in renewing relations with the children and had indicated a willingness to follow the programme of counselling to be organised by the court-appointed services.", "75. Subsequently, the second applicant nonetheless appealed against that decision, her principal claim being to parental rights over the children. In the alternative, she asked to be allowed to see them at least twice weekly without prior counselling, since she was in any event prevented from attending such a course as she could not remain in Italy. In support of her application she contended, inter alia, that the application she had lodged in October 1997 had still not been examined and that she had looked after the elder boy in the past. 76.", "On 6 July 1998 the Youth Court dismissed her appeal. It stated, in particular, that it failed to comprehend why the second applicant could not remain in Italy to attend the preparatory course arranged by the specialists, since she had asked to see the children at least twice weekly, which would inevitably mean her travelling to Italy on a regular basis. The Youth Court also considered that counselling was essential in view of the gravity of the events, which had seriously marked the children, and of the need to avoid jeopardising the delicate task of rehabilitation on which the specialists had embarked. Lastly, removing the children from Italy might hinder progress in the pending criminal investigation into offences that may have been committed by the parents. 77.", "Meanwhile, on 19 June 1998 the second applicant had requested the Belgian consulate in Italy to have “Il Forteto” inspected by the Belgian diplomatic authorities. The Belgian diplomats did not note anything untoward during their visit. 78. On 15 July 1998 the second applicant requested the Belgian authorities to seek the transfer of the children to Belgium under the Convention concerning the powers of authorities and the law applicable in respect of the protection of minors concluded at The Hague on 5 October 1961. E. Decision of the Florence Youth Court of 22 December 1998 and the contact visits between the first applicant and her children 79.", "On 22 December 1998 the Florence Youth Court examined the first applicant's application of 3 December 1997, the second applicant's application of 14 October 1997 and the guardian's application of 10 October 1997. It began by reconsidering its decision of 6 July 1998 and ordered that the counselling programme in preparation for contact between the two applicants and the children should begin immediately. The meetings were to start on 15 March 1999 at the latest. As regards the second applicant, the Youth Court considered that her recent move to Italy would facilitate the implementation of the preparatory programme. It nonetheless renewed its orders suspending parental rights and for the children's placement at “Il Forteto”, as the first applicant's domestic situation remained very difficult – despite her separation from the children's father – while the children had adapted very well to their foster home.", "Lastly, the Youth Court also envisaged a resumption of relations between the children and their father, who had shown a willingness to re-establish contact. Contact visits by the father could not, however, start before September 1999, owing to the uncertainty of his position while the criminal investigation was pending. 80. On 8 January 1999 a judge of the Youth Court informed the Sesto Fiorentino Social Services Department that, in order to ensure continuity, it would be responsible for continuing the work of counselling for the visits ordered by the court on 22 December 1998. The court observed that the first applicant had requested that contact visits should commence.", "81. On 13 January 1999 the Sesto Fiorentino Social Services Department declared that it had no power to organise the counselling, as the first applicant had moved and the social worker hitherto assigned to her case had been transferred in the meantime. 82. On 4 February 1999 the Figline Valdarno Social Services Department assigned a social worker to monitor the first applicant's progress. When giving evidence to the Youth Court on 8 February the social worker admitted that she was unfamiliar with the case, but said that she was conscious of the urgency of the situation and undertook to prepare the mother for contact with her children by no later than 15 March, the deadline set by the court.", "83. On 9 February 1999 a social worker from Vicchio (Mrs S.C.) and the child-neuropsychiatrist, Mr R.L., who were responsible for monitoring the progress of the first applicant's children and who had already prepared a programme of meetings with the children and the foster parents, informed the Youth Court that they had reservations as to the appropriateness of their being asked to counsel the children's father and grandmother with a view to contact. According to the social services department, there was a danger that the close proximity of the children would create tensions, added to which it did not know either the father or the grandmother. For those reasons, it suggested that they should receive preparatory counselling from their local social services. 84.", "On 12 February 1999 the Head of the Figline Valdarno Social Services Department informed the Youth Court that it was encountering difficulties in obtaining all the documents relevant to the case. She proposed that the court should therefore convene a meeting of all the specialists and social workers involved. 85. On 15 February 1999 the Youth Court replied, inter alia, to the Social Services Departments of Figline Valdarno and Vicchio; it informed them that the court proceedings had finished and that, accordingly, the administrative and organisational matters were to be dealt with by social services. It remarked, too, on the length of time that social services had taken since its decision and reminded them that they should be giving it their urgent attention.", "86. On 18 February 1999 the Figline Valdarno Social Services Department convened a meeting of all the social services departments involved. On 25 February 1999 the Vicchio Social Services Department informed the children's guardian that the programme of pre-contact counselling had begun in mid-January. 87. On 2 March 1999 the elder boy sent a letter to the president of the Youth Court.", "Among other things he said that he had not seen his grandmother for four years and did not understand why she would want to see him again. As to his mother, he said that she had always sought to justify the conduct of his “social workers”, even though he had informed her of their conduct. It was only on arriving at “Il Forteto” that he had been able to comprehend, thanks to Mrs M. and Mr G., what he had been through and what it meant to have a father and mother. For those reasons, he did not want to see his mother at that stage. (He signed the letter using the surname of one of his official foster parents at “Il Forteto”, before also adding his own surname.)", "88. On 8 March 1999 the Florence Social Security Department informed the Youth Court that the various tasks had been assigned. However, it was not possible to set a date for the visits to begin as G. was now reluctant to see his mother immediately after seeing a specialist on 26 February 1999 (see paragraph 116 below). It added that the meetings with the grandmother and the father would begin during a second phase. 89.", "A few days later G. informed the Youth Court that after his experience with the specialist he did not wish to meet his mother or grandmother for at least three months. 90. After the first applicant had received preparatory counselling, the initial contact with the children nonetheless took place on 29 April 1999. G., so it appears, preferred not to leave his younger brother to see their mother on his own. According to the reports of social services dated 21 June and 5 July 1999, that first visit showed that both the children and the mother were experiencing difficulties.", "The mother was not sufficiently receptive to what the children said, while they perceived her insistence as a threat to the stability of their new environment. The children had been mistrustful from the outset of the visit and the younger child had not even acknowledged that the first applicant was his mother. Social services observed that despite the children's wish to see their mother, they had been disappointed. 91. However, having viewed the video recordings of that first visit produced by the Government (see paragraph 10 above), the Court has found nothing to support the appraisal and unfavourable comments of social services to which the Government refer.", "The visit took place in a room in the psychology unit at the social services department. It was friendly and the atmosphere was reasonably relaxed. Towards the middle of the visit the elder son began to cry, very probably when old wounds from his dramatic past were reopened. The episode was brief, he appeared relieved afterwards and calm was quickly restored between the first applicant and the children. Social services displayed an evident lack of tact towards the first applicant.", "Two people – either social workers or specialists – were present in the room throughout the visit so that the first applicant was at no stage able to enjoy any intimacy with her children, added to which, the visit was ended rather abruptly. The Court's view is that overall, though tense, the relationship between the first applicant and her children was warm and relaxed. The first applicant behaved responsibly throughout the visit, proved ready to cooperate and was respectful. Although the children did not manifest any obvious regret when the visit ended, the Court considers that the terms summarised above which social services used in their reports to describe the visit were unduly dramatic and unfavourable to the first applicant, and do not correspond to what was seen on the video recording produced by the respondent Government. 92.", "That notwithstanding, the elder child wrote to the social workers on 6 May 1999, expressing disappointment with that first contact. 93. A second visit took place on 9 September 1999. According to the report of social services, G. on this occasion sought an explanation from his mother for her alleged failure to react to his allusions to the paedophile violence to which he had been subjected. He had left the room when the first applicant refused to accept his criticism.", "In their report, social services stressed the first applicant's inability to listen to her son or to follow the recommendations of the specialists, while at the same time showing understanding of her painful situation and her desire to assert herself in her role as mother. According to a subsequent report (see paragraph 95 below), one of the specialists present during the contact visit had suggested to the first applicant that she write a letter to her son but, according to the report, she had refused. 94. However, having examined the audio recordings produced by the Government (see paragraph 10 above), the Court has found nothing to support social services' position. The arrangements for this visit appear to have been similar to those for the first in that, in particular, it was held on premises belonging to social services, again in the presence of two specialists.", "The following points arising from the focal points of the visit have enabled the Court to identify once more discrepancies between social services' official report and what was heard on the recording. In particular: (i) the report does not mention the fact that the first applicant asked the children whether they were happy to see her again or that they said that they were; (ii) the elder son did not raise the question of his mother's role in the paedophile assaults on him on his own initiative, as the report seems to suggest, but was prompted to do so by one of the two specialists present; (iii) after the visit was over, one of the specialists told the first applicant that in reality her elder son had not wanted to see her again and that the new visit had only proved possible thanks to the efforts of the other specialist present; (iv) the experts said that whether there were to be further visits would depend on the elder son and that the first applicant would be able to see her younger son “if possible”, to which she had reacted by asking them what they meant by the latter expression, but the specialists had replied that the answer did not depend on them. 95. On 4 October 1999 the specialists from social services met the children at “Il Forteto” in the presence of the foster parents, with a view to assessing the short-term prospects of contact with their mother continuing. According to the report of social services, the meeting ended “with an agreement, at G.'s and M.'s request, to suspend contact with their mother for the time being”.", "A further session of preparatory counselling was nevertheless arranged with the first applicant for 9 November 1999. 96. On 3 January 2000 a specialist from social services met the first applicant. At the meeting, the latter complained that the children's Christmas presents had been refused. She reiterated her attachment to the children and her willingness to explain matters to them if they agreed to meet her.", "Since then, no further visits have been organised or programmed. Furthermore, in their last report (29 March 2000), social services said, inter alia, that: (i) the elder child was in the process of acquiring a new identity marked by the suffering from the past and, consequently, did not appear to be being manipulated; (ii) he considered it preferable not to see his mother again during the next two years; (iii) social services had decided to suspend all contact between the first applicant and her children, while at the same time continuing to counsel her with her a view to keeping her informed of any changes in the children's attitude on that subject. 97. As to the father, he has not visited the children at all, despite the fact that preparatory counselling sessions with social services were held at the end of 1999. From a report by social services dated 8 November 1999, it would appear that the father was aware of the evolution of the situation between his former wife and the children, and in particular of the negative outcome of the visit on 9 September 1999.", "The first applicant maintains, however, that she was no longer in touch with him and that he spent his time travelling between Belgium and Italy. F. Further appeals by the applicants 98. On 21 January 1999 the first applicant appealed against the decision of the Youth Court of 22 December 1998. Her primary request was for reinstatement of her parental rights and an immediate renewal of contact with her children. She contended in particular that she had in the meantime separated from her former husband – whom the relevant judge had regarded as being responsible for violence against both her and the children – and now led a normal life and was working as a chiropodist.", "99. The first applicant also challenged the decision to keep the children at “Il Forteto” and requested their placement elsewhere, arguing: (i) that it was difficult for the parents of children staying in the community to gain access to them; (ii) L.R.F. and L.G. remained the most important figures at “Il Forteto”, despite their convictions; (iii) the foster parents at “Il Forteto” were doing all they could to hinder a resumption of relations with the children. 100.", "The second applicant also appealed. 101. On 22 March 1999 the children's guardian intervened in the proceedings before the Court of Appeal, requesting the suspension of contact for several months, inter alia, on the grounds that: (i) the first applicant had largely exaggerated her professional qualifications; (ii) for several years she had failed to notice what her elder son, G., was going through, which demonstrated that she was incapable of assuming her role as mother; (iii) the grandmother had always lived in Belgium and had not shown any real interest in the children. In addition, no one knew what she had been doing since moving to Italy. Furthermore, it was difficult to see how she could claim to be able to provide the children with a good upbringing when she had not succeeded in doing so for her daughter (the first applicant), who, at best, was an inadequate, unsuitable and absent mother; (iv) the children's father was a fugitive criminal after his escape from prison in Belgium, where he had been serving a 27-year prison sentence for murder; (v) “Il Forteto” was a cooperative that was internationally famous for its production of milk and cheeses, but also an innovative home for the protection of children in distress that had been founded by twenty families who had never abandoned it.", "While it was true that two of its members had convictions (although they were not, in any event, members of the family looking after the first applicant's children), it was equally true that such prosecutions could be based on false evidence. Furthermore, over a twenty-year period, some seventy children had been placed with the cooperative by courts from regions all over Italy and a number of those care orders had subsequently resulted in adoptions, thus confirming the validity of that option and the courts' confidence in “Il Forteto”. 102. The public prosecutor at the Court of Appeal requested that the children be put into the care of their grandmother or, failing that, of another family. 103.", "On 31 March 1999 the Court of Appeal upheld the decision of the Youth Court. It emphasised, in particular, the positive evolution of the children's situation and considered that the allegations concerning “Il Forteto” were of a general nature, with the exception of the events of twenty years earlier, which in any event did not concern the children's foster parents. Although the applicants had produced statements from highly qualified people contesting the methods employed at “Il Forteto”, the fact that there were other statements from equally qualified people confirming its reputation could not be disregarded. The good conditions in which the children were living made it unnecessary to accede to the grandmother's request as, though in theory it was preferable to put children in the care of a member of the family rather than in a community, the children had by that time been staying with the community for some while and the results had been positive. Moreover, the children did not know their grandmother very well and she did not appear to be independent of her daughter.", "104. The first applicant appealed to the Court of Cassation. As to the placement of the children at “Il Forteto”, she observed that even though the children were not in the immediate care of the two leaders with convictions, it had been the latter who had brought the foster parents into the home and trained them (L.R.F. had even become the president of the cooperative). Moreover, L.G.", "'s wife was actively involved in looking after the children, the elder son, G., having admitted in his letter of 2 March 1999 that it had been she who had helped him to interpret his doubts about his mother. 105. The Court has not been informed of the outcome of the proceedings before the Court of Cassation. 106. On 25 October 1999 the first applicant asked the guardianship judge to request that contact visits be arranged at more regular intervals than in the past and to permit a psychologist to interview the children in “Il Forteto” and attend the counselling sessions prior to the visits.", "On 3 November 1999 the guardianship judge agreed in particular to the requests relating to the presence of the psychologist at the preparatory sessions and at the visits with the children and to the production of the audio-visual recording of the meetings. The children's guardian appealed. 107. In a decision of 12 January 2000, the Florence Youth Court allowed the guardian's appeal and reversed the decision of the guardianship judge. On the basis of the information supplied by social services it found that the negative results of the two visits should be attributed to a lack of cooperation on the first applicant's part.", "Accordingly, the presence of another specialist during visits to facilitate a change in attitude by the first applicant did not appear necessary, as she was already receiving sufficient counselling from the institutional services appointed by the court. As regards the audio-visual recording of the visits, the Youth Court considered that it would not be appropriate for the first applicant to view such material, as the purpose of recording the visits was to enable the relevant authorities to assess whether the visits had been a success and whether it was possible and appropriate for them to continue. 108. The first applicant appealed against that decision. She argued, inter alia, that the Youth Court had accepted social services' conclusions regarding the negative results of the visits as they stood; it had failed in its duty to supervise the implementation of its decisions critically and with the help of relevant objective evidence such as the audio-visual recordings which she had asked to be produced.", "In her submission, apart from the fact that she failed to see how a visit which she had been looking forward to for years could have been interpreted so negatively, her right to examine the recordings was all the more founded in that it would help her gain a better understanding of herself and to adapt her behaviour. It was, furthermore, absurd for the Youth Court to refuse to examine the recordings itself or to allow the guardianship judge to do so. Lastly, the presence at the preparatory sessions and during contact visits of a specialist chosen by the applicant would help her to take part in her children's family and psychological development, particularly as there was no statutory provision to prohibit a parent from seeking the additional help of private psychologists to prepare for re-establishing relations with his children. 109. In a decision of 17 March 2000 the Youth Court authorised the showing of the audio-visual recordings to the first applicant, since they had already been produced to the Court and consequently were of procedural, as well as clinical, value.", "G. The programme of visits by the second applicant 110. The second applicant was invited on 4 November 1999 to begin a programme preparing her for contact with her grandchildren. However, the notice of appointment was returned to the sender. Inquiries were made to establish whether the second applicant had changed address in the meantime. At the first applicant's suggestion, a further notice was sent to the first applicant's sister, but social services were informed that the second applicant was still unable to attend.", "They received the same reply for a session scheduled in December 1999. The second applicant explained her absence by the fact that she had had to return to Belgium as a matter of urgency as the invalidity benefit she received for her handicapped son had been cancelled because of her move to Italy. The first preparatory session with social services finally took place on 10 January 2000. 111. According to the report prepared by social services, the second applicant complained at that session that she had not been given an appointment in March 1999 and said that she could not leave Belgium for more than three months at a time, as otherwise she risked losing the invalidity benefit she received there for her handicapped son.", "She said that she wished to see the children and wanted them to live with her. She justified her silence over a period of several months by the fact that she did not know what stage the programme of visits between the children and her daughter had reached, as she no longer had any contact with the latter. It was also mentioned in the report that the second applicant had advised against the children being returned to their mother because the latter continued to see her former husband, as had been confirmed both by her daughter herself and by neighbours. The cause of all the problems was N.A. 's violence and the first applicant's inability to defend either herself or the children.", "She had concluded by saying that she was unhappy with the fact that the children had been sent to “Il Forteto”. 112. According to the most recent information received from the first applicant, the second applicant will be required to reimburse a substantial sum to the Belgian State in respect of benefit received during the periods when she was staying in Italy, and in February 2000 she was admitted to hospital with heart problems. H. Subsequent developments in the criminal proceedings against the first applicant 113. On 19 June 1998 the guardian sent a letter to the public prosecutor written the previous day by the elder child, in which the boy said that his mother had been aware of the paedophile abuse to which he had been subjected and that on one occasion he had witnessed her receiving money from M.L.", "114. The child confirmed his accusations on questioning by the public prosecutor on 14 July 1998. He was accompanied to the interview by Mr G.C. and Mrs M.C. (who was in fact Mr L.G.", "'s wife), as foster parents. 115. On 11 November 1998 the public prosecutor questioned M.L. about the accusations made against the first applicant by the elder child. M.L.", "denied what the child had said and concluded: “What I have said up to now is the simple truth. I would have no difficulty in confirming what G. has said if it were true ... I believe that G. has invented, at least in part, what he has said because of bitterness towards his parents. G. had a very poor relationship with his father, but adored his mother. Perhaps he later became rather bitter because he felt that she had not done enough to protect him.", "If I could confirm what he has said I would do so, to help him, too.” 116. On 27 February 1999 the children were examined by a specialist in the presence of the investigating judge. The judicial authorities' assessment of the results of the specialist examination is not yet known. During the examination, the elder child admitted having written the letter of 19 June 1998 in the presence of, inter alia, R. (probably L.R.F.). He also said that he would be pleased to see his mother again.", "117. In addition, on an unspecified date and in circumstances that have not been clarified, the first applicant's sister was heard by the Florence Youth Court. She stated that she was living with her mother and one of her brother's at Figline Valdarno and that another brother, who had been involved in drug trafficking, had been killed. An elder brother who had not forgiven her for having intervened as a civil party in the criminal proceedings instituted following the death of the other brother had accused her of attempted murder. According to the record of her sister' statements, the first applicant had also been charged.", "I. Other information relating to the children's mental and physical welfare 118. In a certificate of 8 June 1998, the neuropsychiatrist, R.L., noted that the younger child was fragile psychologically and advised the authorities to act with great caution. 119. In addition: – a doctor's certificate dated 1 November 1998 described the elder child as being in “excellent” health; – a certificate by another doctor dated 11 November 1998 expressed the view that the younger child's health had improved and was “good”.", "120. A certificate drawn up by a paediatrician on 24 November 1998 stated that the children were in excellent health and that their development and growth appeared normal. 121. In addition, the school report on the elder child for the school year 1997/98 and a report by the teachers stated that he was working hard and making constant progress. 122.", "Social services said in a report of 5 July 1999 that the children's stay at “Il Forteto” had been very positive from both an emotional and a relational standpoint, had enabled them to recover a degree of equilibrium and made them more receptive to interpersonal relations. 123. Lastly, in their last report (29 March 2000) social services said that the younger child was now attending nursery school and his relations with the teachers were very good. II. RELEVANT DOMESTIC LAW 124.", "Article 330 of the Italian Civil Code provides: “The court may declare parental rights forfeit if the parents do not perform or neglect the obligations inherent in their parental role or abuse the powers related thereto causing serious detriment to the child. In such eventuality, the court may, if there are serious grounds for so doing, order the child's removal from the family home.” 125. Article 333 of the Civil Code provides: “Where the conduct of one or both parents is not such as to give rise to their parental rights being declared forfeit under Article 330, but is nonetheless detrimental to the child, the court may adopt any measure that is appropriate in the circumstances and may even order the child's removal from the family home. These measures may be revoked at any time.” 126. Furthermore, Law no.", "184 of 4 May 1983 on the fostering of minors and adoption, provides, inter alia, that a minor who has temporarily been deprived of a satisfactory family environment may be placed with another family, with a family-type community, or if it is not possible to provide him with a satisfactory family environment, in a children's home (section 2). 127. Section 4 of that law provides, inter alia, that among other matters that must be stipulated in an order placing the child with a family is its provisional duration (paragraph 3). In addition, section 5 provides that the family, home or community in whose care the child is placed must facilitate relations between the minor and his natural parents and his reintegration in his original family. 128.", "Section 9 imposes an obligation on children's homes to send six-monthly reports to the guardianship judge on the minor, his relations with the family of origin and his mental and physical welfare. The provision also requires the guardianship judge to report to the youth court on abandoned children in the home and to carry out six-monthly inspections. 129. Lastly, section 12 provides, inter alia, that where investigations have revealed the existence of relatives or other family members up to the fourth degree who have maintained meaningful contact with the minor and whose whereabouts are known, the president of the court shall order their attendance at court (paragraph 1). After hearing them, the president of the court may give them such instructions as shall be necessary to ensure that the minor receives emotional support, maintenance, an education and an upbringing (paragraph 3).", "the law I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 130. The first applicant, who purported also to be acting on behalf of her children, complained of infringements of Article 8 of the Convention in that her parental rights had been suspended, her children had been taken into care, the authorities had delayed before finally allowing her to see the children, too few contact visits had been organised and the authorities had placed the children at “Il Forteto”. 131. The second applicant also alleged a violation of Article 8, complaining that the authorities had discounted the possibility of her being given the care of her grandsons and delayed organising contact with them.", "132. Article 8 is worded as follows: “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.” 133.", "The Government contested the applicants' arguments. 134. The Commission expressed the opinion that that there had been no violation on account of the suspension of parental rights or the children's placement at “Il Forteto”, and no violation of the second applicant's rights. Conversely, it considered that there had been a violation of Article 8 as regards contact between the first applicant and her children. A.", "The Government's preliminary objection regarding the first applicant's standing also to act on her children's behalf and, consequently, the Belgian Government's standing to intervene in the proceedings 135. The Italian Government contested, firstly, the first applicant's standing also to act on behalf of her children, as her parental rights had been suspended on 9 September 1997, there was a conflict of interest between her and the children and criminal proceedings were pending against her for offences against her children. In addition, the Government argued that the first applicant had never clearly stated that her application to the Court was made on behalf of her children, too. 136. The Government went on to contend that the Belgian Government had no standing to intervene, since their intervention was based solely on the fact that the elder child was a Belgian national.", "137. The Commission rejected that objection, noting that it was clear from the first application that the first applicant's children were also applicants and represented by the same lawyer in the proceedings before it. It added that there was nothing to prevent minors applying to the Commission. Indeed, there was all the more reason to allow them to do so where they were represented by a mother who had a conflict of interest with the guardian whom the public authorities had entrusted with the task of looking after the children's interests in her stead. 138.", "The Court points out that in principle a person who is not entitled under domestic law to represent another may nevertheless, in certain circumstances, act before the Court in the name of the other person (see, mutatis mutandis, the Nielsen v. Denmark judgment of 28 November 1988, Series A no. 144, pp. 21-22, §§ 56-57). In particular, minors can apply to the Court even, or indeed especially, if they are represented by a mother who is in conflict with the authorities and criticises their decisions and conduct as not being consistent with the rights guaranteed by the Convention. Like the Commission, the Court considers that in the event of a conflict over a minor's interests between a natural parent and the person appointed by the authorities to act as the child's guardian, there is a danger that some of those interests will never be brought to the Court's attention and that the minor will be deprived of effective protection of his rights under the Convention.", "Consequently, as the Commission observed, even though the mother has been deprived of parental rights – indeed that is one of the causes of the dispute which she has referred to the Court – her standing as the natural mother suffices to afford her the necessary power to apply to the Court on the children's behalf, too, in order to protect their interests. 139. Moreover, the conditions governing individual applications are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 34 of the Convention and, whilst those purposes may sometimes be analogous, they need not always be so (see the Norris v. Ireland judgment of 26 October 1988, Series A no. 142, p. 15, § 31).", "140. Therefore, since the first applicant also has standing to act on behalf of the children, the Belgian Government are entitled to take part in the proceedings within the meaning of Article 36 § 1 of the Convention and Rule 61 § 2 of the Rules of Court, as the elder child also has Belgian nationality. 141. The Court accordingly concludes that the Government's preliminary objection must be dismissed, both as regards the locus standi of the first applicant's children and the standing of the Belgian Government to intervene in the proceedings. B.", "Compliance with Article 8: was the interference “in accordance with the law” and did it pursue a legitimate aim? 142. It was common ground that the impugned interference was in accordance with the law for the purposes of Article 8, the relevant provisions being, in particular, Articles 330 and 333 of the Civil Code (see paragraphs 124-25 above) and section 2 of Law no. 184 of 1983 (see paragraph 126 above). It is true that the applicants alleged a failure to apply certain provisions of the latter statute, notably those concerning the provisional length of the placement (section 4(3)), the duty of directors of care institutions to facilitate links with the family of origin (section 5), and the refusal to give consideration to putting the children in the care of their maternal grandmother (section 12(1)).", "However, those matters concern the manner in which the relevant domestic provisions were applied, not the legal basis for the impugned interference as such. They therefore relate to the issue whether the relevant provisions were applied in accordance with the Convention principles. 143. Furthermore, the parties also agreed that the impugned measures pursued a legitimate aim within the meaning of Article 8, namely “the protection of health or morals” and “the protection of the rights and freedoms of others”, as they were intended to protect the welfare of the first applicant's children. C. Compliance with Article 8: was the interference “necessary in a democratic society”?", "1. Suspension of the first applicant's parental authority and the removal of the children (a) Submissions of those appearing before the Court (i) The first applicant 144. The first applicant contested the authorities' decision and stressed, inter alia, her determination to break free of the family background that had been damaged by her former husband's violence. That determination was shown notably by the fact that she had lodged a complaint against her former husband and separated from him. (ii) The Belgian Government 145.", "The Belgian Government considered that the suspension of parental rights appeared justified in view of the limited capacities of the first applicant and her former husband to bring up the children. (iii) The Italian Government 146. The respondent Government emphasised above all the gravity of the domestic circumstances of the first applicant, which had been marked by the sexual abuse which one of her friends had inflicted on the elder child for years and the repeated violence that characterised the relations between the members of the family. The Government also referred to the first applicant's complex personality and concluded that the measure in issue had been justified by the children's interests. (iv) The Commission 147.", "The Commission considered that since the children had been confronted over a very considerable period by situations that were undoubtedly harmful to their development, the interference by the authorities through the children's removal was justified in order to protect their interests. (b) The Court's assessment 148. The Court reiterates that “... it is an interference of a very serious order to split up a family. Such a step must be supported by sufficiently sound and weighty considerations in the interests of the child ...” (see the Olsson v. Sweden (no. 1) judgment of 24 March 1988, Series A no.", "130, pp. 33-34, § 72). Therefore, “... regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State ... enjoy[s] a certain margin of appreciation ...” (see the Hokkanen v. Finland judgment of 23 September 1994, Series A 299-A, p. 20, § 55). In this sphere, “... the Court['s] ... review is not limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith ... In the second place, in exercising its supervisory jurisdiction, the Court cannot confine itself to considering the impugned decisions in isolation, but must look at them in the light of the case as a whole; it must determine whether the reasons adduced to justify the interferences at issue are 'relevant and sufficient ...' ” (see the Olsson (no.", "1) judgment cited above, p. 32, § 68, and, mutatis mutandis, the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, pp. 25-26, § 52). 149. The Court notes that the first applicant's domestic circumstances seriously deteriorated in 1994 (see paragraph 13 above).", "It is particularly struck by the negative role played by her former husband. The case file shows that it was he who was largely responsible for the violent atmosphere within the family through his repeated assaults on the children and his former wife, which led the first applicant to lodge a criminal complaint (see paragraph 13 above). 150. However, it must be noted, too, that even after separating from her former husband, the first applicant found it difficult to look after her children. In that connection, the Court attaches weight to the report of 9 June 1997 by the neuropsychiatrist employed by the local health authority (see paragraph 24 above), in which she expressed the view that the first applicant was suffering from a personality disorder and was incapable of managing the complex situation of her family and children.", "The problem is compounded by the severe trauma suffered by the elder child as a result of the paedophile abuse of him by a social worker who succeeded in ingratiating himself with the first applicant's family. 151. Under those circumstances, the Court agrees with the Commission on this point and considers that against that background the authorities' intervention, through the suspension of the first applicant's parental rights and the temporary removal of the children from their mother's care, was based on relevant and sufficient reasons and was justified by the need to protect the children's interests. Consequently, there has been no violation of Article 8 of the Convention on that account. 2.", "Contact between the first applicant and her children (a) Submissions of those appearing before the Court (i) The first applicant 152. The first applicant observed, firstly, that she could not understand why she had been prevented from seeing her elder son since the decision of 9 September 1997. 153. As to the accusations that had been made against her in July 1998, she submitted that it was absurd to have interrupted a relationship as sensitive as that between mother and son because, if at the end of the proceedings she was found innocent, she would have suffered irreversible harm. In that connection, she complained that the authorities had used double standards: the Youth Court had cited the accusations against her (even though they had not resulted in her being committed for trial) as the reason for separating her from her children for a lengthy period, whereas it had continued to place children at “Il Forteto”, despite the final convictions of two leaders of that community for serious offences against children in their care.", "154. The first applicant also alleged that social services in fact had a very negative view of her that was in the process of strongly influencing her elder son to the point where he had shown a hostility towards her that had not previously been present. (ii) The Belgian Government 155. The Belgian Government submitted, as its principal contention, that when in March 1998 the Youth Court had ordered the implementation of a preparatory programme for contact with M., the issue whether the suspension of contact with G. should continue had not been raised, even though the psychiatric report that had been ordered by the Youth Court on 18 November 1997 had concerned both children. 156.", "As to the suspension of the contact with the younger son that had already been scheduled for 8 July 1998 the Belgian Government observed that while it was defensible in principle, in practice it had to be noted that: – the allegations that had culminated in the child being questioned had been known to the authorities for seven months (since 7 January 1998); – the matters revealed implicated only the child's father and there was only a possibility that the investigation would also encompass the first applicant, as the public prosecutor had indicated in his notes of 18 and 26 June 1998; – M. was not questioned until 27 February 1999, that is to say seven months later. 157. In fact, M. was not questioned until the Youth Court had delivered its decision of 22 December 1998 in which it ordered the implementation of a new preparatory procedure for the resumption of contact between the two children and their mother. The fact that the Youth Court had ordered a resumption of contact even before M. had been questioned in connection with the criminal proceedings considerably undermined its reasoning in the decision of 6 July 1998, while the harmful consequences of that decision for M., resulting from the abrupt halt to the preparatory sessions, could not be disregarded. 158.", "Even after the decision of 22 December 1998, the visits had begun late (on 29 April) after nineteen months' separation. In the Belgian Government's submission, the prevention of any contact over such a lengthy period constituted an extremely serious interference in the first applicant's family life, especially when the tender age of the younger son was taken into account. Accordingly, the inconsistencies in the authorities' decisions could not be regarded as compatible with the requirements of Article 8. (iii) The Italian Government 159. The respondent Government observed, firstly, that it was not until 4 November 1997, that is to say two months after the Youth Court's decision to place the children at “Il Forteto”, that the first applicant had complained for the first time that, contrary to the Youth Court's decision, she had not been given an opportunity to see her younger son.", "160. The respondent Government went on to emphasise the ambivalent attitude of the first applicant. In order to have a better understanding of her personality, the Government suggested that it might be helpful to recall that during the course of the proceedings she had described herself on a number of occasions as a psychologist, a nurse and a gynaecologist. It was also appropriate to refer to the proceedings currently pending before the Florence Court concerning acts that she was presumed to have committed against her elder son (there being serious evidence of complicity on her part), to the attempted suicide of the daughter born of the first applicant's first marriage as a result of the domestic violence of which she had been victim, and to the statements of the first applicant's sister to the Florence Youth Court. 161.", "The Government also argued that there was a need for preparatory counselling before contact visits, and that such counselling should be provided at brief intervals so as to avoid a preferential relationship developing between the mother and M., the younger son, as that would create serious tension in the relationship between the two brothers, a relationship which social services considered important to maintain. Furthermore, owing to the complexity of the programme and the desirability of verifying the effective needs of those concerned, it had been necessary to devote time to it. 162. The Government also referred to the difficulties social services had encountered as a result of the first applicant's aggressive and threatening behaviour, particularly towards her elder son, which the Government maintained was almost certainly linked to his statements in the criminal proceedings. 163.", "The postponement of the visit scheduled for 6 July 1998 had been fully justified by the requirements of the criminal investigation, since the children would have to be questioned and the first applicant's attitude towards her elder son had been threatening. 164. The respondent Government also pointed to the commitment of the services involved in guiding the children through an innovative programme aimed at the children's psychological and emotional recovery and at giving them a better understanding of their parents' role. In the light of that aim, the Government considered it desirable for the first applicant to cooperate with social services and to stop adopting a threatening stance against her elder son at meetings (the Government also referred to the first applicant's refusal to heed the advice of the social workers at the end of the meeting on 9 September 1999 to write to her elder son). 165.", "Contact visits would in any event resume in accordance with the decisions of the specialists dealing with the case. (iv.) The Commission 166. The Commission said that it was conscious of the particularly serious nature of the situation of the first applicant's children and did not question the need to take precautions owing to the suffering and trauma to which the children had been exposed both generally and during the visits from their mother. 167.", "It considered, however, that the total severance of relations that occurred just as it was adopting its report was unjustified. In its view, there were no exceptional circumstances capable of justifying a total severance of contact in the instant case. Indeed, the authorities themselves had envisaged a resumption of contact, at least with the younger son. In addition, total severance appeared still more unjustified in the present case in view of the first applicant's concerns over the community chosen for the placement, which concerns were understandable when, inter alia, the criminal antecedents of certain leaders of “Il Forteto” were taken into account. 168.", "As regards the suspension of visits that had already been scheduled with the younger son, the Commission expressed the opinion that the reason relied on by the authorities – namely the fact that an investigation had been started concerning the children's father – appeared weak, since the prosecution had not referred to any concrete evidence against the first applicant and had confined itself to alluding to a possible extension of the investigation to the mother. (b) The Court's assessment 169. The Court reiterates, firstly: “the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life; furthermore, the natural family relationship is not terminated by reason of the fact that the child has been taken into public care ...” (see the Eriksson v. Sweden judgment of 22 June 1989, Series A no. 156, p. 24, § 58). As the Court has previously observed, “... taking a child into care should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit and ... any measures of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parent and the child ...", "In this regard, a fair balance has to be struck between the interests of the child in remaining in public care and those of the parent in being reunited with the child ... In carrying out this balancing exercise, the Court will attach particular importance to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent. In particular, ... the parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child's health and development. (see the Johansen v. Norway judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III, pp. 1008-09, § 78).", "170. The Court considers, firstly, that the decision of 9 September 1997 to prohibit any contact between the first applicant and her elder son does not appear to have been based on sufficiently valid reasons. It is true that the child had gone through a very difficult and traumatic experience. However, as the Commission pointed out in its report, a measure as radical as the total severance of contact can be justified only in exceptional circumstances (see the B. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, pp.", "78-79, § 77). While the complex circumstances that were harmful to the family life and the development of the children fully justified their being temporarily taken into care (and without underestimating the importance of appropriate psychological support for the mother), the grave situation within the first applicant's family did not, in the Court's view, justify by itself contact with the elder child being severed, regard being had not only to the attachment which the first applicant has always shown to her children, but also and above all to the authorities' decision to allow at the same time a resumption of contact with the younger child. Given that the authorities did not wish to deprive the first applicant of all parental rights permanently, the decision to exclude G. from all contact with his mother entails a partial breakdown in relations, including relations between the brothers, and does not tally with the declared aim of bringing about a resumption of relations with the mother. 171. The Court further notes that although the decision of 9 September 1997 provided for the organisation of visits with the younger son, nothing further was done until 6 March 1998, when the Florence Youth Court finally decided to require visits to be preceded by a preparatory programme for the mother.", "However, nothing came of that as, just two days before the first visit was due to take place on 8 July 1998 and at the request of the deputy public prosecutor, who had just started an investigation concerning the children's father (see paragraph 66 above), the Youth Court decided to suspend the visits that had already been scheduled. As regards that decision, the Court agrees with the Commission's opinion. It is difficult to identify the basis for the Youth Court reaching such a harsh decision, with its very negative psychological impact on those concerned, since the public prosecutor's application had been based on the mere possibility, unsupported by any objective evidence, that the scope of the investigation might be enlarged to include the mother. While it is true that the child had for the first time accused his mother in a letter sent to the public prosecutor on 19 June 1998 (see paragraph 113 above) of being implicated in the paedophile assaults on him, no serious attempt was made to verify the truth of that allegation, (and none was made until 11 November 1998 when the paedophile concerned was questioned and said that the allegation was untrue – see paragraph 115 above). The Court has to conclude that both the deputy public prosecutor and the Youth Court acted irresponsibly.", "172. Indeed, a mere five months later, on 22 December 1998, the Youth Court gave the first applicant permission to see both children, even though officially the investigation was still pending. That appears to have been in flat contradiction to the decisions taken in the summer of that year. 173. However, once again, despite an order of the Youth Court for the resumption of visits by 15 March 1999, the first visit did not take place until 29 April 1999.", "Indeed, the delay was remarked on by the Youth Court itself in its note of 15 February 1999. To the extent that the delay was attributable to administrative difficulties (see paragraphs 84-85 above), it should not be forgotten that “in so fundamental an area as respect for family life, such considerations cannot be allowed to play more than a secondary role” (see the Olsson (no. 1) judgment cited above, p. 37, § 82). Such a delay was even more unacceptable in the instant case as, by that time, the first applicant and her children had already been separated for a year and a half. 174.", "What is more, the first visit did not prove to be the beginning of regular and frequent contact to assist the children and their mother in rebuilding their relationship. It is true that the elder son expressed disappointment over the first meeting in his letter of 6 May 1999 to the social workers (see paragraph 92 above). However, leaving aside the fact that letters sent by the elder child to the various authorities involved in the case must be treated with caution given the special situation in which the child found himself (as the Court will remark upon below – see paragraph 210 below), a sense of disappointment is perfectly understandable after such a long separation following events that were traumatic for the child. On the contrary, that situation should have incited social services to organise visits at regular intervals to help the children get through such a difficult period. Continued separation can certainly not be expected to help re-cement family bonds that have already been put under considerable strain.", "It should be recalled in this connection that “ties between members of a family and the prospects of their successful reunification will perforce be weakened if impediments are placed in the way of their having easy and regular access to each other” (see the Olsson (no. 1) judgment cited above, pp. 36-37, § 81). 175. The Court wishes to emphasise that it does not underestimate the importance of preparatory counselling.", "Indeed, it has previously said: “... the reunion of natural parents with children who have lived for some time in a foster family needs preparation. The nature and extent of such preparation may depend on the circumstances of each case, but it always requires the active and understanding cooperation of all concerned. Whilst national authorities must do their utmost to bring about such cooperation, their possibilities of applying coercion in this respect are limited since the interests as well as the rights and freedoms of all concerned must be taken into account, notably the children's interests and their rights under Article 8 of the Convention. Where contacts with the natural parents would harm those interests or interfere with those rights, it is for the national authorities to strike a fair balance ...” (see the Olsson v. Sweden (no. 2) judgment of 27 November 1992, Series A no.", "250, pp. 35-36, § 90). In the instant case, however, it has to be observed that a single visit could not suffice to give the children an opportunity to re-establish bonds with their mother. Having regard to the fact that the first visit was preceded by a preparatory phase that had already contributed to delays, the Court fails to understand why it was not rapidly followed by further visits. It also considers that the Government have furnished no satisfactory explanation to justify the subsequent preparatory phase lasting a further four months and, a fortiori, the absence of any further visit after 9 September 1999.", "176. Having carefully examined the video recordings of the first visit (see paragraph 91 above), the Court found both the visit itself and its outcome to be far less negative than the report of social services suggests. Social services were nonetheless given complete freedom to defer the second visit for fully four months. Moreover, the audio recordings of the second visit (see paragraph 94 above) attest to the considerable latitude given to social services to decide whether and when further meetings should take place. 177.", "On that subject, it should be borne in mind that there is a significant danger that a prolonged interruption of contact between parent and child or too great a gap between visits will undermine any real possibility of their being helped to surmount the difficulties that have arisen within the family and of the members of the family being reunited. (The danger is even greater for the younger child, who was very young when the separation occurred.) 178. Therefore, in the circumstances of the present case, the Court finds it unacceptable that social services should be able, as they have been in this instance, to alter the practical effect of judicial decisions establishing that contact will, in principle, take place. Given their limited number and irregular occurrence (there have been only two in almost three years), the visits arranged to date have for all intents and purposes been sporadic and make little sense when viewed in the light of the principles established under Article 8.", "179. It is apparent from the case file that since the first visit social services have played an inordinate role in the implementation of the Youth Court's decisions and adopted a negative attitude towards the first applicant, an attitude for which the Court finds no convincing objective basis. In reality, the manner in which social services have dealt with the situation up till now has helped to accentuate the rift between the first applicant and the children, creating a risk that it will become permanent. The information contained in social services' latest report only goes to confirm that trend (see paragraph 96 above). Faced with that evolution in the situation, the Youth Court, which should in principle supervise the implementation of its decisions, approved the action being taken by social services, without conducting any thorough review.", "180. The fact that there had been only two visits (after one and a half year's separation) since its decision of 22 December 1998 should have incited the Youth Court to investigate the reasons for the delays in the programme, yet it merely accepted the negative conclusions of social services, without conducting any critical analysis of the facts. When confronted with the first applicant's complaints regarding the assessment of the outcome of the visits, the Youth Court deemed it unnecessary to examine the audio-visual recordings of the visits (permission for them to be produced was given after substantial delay and only after they had been produced to the Court – see paragraph 109 above), and despite the favourable opinion of the guardianship judge did not even authorise the presence during visits and preparatory sessions of an independent specialist designated by the first applicant (see paragraphs 106-07 above). Not only does there appear to have been no relevant basis for such refusals, they also deprived the Youth Court of a means of reviewing the action taken by social services. 181.", "Article 8 demands that decisions of courts aimed in principle at facilitating visits between parents and their children so that they can re-establish relations with a view to reunification of the family be implemented in an effective and coherent manner. No logical purpose would be served in deciding that visits may take place if the manner in which the decision is implemented means that de facto the child is irreversibly separated from its natural parent. Accordingly, the relevant authorities, in this case the Youth Court, have a duty to exercise constant vigilance, particularly as regards action taken by social services, to ensure the latter's conduct does not defeat the authorities' decisions. 182. Lastly, having regard to the material in the case file, the Court cannot attach any weight to the uncorroborated statements of the first applicant's sister (see paragraph 117 above).", "The respondent Government cannot therefore explain away the authorities' and social services' conduct, as they apparently seek to do, by such vague information, especially as neither the decisions of the former nor the reports of the latter make any reference to it. The Court further observes that the case file contains conflicting evidence as to the current relations between the first applicant and the former husband (see paragraphs 97 and 111 above). However, there is nothing in the case file to shows that the uncertainty about the current relations between the first applicant and her former husband justifies the conclusion that the first applicant is incapable of re-establishing bonds with her children. It will be noted, too, that none of the authorities' decisions contains sufficient information in that regard. 183.", "In conclusion, the Court considers that the authorities failed to strike a fair balance between the interests of the first applicant's children and her rights under Article 8 of the Convention. Consequently, there has been a violation of Article 8 on this point. 3. Decision to place the children with the “Il Forteto” community (a) Submissions of those appearing before the Court (i) The first applicant 184. The first applicant submitted that the philosophy of “Il Forteto”, based on the rejection of the natural family, has not evolved since the 1970s.", "The aim of “Il Forteto” would always be to separate children from their natural families, as G.'s letters confirmed. 185. It was apparent from the case file that in practice the children were throughout their placement looked after, accompanied and supervised by L.R.F. and L.G., as was shown, for example, by the tenor of L.G. 's letter of 7 January 1998 to the public prosecutor.", "A letter of that nature should have been sent by the president of the community or the foster parents, not a community member who, according to the Government, had only a minor role in the children's upbringing. 186. The first applicant further maintained that there were no real foster parents and that the children were in fact looked after by people other than those to whom the Youth Court had entrusted their care. It was significant, too, that G. never mentioned Mrs M.G. in his letters.", "187. As to the supervision which the authorities were meant to exercise over “Il Forteto”, the first applicant contended that in practice the relevant authorities did not compile their reports on the dates indicated by the Government. Thus, the first report by social services had been compiled in February 1998, the second in June 1998 and the third only in November 1999. Moreover, the six-monthly inspections required by section 9 of Law no. 184 of 1983 had not taken place.", "188. Lastly, the first applicant said that “Il Forteto” appeared to have been given considerable latitude in deciding on the arrangements for children in its care and to enjoy substantial support from social services. That fact, coupled with delays in implementing the authorities' decisions, compromised the effective application of those decisions. (ii) The Belgian Government 189. The Belgian Government noted firstly that the two leaders of “Il Forteto” who had been convicted in 1985 had not undergone rehabilitation and that at the time of the criminal proceedings the Italian authorities continued to entrust minors into their care.", "It added that contrary to the allegations of the Italian Government, it was apparent from the case file that the two leaders had played an active role in the proceedings concerning the first applicant's children. 190. While not endorsing the applicants' hasty conclusions that L.R.F. and L.G. continued to commit offences against children, the Belgian Government considered that care orders constituted such a serious interference in the family domain that their implementation had to be organised within a structure that was above all suspicion.", "As with Article 6 of the Convention, appearances were therefore relevant. Consequently, institutions fostering minors in difficulty had to provide every guarantee that they were reliable and competent. The presence within the structure of people with criminal convictions – albeit from long ago – seriously undermined the confidence which such institutions should inspire. 191. The Belgian Government also observed that “Il Forteto” carried on a commercial activity for profit, which was hardly consistent with the objectives of providing welfare assistance to minors.", "The participation of its members on consultative boards that provided the courts with opinions on whether care orders should be made seemed hardly appropriate. 192. Lastly, the methods used in “Il Forteto” appeared to be aimed at severing relations between the children and the natural family. That did not seem consistent with the spirit of fostering within the family implicit in Article 8 of the Convention. (iii) The Italian Government 193.", "The respondent Government recognised that the relevant authorities had probably been aware of L.R.F. 's and L.G. 's convictions when they decided to place the children at “Il Forteto”. However, the Government emphasised that, so far as public opinion in Tuscany was concerned, the charges against the two people concerned were perceived as being part of a battle between supporters and opponents of “Il Forteto”. Furthermore, at the end of a laborious trial in which the Court of Cassation had intervened twice, the two men had been acquitted on ten of the thirteen counts.", "As regards the offences of which L.R.F. and L.G. were convicted, the Government said that a committee was being constituted to gather evidence with a view to requesting a review. Neither of them had committed any further criminal offences since their conviction in 1985. 194.", "Moreover, “Il Forteto” enjoyed the confidence of many local and regional institutions and had been the subject matter of a number of studies. The Government cited in particular an article that had been published in Il Mulino, one of Italy's most famous publishing houses, based on research conducted on-site by psychologists, doctors, sociologists and neuropsychiatrists specialising in children. Moreover, the positive results obtained with children placed at “Il Forteto” had also prompted studies by institutions from other countries. Even the Florence Court of Appeal had, in its judgment of 1985, attached importance to the evidence of numerous witnesses attesting to the positive results obtained at “Il Forteto”. The relevant judge at the Youth Court had not noted anything negative about the community or its members.", "“Il Forteto” was also under the supervision of the Ministry of Employment, which had not noted any problems on its last inspection. Inspections were also carried out by the region and the province. In any event, minors at “Il Forteto” were closely supervised by the relevant social services departments and the Youth Court was kept informed at all times. 195. Against that background, convictions dating back more than twenty years lost some of their significance.", "196. Furthermore, neither L.R.F. nor L.G. had played any role in the programmes for the rehabilitation of minors in the care of the community as, on the contrary, that task was the responsibility of the numerous social workers and specialised teams who worked under the supervision of the Youth Court. Mr G.C.", "and Mrs M.G. looked after the children and, with the agreement of social services, received help from Mrs M.C.-G., Mr L.G. 's wife, and Mr S. with the children's school activities (they attended a State school in the locality) and the various sessions preparing them for contact with their mother and grandmother. 197. As regards the letters written by the elder child, the Government considered that no significance attached to the fact that one of them had been written in the presence of the foster parents and Mr R., since the child's needs had changed and he often criticised his parents, particularly his mother, for failing to help him after they had been informed of the sexual abuse inflicted on him by a family friend.", "As to the letter of 2 March 1999, the Government, relying in the opinion of psychologists on this point, submitted that the elder child's signature, with the addition of the surname of one of his foster parents, attested to a positive attitude by him towards the persons looking after him. 198. It had to be stressed also that a number of items of evidence on the case file indicated that the children's psychological condition was constantly and markedly improving. 199. The Government concluded by saying that the placement of the first applicant's children at “Il Forteto” had been viewed positively by all the relevant services, which enjoyed the confidence of the Youth Court.", "In any event, there was no reason for modifying such a complex and difficult programme, particularly bearing in mind the first applicant's lack of cooperation. (iv) The Commission 200. The Commission expressed the view that the fact that the two members of the community concerned continued to hold important posts within “Il Forteto” was a cause for concern. It observed, however, that the first applicant's children had not been placed in the care of the community leaders concerned, added to which it was true that the offences for which they had been convicted dated back twenty years and there was nothing on the case file to allow of the conclusion that the persons concerned had committed other acts of the same type subsequently or, above all, that they had direct control over the children or a decisive influence over the foster parents. The Commission also considered that the improvement in the children's health meant that the risk that the authorities' choice of “Il Forteto” should prove to be manifestly contrary to the children's interests could be discounted.", "(b) The Court's assessment 201. The Court considers it appropriate first to restate certain principles established in its earlier decisions which may help to put the difficult issues to which this part of the application gives rise into context. In particular, in the Johansen v. Norway judgment cited above, the Court said (pp. 1003-04, § 64): “... the Court will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area. However, consideration of what is in the best interest of the child is in any event of crucial importance.", "Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned ..., often at the very stage when care measures are being envisaged or immediately after their implementation. It follows from these considerations that the Court's task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the public care of children and the rights of parents whose children have been taken into care, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation ... The margin of appreciation so to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake ... Thus, the Court recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, a stricter scrutiny is called for both of any further limitations, such as restrictions placed by those authorities on parental rights and access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life.", "Such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed.” 202. The Court notes that two of the principal leaders and co-founders of “Il Forteto” were convicted in 1985 by the Florence Court of Appeal of the ill-treatment and sexual abuse of three handicapped people staying in the community. They were given an amnesty in respect of an alleged offence of fraudulently holding themselves out as psychologists with diplomas from the universities of Berne and Zürich (see paragraphs 32 and 33 above). Those convictions are an established fact, since there is a full copy of the Court of Appeal's judgment, which was upheld by the Court of Cassation, in the case file. Accordingly, the Court cannot attach any weight to the Government's argument that a committee is being constituted to gather evidence (of which no details are supplied) with a view to seeking a retrial.", "Nor does the Court find the Government's reference to public opinion in Tuscany at the time of the trial of relevance (see paragraph 193 above). 203. The Court is not called upon to express an opinion on “Il Forteto” as such or on the general quality of care which that community offers to children placed there. Nor is it for the Court to say whether or not the confidence which a number of institutions have in “Il Forteto” is justified. Furthermore, although the judgment of the Florence Court of Appeal in 1985 discloses information about the atmosphere and practices in “Il Forteto” at the end of the 1970s, that information refers to the situation in the community more than twenty years ago and the Court has no information enabling it to express a view on the situation at “Il Forteto” today.", "In any event, it is not for the Court to become involved in the debate between the supporters and opponents of “Il Forteto”. 204. However, the fact that the two members of the community convicted in 1985 continue to hold positions of responsibility within the community cannot be regarded as innocuous and for practical purposes means that a detailed examination of the concrete situation of the first applicant's children is called for. 205. The Court notes that, contrary to the assertions of the respondent Government, the evidence on the case file shows that the two leaders concerned play a very active role in respect of the first applicant's children.", "– L.R.F. attended the meeting of 8 September 1997, which ended with social services recommending to the Florence Youth Court that the first applicant's children be placed at “Il Forteto” (see paragraph 35 above). – At the interview on 15 December 1997, the elder child was accompanied by, inter alia, Mrs M.C.-G., who, as the Government recognised (see paragraphs 114 and 196 above), is in fact L.G. 's wife (see paragraph 56 above). – It was L.G.", "who signed the letter sent to the public prosecutor and the Youth Court on 7 January 1998 relating the incidents allegedly caused by the first applicant and her former husband when they attempted to see the children at “Il Forteto” (see paragraph 53 above). – On 29 June 1998 L.R.F. wrote a detailed letter on behalf of “Il Forteto” regarding the first applicant's children and recommending that the younger child's scheduled visits should be postponed (see paragraph 65 above). 206. The Court considers that those facts clearly attest to the active role played by those two members of the community in the care of the first applicant's children.", "It has strong reservations about the fact that, under arrangements made by the public authorities for taking children into care, two people who were convicted – albeit twenty years earlier – of the ill-treatment and abuse of persons entrusted into their care at the time can play such an active role within the same community. 207. The Court's reservations are reinforced by the fact that, as the Government acknowledged (see paragraph 193 above), the Youth Court was aware of the convictions of the two members of the community concerned when it took the decisions regarding the first applicant's children. Those reservations remain even though neither L.R.F. nor L.G.", "have committed any further offences since 1985 and there is nothing in the case file to indicate that they or other members of the community or persons staying there have abused or ill-treated the first applicant's children or other children staying at “Il Forteto”. A further contributory factor is the sexual abuse to which the elder child was subjected in the past (see paragraphs 14-19 above). The combination of those two factors (the past sexual abuse against the elder child and the criminal antecedents of L.R.F. and L.G. ), fully account for the first applicant's concerns about her children's placement at “Il Forteto” and make them understandable from an objective standpoint, especially bearing in mind her position as a mother separated from her children.", "208. It should also be noted that the authorities have at no point explained to the first applicant why, despite the men's convictions, sending the children to “Il Forteto” did not pose a problem. In the Court's view, such a failure to communicate is not compatible with the duties incumbent on States to act fairly and to provide information when taking serious measures interfering in a sphere as delicate and sensitive as family life. Unless full and pertinent explanations are given by the authorities concerned, parents should not be forced, as they were in the instant case, merely to stand by while their children are entrusted into the care of a community whose leaders include people with serious previous convictions for ill-treatment and sexual abuse. The situation was compounded by the following two sets of circumstances.", "209. Firstly, some of the leaders of “Il Forteto”, including one of the two men convicted in 1985, appear to have contributed substantially to delaying or hindering the implementation of the decisions of the Florence Youth Court to allow contact between the first applicant and her children. Thus, it can be seen from the case file that after the decision of 9 September 1997 allowing the first applicant to see her younger son and before the Youth Court definitively decided on 15 March 1998 to make the resumption of contact with M. conditional on attending a preparatory programme, the leaders of “Il Forteto”, in disregard of the operative provisions of the Youth Court's decision, seem to have prevented the first applicant from seeing either child, but especially the younger son. Such conduct is, in the Court's view, unacceptable. In addition, it would appear that the letter sent by L.R.F.", "to the deputy public prosecutor on 29 June 1998 recommending that contact be deferred and the deputy public prosecutor's letter to the Youth Court just three days later implicitly suggesting that the scheduled visits (which the public prosecutor said he was aware of) should be postponed (see paragraphs 66 and 171 above) were not wholly unconnected. 210. Secondly, the evidence points to the first applicant's children having been subjected to the mounting influence of the leaders at “Il Forteto”, including, once again, one of the two men convicted in 1985. That influence was exerted with the aim of distancing the boys, particularly the elder boy, from their mother. Thus, the Court notes in particular that the latter acknowledged to a specialist on 27 February 1999 that the letter sent to the public prosecutor's office had been written in the presence, inter alia, of a person with the same first name as L.R.F.", "The Court cannot express any view as to the genuineness of the assertions made in the elder child's letters. However, the presence of adults, including, in all likelihood, L.R.F., when a 12-year-old child is writing letters to the president of a court or a public prosecutor cannot objectively be regarded as of no importance. Indeed, the Court finds the changes in attitude, particularly of the elder child towards his mother, worrying (an example of such a change can be seen in the letter of 2 March 1999 – see paragraph 87 above – which was sent just four days after he had told a specialist on 27 February 1999 – see paragraph 116 above – that he would be pleased to see his mother again). 211. In the Court's view, the facts show that the leaders of “Il Forteto” responsible for looking after the first applicant's children helped to deflect the implementation of the Youth Court's decisions from their intended purpose of allowing visits to take place.", "Moreover, it is not known who really has effective care of the children at “Il Forteto”, as the various people who accompany the children outside its confines do not appear merely to be assisting the foster parents as the Government asserted (see paragraph 196 above), since they are identified on a number of records as the foster parents (see paragraphs 56, 60 and 68 above). That doubt is confirmed by the evidence, which the Government did not contest, given by the two officially assigned experts (see paragraph 43 above). 212. That situation and the relevant leaders' criminal antecedents should have prompted the Youth Court to increase its level of supervision regarding the way in which the children were being looked after at “Il Forteto” and the influence of the leaders concerned over the children and their relations with their mother. However, that did not occur.", "In practice, the leaders concerned work in a community which enjoys very substantial latitude and does not appear to be subject to effective supervision by the relevant authorities. In that connection, the Court also notes that the respondent Government failed to produce sufficient evidence to show that the six-monthly inspections by the guardianship judge, required by section 9 of Law no. 184 of 1983, did in fact take place. Indeed, the respondent Government have not produced any reports by the guardianship judge relating to such inspections. 213.", "Furthermore, the negative impact on the prospects of rebuilding a relationship with the mother of the attitude and conduct of the people responsible for the children at “Il Forteto”, including the two leaders convicted in 1985, combines with the social services' negative attitude referred to above, and is partly responsible for depriving the first applicant of any serious prospect of one day being reunited with her children. 214. As regards the absence of any time-limit on the children's stay at “Il Forteto”, experience shows that when children remain in the care of a community for a protracted period, many of them never return to a real family life outside the community. Accordingly, the Court sees no valid justification for the failure to put a time-limit on the care order concerning the first applicant's children, especially as that failure appears to contravene the relevant provisions of Italian law, namely section 4 of Law no. 184 of 1983.", "215. The fact of the matter is that the absence of any time-limit on the care order, the negative influence of the people responsible for the children at “Il Forteto”, coupled with the attitude and conduct of social services, are in the process of driving the first applicant's children towards an irreversible separation from their mother and long-term integration within “Il Forteto”. While a number of factors point to there having been a considerable improvement in the children's psychological and physical condition since the placement (see paragraphs 118-22 above), that process, which, it will be remarked, undermines both the role of the courts dealing with the case and of their decisions, presents a real danger that the relations between the first applicant and her children will be severed. 216. Consequently, the Court considers that the authorities have failed to show the degree of prudence and vigilance required in such a delicate and sensitive situation, and have done so to the detriment not just of the first applicant's rights but also of the superior interests of the children.", "Accordingly, in the circumstances described above, the uninterrupted placement to date of the children at “Il Forteto” does not satisfy the requirements of Article 8 of the Convention. 4. Position of the second applicant (a) Submissions of those appearing before the Court (i) The second applicant 217. The second applicant alleged, firstly, that section 12 of Law no. 184 of 1983, which accords priority to children being fostered with close relatives of known address, had been infringed since the possibility of the children living with her had been disregarded.", "In that connection, she said that G. had lived with her until 1992 and they enjoyed an excellent relationship. 218. She added that in order to comply with the Youth Court's recommendations she had moved to Italy where she lived in her own flat, not with her daughter. Despite that fact, the authorities continued to refuse to show any confidence in her, as they considered that she was not independent of her daughter. (ii) The Italian Government 219.", "The Italian Government, which did not deny that the relationship between the second applicant and her grandchildren came within the scope of the right to respect for family life guaranteed by Article 8, maintained that the authorities had examined the second applicant's requests and were working towards the gradual re-establishment of relations between the children and their grandmother. That said, the most recent developments, in particular, the second applicant's delay in contacting social services after the cancellation of the first preparatory session, betrayed, in the Government's view, a lack of enthusiasm for actually looking after the children. Referring to explanations given by social services, the Government also contended that priority had to be given to preparing the mother's visits. (iii) The Commission 220. The Commission considered that the authorities' decision not to respond to the second applicant's request for the children to be entrusted into her care was based on relevant grounds, in particular, the fact that it would have been undesirable for the authorities to lose all direct control over the children's situation.", "The Commission also described the second applicant's behaviour as incoherent. (b) The Court's assessment 221. The Court notes, firstly, that it was common ground that issues relating to the relations between the second applicant and her grandchildren were covered by Article 8 of the Convention. It also points out in that connection that “ 'family life', within the meaning of Article 8 includes at least the ties between near relatives, for instance those between grandparents and grandchildren, since such relatives may play a considerable part in family life. 'Respect' for a family life so understood implies an obligation for the State to act in a manner calculated to allow these ties to develop normally” (see the Marckx v. Belgium judgment of 13 June 1979, Series A no.", "31, p. 21, § 45). 222. As to the second applicant's request to be given care of the children, the Court notes that section 12 of Law no. 184 of 1983 gives priority to children being placed with close members of the family living at a known address. The Court notes, however, that the evidence on the case file indicates that the second applicant would have substantial difficulty in looking after the children properly.", "She was unable to make herself available for an initial preparatory counselling programme prior to contact with the children, as she was living in Belgium (see paragraph 75 above). After moving to Italy, she had had to return to Belgium in the autumn of 1999 to resolve administrative problems connected with the invalidity benefit she receives for her handicapped son, who remains dependent on her (see paragraphs 110-11 above). Lastly, she was admitted to hospital in February 2000 with heart problems (see paragraph 112 above). It is difficult, moreover, for any decisive weight to be attached to the fact that the elder child lived with his grandmother in 1992: he was very young at the time and there is nothing to suggest a close and continuing relationship with the second applicant subsequently. The Court consequently considers that the authorities' decision not to entrust the children into the second applicant's care was based on reasons that remained relevant even after the second applicant's move to Italy, which in any event proved to be temporary.", "223. With regard to contact between the second applicant and the children, the Court notes that her attitude was initially characterised by a degree of incoherence. As the Commission observed, it is difficult to comprehend why the second applicant should refuse to take part in any preparation before seeing the children on the grounds that she lived too far away when she had asked to be allowed to visit twice a week. 224. Subsequently, despite the decision of the Florence Youth Court on 22 December 1998 that contact between the second applicant and the children should start before 15 March 1999 after a preparatory programme rendered possible at that stage by the second applicant's move to Italy, she failed to get in touch but simply waited to hear from social services, even after the expiry of the time-limit fixed by the Youth Court.", "Nor did she consider it necessary to inform the authorities when she travelled to Belgium so that the two notices of appointment which social services did send, albeit belatedly, were to no avail. 225. Although the Court is not persuaded by the Government's explanation for the delay in implementing the Youth Court's order concerning the second applicant (the need for social services to concentrate on preparing contact with the first applicant), it considers that the second applicant has not furnished any valid explanation for her failure to act after the time-limit expired or to inform the relevant authorities when she travelled to Belgium. 226. In the Court's view, the second applicant's conduct betrays a lack of enthusiasm for seeing her grandchildren again, a factor which offsets the authorities' delay.", "227. In the light of the foregoing considerations, the Court concludes that there has been no violation of Article 8 of the Convention as regards the second applicant. D. Applicability of Article 6 § 1 and Article 14 of the Convention 228. The applicants did not pursue before the Court their complaints of violations of Article 6 § 1 (for delays in the examination of their appeals before the domestic courts) and Article 14 of the Convention (for allegedly discriminatory treatment). 229.", "In its report, the Commission considered that in the circumstances of the case, and having regard in particular to the fact that at the date of its report no concrete action had been taken following the appeal of 3 December 1997, the complaint under Article 6 § 1 about the length of the proceedings should be regarded as having been absorbed by the issues related to Article 8 of the Convention. As to Article 14, it took the view that that provision was of no relevance to the instant case, as the applicants had not alleged any actual discrimination within the meaning of that Article. 230. In the light of its decision under Article 8, the Court sees no reason not to follow the conclusions of the Commission on this point and accordingly holds that no separate issue arises under these provisions of the Convention. II.", "ALLEGED violation of ARTICLE 3 OF THE CONVENTION A. Whether the treatment allegedly inflicted on the children at “Il Forteto” amounted to a violation of Article 3 of the Convention 231. The first applicant complained, on behalf of her children, of a violation of Article 3 of the Convention on account of the risk that they would be subjected to improper treatment at “Il Forteto”. In addition, the danger that the children would again be subjected to paedophile assaults or exposed to an environment in which such assaults had been carried out in the past by at least some members of the cooperative was in itself contrary to Article 3. 232.", "Article 3 of the Convention provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 233. The Government contended in particular that there was no evidence on the case file to prove that the two leaders concerned, or other members of the community or people staying there, were abusing or ill-treating the first applicant's or other children staying at the home. 234. The Commission expressed the opinion that there was no concrete evidence in the case file apt to prove beyond all reasonable doubt that the children had been subjected to treatment contrary to Article 3. 235.", "Despite the fact that some of the witness statements produced by the first applicant (see paragraphs 38-40 above) give cause for concern and the Government have not contested their veracity, the Court agrees with the opinion of the Commission, as there is nothing on the case file to indicate that the children have been subjected to treatment contrary to Article 3 of the Convention at “Il Forteto”. It should also be noted in that connection that the first applicant has not lodged a criminal complaint with the relevant domestic authorities. Consequently, there has been no violation of Article 3. B. Whether the distress caused the applicants amounted to a violation of Article 3 of the Convention 236.", "In their memorial lodged with the Court on 3 March 1999, the applicants alleged that there had also been a violation of Article 3 of the Convention in that their situation, taken as a whole, had caused them suffering and distress. 237. The Court notes that that complaint, which in substance raises no separate issue from the issues arising under Article 8 of the Convention, was not declared admissible by the Commission. The applicants are therefore estopped from raising it. III.", "ALLEGED violation of ARTICLE 2 OF PROTOCOL No. 1 238. The first applicant complained, lastly, that her children did not have adequate schooling and that the only education they seemed to be receiving was that provided within the community. She alleged that there had therefore been a violation of Article 2 of Protocol No. 1.", "239. Article 2 of Protocol No. 1 provides: “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” 240. The Government maintained that the first applicant's allegations were unfounded as the children were under constant supervision.", "They added that some delay in the elder child's attending school had been inevitable in view of his delicate personal circumstances and the desirability of ensuring his gradual reintegration into the school system. 241. The Commission considered that the first applicant's fears no longer appeared founded as the case file showed, in particular, that the elder child was now attending school. The initial delay seemed, moreover, to have been warranted when the dramatic situation which he had just come through was taken into account. 242.", "The Court notes that the case file shows that the first applicant's elder son began school shortly after arriving at “Il Forteto” (see paragraph 47 above). The younger child has just reached school age and the Court notes form the case file that he is in fact attending a nursery school (see paragraph 123 above). Furthermore, with regard to the influence of “Il Forteto” on the supervision and education of the children, the Court refers to its conclusions on the placement of the children within that community (see paragraphs 201-16 above). 243. Consequently, there has been no violation of Article 2 of Protocol No.", "1. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 244. 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 245.", "The first applicant sought 100,000,000 Italian lire (ITL) in reparation for non-pecuniary damage. She also claimed ITL 700,000,000 under that head on behalf of the children for damage they had sustained. The latter claim was based, in particular, on the complaint that the authorities had not sought a solution allowing for the children to be placed with family relatives. 246. The first applicant also claimed ITL 300,000,000 in the event of a finding by the Court that the children's placement had not been suitable.", "247. As regards pecuniary damage, the first applicant claimed ITL 15,000,000 for the loss of her former job, which she attributed to the difficulties caused by her children's situation that had meant her repeatedly having to take time off work. 248. The respondent Government confined themselves to alleging that there was no evidence supporting the first applicant's claims. They also contended that any finding of a violation of the Convention would give rise to complex and sensitive issues, particularly before the Committee of Ministers, regarding the adoption of individual measures.", "249. The Court points out that by Article 46 of the Convention the High Contracting Parties undertook to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects (see, mutatis mutandis, the Papamichalopoulos and Others v. Greece (Article 50) judgment of 31 October 1995, Series A no. 330-B, pp. 58-59, § 34).", "Furthermore, subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court's judgment. 250. Accordingly, under Article 41 of the Convention the purpose of awarding sums by way of just satisfaction is to provide reparation solely for damage suffered by those concerned to the extent that such events constitute a consequence of the violation that cannot otherwise be remedied. 251. As regards pecuniary damage, the Court considers that the first applicant has not produced concrete evidence in support of her allegations.", "252. As to the non-pecuniary damage, the Court considers that the first applicant undoubtedly sustained such damage, as the contact organised with her children to date has been inadequate, visits have been delayed, no explanation was given for the authorities' decision to place the children at “Il Forteto”, and the re-establishment of relations with the children was hindered by the conduct of those responsible for the children at “Il Forteto”. The Court further notes that since the children were taken into care on 9 September 1997, that is to say two years and ten months ago, the first applicant has seen them only twice and no contact has been arranged since 9 September 1999. It can reasonably be presumed that those circumstances taken as a whole have caused the first applicant substantial anxiety and suffering that have increased with the passage of time. Ruling on an equitable basis, the Court awards the first applicant ITL 100,000,000.", "253. The Court considers, further, that the children personally sustained damage, too, as the increasing risk of an irreversible severance of ties with, in particular, their mother and the danger that their continued placement at “Il Forteto” would prevent them from one day enjoying family life outside the community did not tally with the authorities' avowed aim of protecting the children's interests. The Court therefore considers that it must take that damage into account with reference to the children's position as applicants and, ruling on an equitable basis, it awards each child in person ITL 50,000,000. B. Costs and expenses 254.", "The first applicant sought ITL 11,550,000 as reimbursement for the legal costs and experts' fees incurred in the proceedings before the Italian courts. 255. The first applicant further claimed ITL 121,463,603 for legal fees incurred before the Commission and the Court (and produced a fee note). In that connection, the first applicant's lawyer has requested that the fees be paid directly to her. To that end, she has produced a certificate that the first applicant has paid her the sum of ITL 800,000 on account.", "256. The Government left the issue to the Court's discretion. 257. With regard to the costs incurred before the domestic courts, the Court observes that although at least part of those costs were incurred with a view to obtaining redress of the various violations of Article 8 of the Convention, the first applicant has failed to produce any evidence in support. Her claims under that head must therefore be dismissed.", "258. As to the costs incurred before the Convention institutions, the Court considers that the case was indisputably complex. It nevertheless finds the sum requested by the first applicant's lawyer excessive. Ruling on an equitable basis and having regard to the practice of the Convention institutions on this subject, it considers a sum of ITL 26,250,000 to be reasonable. From that amount should be deducted the sum which the lawyer has received on account from the applicants (ITL 800,000) and the sums already paid to her by way of legal aid for the applicants that was granted by both the Commission and the Court.", "The latter amounts come to a total of 28,030.75 French francs (ITL 7,765,000). Accordingly, the balance payable to the applicant's lawyer, in accordance with her request, comes to ITL 17,685,000. C. Default interest 259. According to the information available to the Court, the statutory rate of interest applicable in Italy at the date of adoption of the present judgment is 2.5% per annum. FOR THESE REASONS, THE COURT unanimously 1.", "Dismisses the Government's preliminary objection; 2. Holds that there has been no violation of Article 8 of the Convention on account of the suspension of the first applicant's parental rights and of the fact that her children were taken into care; 3. Holds that there has been a violation of Article 8 of the Convention on account of the delays in and limited number of contact visits between the first applicant and her children; 4. Holds that there has been a violation of Article 8 of the Convention on account of the placement of the first applicant's children at “Il Forteto”; 5. Holds there has been no violation of Article 8 of the Convention as regards the second applicant; 6.", "Holds that no separate issue arises under Article 6 § 1 and Article 14 of the Convention; 7. Holds that there has been no violation of Article 3 of the Convention on account of the treatment of the first applicant's children at “Il Forteto”; 8. Holds that the applicants are estopped from raising their complaint of a violation of Article 3 of the Convention based on the suffering linked to their situation taken as a whole; 9. Holds that there has been no violation of Article 2 of Protocol No. 1; 10.", "Holds (a) that the respondent State is to pay the first applicant, within three months, ITL 100,000,000 (one hundred million Italian lire) in respect of non-pecuniary damage; (b) that the respondent State is to pay each of the first applicant's children in person, within three months, ITL 50,000,000 (fifty million Italian lire) in respect of non-pecuniary damage; (c) that the respondent State is to pay the first applicant's lawyer, within three months, ITL 17,685,000 (seventeen million six hundred and eighty-five thousand Italian lire) in respect of costs and expenses; (d) that the respondent State is to pay the first applicant, within three months, ITL 800,000 (eight hundred thousand Italian lire) in respect of the fees which the first applicant has paid her lawyer on account; (e) that simple interest at an annual rate of 2.5% shall be payable from the expiry of the above-mentioned three months until settlement; 11. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English and in French, and notified in writing on 13 July 2000, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Luzius WildhaberPresidentMichele de SalviaRegistrar In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Mr Zupančič is annexed to this judgment. L.W.", "M. de S. concurRing OPINION OF JUDGE Zupančič I fully agree with the judgment in this case. I thought it might be useful, however, to make a few general observations concerning the procedurally idiosyncratic nature of cases such as the one we have decided today. Cases such as Scozzari and Giunta v. Italy are not paradigmatic legal disputes. They generate specific problems relating to our own doctrine of access to court and to the rule of law itself. Since the Olsson v. Sweden (no.", "1) judgment of 24 March 1988 (Series A no. 130) and up to the recent case of Nuutinen v. Finland (no. 32842/96, ECHR 2000-VIII), the whole series of Article 8, that is, family law, cases have raised specific procedural difficulties. These difficulties are offset mostly, as we shall see, by the non-retrospective nature of judgments in family law disputes. For example, difficult last-minute developments in the evolving fact patterns oblige the Court to engage in first-instance fact-finding and even in probability assessments.", "Legal theory has, to the best of my knowledge, not offered any ready-made solutions to the recurring questions outlined below. A classic legal dispute has certain procedural characteristics. First, right and remedy are usually interdependent; second, the lawsuit is retrospective, that is, it usually concerns only past events (facts); third, the polarities of the legal aspects of the dispute must be monocentric, that is, ultimately there is one question to be decided; fourth, there is a deontological tension between the legally relevant facts and the applicable norm. The so-called “best interests of the child”, for example, are not specific enough to establish the usual judicial aut-aut monocentric polarity. This, in turn, obliges the court to become involved in polycentric choices, that is, to assume an active parens patriae role.", "Moreover, this active involvement of the court is a continuing one, sometimes until the child reaches maturity. The impartiality, that is, the passive non-involvement of the court, as well as the respective roles of the parties to the dispute are also predetermined by specific characteristics of family law cases. For example, the passive impartiality of the courts clearly results from the interaction of the two polarised partialities of the parties. In turn, the case is in this sense ripe – I am referring to the ripeness aspect of the justiciability doctrine – once it is focused on one or two essential issues. This focus, while shifting as a mirror image of the burden of proof, is nevertheless fixed in the past, i.e.", "it is entirely retrospective. The finality of the judgment, which is irrebuttably presumed to be valid (res judicata pro veritate habetur), depends on the pre-existent finality of the facts, that is, on the judicial retrospective. In the end, implementation, enforcement and execution of the judgment, too, as I pointed out in my dissenting opinion in Nuutinen, may be adversely affected. Furthermore, the choice of the applicable norm hinges on the legally relevant facts (past events) and, vice versa, what facts are legally relevant depends in turn on the choice of the norm. This dialectical process implies a fact pattern that has crystallised in the past, not one that is constantly changing.", "The normal truth-finding function of the courts of law is to consider and assess such crystallised facts, rather than to pronounce on people's future suitability and fitness to perform parental functions, for example. Epistemologically, the law of evidence is predicated on the historical method, not on the assessment of future probabilities. In both national and international appellate jurisdictions these complications are even more critical. In such cases, the appellate court is faced with more recent events, that is, events that are subsequent to the decisions of their lower courts. The appellate courts, in other words, are faced with the continuous evolution – improvement or deterioration – of the disrupted family relationship.", "The appellate court is therefore volens nolens involved in a fresh appraisal of new facts (questiones facti). It cannot limit itself, as it would normally do, to the fact pattern as established by the lower courts and recorded in the case file but must, on the contrary, remain receptive to the latest developments. This makes it difficult for an appellate court to limit itself to questions of law (questiones juris). This puts even the international court of last appeal, although further removed from the direct factual assessment of sensitive relational issues, into the uncomfortable – but inevitable – role of a direct fact-finder. Consequently, the principle of immediacy of fact-finding is affected.", "Inevitably then, since the appellate court must reach a definable aspect of the case's complex and continuously evolving fact pattern, there arises the need for a thoroughly reductive, namely minimalist, judicial approach. Also, the right to non-disruption of family life and our own remedy of just satisfaction cannot be in any meaningful sense interdependent. In paragraph 249 of the judgment we outlined our hope that the Italian State will choose one of the options consistent with our judgment and attempt to remedy, in so far as possible, the tragic situation of the Scozzari family. However, while there are in fact several obvious options at the disposal of the Italian State, none of them has the clear meaning of the usual quid pro quo of the classical restitutio in integrum. The passage of time, when dealing with small children is, irreversible and irremediable.", "In the past, I think, the Court has performed a formidable service both in finding wise solutions to individual cases and in establishing general principles and doctrines governing certain aspects of European family law. By virtue of the case-law, it is now largely clear what the rights and obligations of the Contracting States under the European Convention on Human Rights are, or more specifically, what the limits on proportional interference in disrupted family relationships are. To summarise these principles and doctrines, the ultimum remedium of interference is justified if (a) it is objectively in the best interest of the child, (b) it balances the rights of the parents (and other close relatives) against the best interests of the child and (c) it demonstrably strives to re-establish the parent-child relationship. Needless to say, (d) the right to speedy decisions by the family courts, which derives more from Article 8 of the Convention than from Article 6 § 1[3], is here especially prominent. The case before us, however, raises two additional issues.", "The first issue concerns the intensity as well as the continuity of the control which the State authorities are required to exercise over the implementation of their decisions by those to whom they have entrusted the care of the child. The second issue concerns the parents' and children's right to the provision of alternative care that is beyond reproach. As to the latter issue, it is understood that such an exceedingly grave interference in family life cannot be proportionate unless the alternative care facility imposed by the State is beyond reproach. Moreover, since the question of the nature of alternative care is usually the subject matter of a secondary dispute between the parents and the State – arising from the primary judicial decision to interfere in the family life – this issue merges with the question of continuous access to the courts for parents, children and close relatives. A State cannot justifiably disrupt the most fundamental human relationship, which is that between parent and child, unless it is willing and able to continue to render judicial decisions going beyond the retrospective res judicata of balanced interference in the life of the family.", "In a simple divorce case involving a childless couple, the State's courts may simply establish and declare an end to the relationship and perhaps draw the necessary consequences concerning the dividing up of property accumulated during its subsistence. If there are children, however, extremely grave and prospective long-term decisions must continually be made concerning their custody. Even if the child is entrusted to one of the two parents, this is already a sphere in which the judgment has no immutable finality. A fortiori, in a case in which the behaviour of both parents has proved detrimental to the child, the decision cannot be simply to break up the family. An initial alternative care arrangement followed by continuous judicial commitment is required of the court.", "Again, this function of the family court is idiosyncratic, because a dispute of this kind cannot in any sense be deemed as finally resolved – at least not until the child has attained legal maturity. Therefore, if the State does decide to interfere in the natural long-term relationship between parent and child, it must accept that it will have continuing future parens patriae duties and responsibilities. Historically, the parens patriae legal doctrine was based on the (wrong) assumption that in family-law, civil-commitment and juvenile-delinquency cases the State acts in loco parentis and that, therefore, the conflicting “hostile attitudes”, typical of criminal and even private law, are here replaced by a “friendly attitude” of the State in loco parentis. Legally speaking, there was an irrebuttable presumption of “friendly attitude”. This presumption effectively blocked all further access to the courts.", "About thirty years ago, however, the parens patriae doctrine collapsed in a series of constitutional cases in different national jurisdictions. It became legally clear that these wards of the State (children entrusted to State agencies, committed mental patients and juvenile delinquents) found themselves in the worst of both worlds. Due to the “friendly-attitude” presumption, children, mental patients and juvenile delinquents lost the procedural and the substantive guarantees of the law – but did not really receive the treatment and the care of the State. The consequence of that was the resurgence of strict judicial protection – “access to court” in the language of our own case-law – and the departure from the naïve parens patriae ideology. The case of Scozzari and Giunta v. Italy clearly demonstrates that the State must balance its initial decision to interfere in the family life against future parens patriae responsibilities it has thus assumed.", "These responsibilities, more specifically, imply, first, the balancing duty of the family courts. When they consider the possible legal interference in the family relationship, they must be certain that the care imposed by the State will be clearly and demonstrably better than the troubled situation the court is seeking to redress. Second, these ex officio responsibilities of the family courts continue for so long as the basic child-parent relationship, which should be the purpose of the interference, is not re-established. Third, the aggrieved parties must continue to have access to court, that is, the courts must continue to resolve secondary disputes arising from the primary judicial decision that had interfered with the relationship between parents and children. In other words, if the State's courts are, legally or otherwise unable to assume such long-term commitments, they should not interfere.", "On the other hand, the courts cannot themselves provide the day-to-day care for the children. This is usually entrusted to social services. However, the social services department to which the courts have entrusted the child, must be under the court's continuous ex officio supervision. The strictly judicial power of conflict resolution – i.e. the power to resolve further disputes arising out of the initial alternative care arrangements – must not be left to psychiatrists, psychologists, social workers, managers of alternative care institutions, etc.", "The alternative custody and care arrangements, while in place, will often generate a series of new conflicts between parents and the welfare authorities. In many other cases decided by this Court it was apparent that welfare authorities have a tendency to arrogate to themselves an arbitrary decision-making power far exceeding their judicially granted authority. Undoubtedly, this problem derives from the non-retrospectivity and other idiosyncrasies of child custody and care cases outlined above. However, the fundamental principle of the rule of law requires that the parents' and children's access to court be strictly and continuously maintained. Too much is at stake here for these grievances to be arbitrarily decided by those authorised only to provide the alternative care.", "The presumption of their bona fides must remain a rebuttable one, i.e. subject to subsequent legal challenge and uninterrupted access to court. Since this would amount to the so-called khadi-justice, foster parents, social workers, psychologists, psychiatrists, alternative care institutions, etc., cannot be arbiters in situations in which their own decisions are the target of parents' criticism and grievance. Procedurally, such disputes are prima facie admissible, if the issues they raise transcend the strictures of judicial decisions establishing the alternative care arrangements. This issue goes to the core of the rule of law.", "The doors of the family court should remain wide open. [1]1. Note by the Registry. Protocol No. 11 came into force on 1 November 1998.", "[2]1. Note by the Registry. The report is obtainable from the Registry. [3]1. See the Johansen v. Norway judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III, opinion of the Commission, pp.", "1023-24, §§ 106-12." ]
[ "FOURTH SECTION CASE OF KOLANIS v. THE UNITED KINGDOM (Application no. 517/02) JUDGMENT STRASBOURG 21 June 2005 FINAL 21/09/2005 In the case of Kolanis v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: MrJ. Casadevall, President,SirNicolas Bratza,MrM. Pellonpää,MrR. Maruste,MrS.", "Pavlovschi,MrJ. Borrego Borrego,MrJ. Šikuta, judges,and Mrs F. Elens-Passos, Deputy Section Registrar, Having deliberated in private on 31 May 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 517/02) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a United Kingdom national, Ms Maria Kolanis (“the applicant”), on 6 December 2001.", "2. The applicant was represented by Bishop & Light, solicitors practising in Hove. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton, of the Foreign and Commonwealth Office. 3. The applicant alleged that her continued detention after the Mental Health Review Tribunal had directed her release subject to conditions was no longer justified and was without appropriate procedural safeguards.", "She relied on Article 5 §§ 1, 4 and 5, and Article 13 of the Convention. 4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5.", "By a decision of 4 May 2004, the Chamber declared the application admissible. 6. The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1972 and lives in London. 8. On 2 February 1998 the applicant was convicted of causing grievous bodily harm with intent. She was found to be suffering from a mental illness.", "She was detained in hospital pursuant to sections 37 and 41 of the Mental Health Act 1983 (“the 1983 Act”). She applied to a Mental Health Review Tribunal (“MHRT”) for her discharge from detention in hospital. 1. The first review by a Mental Health Review Tribunal 9. On 24 May 1999 the MHRT first considered her application.", "It adjourned in order, inter alia, to obtain a psychiatric report from a Dr Hamilton which was to address the eligibility of the applicant for a conditional discharge from hospital. 10. On 16 August 1999 the MHRT resumed its hearing of the applicant's application. It had before it the report of Dr Hamilton, which expressed the view that the applicant was not ready for discharge. Furthermore, the psychiatrist in charge of the applicant's care, Dr O'Grady, and a social worker gave evidence to the MHRT stating that they were opposed to the applicant's discharge.", "They proposed that the applicant should instead be transferred to hostel-type accommodation, under the care of a supervising consultant psychiatrist. 11. The MHRT nevertheless concluded that the applicant should be conditionally discharged. The conditions were that the applicant should reside at the home of her parents, that she should cooperate with supervision by a social worker and a forensic consultant psychiatrist, and that she should comply with such treatment as might be prescribed for her. 12.", "In coming to its decision, the MHRT answered the three questions below as follows: A. Is the Tribunal satisfied that the patient is not now suffering from mental illness, psychopathic disorder, severe mental impairment, or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment? YES B. Is the Tribunal satisfied that it is not necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment? YES C. Is the Tribunal satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment?", "NO The MHRT expressed the following as a part of its reasoning: “The Tribunal is satisfied ... that the patient is now suffering from mental illness, namely schizophrenia, the symptoms of which are being fully controlled by medication and that she needs ongoing treatment and medication in order to control her illness. The patient ... has been symptom-free for at least the last 8 to 12 months. ... ... in view of the possibility of a relapse, she should remain liable to be recalled to hospital for further treatment.” 13. The MHRT deferred the discharge of the applicant until satisfactory arrangements had been made to meet the conditions it had imposed. 2.", "Attempts to fulfil the conditions imposed by the MHRT 14. On 30 September 1999 the psychiatrist responsible for supervising the applicant in the community, Dr Kennedy, saw her with two members of his team. He concluded that he was not prepared to supervise her if she were at home but only if she were in supported accommodation. He described his consultation with the applicant in a letter to Dr O'Grady, dated 6 October 1999, in which he wrote, inter alia: “I made it clear that I would not consider it safe to supervise [the applicant] if she were to go straight home to the care of her parents, as there are important areas of her treatment in which she has not yet made sufficient progress for anyone to be confident that she would not relapse and reoffend while there.” 15. Dr Kennedy made clear that he was in no doubt that the next stage in the applicant's treatment, rehabilitation and risk management should take place near her family, but in a medium-security unit or at a registered mental nursing home.", "Alternatively, he suggested asking one of his colleagues, or one of the general psychiatrists at St Anne's Hospital, whether they would be willing to supervise the applicant on conditional discharge to her parents' home. 16. On 11 October 1999 Dr O'Grady wrote to the MHRT. He stated that the purpose of his letter was to give the MHRT advance notice that his team was unable to meet the conditions set by the tribunal for the conditional discharge of the applicant. He explained that both Dr Hamilton and Dr Kennedy were agreed that it would be difficult to manage her should she be discharged directly to her parents' home.", "He continued: “In the circumstances, I believe it is highly unlikely that there will be another forensic psychiatrist willing to provide the supervision that is necessary to meet the conditions of the tribunal ... We continue to hold the view that it is not in her best interests to be discharged directly to her family but [that she] should go through a further period of rehabilitation in the community to prepare her fully for community living.” 17. On 19 October 1999 Dr O'Grady again wrote to the MHRT informing it that he would write to the other consultant forensic psychiatrists in the North London Forensic Service (“the NLFS”) to enquire whether they would be prepared to supervise the applicant under the conditions laid down by the tribunal. As it transpired, none of those psychiatrists was prepared to do so. 18. On 15 November 1999 the health authority responsible for the area in which the applicant lived (“the health authority”) requested the director of the NLFS to approach forensic colleagues working in the private sector to establish whether they might be willing to offer supervision.", "19. On 2 December 1999 the NLFS informed the health authority that the applicant's new responsible medical officer, Dr Duffield, was not satisfied that the applicant should return home. However, he had agreed to approach all local catchment area forensic consultant psychiatrists to determine whether they would be willing to provide after-care supervision for the applicant were she to be discharged to her parents' home. 20. On 15 December 1999 the NLFS wrote to the health authority to confirm that no consultant forensic psychiatrist from the NLFS was willing to supervise the applicant in the community.", "Furthermore, it stated that it was not aware of any individual or organisation that would be suitably equipped to undertake such a task in the community. The letter noted that most private independent sector providers concentrated on acute and in-patient care only. 21. On 17 December 1999 Dr Duffield wrote to the MHRT to advise it that its conditions had not been complied with so far, and the reasons therefor. 22.", "In December 1999 and January 2000 the health authority wrote to the clinical directors of the forensic psychiatry services in London, Hertfordshire and Essex, identifying nine units in addition to the NLFS. They were asked to discuss the case urgently with their consultant colleagues to establish whether any of them was prepared to assess the applicant with a view to becoming her supervising consultant forensic psychiatrist under the terms laid down by the MHRT. None was willing or able to assist. 23. The health authority subsequently wrote to both national and private institutions in Cambridgeshire and Northamptonshire with the same request.", "Once again, no one was prepared to comply with the conditions set by the MHRT. 24. The health authority concluded that there were no further steps that it could take. 25. On 3 March 2000 Dr Kennedy wrote to the Home Office, advising it of his opinion that the conditions imposed by the MHRT were impossible to meet.", "He therefore requested the Home Secretary to consider exercising his powers under section 71(1) of the 1983 Act to refer the applicant to an MHRT. The Home Secretary complied with that request on 17 March 2000. 3. The applicant's application to the High Court for judicial review 26. On 3 December 1999 the applicant issued proceedings for judicial review of the decision of the health authority not to provide her with psychiatric supervision in the community in implementation of the conditions imposed by the MHRT, which was preventing her discharge from hospital.", "She sought, inter alia, the quashing of that decision and/or an order to compel the health authority to provide her with the psychiatric treatment necessary to implement the conditions imposed by the MHRT. 27. On 18 January 2000 the High Court granted the applicant permission to apply for judicial review. The Secretary of State for Health declined to intervene in the proceedings, but made the following observations: “The Mental Health Act provides an established legislative framework in this and similar cases designed to safeguard the interests of patients. As part of this scheme Responsible Medical Officers are accountable in a way which clearly does not permit them to effectively deny the determinations of properly constituted Mental Health Review Tribunals ...", "It is a matter for the Tribunal whether they decide to order a conditional discharge against the advice of the [Responsible Medical Officer].” 28. On 9 June 2000 the High Court judge (Mr Justice Burton) heard the applicant's substantive application for judicial review. The applicant argued that she was entitled to be discharged from hospital; that the health authority was in breach of its duty under section 117 of the 1983 Act for failing to provide her with the necessary services to comply with the conditions of the MHRT; and that the failure to comply with those conditions within a reasonable period of time was in breach of Article 5 of the Convention. 29. The judge rejected the applicant's application.", "He held that, under section 117 of the 1983 Act, the health authority was not under an absolute duty to implement the conditions of the MHRT, but only a duty to take all reasonable steps to attempt to satisfy those conditions. The judge further held that, on the facts, the health authority had complied with that duty. He further rejected the applicant's suggestion that any of the psychiatric consultants had “thwarted” the conclusions of the MHRT, holding that doctors were both entitled and obliged to exercise their own professional judgment. 4. The second review by a Mental Health Review Tribunal 30.", "On 24 August 2000, following the reference by the Home Secretary on 17 March 2000 (see paragraph 25 above), a differently constituted MHRT considered the applicant's case afresh. It concluded that the applicant should be conditionally discharged. The conditions were that the applicant should reside in accommodation approved by her responsible medical officer, that she accept to be supervised and take the medication prescribed by the latter, and that she accept to be supervised by her social supervisor. 31. The MHRT gave the same answers as the first MHRT to the questions set out in paragraph 12 above.", "It also deferred the discharge of the applicant until satisfactory arrangements had been made to meet the conditions it had imposed. It further expressed the following as part of its reasoning: “... we consider that it is appropriate that [the applicant] should remain liable to recall to hospital. The critical issue, we feel, is that Miss Kolanis's current good mental health is dependent, in our view, upon her continuing to receive her medication. Our hope and expectation is that the condition as to residence which we have imposed will be capable of being complied with within a relatively short period. We consider that, bearing in mind that Miss Kolanis had a legitimate expectation a year ago of being released into the community almost at once, her [Responsible Medical Officer] and the other responsible authorities should treat the finding of suitable accommodation for her as urgent.", "Having seen Miss Kolanis, it is clear to us that she is a very personable woman and we find it difficult to conceive of any responsible body having any legitimate objection to accommodating her.” 32. On 23 December 2000 the applicant was conditionally discharged from hospital to a resettlement project hostel in London. 5. The applicant's appeal 33. Subsequently, the Court of Appeal granted the applicant permission to appeal against the judgment of the High Court of 9 June 2000 in her judicial review proceedings.", "It recognised that, in the light of the applicant's conditional discharge, which had occurred subsequent to the judgment of the High Court, the issues raised on appeal were, in one sense, academic. However, permission to appeal was granted as a result of the importance of the issues raised. 34. On 21 February 2001 the Court of Appeal dismissed the applicant's appeal. It agreed with the interpretation of section 117 of the 1983 Act that had been the basis of the decision of the High Court judge (see paragraph 29 above).", "35. In paragraph 16 of his judgment, Lord Phillips set out the effect of an earlier judgment of the House of Lords in R. v. Oxford Regional Mental Health Review Tribunal, ex parte Secretary of State for the Home Department [1987] 3 All England Law Reports 8 (“Oxford”) as follows: “Should, for any reason, it prove impossible to implement the conditions specified by a Tribunal, that Tribunal could not consider whether to impose alternative conditions or even to direct discharge of the patient without conditions. In such circumstances the patient would remain detained unless and until a fresh reference was made to a Tribunal. The patient was not entitled himself to initiate a reference for twelve months. The Secretary of State was under no similar restriction, but in practice a considerable length of time would be likely to elapse before the matter came back before the Tribunal pursuant to a reference by the Secretary of State.", "The implications of this state of affairs were considered by the European Court of Human Rights in Johnson v. the United Kingdom ...” At the time at which the facts in the present case arose, no separate relief was available to the applicant under the Human Rights Act 1998 (which incorporated the Convention directly into domestic law). Nevertheless, Lord Phillips proceeded on the basis that, where there was no conflict with precedent, the correct approach had always been to interpret legislation in a manner that was consistent with the Convention. He therefore addressed the human rights issues in the case as follows: “32. Does the legislative scheme, as interpreted in [Oxford], violate the right to liberty conferred by Article 5 of the [Convention]? In considering this question it is necessary to distinguish between two different situations.", "The first is a case, such as the present, where the Tribunal concludes that the patient is mentally ill and requires treatment, but that under appropriate conditions such treatment can be provided in the community. The second is where, as in the case of Johnson, the Tribunal finds that the patient is no longer suffering from mental illness, is not in need of treatment but needs to be discharged into a controlled environment in order to reduce the stress involved, to make sure that the patient is indeed free of the illness and to reduce the risk that the illness may recur. 33. Where (i) a patient is suffering from mental illness and (ii) treatment of that illness is necessary in the interests of the patient's own health or for the protection of others and (iii) it proves impossible or impractical to arrange for the patient to receive the necessary treatment in the community, it seems to me that the three criteria identified by the European Court in Winterwerp are made out. Whether or not it is necessary to detain a patient in hospital for treatment may well depend upon the level of facilities available for treatment within the community.", "Neither Article 5 nor Strasbourg jurisprudence lays down any criteria as to the extent to which member States must provide facilities for the care of those of unsound mind in the community, thereby avoiding the necessity for them to be detained for treatment in hospital. 34. If a health authority is unable, despite the exercise of all reasonable endeavours, to procure for a patient the level of care and treatment in the community that a Tribunal considers to be a prerequisite to the discharge of the patient from hospital, I do not consider that the continued detention of the patient in hospital will violate the right to liberty conferred by Article 5. 35. Very different considerations apply to a factual situation such as that considered by the Strasbourg Court in Johnson.", "Where a patient has been cured of mental illness, he is no longer of unsound mind and the exception to the right to liberty provided for by Article 5 § 1 (e) does not apply. In Johnson the Court has recognised that, in such circumstances, it may nonetheless be legitimate to make discharge of the patient conditional rather than absolute and to defer, to some extent, the discharge to which the patient is entitled. The deferral must, however, be proportionate to its object and cannot become indefinite. The decision in Johnson suggests that the statutory regime as interpreted in [Oxford], may not be consistent with Article 5. If the Tribunal imposes a condition which proves impossible of performance, too lengthy a period may elapse before the position is reconsidered as a result of a subsequent referral.", "36. The solution to the problem is not to interpret section 117 in such a way as to impose on health authorities an absolute obligation to satisfy conditions imposed by Tribunals. I do not consider it appropriate in this case to attempt to provide a definitive answer to the problem. I would simply observe that the solution may well involve reconsidering the decision of the House of Lords in [Oxford]. ...” 36.", "During the course of his judgment, Lord Justice Buxton opined as follows: “39. The effect of Article 5 § 4 of the [Convention] is to entitle a person in the situation of [the applicant] to have the lawfulness of her detention decided by a body, within the system of the State that is detaining her, that has appropriate court-like characteristics. In the case of the United Kingdom, that court-like function is performed by the Mental Health Review Tribunal (MHRT). One necessary characteristic of such a body, if it is to meet the requirements of Article 5 § 4, is that its orders should be effective in securing the release of persons whose detention it rules to be unlawful: see ... X v. the United Kingdom[judgment of 5 November 1981, Series A no. 46] ... 40.", "In the present case, the MHRT concluded that the detention of [the applicant] would be unlawful once the conditions upon which her release was contingent were put in place. Those conditions, in particular, included cooperation by [the applicant] with supervision by a forensic consultant psychiatrist; and therefore, by necessary implication, provision of such supervision by the appropriate organ of the State. If that order were to be effective, as Article 5 § 4 requires, such supervision had to be provided. 41. Johnson ..., paragraphs 66 and 67, seems to me to make clear, in accordance with that requirement of effectiveness, that a breach of Article 5 § 1 is committed by the State if, once the MHRT has determined that a patient should be released, it imposes conditions to facilitate that release that in the event are not fulfilled, at least if the non-fulfilment can be attributed to another organ of the State.", "42. In applying that part of the Court's jurisprudence, I would not make the distinction drawn by [Lord Phillips], in paragraph 32 of his judgment, and based on the approach of the Strasbourg Court in Winterwerp, between cases where the MHRT concludes that the patient is mentally ill, but can be treated in the community, and cases (such as Johnson itself) where the MHRT finds that the patient is no longer suffering from mental illness but nonetheless needs to be released into a controlled environment. In the latter case, the justification for the placing of continued restrictions on the subject relates, and can only relate, to the history of mental illness and, as in Johnson, to the prospect of recurrence. In both cases, there is continued detention; the role of the MHRT in both cases is to exercise the court-like functions required by Article 5 § 4, and under the jurisprudence of Article 5 § 4 the national authorities are equally bound to respect and act on the determination of the MHRT in either case. 43.", "There is also a practical difficulty in applying the Winterwerp criterion of whether the mental disorder is 'of a kind or degree warranting compulsory confinement' to decisions that were not taken with that formulation expressly in mind. In [the applicant's] case, the MHRT answered 'Yes' to the question: 'Is the Tribunal satisfied that the patient is not now suffering from mental illness ... of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment? ', but in their extended reasoning made it clear that any discharge must be subject to the provision of continuing treatment. That is not a clear-cut decision of the type that Winterwerp seems to assume. 44.", "However that may be, under the [Convention] jurisprudence ... once the MHRT made a decision as to [the applicant's] release that was contingent on the provision of forensic psychiatric supervision, it became the responsibility of the State to provide that supervision. Otherwise, if nothing was done, the situation would arise that was identified in paragraph 67 of the judgment in Johnson, of indefinite deferral of the release that had been ordered by the MHRT. That deferral would arguably entail a breach of the [Convention]. The issue would depend on whether, once the MHRT had determined that her condition could and should be treated in the community, she was, in terms of the analysis in Winterwerp, suffering from a mental disorder of a kind or degree warranting compulsory confinement. I have already indicated the difficulty of this question.", "We received no submissions upon it, the argument being concentrated in another direction, and I certainly do not decide the issue here. 45. In raising the possibility that [the applicant's] detention became unlawful I have not overlooked [Lord Phillips's] view, set out in paragraph 33 of his judgment, that such a conclusion may be controlled or affected by the availability of treatment facilities in the particular community involved; but what matters in [Convention] terms is the ruling of the MHRT, the determining body created by Article 5 § 4. If the ruling of the MHRT is frustrated, in a case where under the [Convention] jurisprudence the subject should no longer be detained, then the subject is deprived of her Article 5 § 4 protection, as (I think it to be clear) the [Court] would have held in Johnson had the issue not been determined already under Article 5 § 1: see paragraphs 69-72 of the judgment. 46.", "I well accept that this conclusion entails a number of practical difficulties, not least that it might appear to lead to the release of a person who is or has been mentally ill without the support that the MHRT thought necessary for that release. That may appear surprising, not only in common-sense terms, but also in view of the emphasis placed in the jurisprudence of the [Convention] upon the judgment of the national authorities: see for instance the observations of the [Court] in Luberti v. Italy [judgment of 23 February 1984, Series A no. 75] at paragraph 27 as to the relevance in this context of the doctrine of the margin of appreciation; and the observations in paragraph 63 of the judgment in Johnson as to the respect to be paid to the discretionary judgment of those responsible for dealing with the mentally ill. The problem in this case arises, however, from the rigidity of the required procedure of the MHRT that is identified in paragraphs 16 and 36 of [Lord Phillips's] judgment. If the MHRT indeed had the power to review its decisions in the light of practical circumstances, as was envisaged by Woolf J in [Oxford], then difficulties of the present order would not arise; and provided that the national authorities made all reasonable efforts to comply with provisional decisions of the MHRT I very much doubt that any objection to such a procedure would arise under the [Convention].", "That, however, is not the present state of domestic law: the decision of the MHRT being once and for all, that is the decision that Article 5 § 4 requires to be respected. ... 48. ... [the applicant] may have a complaint under Article 5 in relation to the whole circumstances that led to her continued detention: including, in particular, that the MHRT having ruled that her continued detention was not justified, the implementation by the State of that order in the event caused her to continue to be detained. The State is responsible for the whole of these circumstances. That, presumably, is why the State was found to be in breach in Johnson from the original date of the MHRT's decision: see the last sentence of paragraph 67 of the judgment.", "The circumstances of [the applicant's] case might, therefore, by the same token found a successful complaint in Strasbourg.” 37. Lord Justice Sedley, during the course of his judgment, expressed the following view (in paragraphs 55 and 56): “... more than one legitimate judgment – that of the community psychiatrist as well as of the MHRT – may have to be accommodated for the purposes of Article 5 § 4, at least to the extent that the decision of the MHRT is explicitly dependent on the collaboration of the psychiatrist. ... I am rather less positive than Buxton LJ in looking to Strasbourg to afford [the applicant] a remedy that cannot be afforded here. It seems to me ... that the legislative scheme, while not always satisfactory in practice, is Convention-compliant in principle.” 38.", "On 3 July 2001 the House of Lords refused the applicant's petition of appeal against the judgment of the Court of Appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Mental disorder 39. Section 1(2) of the Mental Health Act 1983 (“the 1983 Act”) defines “mental disorder” as “mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind”.", "B. Hospital orders 40. Section 37 of the 1983 Act empowers a court to order a person, on being convicted of a criminal offence punishable with imprisonment, to be admitted to and detained in a specified hospital (“a hospital order”). 41. The court can only make a hospital order if it is satisfied on the written or oral evidence of two registered medical practitioners that the offender is suffering from mental disorder (see paragraph 39 above) and that “the mental disorder ... is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration in his condition” (section 37(2)(a)(i)) and “the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of a [hospital order]” (section 37(2)(b).", "42. Under section 37(7), a hospital order must specify the form or forms of mental disorder from which the offender is suffering, as confirmed by the evidence of two practitioners. C. Restriction orders 43. Under section 41(1) of the 1983 Act, where a hospital order is made by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm to do so, the court may further order that the offender shall be subject to certain specified restrictions, detailed in section 41 of the Act. Such an order is called a “restriction order” and may be made either without limit of time or for the period specified in the order.", "D. Applications to a Mental Health Review Tribunal 44. The purpose of an MHRT is to deal with applications and references by and in respect of patients under the provisions of the 1983 Act (section 65(1)). 45. Under section 70 of the 1983 Act, a person who is subject to a hospital order and a restriction order (“a restricted patient”) may apply to an MHRT for a review of his or her detention in hospital: (i) initially after a period of between six and twelve months' detention; (ii) thereafter, annually. 46.", "Under section 71(1) of the 1983 Act, the Secretary of State may at any time refer the case of a restricted patient to an MHRT. This power is discretionary. The Secretary of State therefore cannot be compelled by a patient to exercise it. E. Absolute discharge 47. Under section 73(1) and (2), read in conjunction with section 72(1), of the 1983 Act (as they were at the time when the facts giving rise to the applicant's case occurred, the sections having subsequently been amended), where an application was made to an MHRT by a restricted patient or where his case was referred to it by the Secretary of State, the MHRT was required to direct the absolute discharge of the patient if it was satisfied: (a) (i) that the patient was not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which made it appropriate for the patient to be liable to be detained in a hospital for medical treatment; or (ii) that it was not necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment (section 73(1) of the 1983 Act); and (b) that it was not appropriate for the patient to remain liable to be recalled to hospital for further treatment (section 73(2) of the 1983 Act).", "48. Pursuant to section 73(3), upon an absolute discharge, the patient ceases to be liable to be detained by virtue of the hospital order and the restriction order ceases to have effect. F. Conditional discharge 49. Under section 73(2) of the 1983 Act, where an MHRT is satisfied as to either of the matters referred to in (a), but not as to the matter referred to in (b) in paragraph 47 above, it is required to direct the conditional discharge of the patient. 50.", "Lady Justice Butler-Sloss, giving judgment in R. v. Merseyside Mental Health Review Tribunal, ex parte K. [1990] 1 All England Law Reports 699-700, explained the nature of this power as follows: “Section 73 gives to the tribunal the power to impose a conditional discharge and retain residual control over patients not then suffering from mental disorder or not to a degree requiring continued detention in hospital. This would appear to be a provision designed both for the support of the patient in the community and the protection of the public, and it is an important discretionary power vested in an independent tribunal, one not lightly to be set aside in the absence of clear words.” 51. By virtue of section 73(4) of the 1983 Act, a patient who has been conditionally discharged may be recalled by the Secretary of State. In addition, that patient must comply with the conditions attached to the discharge. In contrast to a patient who has been absolutely discharged, a conditionally discharged patient does not cease to be liable to be detained by virtue of the relevant hospital order.", "52. Under section 73(7) of the 1983 Act, an MHRT can defer a direction for the conditional discharge of a restricted patient until such arrangements as appear to be necessary for the purpose of discharge have been made to its satisfaction. 53. As set out above, in the applicant's domestic case in the Court of Appeal (R. (K.) v. Camden and Islington Health Authority [2001] England and Wales Court of Appeal (Civil Division) 240), Lord Phillips considered the effect of the House of Lords' decision in Oxford. He concluded that if it proved impossible to implement the conditions specified by an MHRT, the patient would remain detained unless and until a fresh reference were made to an MHRT.", "The original MHRT that imposed the conditions did not have any power to reconsider its decision. 54. A patient's case can therefore only be reconsidered by a differently constituted MHRT. In those circumstances the case must be considered afresh. 55.", "The Secretary of State may also order a patient's conditional or absolute discharge under section 42 of the 1983 Act. G. After-care services for patients who are discharged from hospital 56. Section 117(2) of the 1983 Act reads as follows: “It shall be the duty of the health authority and of the local social services authority to provide, in cooperation with relevant voluntary agencies, after-care services for any person to whom this section applies ...” 57. As set out above, the Court of Appeal in the applicant's domestic case (cited above) held that the duty imposed by section 117(2) was not absolute. It was a duty to take all reasonable steps to attempt to satisfy the conditions imposed by the MHRT.", "H. Case-law subsequent to the judgment in the applicant's case 58. In R. (I.H.) v. Secretary of State for the Home Department and Another [2002] England and Wales Court of Appeal (Civil Division) 646, decided on 15 May 2002, the Court of Appeal considered the question of whether sections 73(2) and/or 73(7) of the 1983 Act were incompatible with Article 5 §§ 1 (e) and/or 4 of the Convention in that MHRTs lacked the power to guarantee that conditions they might attach to a deferred order for conditional discharge would be implemented within a reasonable period of time. The case, similarly to that of the applicant, involved a patient who was suffering from a mental illness, but one which was in remission.", "It was decided subsequently to the applicant's domestic case and was brought under the Human Rights Act 1998. It therefore took into account the judgments in the applicant's domestic proceedings, the Convention and Strasbourg jurisprudence. 59. In paragraph 53 of his judgment, Lord Phillips confirmed that the decision of the House of Lords in Oxford made clear that an MHRT was neither obliged nor entitled to reconsider its earlier decision in respect of a conditional discharge in order to accommodate any new facts that might cause it to alter that decision. Lord Phillips continued, in paragraph 54: “... the decision in [Oxford] is in potential conflict with the requirements of Article5 § 4.", "If, having made a decision that a patient is entitled to a conditional discharge, subject to specific conditions which necessitate deferral of the discharge, the Tribunal cannot revisit its decision, the patient is liable to find himself 'in limbo' should it prove impossible to put in place the arrangements necessary to enable him to comply with the proposed conditions. That period 'in limbo' may last too long to be compatible with Article 5 § 4 and may result in the patient being detained in violation of Article 5 § 1.” Lord Phillips therefore determined that the decision in Oxford needed to be reviewed in the light of the requirements of Article 5 of the Convention. He concluded, in paragraph 71: “Tribunals should no longer proceed on the basis that they cannot reconsider a decision to direct a conditional discharge on specified conditions where, after deferral and before directing discharge, there is a material change of circumstances. ... The original decision should be treated as a provisional decision, and the Tribunal should monitor progress towards implementing it so as to ensure that the patient is not left 'in limbo' for an unreasonable length of time.” Lord Phillips then gave guidelines to MHRTs considering the discharge of a patient.", "The guidelines comprised specific steps that could be taken by an MHRT should problems arise with making arrangements to meet the conditions of a conditional discharge. Those steps included the possibility of deferring for a further period, varying the proposed conditions to seek to overcome the difficulties, ordering a conditional discharge without specific conditions or deciding that the patient had to remain detained in hospital for treatment. The Court of Appeal concluded (in paragraphs 96-98) that such a scheme, proposed in the light of its review of the decision of the House of Lords in Oxford, would be compatible with Article 5 § 1 of the Convention. 60. Following an appeal to the House of Lords, on 13 November 2003, Lord Bingham, in his judgment with which the other members of the House of Lords agreed, held: “18.", "The key to a correct understanding of Johnson is to appreciate the nature of the case with which the Court was dealing. It was that of a patient who, from June 1989 onwards, was found not to be suffering from mental illness and whose condition did not warrant detention in hospital. The Court's reasoning is not applicable to any other case. ... 26. I do not accept that, because the tribunal lacked the power to secure compliance with its conditions, it lacked the coercive power which is one of the essential attributes of a court.", "What Article 5 §§ 1 (e) and 4 require is that a person of unsound mind compulsorily detained in hospital should have access to a court with power to decide whether the detention is lawful and, if not, to order his release. This power the tribunal had. Nothing in Article 5 suggests that discharge subject to conditions is impermissible in principle, and nothing in the Convention jurisprudence suggests that the power to discharge conditionally (whether there are specific conditions or a mere liability to recall), properly used, should be viewed with disfavour. Indeed, the conditional discharge regime, properly used, is of great benefit to patients and the public, and conducive to the Convention object of restricting the curtailment of personal liberty to the maximum, because it enables tribunals to ensure that restricted patients compulsorily detained in hospital represent the hard core of those who suffer from mental illness, are a risk to themselves or others and cannot be effectively treated and supervised other than in hospital. If there is any possibility of treating and supervising a patient in the community, the imposition of conditions permit that possibility to be explored and, it may be, tried.", "27. When, following the tribunal's order of 3 February 2000, it proved impossible to secure compliance with the conditions within a matter of a few months, a violation of the appellant's Article 5 § 4 right did occur. It occurred because the tribunal, having made its order, was precluded by the authority of the Oxford case from reconsidering it. The result was to leave the appellant in limbo for a much longer period than was acceptable or compatible with the Convention. I would accordingly endorse the Court of Appeal's decision to set aside the Oxford ruling and I would adopt the ruling it gave in paragraph 71 of its judgment quoted above.", "Evidence before the House shows that that ruling is already yielding significant practical benefits. ... 28. There was no time between 3 February 2000 and 25 March 2002 when the appellant was, in my opinion, unlawfully detained, and there was thus no breach of Article 5 § 1 (e). There is a categorical difference, not a difference of degree, between this case and that of Johnson. Mr Johnson was a patient in whose case the Winterwerp criteria were found not to be satisfied from June 1989 onwards.", "While, therefore, it was reasonable to try and ease the patient's reintegration into the community by the imposition of conditions, the alternative, if those conditions proved impossible to meet, was not continued detention but discharge, either absolutely or subject only to a condition of liability to recall. His detention became unlawful shortly after June 1989 because there were, as all the doctors agreed, no grounds for continuing to detain him. The present case is quite different. There was never a medical consensus, nor did the tribunal find, that the Winterwerp criteria were not satisfied. The tribunal considered that the appellant could be satisfactorily treated and supervised in the community if its conditions were met, as it expected, but the alternative, if these conditions proved impossible to meet, was not discharge, either absolutely or subject only to a condition of recall, but continued detention.", "... 29. The duty of the health authority, whether under section 117 of the 1983 Act or in response to the tribunal's order of 3 February 2000, was to use its best endeavours to procure compliance with the conditions laid down by the tribunal. This it did. It was not subject to an absolute obligation to procure compliance and was not at fault in failing to do so. It had no power to require any psychiatrist to act in a way which conflicted with the conscientious professional judgment of that psychiatrist.", "Thus the appellant can base no claim on the fact that the tribunal's conditions were not met. ... 30. I do not consider that the violation of Article 5 § 4 which I have found calls for an award of compensation since (a) the violation has been publicly acknowledged and the appellant's right thereby vindicated, (b) the law has been amended in a way which should prevent similar violations in future, and (c) the appellant has not been the victim of unlawful detention, which Article 5 is intended to avoid. For these reasons ... I would dismiss this appeal.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 61. Article 5 § 1 of the Convention provides: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (e) the lawful detention ... of persons of unsound mind ...” A. The parties' submissions 1.", "The applicant 62. The applicant considered that she was materially in the same position as in Johnson v. the United Kingdom (judgment of 24 October 1997, Reports of Judgments and Decisions 1997-VII) in that her release had been unjustifiably delayed. She did not accept that there was a distinction between patients who were absolutely entitled to discharge and patients who the MHRT found did not require further detention in hospital for treatment as long as services were provided to them in the community. The second category should not be treated as not enjoying a right to liberty under Article 5 § 1 as they no longer suffered a mental disorder of a kind or degree warranting their compulsory confinement within the meaning of Winterwerp v. the Netherlands (judgment of 24 October 1979, Series A no. 33).", "The applicant adopted the analysis of Lord Justices Buxton and Sedley in this case in the Court of Appeal. 63. Once the MHRT had held that a patient fulfilled the criteria for discharge, then the Winterwerp criteria for detention were no longer fulfilled and there was a breach of Article 5 § 1 if they were detained longer than reasonably necessary after that finding. The availability of resources to enable such a patient to continue in the community without manifestation of mental disorder requiring detention would be relevant to the period of time for which his discharge might reasonably be delayed but not to the entitlement to discharge itself. Where resources were available but not deployed because of a disagreement with the decision of the tribunal, as in this case, then there would be a breach of the patient's right under Article 5 § 1 as she would be deprived of the benefit of its direction for her discharge.", "It was impermissible in the applicant's view for a psychiatrist or health body to act so as to undermine the effectiveness of the determination of the MHRT as to the legality of a patient's detention. 64. The applicant disputed that a margin of appreciation applied to the statutory scheme governing the detention of mental health patients, submitting that the right concerned was one of the most fundamental and the modification necessary to remove the breach was not so great as to justify continuing deprivation of liberty of patients who no longer fulfilled the Winterwerp criteria. The margin might apply to the time by which services had to be put in place to enable a discharge to take effect but not to the question whether the patient was discharged at all. 2.", "The Government 65. The Government submitted that the three criteria set out in Winterwerp for the detention of a person on mental health grounds were met in the applicant's case. She was still suffering from a mental disorder, namely schizophrenia, and needed ongoing treatment and medication to control her illness. It was appropriate for her to be liable to be recalled for further treatment and that certain conditions be attached to any discharge, in particular that she should be subject to supervision by a consultant forensic psychiatrist. The tribunal's decision was that she should only be discharged if those conditions were met.", "The Government argued that it was wrong to assume that, when a tribunal ordered a conditional discharge, this meant that the nature of the disorder no longer warranted hospital confinement (the second Winterwerp criterion). They distinguished conditions precedent, namely those conditions, such as those relating to psychiatric supervision, where if the conditions were not met the patient's condition warranted continued detention, from other conditions, which although desirable were not essential to the decision to discharge or which only applied after discharge, as in Johnson (cited above). 66. The Government further submitted that there was no requirement in the Convention that authorities had to be able to enforce the terms of a conditional discharge whether by compelling a third party to act or by the provision of a particular level of resources. The way in which the authorities should deal with an “impasse” had now been considered by the Court of Appeal and House of Lords in I.H.", "(see paragraphs 58-60 above) and they had issued guidelines permitting tribunals to monitor and reconsider decisions. In the Government's view, Contracting States also had a margin of appreciation in deciding what resources to provide in order to meet various social policy objectives. There was no unrestricted obligation to provide any resources which would allow the patient to be discharged. That did not mean that the decision on detention rested solely upon economic grounds but that the provision of resources in the community had to be taken into account in deciding whether the second Winterwerp criterion had been met. B.", "The Court's assessment 67. Detention of a person as being of unsound mind depends, in Convention terms, on the Winterwerp criteria, namely: (i) the patient must be reliably shown upon objective medical expertise to be suffering from a true mental disorder; (ii) the disorder must be of a “kind or degree” warranting compulsory confinement; (iii) the validity of any continued detention depends upon the persistence of a true mental disorder of a kind or degree warranting compulsory detention, established upon objective medical expertise (see Winterwerp, cited above, pp. 17-18, § 39) 68. The applicant's argument is that the MHRT, in ordering her conditional discharge, found that she was entitled to live and be treated in the community and was therefore no longer suffering from a disorder warranting compulsory confinement. She submits that the reasoning in Johnson (cited above), where continued detention flowing from a delay in achieving the applicant's conditional discharge was not found to be justified under Article 5 § 1 (e), applies to her case and rendered her continued detention arbitrary and contrary to Article 5.", "69. The Court observes, however, that in Johnson the MHRT had found that the applicant was no longer suffering from a mental disorder, no longer had the symptoms and did not require any further medication or treatment. In the present case, the domestic courts noted that the applicant was in a different situation – she still continued to suffer from schizophrenia and continued to require treatment (including medication) and medical supervision in order to control her illness. 70. The Court is therefore unable to accept the applicant's contention that the MHRT's decision that she could be discharged subject to conditions was tantamount to a finding that the second Winterwerp criterion was no longer fulfilled, with the result that any subsequent undue delay in release was in breach of Article 5 § 1.", "The formal questions answered by the MHRT are not framed in terms of the Winterwerp criteria but make findings relevant to the possibility of conditional, as well as absolute, discharge. As the substance of the reasoning from the MHRT showed, the discharge of the applicant was only regarded as appropriate if there was continued treatment or supervision necessary to protect her own health and the safety of the community. In the absence of that treatment, her detention continued to be necessary in line with the purpose of Article 5 § 1 (e). 71. As events in the present case showed, the treatment considered necessary for such conditional discharge may not prove available, in which circumstances there can be no question of interpreting Article 5 § 1 (e) as requiring the applicant's discharge without the conditions necessary for protecting her and the public, or as imposing an absolute obligation on the authorities to ensure that the conditions are fulfilled.", "Nor is it necessary in the present case to attempt to anticipate what level of obligation could arise by way of provision of treatment in the community to ensure the due effectiveness of MHRT decisions concerning release. In the situation under consideration, a failure by the local authority to use its “best efforts” or any breach of duty by a psychiatrist in refusing care in the community would be amenable to judicial review. The Court is therefore not persuaded that local authorities or doctors could wilfully or arbitrarily block the discharge of patients into the community without proper grounds or excuse, or that this occurred in this case. 72. The Court concludes in the present case that, after the MHRT decision of 16 August 1999, the applicant continued to suffer from an illness which justified compulsory detention and that her detention fell within the exception of Article 5 § 1 (e).", "Nonetheless, while it is therefore not excluded that the imposition of conditions may justify a deferral of a discharge found to be appropriate or feasible in domestic-law terms, it is of paramount importance that appropriate safeguards are in place so as to ensure that any continued detention is consonant with the purpose of Article 5 § 1. Accordingly, the period of delay during which the applicant's position was “in limbo” raises issues under Article 5 § 4 which are examined below. 73. It follows that there has been no violation of Article 5 § 1 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 74. Article 5 § 4 of the Convention provides: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. The parties' submissions 1. The applicant 75. The applicant submitted that she had been denied a speedy review of the grounds of her detention as, once it became apparent that the conditions on discharge imposed by the MHRT would not be fulfilled, she had to wait until her next annual application, or, as happened in this case, for the Secretary of State to refer the case back to the MHRT.", "Her case was therefore not considered until more than one year after she had been found entitled to discharge. 76. Further, the defect in the system identified by the domestic courts in I.H. prevented the MHRT from reconsidering its decision in light of the psychiatrists' refusal to provide supervision to fulfil the conditions attached to the discharge. Contrary to the Government's submission, the denial of this remedy did have a practical effect on her position as, if she had been afforded the remedy now held to be open to her, she would have had her case considered by the MHRT as soon as it became apparent, at the end of September 1999 and less than two months after the MHRT's decision, that the psychiatrists responsible for providing services were unwilling to provide them.", "If the MHRT had had the opportunity of considering her case as soon as it was known that no psychiatric supervision would be provided on the basis of the conditions imposed, it could have varied the conditions, as it eventually did, to address the psychiatrists' reasons for declining to provide supervision much earlier than her eventual discharge date in December 2000. 2. The Government 77. The Government submitted that the scope of the tribunal's powers entirely accorded with this provision in directing that the applicant should be discharged if certain conditions were met. They acknowledged that in certain cases there might be a breach of Article 5 § 4 because the MHRT had no power to review the position of the patient if the conditions could not be met, but that incompatibility had been remedied by the Human Rights Act 1998 and the domestic courts' decisions in I.H..", "These developments occurred after the facts in the present case, but they submitted that there was no evidence that the previous incompatibility had had an impact in practice on the applicant's rights. As regards speed, the Secretary of State was able to refer the matter back to a fresh tribunal under section 71 of the 1983 Act, and after the decision in I.H. the tribunal itself could consider the matter further in light of progress or otherwise in meeting the conditions. If the conditions had not been met but it appeared that the authorities had not been using their best endeavours to meet the conditions, it was open to the patient to seek judicial review of the authorities' failure to act, in which review the well-known principles of judicial review such as illegality and irrationality and the requirements of the Human Rights Act 1998 would be taken into account. B.", "The Court's assessment 78. The Court observes that the decision for the applicant's conditional discharge was given on 16 August 1999 but that it was not implemented as no psychiatrist would agree to supervise her on the basis of the planned discharge to her parents' home. The matter was eventually referred back to the MHRT by the Secretary of State in the exercise of his discretion and the review of the case took place just over a year after the initial decision, namely on 24 August 2000, when it varied that decision to provide for discharge, under medical supervision, into the more controlled environment of a hostel. 79. The issue to be determined is whether the inability of the MHRT to review of its own motion or on the application of the applicant, and therefore with due speed, the continued detention of the applicant after its decision that she was to be released on conditions complied with the requirement of Article 5 § 4 of the Convention.", "80. Article 5 § 4 affords a crucial guarantee against the arbitrariness of detention, providing for detained persons to obtain a review by a court of the lawfulness of their detention not only at the time of the initial deprivation of liberty but also where new issues of lawfulness are capable of arising periodically thereafter (see, inter alia, Kurt v. Turkey, judgment of 25 May 1998, Reports 1998-III, p. 1185, § 123, and Varbanov v. Bulgaria, no. 31365/96, § 58, ECHR 2000-X). Where, as in the present case, the MHRT finds that a patient's detention in hospital is no longer necessary and that she is eligible for release on conditions, the Court considers that new issues of lawfulness may arise where detention nonetheless continues, due, for example, to difficulties in fulfilling the conditions. It follows that such patients are entitled under Article 5 § 4 to have the lawfulness of that continued detention determined by a court with requisite promptness.", "81. The Court observes that, since the facts of the present application, the domestic courts have acknowledged in a similar case that there had been a breach of Article 5 § 4 and that they have overruled previous authority which was perceived to conflict with the requirements of Article 5 and given guidance as to the way in which the authorities should give effect to the legislation to avoid breaches in the future, namely by the MHRT issuing provisional decisions, monitoring progress in the implementation of conditions and varying conditions, or modifying its decision, if necessary (see paragraphs 58-60 above). 82. In the present case, however, the Court finds that for over a year the applicant was unable to have the issues arising from supervening events, as they affected her continued detention, examined by a court and that the lapse of twelve months before it was reviewed on the Secretary of State's referral cannot be regarded as sufficiently prompt to remedy this defect. There has therefore been a violation of Article 5 § 4 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION 83. Article 5 § 5 of the Convention provides: “Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” 84. The applicant submitted that the domestic courts had held that a patient in her position was not entitled to compensation from the MHRT, the detaining health authority or the authority responsible for providing services necessary for fulfilment of the conditions on the patient's discharge. Nor was the Human Rights Act 1998 in force at the relevant time.", "85. The Government submitted that there had been no breach of Article 5 §§ 1 or 4 and that, therefore, no issue arose under Article 5 § 5. If the Court found in favour of the applicant, they accepted that there was no enforceable right to compensation before the entry into force of the Human Rights Act 1998. 86. In the light of its finding above of a breach of Article 5 § 4 of the Convention, and noting the Government's concession, the Court finds that there has been a violation of Article 5 § 5 in the present case.", "IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 87. Article 13 of the Convention provides: “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.” 88. The Court has found above that there have been violations of Article 5 §§ 4 and 5 of the Convention. These provisions of Article 5 being the lex specialis concerning complaints relating to deprivation of liberty, no separate issues arise under Article 13 in the circumstances of this case (see, for example, Morley v. the United Kingdom (dec.), no.", "16084/03, 5 October 2004). V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 89. 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 90. The applicant claimed that she had been unlawfully detained for more than sixteen months.", "With reference to domestic-law awards (for example, 3,000 pounds sterling (GBP) for a period of twenty-four hours), she submitted that she should be awarded a very substantial sum. She claimed GBP 25,000, referring to her anxiety and distress at the confinement, loss of self-respect, general effects of loss of liberty, uncertainty, depression, loneliness, considerable weight gain, close proximity to mental illness and distress caused by other patients and the death of a nephew during this period, when she was unable to be with her relatives. 91. The Government submitted that the Court was not bound by domestic scales of damages and in any event pointed to a precedent in the courts in which sums of only GBP 750 to 4,000 were paid under the Human Rights Act 1998 for delays in mental health reviews (see K.B. and Others v. Mental Health Review Tribunal [2003] England and Wales High Court (Administrative Court) 193).", "They considered that a finding of a violation would constitute sufficient just satisfaction in this case, but that if the Court concluded otherwise the sum should be line with the awards in K.B. 92. The Court notes that it has found a procedural breach of Article 5 § 4 of the Convention above and that there has been no finding of substantive unlawfulness. It cannot be excluded on the facts of this case, however, that the applicant would have been released earlier if the procedures had conformed with Article 5 § 4 and therefore she may claim to have suffered, in that respect, a real loss of opportunity. Furthermore, it considers that the applicant must have suffered feelings of frustration, uncertainty and anxiety from the situation which cannot be compensated solely by the finding of violation.", "Having regard to awards made in similar cases, the Court awards, on an equitable basis, 6,000 euros (EUR). B. Costs and expenses 93. The applicant claimed legal costs and expenses of EUR 5,341, which included EUR 1,020 for solicitors' costs and EUR 4,321 for counsels' fees, inclusive of value-added tax. 94.", "The Government had no comment on counsels' fees but noted that the solicitors' costs appeared to relate to sums paid by way of legal aid from the Council of Europe. 95. Taking into account the sums paid by way of legal aid from the Council of Europe, the Court awards EUR 4,656 for legal costs and expenses. C. Default interest 96. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been no violation of Article 5 § 1 of the Convention; 2. Holds that there has been a violation of Article 5 § 4 of the Convention; 3. Holds that there has been a violation of Article 5 § 5 of the Convention; 4. Holds that no separate issue arises under Article 13 of the Convention; 5.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the date of settlement: (i) EUR 6,000 (six thousand euros) in respect of non-pecuniary damage; (ii) EUR 4,656 (four thousand six hundred and fifty-six euros) in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 21 June 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosJosep CasadevallDeputy RegistrarPresident" ]
[ "THIRD SECTION CASE OF MURUZHEVA v. RUSSIA (Application no. 62526/15) JUDGMENT STRASBOURG 15 May 2018 FINAL 15/08/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Muruzheva v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Helena Jäderblom, President,Branko Lubarda,Helen Keller,Dmitry Dedov,Pere Pastor Vilanova,Georgios A. Serghides,Jolien Schukking, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 10 April 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "62526/15) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Leyla Khamarzovna Muruzheva (“the applicant”), on 11 December 2015. 2. The applicant was represented by Ms V. Kogan and Mr E. Wesselink from the Stichting Russian Justice Initiative, an NGO based in Moscow. The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3.", "The applicant complained about the authorities’ failure to enforce the judgment of 25 June 2014 granting her a residence order in respect of her children. 4. On 25 April 2016 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1985 and lives in Moscow. 6. In May 2008 she married R.M. The couple settled in Moscow. 7.", "On 23 July 2008 and 31 May 2012 the applicant gave birth to two children, a son and a daughter respectively. 8. In January 2014 she and R.M. decided to separate. 9.", "On 14 January 2014 R.M. took the children to the Republic of Ingushetiya without the applicant knowing. He left them with his parents (the paternal grandparents) and went back to Moscow. 10. On 4 March 2014 the marriage between the applicant and R.M.", "was dissolved. 11. On 11 March 2014 the applicant applied to the Izmaylovskiy District Court of Moscow (“the District Court”) for a residence order in respect of the children. She also applied for child maintenance from R.M. 12.", "On 25 June 2014 the District Court decided that the children should reside with their mother, the applicant. It further ordered R.M. to return the children to her and pay child maintenance. The judgment became final on 14 October 2014. 13.", "However, R.M. refused to comply with the judgment. 14. On 10 November 2014 the District Court issued a writ of execution. 15.", "On 17 November 2014 the Sunzhenskiy District Bailiffs’ Service in the Republic of Ingushetiya refused to institute enforcement proceedings since the debtor, R.M., resided in Moscow. 16. On 24 November 2014 the Izmaylovskiy District Bailiffs’ Service in Moscow opened enforcement proceedings. 17. On 2 February 2015 the enforcement proceedings were transferred to the Sunzhenskiy District Bailiffs’ Service in the Republic of Ingushetiya.", "18. On 12 February 2015 the applicant challenged the lawfulness of the above-mentioned decision before the District Court. 19. On 8 April 2015 the District Court found the decision of 2 February 2015 to be unlawful. 20.", "Meanwhile, on 23 March, 2 April, 14 April and 16 April 2015 a bailiff from the Sunzhenskiy District Bailiffs’ Service tried to enforce the judgment of 25 June 2014 without success: on 23 March and 16 April 2015 due to the emotional state of the children, on 2 April 2015 because the children were outside the territory of the Republic of Ingushetiya, and on 14 April 2015 because the applicant was absent. 21. On 24 April 2015 the applicant challenged in court the lawfulness of the bailiffs’ actions during the attempt to return the children to her on 16 April 2015, in particular: involvement of the wrong district childcare authority in the enforcement, refusal of a request by her to have the enforcement filmed, refusal to examine an objection by her concerning a psychologist participating in the enforcement, delay in notification of the enforcement, establishment during the enforcement of the applicant’s son’s preferences as to his future living arrangements, as well as the bailiffs’ inaction resulting in the failure to secure enforcement of the judgment of 25 June 2014. 22. On 11 June 2015 the Magasskiy District Court of the Republic of Ingushetiya found the bailiffs’ actions during the attempt to return the children to the applicant on 16 April 2015 to be unlawful.", "23. On 17 June 2015 a bailiff from the Sunzhenskiy District Bailiffs’ Service restricted R.M.’s travel within the Russian Federation for six months. 24. Meanwhile, according to the Government, on 16 June, 5 July, an unspecified date in July, 15 July and 17 August 2015 a bailiff from the Sunzhenskiy District Bailiffs’ Service informed the applicant that the enforcement was scheduled for 22 June, 6 July, 13 July, 27 July and 19 August 2015 respectively. On each of the five occasions R.M.", "took the children to the premises of the Sunzhenskiy District Bailiffs’ Service. However, since neither the applicant nor her representative were present, the enforcement could not take place. 25. According to the applicant, she was never informed of the enforcement dates scheduled for 22 June, 6 July, 13 July, 27 July and 19 August 2015. 26.", "It appears from the case file that the notification of 16 June 2015 was sent to R.M.’s address. The notifications of 15 July and 17 August 2015 were sent to the applicant’s address, though there is no evidence to suggest that she received them. The case file contains no evidence that she was notified of the other two scheduled dates for carrying out the enforcement measures either. 27. On 17 September 2015 the enforcement file was returned to the Izmaylovskiy District Bailiffs’ Service in Moscow pursuant to the decision of the District Court of 8 April 2015 (see paragraph 19 above).", "28. On 6 October and 20 October 2015 a bailiff from the Izmaylovskiy District Bailiffs’ Service in Moscow ordered R.M. to comply with the judgment of 25 June 2014 by 13 October and 23 October 2015 respectively. He further visited R.M. at his place of residence in Moscow.", "It was established that the children were living with R.M.’s parents in the Republic of Ingushetiya. 29. On 23 October 2015 the deputy chief bailiff of the Izmaylovskiy District Bailiffs’ Service imposed an administrative fine on R.M. of 2,500 Russian roubles (RUB) for failure to comply with the judgment of 25 June 2014. 30.", "On 3 November 2015 a bailiff from the Izmaylovskiy District Bailiffs’ Service invited R.M. to the bailiffs’ office on 10 November 2015 to provide explanations for his non-compliance with the judgment of 25 June 2014. 31. On 10 November 2015 the bailiff imposed an execution fee on R.M. of RUB 5,000 for failure to comply with the judgment of 25 June 2014.", "He was ordered to comply by 13 November 2015. 32. On 20 November 2015 the deputy chief bailiff of the Izmaylovskiy District Bailiffs’ Service imposed a further administrative fine on R.M. of RUB 2,500 for failure to comply with the judgment of 25 June 2014. 33.", "On the same day the chief bailiff of the Izmaylovskiy District Bailiffs’ Service imposed an administrative fine on R.M. of RUB 1,000 for failure to comply with the lawful demands of the bailiffs. 34. On 14 January 2016 the Commission for the Affairs of Minors and the Protection of Their Rights of the Severnoye Izmaylovo District in Moscow imposed an administrative fine on R.M. of RUB 2,000.", "35. On the same day the bailiff temporarily restricted R.M.’s travel in view of his failure to comply with the judgment of 25 June 2014, and ordered him to pay the imposed administrative fines. R.M. was invited to the bailiffs’ office on 19 January 2016 to provide explanations for his reluctance to comply with the judgment of 25 June 2014, and was ordered to comply by 20 January 2016. 36.", "At the applicant’s request, on 3 February 2016 the bailiff launched a search for the children and restricted R.M.’s right to drive. 37. On 5 February 2016 the chief bailiff of the Izmaylovskiy District Bailiffs’ Service imposed an administrative fine on R.M. of RUB 1,000 for failure to comply with the lawful demands of the bailiffs. 38.", "On 13 April 2016 the bailiff telephoned R.M. and asked him to attend the bailiffs’ office to provide explanations for his non-compliance with the judgment of 25 June 2014. He refused to do so. 39. On 14 April 2016 the bailiff suspended the enforcement proceedings.", "40. According to the Government, on 5 May 2016 the bailiff informed the applicant that the enforcement was scheduled for 10 a.m. on 19 May 2016 at the children’s place of residence in the Republic of Ingushetiya. However, since she failed to attend, the enforcement could not be carried out. 41. According to the applicant, she was not informed of the enforcement scheduled for 19 May 2016.", "42. It appears from the case file that the notification of 5 May 2016 was sent to R.M.’s address. 43. The judgment of 25 June 2014 remains unenforced to date. The children continue to live with their paternal grandparents in the Republic of Ingushetiya.", "II. RELEVANT DOMESTIC LAW 44. For the relevant provisions of domestic law, see Pakhomova v. Russia (no. 22935/11, §§ 91-112, 24 October 2013). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 45. The applicant complained that the authorities had failed to enforce the judgment of 25 June 2014 granting her a residence order in respect of her children. She relied on Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life ... 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.” 46.", "The Government asserted that the domestic authorities had taken all the necessary steps that they could reasonably have been expected to take to enforce the judgment of 25 June 2014. However, their efforts had been unsuccessful. They considered that the applicant had prevented the enforcement herself as, despite having been duly notified of the scheduled enforcement dates, she had repeatedly failed to attend. The removal of the children and their transfer could not take place in her absence. The Government concluded that the State had complied with its positive obligation to ensure the applicant’s right to respect for her family life under Article 8 of the Convention and that there had therefore been no violation of that Convention provision.", "47. The applicant challenged the Government’s assertion that the domestic authorities had taken all necessary steps to facilitate the reunion between her and the children. She considered that throughout the enforcement proceedings the bailiffs had failed to display due diligence in handling her calls for assistance. They had appeared unprepared to face the task and had had no clear idea or action plan as to what could and should be done. As a result, the children continued to live with their parental grandparents instead of either parent.", "The applicant submitted that she had been present for all the enforcement attempts of which she had been duly and properly notified, namely 23 March, 2 April and 16 April 2015, except for the enforcement planned for 14 April 2015. She had been absent on that date due to illness. She had not been informed of any other enforcement dates. The case file contains no evidence to the contrary. The applicant further deplored the bailiffs’ conduct during the enforcement proceedings (see paragraph 21 above), the delay in transferring the enforcement file from the Republic of Ingushetiya back to Moscow pursuant to the District Court’s decision of 8 April 2015, and the failure to properly notify her of the enforcement dates, which rendered the enforcement measures completely useless.", "The total amount of administrative fines imposed on R.M. for his failure to comply with the judgment of 25 June 2014 was too small to be capable of inducing him to comply with the bailiffs’ demands. Besides, none of the fines had actually been recovered from him. Bailiffs from the Izmaylovskiy District Bailiffs’ Service in Moscow should have exercised their right under section 33(10) of the Enforcement Proceedings Act to travel to Ingushetiya to facilitate enforcement of the judgment rather than sending requests for assistance to the Sunzhenskiy District Bailiffs’ Service in the Republic of Ingushetiya, which was clearly biased against the applicant and not predisposed to enforcing the judgment in her favour. The latter allegation was supported by references to unlawful actions by the bailiffs of that Bailiffs’ Service, as well as by the existence of a common phenomenon in cases concerning custody decisions from Chechnya and Ingushetiya.", "A. Admissibility 48. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. General principles 49. The essential object of Article 8 of the Convention is to protect the individual against arbitrary interference by the public authorities. There may also be positive obligations inherent in an effective “respect” for family life (see Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290).", "In cases where contact and residence disputes concerning children arise between parents and/or other members of the children’s family (see, for example, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299-A, and Zawadka v. Poland, no. 48542/99, § 55, 23 June 2005), the Court’s case‑law has consistently held that this Convention provision includes, among other things, a right for a parent to have measures taken with a view to his or her being reunited with their child, and an obligation on the national authorities to take such measures. 50. At the same time, the national authorities’ obligation to take measures to facilitate reunion is not absolute, since the reunion of a parent with children who have lived for some time with the other parent may not be able to take place immediately, and may require preparatory measures to be taken.", "The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and cooperation of all concerned are always important ingredients. Whilst the national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited, since the interests as well as the rights and freedoms of all concerned must be taken into account, as should be, more particularly, the best interests of the child and his or her rights under Article 8 of the Convention (see P.P. v. Poland, no. 8677/03, § 82, 8 January 2008; Hokkanen, cited above, § 53; and Ignaccolo-Zenide v. Romania, no. 31679/96, § 96, ECHR 2000‑I).", "The adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent (see P.P. v. Poland, cited above, § 83). Although coercive measures involving a child are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the child lives (see Ignaccolo‑Zenide, cited above, §§ 105-106). 2. Application in the present case 51.", "The Court notes that it was not disputed between the parties that the ties between the applicant and her children constituted “family life” for the purposes of Article 8 of the Convention. The Court next notes that the District Court’s judgment of 25 June 2014 ordering that the children, then aged six and two, live with their mother, the applicant, remains unenforced some three and a half years later. Accordingly, it has to be determined whether in the particular circumstances of the case the national authorities took all the necessary steps which they could reasonably have been expected to take to facilitate the enforcement. 52. The Court observes that on 24 November 2014 the Izmaylovskiy District Bailiffs’ Service in Moscow opened enforcement proceedings.", "It further notes that on 2 February 2015 the enforcement proceedings were transferred to the Sunzhenskiy District Bailiffs’ Service in the Republic of Ingushetiya. On 8 April 2015, however, the District Court found the decision of 2 February 2015 to be unlawful. It appears that it took the domestic authorities four and a half months to determine the bailiffs’ service competent to lead the enforcement proceedings. The Court further notes that, despite the decision of 8 April 2015 finding the transfer of the enforcement proceedings from Moscow to the Republic of Ingushetiya to be unlawful, it was not until over five months later, on 17 September 2015, that the enforcement file was returned to the Izmaylovskiy District Bailiffs’ Service in Moscow (see paragraph 27 above). 53.", "The Court further observes that following the institution of the enforcement proceedings on 24 November 2014, it was four months later, on 23 March 2015, when the first enforcement attempt took place (see paragraph 20 above). The Court notes that four attempts were made to return the children between March and April 2015. It appears, however, that no preparatory measures had been undertaken by the bailiffs to make the scheduled enforcement attempts practicable, especially given that the children had been living with their parental grandparents since January 2014. As a result, on two occasions the enforcement could not take place because the children were outside the territory of the Republic of Ingushetiya, and on two occasions due to their emotional state. The Court notes, furthermore, that the bailiffs’ actions during the attempt to return the children on 16 April 2015 were found to be unlawful by the domestic courts (see paragraph 22 above).", "54. The Court observes that the subsequent attempts to enforce the judgment of 25 June 2014 took place two months later, in June 2015. The Court notes that in the period between June and August 2015 five enforcement dates were scheduled by the bailiffs, however, none of them could take place because the applicant was absent. The Court notes that the documents contained in the case file explain her absence on those dates. There is no proof that she has been duly notified (see paragraph 26 above).", "Therefore, the inability of the bailiffs to proceed with the enforcement on those occasions cannot be attributed to the applicant. 55. The Court further notes that between October 2015 and February 2016 several administrative fines were imposed on R.M. for his failure to comply with the lawful demands of the bailiffs and with the judgment of 25 June 2014, as well as an execution fee. The total penalties amounted to RUB 14,000[1] (see paragraphs 29, 31-34 and 37 above).", "However, nothing in the case file suggests that the penalties in question were actually recovered from R.M. 56. The Court further observes that, having restricted R.M.’s right to travel and drive a vehicle and launched a search for the children in January to February 2016, in May 2016 the bailiffs undertook another attempt to enforce the judgment of 25 June 2014. However, they failed to duly notify the applicant (see paragraph 42 above) and could not, therefore, proceed with the enforcement in her absence. 57.", "The Court notes that the judgment of 25 June 2014 determining the children’s place of residence with the applicant has remained unenforced for nearly four years now, a major part of the children’s lives, with all the consequences that that might have for their physical and mental well-being. It appears that not once in that period has the applicant been able to communicate with her children. 58. Having regard to the foregoing, and without overlooking the difficulties created by the resistance of R.M., the children’s father, the Court concludes that the Russian authorities failed to take, without undue delay, all the measures that they could reasonably have been expected to take to enforce the judgment concerning the applicant’s custody of her children. 59.", "There has therefore been a violation of the applicant’s right to respect for her family life, as guaranteed by Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 60. 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 61.", "The applicant claimed compensation for non‑pecuniary damage sustained as a result of the alleged violation of the Convention in an amount to be determined by the Court. 62. The Government considered that, since the applicant had failed to quantify her claim for non-pecuniary damage, her claim should be rejected. 63. The Court considers that the applicant must have suffered, and continues to suffer, profound distress as a result of her inability to have a relationship with her children.", "In the light of the circumstances of the case, and making an assessment on an equitable basis as required by Article 41, the Court awards the applicant 12,500 euros (EUR) under this head. B. Costs and expenses 64. The applicant also claimed EUR 6,136.45 for costs and expenses, including legal fees (EUR 4,875 in the proceedings before the Court and EUR 700 in domestic proceedings), administrative expenses, including telephone, fax, e-mail, copying and paper expenses, secretarial fees (EUR 390.25), and postal expenses (EUR 171). She submitted a legal fee agreement in accordance with which, if she “won” her case and was awarded compensation by the Court, she was to pay her lawyers EUR 150 per hour.", "She also submitted lawyers’ time-sheets and relevant invoices. 65. The Government submitted that contingency fee agreements were not enforceable under Russian law. They further argued that it had not been shown that the expenses incurred in the domestic proceedings had had any relevance to the present case, and that the applicant’s recourse to international courier service for sending her documents to the Court had not been strictly necessary. 66.", "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 3,000 covering costs under all heads, to be paid directly to the bank account of the Stichting Russian Justice Initiative NGO, plus any tax that may be chargeable to the applicant on that amount. C. Default interest 67. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 8 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: (i) EUR 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid to the bank account of the Stichting Russian Justice Initiative NGO; (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 15 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Fatoş AracıHelena JäderblomDeputy RegistrarPresident [1]. Approximately EUR 200 at the current official exchange rate." ]
[ "FOURTH SECTION CASE OF PIELASA v. POLAND (Application no. 66463/01) JUDGMENT STRASBOURG 30 January 2007 FINAL 30/04/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Pielasa v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrG. Bonello,MrK.", "Traja,MrL. Garlicki,MsL. Mijović,MrJ. Šikuta,MrsP. Hirvelä, judges,and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 9 January 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 66463/01) against the Republic of Poland 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, Ms Irena Pielasa (“the applicant”), on 22 April 1999. 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.", "3. On 19 December 2005 the Court decided to give notice of the application 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 1956 and lives in Mińsk Mazowiecki, Poland.", "5. The investigation against the applicant started on 30 December 1992. 6. On 31 August 1993 the Mińsk Mazowiecki District Prosecutor (Prokurator Rejonowy) lodged a bill of indictment against the applicant and another person with the Mińsk Mazowiecki District Court (Sąd Rejonowy). She was indicted on a charge of fraud.", "7. The first hearing was scheduled for 18 May 1994. Subsequently the court held 5 hearings at intervals ranging from 1 to 9 months. They were adjourned due to the absence of the co-accused or her counsel. 8.", "At a hearing on 14 January 1997 the court returned the case to the prosecutor for further investigation. 9. On 27 June 1997 the prosecutor lodged a new bill of indictment with the District Court. 10. The court held hearings on 25 March, 21 May, 19 June and 8 September 1998.", "11. On 11 September 1998 the court acquitted the applicant. 12. On 12 November 1998 the Mińsk Mazowiecki District Prosecutor appealed against the first-instance judgment. 13.", "At a hearing on 29 January 1999 before the Siedlce Regional Court (Sąd Okręgowy) the prosecutor withdrew his appeal. In consequence, the court decided not to examine it. II. RELEVANT DOMESTIC LAW AND PRACTICE 14. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decisions in the cases of Charzyński v. Poland no.", "15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 15.", "The applicant complained that the length of the 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 ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 16. The Government contested that argument. 17. The period to be taken into consideration began on 31 August 1993 and ended on 29 January 1999. It thus lasted 5 years and 5 months, for two levels of jurisdiction.", "A. Admissibility 18. The Government raised a preliminary objection that the applicant had not exhausted domestic remedies available to him under Polish law, as required by Article 35 § 1 of the Convention. They maintained that from 17 September 2004, the date of entry into force of the 2004 Act, the applicant had a possibility of seeking compensation for the damage resulting from the excessive length of proceedings before Polish courts, under section 16 of the 2004 Act read in conjunction with Article 417 of the Civil Code. 19. However, the Court has already held that the civil action relied on by the Government cannot be regarded as an effective remedy with a sufficient degree of certainty in cases where the three-year limitation period for the State’s liability in tort expired before the entry into force of the 2004 Act on 17 September 2004 (see Ratajczyk v. Poland; (dec), 11215/02, 31 May 2005, Barszcz v. Poland, no.", "71152/01, § 45, 30 May 2006). The present case belongs to this group of applications as the proceedings at issue ended on 29 January 1999, which is more than three years before the 2004 Act had come into force. It follows that the Government’s plea of inadmissibility on the ground of non‑exhaustion of domestic remedies must be dismissed. 20. 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 21. 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) 22. 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). 23. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "There has accordingly been a breach of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 24. 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 25.", "The applicant claimed 50,000 Polish zlotys (PLN) in respect of pecuniary and non-pecuniary damage. 26. The Government did not express an opinion on the matter. 27. 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, the Court considers that the applicant has suffered non-pecuniary damage – such as distress resulting from the protracted length of the proceedings – which is not sufficiently compensated by the finding of a violation of the Convention. Considering the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant EUR 3,500 under that head. B. Costs and expenses 28. The applicant also claimed PLN 3,000 for the costs and expenses incurred before the domestic courts without providing any substantiation.", "29. The Government did not express an opinion on the matter. 30. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II).", "In the present case, the Court notes that she has not produced any evidence supporting his claim as required by Rule 60 § 2 of the Rules of Court. Accordingly, it makes no award under this head. C. Default interest 31. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (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 3,500 (three thousand five hundred euros) in respect of non-pecuniary damage to be converted into the national currency 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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 30 January 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "T.L. EarlyNicolas BratzaRegistrarPresident" ]
[ "FOURTH SECTION CASE OF OSVÁTHOVÁ v. SLOVAKIA (Application no. 15684/05) JUDGMENT STRASBOURG 21 December 2010 FINAL 21/03/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Osváthová v. Slovakia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Ljiljana Mijović,David Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä,Mihai Poalelungi, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 30 November 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "15684/05) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovak national, Ms Klára Osváthová (“the applicant”), on 19 April 2005. 2. The applicant was represented by Mr R. Toman, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3.", "The applicant alleged that her arrest and detention pending trial had been unlawful, that she had not been informed promptly of the reasons for her arrest and of the charge against her, that following her arrest she had not been brought promptly before a judge, that the proceedings against her had fallen short of the applicable requirements and that she had no enforceable right to compensation and no effective remedy. 4. On 8 March 2010 the President of the Fourth Section decided to give notice of the application to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1949 and lives in Bratislava. A. Factual background and criminal proceedings 6. On 17 September 2001 the applicant as seller entered into a contract with A. as buyer concerning some real property essentially comprising arable land. 7.", "On an unspecified date A. lodged a criminal complaint against the applicant accusing her of having received the purchase price of some 8,600 euros (EUR) only to renege on the contract without returning the price. 8. On 27 May 2005 the applicant was charged with fraud on the basis of A. 's criminal complaint. The decision containing the charge was not served on the applicant until 3 February 2006, when she was questioned by a judge following her arrest (see below).", "9. On 19 and 29 September 2005, respectively, a national search for the applicant was launched and the Dunajská Streda District Public Prosecutor's Office (Okresná prokuratúra) asked the Dunajská Streda District Court (Okresný súd) for a warrant for the applicant's arrest. It was argued that it was proving impossible to summon the applicant for questioning because she was not responding to summonses, was not living at her registered address (trvalé bydlisko) and her whereabouts were unknown. 10. On 3 December 2005 the District Court issued the arrest warrant.", "It indicated as the underlying reason for the warrant that “[the applicant] [was] not living at her registered address; her whereabouts [were] unknown”. 11. From 2 February to 14 March 2006 the applicant was held in pre‑trial detention (see below). 12. On 14 and 21 March 2006 the applicant challenged the charge by way of an interlocutory appeal (sťažnosť).", "13. On 24 March and 12 April 2006, respectively, the investigator interviewed a notary who had drawn up the contract and, following her release from detention, also the applicant. 14. On 25 April 2006 the District Public Prosecutor's Office granted the applicant's interlocutory appeal and dismissed the charge against her on the grounds that the matter was of a civil-law nature and the applicant's actions did not constitute a criminal offence. B.", "Arrest and detention 15. At 2 p.m. on 2 February 2006, on the basis of the warrant of 3 December 2005, the applicant was arrested by the police and taken into police custody. 16. At 10.30 a.m. on 3 February 2006 the applicant was brought before a single judge of the District Court for questioning. 17.", "A record of the questioning was made on a pre-printed form. In so far as the pre-printed section of the record was filled out, it indicates that the applicant was questioned as a person charged (obvinený) / suspect (podozrivý), that she was informed of the rights that pertain to a person in that procedural position and that she had been handed (doručené) / read out (prečítané) the decision containing the charge of fraud. 18. The verbatim section which follows the pre-printed section of the record indicates that the applicant acknowledged that she had neither a permanent nor a temporary registered place of residence (trvalé/prechodné bydlisko) and that she mainly stayed in monasteries and pastors' offices. She admitted having received and not returned the purchase price and expressed readiness to return it.", "She explained that she had health problems and that on 13 January 2006 she had fainted in the street. 19. The verbatim section of the record also indicates that, thereafter, the applicant was handed the decision containing the charge of 27 May 2005. According to the applicant, the decision containing the charges had been handed to her at around 11 a.m. 20. The verbatim section of the record further indicates that the District Court then immediately ordered the applicant to be detained under Article 71 § 1 (a) of the Code of Criminal Procedure (“the CCP” – Law no.", "301/2005 Coll., as applicable at the relevant time). That provision allows for the detention of a person if his or her behaviour or other concrete facts give rise to a well-founded concern that he or she would flee or go into hiding in order to avoid prosecution, in particular when the person's identity cannot be immediately established, when the person does not have a fixed abode (stále bydlisko) or if the person faces the risk of a heavy penalty. 21. Immediately after she had been remanded in custody, the applicant orally lodged an interlocutory appeal (sťažnosť) and asked for her lawyer to be informed of her detention. The interview ended at 11.15 a.m. 22.", "In a two-page written version of the detention order of 3 February 2006 the District Court established, “on the basis of the case file and the applicant's interview”, that there were reasons for detaining her under Article 71 § 1 (a) of the CCP because, “if left at liberty, [the applicant] would seek to frustrate the prosecution by going into hiding”. This was so because the applicant “did not live at her registered permanent address, had no registered temporary address and it was not known where she was currently living”. 23. On 23 February 2006 the applicant submitted her written grounds of appeal. 24.", "On 7 March 2006 the District Court sent the case file to the Trnava Regional Court (Krajský súd) for determination of the appeal. It arrived there on 9 March 2006. 25. Meanwhile, on 8 March 2006, the investigator attempted to interview the applicant who, however, exercised her right to remain silent. 26.", "On 9 March 2006 the applicant appointed a new lawyer who inspected the case file on the following day. 27. On 13 March 2006 the applicant's new lawyer submitted in writing further grounds of appeal. He relied on Article 5 of the Convention and advanced four main arguments. First, before the questioning on 3 February 2006, the applicant had not been informed of her rights as a person facing charges.", "Second, the applicant was deprived of her right to oppose her detention effectively because she was informed of the charge against her only after the questioning of 3 February 2006. Third, the detention order was arbitrary and not susceptible of review owing to the absence of adequate reasoning. Fourth, the District Court had failed to examine whether there was any “reasonable” suspicion against the applicant which would justify her detention. 28. On 14 March 2006 the Regional Court, sitting in private (neverejné zasadnutie), quashed the detention order and ordered the applicant's immediate release.", "It found that the matter was of a contractual nature and that the applicant's actions could not be qualified as a criminal offence. Moreover, the applicant could not have been in hiding because she had no knowledge that she had been wanted on a criminal charge. The Regional Court concluded that there was no reason for detaining the applicant. 29. Following the decision of 14 March 2006, on the same day, the applicant was released.", "30. A written version of the decision of the Regional Court was sent to the applicant's address but returned as she could not be found. It was then sent to her lawyer, who received it on 3 May 2006. C. Related constitutional complaint 31. On 3 May 2006 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd).", "32. Relying on Article 5 §§ 1 (c), 2, 3 and 4 of the Convention and on their constitutional counterparts, the applicant made four main complaints. First, after her arrest, the applicant had not been informed promptly of the reasons for it and of the charge against her. Second, in violation of the applicable procedural rules, the applicant had not been informed of her procedural rights as a person charged. Third, the decision of the Regional Court of 14 March 2006 lacked adequate reasoning, in particular, because it only dealt with two of the four arguments that she had put forward.", "Fourth, a decision regarding the lawfulness of the applicant's detention had not been reached speedily, which was imputable mainly to the District Court. Invoking Article 5 § 5 and Article 13 of the Convention, the applicant claimed the equivalent of some EUR 3,200 in just satisfaction for non‑pecuniary damage and the reimbursement of her legal costs. 33. On 13 September 2006 a three-judge bench of the Constitutional Court declared the complaint inadmissible. It found that the Constitutional Court had been prevented from examining the first two arguments by the principle of subsidiarity.", "As to the third argument, the Constitutional Court acknowledged that the Regional Court had limited its review to two of the applicant's arguments. However, this did not constitute an infringement of the applicant's fundamental rights. 34. As to the remaining complaint, concerning the length of the proceedings to review the lawfulness of the applicant's detention, the Constitutional Court established that it had in total taken thirty-four days (from the detention order of 3 February to 9 March 2006) for the District Court to transmit the case file to the Regional Court for determination of the applicant's appeal. However, it should be taken into account that the applicant had submitted the grounds of her appeal in writing only on 23 February 2006.", "After that date, the District Court had transmitted the case file to the Regional Court within fourteen days (on 9 March 2006). Although the conduct of the District Court could not be described as “expeditious” (urýchlené), it did not amount to a violation of the applicant's rights under Article 5 § 4 of the Convention. It was true that, after the Regional Court's decision of 14 March 2006, it was not until 3 May 2006 that the written version of the decision was served on the applicant. Nevertheless, this was of no practical consequence because the applicant must have learned of the decision on 14 March 2006, when she was released, and the decision was subject to no further appeal. The bench concluded that, in those circumstances, the remaining complaint was manifestly ill-founded.", "35. The presiding judge, however, did not share the majority view and gave a dissenting opinion. According to him, it was “highly debatable” whether the complaint concerning the lack of speediness in the proceedings regarding the applicant's appeal against her detention was manifestly ill‑founded. The presiding judge pointed out that it had taken thirty-four days for the District Court to transmit the case file to the Court of Appeal. Referring to previous practice and, in particular, to a decision in case file number III.", "ÚS 126/05, he concluded that the complaint should have been declared admissible. 36. The decision of the Constitutional Court was served on the applicant on 10 November 2006. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "State Liability Act 2003 (Law no. 514/2003 Coll., as amended) 37. Under the Act the State bears liability for damage caused by public authorities inter alia by unlawful arrest, detention (zadržanie) or other deprivation of personal liberty (section 3(1)(b)), decisions concerning detention on remand (väzba) (section 3(1)(c)) and wrongful official actions (section 3(1)(d)). 38. The right to compensation for damage caused by a decision on arrest, by detention (zadržanie) or by other deprivation of personal liberty is vested in the person who was subjected to it, provided that the decision was quashed as being unlawful or a wrongful official action had taken place in connection with it (section 7).", "39. The right to compensation for damage caused by a decision concerning detention on remand (väzba) is vested in the person who was detained on remand, provided that the criminal proceedings against him or her have been dropped (section 8(5)(a)) or he or she has been acquitted (section 8(5)(b)) or the matter has been referred to another authority (section 8(5)(c)). 40. However, no such right arises when the person concerned himself or herself gave cause for the detention on remand (section 8(6)(a)). 41.", "The State is also liable for damage caused by wrongful official action, which comprises, inter alia, a public authority's failure to take an action within the time-limit set, inactivity or any other unlawful interference with the rights and legally recognised interests of individuals and legal entities (section 9(1)). 42. The right to compensation for damage caused by wrongful official action is vested in the person who suffered the damage (section 9(2)). 43. Under section 17 the compensation is to cover pecuniary damage, including loss of profit, and, where appropriate and necessary, non‑pecuniary damage.", "B. Judicial practice in respect of the State Liability Act 2003 44. In a judgment of 16 March 2007 (in case no. 4C 258/2006) the Brezno District Court granted an action for damages by two individuals against the State under the State Liability Act 2003 and ordered the defendant to pay the costs of their defence in a criminal trial that had ended with their acquittal. On 22 November 2007 the Banská Bystrica Regional Court upheld the judgment following the defendant's appeal.", "45. On 14 October 2009 the Bratislava Regional Court granted an appeal (case no. 2Co 238/2008) in an action by an individual against the State under the State Liability Act 2003 for damages and awarded him an amount of money in compensation for non-pecuniary damage caused by detention on remand in the context of a criminal trial that had ended with his acquittal. 46. In a judgment of 17 August 2009 (case no.", "19C 47/2006) the Bratislava District Court granted an action for damages by an individual against the State under the State Liability Act 2003 and awarded the claimant an amount of money in compensation for non-pecuniary damage caused by wrongful official action in connection with his detention pending a criminal trial. The impugned wrongful official action concerned extension of the claimant's detention pending trial. The action was preceded by a judgment of the Constitutional Court of 19 October 2005 (case no. I. ÚS 65/05) in which the Constitutional Court found a violation of the claimant's rights under Article 5 §§ 3 and 4 in connection with the same facts. However, the Constitutional Court was unable to award the claimant damages as he had made no claim for damages.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION IN CONNECTION WITH THE LENGTH OF THE PROCEEDINGS CONCERNING THE LAWFULNESS OF THE APPLICANT'S DETENTION 47. The applicant complained that the lawfulness of her detention had not been decided speedily as provided for in Article 5 § 4 of the Convention, which reads as follows: “4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Admissibility 48. The Government relied on the Court's judgment in N.C. v. Italy ([GC], no.", "24952/94, ECHR 2002‑X) and argued that the applicant had failed to comply with the requirement under Article 35 § 1 of the Convention to exhaust domestic remedies. In particular, the Government argued that the applicant had failed to claim compensation from the State under the State Liability Act 2003 in respect of both “wrongful official action” and “detention on remand in proceedings that were dropped”. 49. The Government referred to the relevant domestic practice and asserted that, under both headings, the applicant could have obtained compensation in respect of both pecuniary and non-pecuniary damage. 50.", "The Government also submitted that it was not a pre-requisite for a claim for damages in respect of wrongful official conduct to have a previous finding by the Constitutional Court of a violation of the claimant's fundamental rights. 51. The Government finally claimed that, as the case against the applicant had been dropped, she could by law have claimed damages in respect of detention on remand in a trial that was discontinued, without having to establish any actual unlawfulness or arbitrariness. 52. The applicant, in reply, considered that none of the existing domestic judicial decisions concerned a case comparable to hers.", "According to her, it was not fair to make her bear the consequences of an absence of domestic practice to support the Government's claim, which she considered to be speculative. 53. More specifically, the applicant argued that it was impossible for her to seek damages “in respect of detention on remand in proceedings that were dropped” under section 8(6)(a) of the State Liability Act 2003, which excluded claims for damages when the person concerned himself or herself had given cause for the detention. Formally speaking, the applicant had been remanded under Article 71 § 1 (a) of the CCP to prevent her from absconding or going into hiding. 54.", "In sum, the applicant considered that the remedies advanced by the Government were not available in practice at the relevant time. 55. As to the exhaustion of domestic remedies in the particular circumstances of the present case, the Court distinguishes two different positions in particular – on the one hand, the position in respect of the applicant's complaint concerning the alleged lack of “speediness” in the proceedings by which the lawfulness of her detention was decided and, on the other hand, the applicant's complaints under Article 5 §§ 1 (c), 2 and 3 (see paragraphs 85 to 95 below). The Court will first examine the exhaustion of domestic remedies in respect of the former complaint. 56.", "The Court reiterates that where there is a choice of remedies, the exhaustion requirement must be applied to reflect the practical realities of the applicant's position, so as to ensure the effective protection of the rights and freedoms guaranteed by the Convention. Moreover, an applicant who has used a remedy which is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see Adamski v. Poland (dec.), no. 6973/04, 27 January 2009, with further references). 57. In the present case, in respect of her complaint that the proceedings for review of the lawfulness of her detention had not been “speedy”, the applicant had sought protection of her fundamental rights before the Constitutional Court under Article 127 of the Constitution.", "58. The Constitutional Court, as the supreme authority for the protection of human rights and fundamental freedoms in Slovakia, had jurisdiction to examine the applicant's complaint and to afford her redress if appropriate (see, mutatis mutandis, Lawyer Partners A.S. v. Slovakia, nos. 54252/07, 3274/08, 3377/08, 3505/08, 3526/08, 3741/08, 3786/08, 3807/08, 3824/08, 15055/08, 29548/08, 29551/08, 29552/08, 29555/08 and 29557/08, § 45, ECHR 2009-..., with further references). 59. The Court further notes that the course of action chosen by the applicant is normally considered to be effective for the purposes of the domestic-remedies rule under Article 35 § 1 of the Convention.", "Moreover, the Constitutional Court entertained the applicant's complaint without requiring her first to exhaust the remedy now relied on by the Government. In these circumstances, the Court cannot but find that the applicant's course of action as to the remedies used was reasonable and appropriate. 60. Moreover, the Court notes that, in its decision of 13 September 2006, the Constitutional Court found the applicant's complaint about the alleged lack of “speediness” of the proceedings in issue manifestly ill-founded (see paragraph 34 above). 61.", "The Court considers that the dismissal of the applicants' complaint by the Constitutional Court distinguishes the present case from the above‑mentioned case (see paragraph 46 above) where, after having obtained from the Constitutional Court a finding of a violation of his rights under Article 5 §§ 3 and 4 of the Convention, the victim of such violation was successful in claiming damages under the State Liability Act 2003. Moreover, and in any event, the Court finds that any persuasive value of that judgment is relative in view of the fact that it appears to be a one-off finding, originating from a lower court, and there is no indication whether it has been tested on appeal, and if so with what result. 62. Furthermore, if it had jurisdiction in the present case under the State Liability Act 2003 in respect of alleged wrongful official action, in relation to the applicant's complaint that the proceedings in question were not “speedy” an ordinary court would have been confronted with the same question as the Constitutional Court when it ruled on the applicant's constitutional complaint (by way of contrast and comparison, see paragraph 92 below). The Court has not found any reason to conclude that there was any realistic prospect that an ordinary court would have arrived at conclusions contrary to those of the Constitutional Court.", "63. Accordingly, the applicant was not required to have recourse to the remedy referred to by the Government. The Government's objections to the admissibility of the present complaint must therefore be rejected. 64. Observing, inter alia, the opinion expressed by the dissenting Constitutional Court judge (see paragraph 35), the Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits.", "The Court concludes therefore that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible. B. Merits 65.", "The Government argued that the period between 3 February 2006, when the applicant lodged her oral interlocutory appeal, and 23 February 2006, when she filed the grounds of her appeal in writing, was imputable to the applicant. 66. The fact that the District Court had waited for the applicant to submit the grounds of her appeal before transmitting the appeal to the Regional Court for determination was logical and beneficial for the applicant because it had allowed her to substantiate her appeal and thus to increase its chances of success. 67. The Government emphasised that the applicant had learned of the outcome of the proceedings by implication on the day when her appeal had been determined, because it was on that very day that she had been released.", "Any possible postponements in the subsequent period were due to the fact that it had proved impossible to reach the applicant and serve her with the written version of the decision at her address, and the decision had had to be served through the intermediary of her lawyer. 68. The applicant, in reply, reiterated her complaint and submitted that there had been no legitimate reason for the District Court to wait until 9 March 2006 and the transmission of the file to the Regional Court for a review of the lawfulness of her detention further to her oral interlocutory appeal of 4 February 2006. She emphasised that the length of the proceedings in question was to be viewed with reference to her personal situation and the fact that a right as important as that to liberty was at stake. 69.", "The Court reiterates that Article 5 § 4, in guaranteeing to detained persons a right to institute proceedings to challenge the lawfulness of their deprivation of liberty, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of the detention and ordering its termination if it proves unlawful. In order to determine whether the requirement that a decision be given “speedily” has been complied with, it is necessary to effect an overall assessment where the proceedings were conducted at more than one level of jurisdiction. The question whether the right to a speedy decision has been respected must – as is the case for the “reasonable time” stipulation in Articles 5 § 3 and 6 § 1 of the Convention – be determined in the light of the circumstances of each case, including the complexity of the proceedings, the conduct of the domestic authorities, the conduct of the applicant and what was at stake for the latter (for recapitulation of the applicable principles, see Mooren v. Germany [GC], no. 11364/03, § 106, ECHR 2009‑...). 70.", "In the present case the applicant lodged her interlocutory appeal orally immediately after the detention order had been pronounced on 3 February 2006 and submitted the grounds of her appeal in writing on 23 February 2006. After the District Court had transmitted the case file to the Regional Court for determination of the appeal on 9 March 2006, the applicant submitted further written grounds of her appeal on 13 March 2006. The appeal was eventually granted on 14 March 2006 and the applicant was released on that very day. Following an unsuccessful attempt at serving the written version of the decision on the applicant directly, it was eventually served on her through her lawyer on 3 May 2006. 71.", "The Court reiterates that according to its case-law the period under consideration under Article 5 § 4 of the Convention begins with the lodging of the application with the domestic authorities and, in the absence of a public pronouncement of the decision, ends on the day the decision is communicated to the applicant or to his representative (see, mutatis mutandis Koendjbiharie v. the Netherlands, judgment of 25 October 1990, Series A no. 185-B, § 28; Singh v. the Czech Republic, no. 60538/00, § 74, 25 January 2005; and Cabala v. Slovakia, no. 8607/02, § 68, 6 September 2007). 72.", "The applicant requested that the lawfulness of her detention be decided by lodging her interlocutory appeal on 3 February 2006 and the decision to release her was taken after thirty-eight days, on 14 March 2006. 73. The Court observes that the decision of 14 March 2006 was not pronounced publicly and that it was served on the applicant at a later point. It recognises that a detained person has a legitimate interest in learning the detailed reasons for the termination of his or her detention. However, in circumstances such as those obtaining in the present case, the Court finds it more appropriate to examine specific delays imputable to those involved rather than making an abstract finding as to when the period under consideration ended.", "The proceedings under examination thus lasted at least thirty-eight days, in which period the applicant's appeal was judicially examined by a single court. 74. The Court has found nothing to justify a conclusion that the applicant's detention case was of any particular complexity. In view of the clear conclusions of the Regional Court and the District Public Prosecutor's Office to the effect that the case was essentially civil‑law in nature and that there were no reasons for detaining the applicant (see paragraphs 14 and 28 above), the truth of the matter appears to be quite the contrary. 75.", "As to the conduct of the applicant, it is true that twenty days passed between the date when she lodged her interlocutory appeal orally and the date when she submitted the grounds of her appeal in writing. Furthermore, the Court accepts that the period necessary for serving the written version of the Regional Court's decision may have been somewhat affected by difficulties in reaching the applicant which are imputable to her. 76. As to the conduct of the authorities, however, the Court notes that it took fourteen days from 23 February 2006 to transmit the applicant's appeal to the Regional Court for determination on 9 March 2006, and that it took these fourteen days after twenty days had already passed since the applicant was remanded in custody. It then took the Regional Court an additional five days to make a rather straightforward decision.", "The Court finally observes that the period of forty-nine days between the taking of the decision of 14 March 2006 and having it served on the applicant cannot be entirely explained by reasons imputable to the applicant. The Court finds that the seriousness of these delays, totalling at least nineteen days, is aggravated by the fact that, as established by the Regional Court, the applicant's detention was wholly unjustified. 77. Regard being had to the Court's case-law on the subject (see, for example, Sanchez-Reisse v. Switzerland, 21 October 1986, §§ 59-60, Series A no. 107; M.B.", "v. Switzerland, no. 28256/95, § 31, 30 November 2000; G.B. v. Switzerland, no. 27426/95, § 27, 30 November 2000; Rehbock v. Slovenia, no. 29462/95, § 85, ECHR 2000-XII; Sarban v. Moldova, no.", "3456/05, § 120, 4 October 2005; Kadem v. Malta, no. 55263/00, §§ 44-45, 9 January 2003; Sakık and Others v. Turkey, 26 November 1997, § 51, Reports 1997-VII; and De Jong, Baljet and Van den Brink v. the Netherlands, 22 May 1984, §§ 57-58, Series A no. 77), the foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 5 § 4 of the Convention on account of the lack of a speedy determination of the lawfulness of the applicant's remand in custody. II. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION IN CONNECTION WITH THE LENGTH OF THE PROCEEDINGS CONCERNING THE LAWFULNESS OF THE APPLICANT'S DETENTION 78.", "The applicant complained that she did not have an enforceable right to compensation for the violation of her right to have the lawfulness of her detention decided speedily. She relied on Article 5 § 5 of the Convention, which provides as follows: “5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. Admissibility 79. The parties advanced essentially the same arguments as mentioned above in paragraphs 48 to 54. 80.", "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 81.", "The Court reiterates that Article 5 § 5 of the Convention is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4. The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the other paragraphs has been established, either by a domestic authority or by the Convention institutions (see N.C. v. Italy, cited above, § 49, and also Pavletić v. Slovakia, no. 39359/98, § 95, 22 June 2004). 82. In the present case the Court has found a violation of Article 5 § 4 of the Convention (see paragraph 77 above).", "It must therefore establish whether or not the applicant had or now has an enforceable right to compensation for the breach of Article 5 § 4 of the Convention. 83. The Court observes first of all that the applicant's complaint under Article 127 of the Constitution in that regard was unsuccessful on the merits (see paragraph 34 above) (see Boris Popov v. Russia, no. 23284/04, § 84, 28 October 2010) and that the applicant was not required, for the purposes of Article 35 § 1, to test the other remedy advanced by the Government because of the lack of realistic prospects of success (see paragraph 62 above) (see Sakık and Others v. Turkey, cited above, § 59). At the same time, there is no support in the text of either of these pieces of legislation and no domestic jurisprudence has been shown to exist to the effect that a compensation claim can be made in a domestic court based on the findings made by the European Court.", "84. The foregoing considerations are sufficient to enable the Court to conclude that neither before nor after the findings made by the European Court has the applicant had an enforceable right to compensation for the violation of her rights under Article 5 § 4 of the Convention (see paragraph 77) (see Brogan and Others v. the United Kingdom, 29 November 1988, § 67, Series A no. 145‑B). There has accordingly also been a violation of Article 5 § 5 of the Convention. III.", "ALLEGED VIOLATIONS OF ARTICLE 5 §§ 1 (c), 2 AND 3 OF THE CONVENTION AND A RELATED ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION 85. The applicant complained that her detention on remand had been unlawful; that she had not been informed promptly of the reasons for her arrest, of the charge against her and of her procedural rights; that she had been denied the right to oppose her detention effectively, because she had been informed of the charge against her only after being questioned on 3 February 2006; and that she did not have an enforceable right to compensation in that respect. She relied on Article 5 §§ 1 (c), 2, 3 and 5 of the Convention. 86. The Government and the applicant, in reply, raised essentially the same arguments as mentioned in paragraphs 48 to 54 above.", "87. The Court reiterates that under Article 35 § 1 of the Convention it may only deal with a matter after all domestic remedies have been exhausted. 88. The Court further reiterates that, according to its established case‑law, the purpose of the domestic remedies rule in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. However, the only remedies to be exhausted are those which are effective.", "It is incumbent on the Government claiming non‑exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time (see Aliev v. Ukraine, no. 41220/98, § 105, 29 April 2003). 89. The Court also reiterates that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism.", "The Court has recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case. This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see İlhan v. Turkey [GC], no. 22277/93, §§ 58-59, ECHR 2000-VII). 90. As has already been reiterated in paragraph 56 above, where there is a choice of remedies the exhaustion requirement must be applied to reflect the practical realities of the applicant's position, so as to ensure the effective protection of the rights and freedoms guaranteed by the Convention.", "Moreover, an applicant who has used a remedy which is apparently effective and sufficient cannot be required also to have tried others that were also available but probably no more likely to be successful (see Adamski v. Poland, cited above). 91. In the instant case the criminal charge against the applicant was dropped with final effect as the matter was not criminal but civil in nature (see paragraph 14 above). The Court observes that this situation falls precisely within the ambit of sections 8(5)(a) and 17 of the State Liability Act 2003, which provides for compensation of both pecuniary and non-pecuniary damage to any person who was subjected to detention pending trial if the criminal proceedings against him or her were dropped. 92.", "The Court observes that the subject matter of the proceedings in an action for damages under sections 8(5)(a) and 17 of the State Liability Act 2003 would have been different from that in the proceedings in the applicant's constitutional complaint. Therefore, unlike in the complaint concerning the length of the proceedings to review the lawfulness of the applicant's detention, the general court examining the action for damages in respect of “detention on remand in proceedings that were dropped” would not have been faced with a contrary conclusion by the Constitutional Court (by way of contrast and comparison, see paragraph 62 above). 93. In particular, the Court observes that in an action for damages under sections 8(5)(a) and 17 of the State Liability Act 2003 in respect of “detention on remand in proceedings that were dropped”, the applicant would not have had to prove that his detention was contrary to substantive or procedural law or arbitrary. Although the matters to be established in such an action are different from those to be examined under Article 5 §§ 1, 2 and 3 of the Convention, this of itself is not decisive because the compensation due to the applicant by way of such an action would in principle be linked to the fact, scope and mode of deprivation of the applicant's liberty (see, mutatis mutandis, N.C. v. Italy, cited above, §§ 55-57).", "94. The Court concludes that in the circumstances of the present case the remedy advanced by the Government in respect of the applicant's complaints under Article 5 §§ 1 (c), 2 and 3 of the Convention, which was designed specifically for situations such as that of the applicant, was available to the applicant both in theory and in practice with reasonable prospects of success and was accordingly one to be used for the purposes of Article 35 § 1 of the Convention. In arriving at this conclusion the Court has taken account of the applicant's individual circumstances, including the fact that following her arrest she was legally represented before the ordinary courts, the Constitutional Court as well as the Court. 95. It follows that the applicant's complaints under Article 5 §§ 1 (c), 2 and 3 of the Convention must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies and that the related complaint under Article 5 § 5 of the Convention is manifestly ill-founded and must be rejected in accordance with its Article 35 §§ 3 and 4.", "IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION IN CONNECTION WITH THE REASONING OF THE DECISION OF 14 MARCH 2006 96. Relying on Article 5 § 4 of the Convention, the applicant complained that the Regional Court had examined only some but not all of her arguments. 97. The Court observes that the purpose of the applicant's appeal against detention was to have the lawfulness of her detention decided as envisaged under Article 5 § 4 of the Convention.", "The Regional Court held in its impugned decision that the applicant's actions could not be qualified as a criminal offence and that there was no reason for detaining her. It consequently ordered the applicant's release. 98. The court finds that, in view of its content and effect, the purpose of the applicant's appeal against her detention was served by the Regional Court's decision of 14 March 2006 and that, in so far as substantiated, the applicant can accordingly not claim to be a victim of a violation of her rights protected under Article 5 § 4 of the Convention other than the right to have the lawfulness of her detention decided “speedily”. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 99. Lastly, the applicant complained that she did not have an effective remedy at her disposal in respect of the above-mentioned violations. She relied on Article 13 of the Convention. 100. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the applicant's rights under that provision.", "It follows that the remainder of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 101. 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 102.", "The applicant claimed 6,000 euros (EUR) in respect of non‑pecuniary damage. 103. The Government considered the claim excessive. 104. The Court considers that the applicant must have sustained non‑pecuniary damage.", "Ruling on an equitable basis, it awards her EUR 1,200 under that head. B. Costs and expenses 105. The applicant also claimed EUR 2,500.79 for legal assistance, submitting itemised invoices from her lawyer, and EUR 50 for administrative expenses plus EUR 30 for postal expenses incurred both at the national level and before the Court. 106.", "Relying on the Court's judgment of 18 October 1982 in the case of Young, James and Webster v. the United Kingdom ((former Article 50) Series A no. 55, § 15), the Government considered that the claim in respect of legal fees was excessive. They objected that the claims concerning administrative and postal expenses were not supported by evidence. 107. 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 violations found (see paragraphs 77 and 88 above), the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 700 to cover legal representation both at the national level and before the Court. C. Default interest 108. 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 admissible the complaints under Article 5 §§ 4 and 5 of the Convention in respect of the alleged lack of a speedy determination of the lawfulness of the applicant's remand in custody and the alleged lack of an enforceable right to compensation in that respect; 2.", "Declares inadmissible the remainder of the application; 3. Holds that there has been a violation of Article 5 § 4 of the Convention; 4. Holds that there has been a violation of Article 5 § 5 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, and EUR 700 (seven hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant's claim for just satisfaction.", "Done in English, and notified in writing on 21 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident" ]
[ "FIRST SECTION CASE OF BELENKO v. RUSSIA (Application no. 25435/06) JUDGMENT STRASBOURG 18 December 2014 FINAL 18/03/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Belenko v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Elisabeth Steiner,Paulo Pinto de Albuquerque,Linos-Alexandre Sicilianos,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 25 November 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "25435/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Tatyana Aleksandrovna Belenko (“the applicant”), on 20 May 2006. 2. The applicant was represented by Mr S. Vlasov, a lawyer practising in Novosibirsk. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicant, whose daughter Oksana Belenko died in a hospital, alleged that the State failed to protect the right to life of her daughter, protect her against ill‑treatment and ensure an effective investigation into the circumstances of her death. 4. On 10 February 2011 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1959 and lives in the town of Krasnoobsk, the Novosibirsk Region. She had a daughter, Oksana Vladimirovna Belenko, born in 1983 but now deceased. A. Illness and death of the applicant’s daughter 6. On 14 August 2003 Oksana Belenko complained of feeling ill. She was trembling, felt pain in her limbs, was having delusions and was behaving strangely.", "That evening her parents called an ambulance. The doctor of the ambulance team, having decided that she was suffering from hysterical neurosis, gave her some sedatives and painkillers. Her condition became worse, so the next morning she was taken to the town hospital, accompanied by her parents. In the town hospital she was examined by the chief psychiatrist, Rz., and a neuropathologist, Pn. The applicant’s daughter was behaving hysterically: she was laughing, shouting, trying to run around and threw a trolley over.", "As she was showing signs of a serious psychiatric disorder, later that day she was transferred to a psychiatric clinic. 7. It appears from her medical records that on admission to the clinic, the daughter did not react when spoken to, refused to submit to examination, and was moving her hands and legs around chaotically. The doctors at the clinic examined her and concluded that she was suffering from schizophrenia. No signs of any other illness or injury were evident at that time.", "Oksana Belenko was already in such a state that the clinical director decided to ask the District Court for authorisation for her continued confinement in the clinic. Her parents (her father and the applicant) did not object to the confinement. 8. According to the applicant, during the first few days in the psychiatric clinic her daughter was still able to recognise her relatives and had some understanding of the people and things around her. According to the official records, her condition was very serious and continued to deteriorate, and her understanding of the situation was seriously impaired.", "9. On 16 and 17 August 2003 she was examined by the clinic’s doctors on duty, Kr. and Vas. She was administered Sibazon and Haloperidol injections. 10.", "On 18 August 2003 the applicant’s daughter was examined first by a psychiatrist on duty and then by a team of three doctors, including the acting chief doctor, Yar., and two other doctors, Lkh. and Olkh. She did not react to their questions, her eyes were motionless, she shouted out sporadically, and dropped herself onto the bed. The expert team considered that she needed further inpatient treatment. 11.", "On the same day the applicant asked the clinical director to release her daughter for further treatment at home. However, it was refused, the chief psychiatrist instead asking the court to issue a confinement order in respect of her. 12. On 20 August 2003 the Zheleznodorozhniy District Court of Novosibirsk examined the clinical director’s request for Oksana Belenko’s further confinement to the psychiatric clinic. Neither the applicant nor her daughter participated in those proceedings.", "According to the applicant, she was not informed about the date or place of the hearing. The District Court authorised the further confinement. 13. The applicant continued to visit her daughter in the clinic almost every day. According to her, on one occasion her daughter was taken by the clinic staff to a meeting with her directly from the shower; her head was wet and, as a result, she caught a cold.", "The clinic staff also allegedly prevented her from visiting her daughter. 14. Oksana Belenko received treatment in the psychiatric clinic until 31 August 2003. It appears that her medical condition was very serious. Several examinations conducted within that period showed that she was suffering from a very rare disease, known as febrile expressionless schizophrenia of a pernicious nature.", "The illness is potentially fatal and has various symptoms, such as high fever, catalepsy (being stuck in rigid postures for hours), delusions, muteness, and excessive motor activity (constant movement). She was spending hours in her bed in a “foetal position”, with her hands and legs bent and pressed against her body. Treatment with psychotropic drugs only had a limited effect on her. In addition, because of her immobility and cataleptic postures she started developing decubitus ulcers (bedsores). According to the Government, between 18 and 31 August 2003 she was examined by doctors three times.", "15. On 26 August 2003 the applicant wrote a letter to the psychiatric clinic asking for her daughter to be released, insisting that she would be better treated at home by a visiting doctor. However, given the daughter’s state of health and mind, the request was refused. 16. According to the applicant, during that period her daughter was being tied to her bed by the clinic staff.", "She and some of her relatives and friends saw ligature marks on her daughter’s hands and legs when they visited her in the clinic. The clinic staff, namely doctor L. and nurse B., denied tying her up. 17. On 31 August 2003 the applicant’s daughter had a high fever. She was examined by a doctor, who concluded that she had developed pneumonia, aggravated by a cardiac valve defect.", "The applicant informed the hospital that her daughter had congenital heart disease and that her skin had developed a bluish color, so the doctors of the psychiatric clinic called a cardiologist from the town hospital. After examining her, the cardiologist recommended her immediate transfer there, which was implemented the same day. 18. On 1 September 2003 the applicant’s daughter became worse and was transferred to the town hospital’s emergency unit. Doctor Pn.", "who examined her there discovered ligature marks on her body. On the same day the head of the hospital’s psychiatric department, Ls., made an entry in the daughter’s medical record which read “evidence of tying up on the shins and arms” (later reproduced in the expert report of 17 May 2005, see paragraph 32 below). 19. It appears that in so far as pneumonia was concerned, her treatment with antibacterial drugs had some positive effects. An X-ray examination was carried out on 15 September 2003 but did not reveal any characteristic signs of pneumonia in her lungs.", "20. On 9 October 2003 the applicant’s daughter was transferred to the psychiatric department of the town hospital. It appears that as a result of the catalepsy, she had developed large purulent ulcers in the groin area. Two weeks later she was admitted to the surgical ward of the town hospital in connection with the ulcers and necrotic abscess. 21.", "At some point, the relatives lost confidence in the doctors’ ability to treat her properly. They thought that she was being neglected and even ill‑treated in the various hospitals, starting to suspect that she might also have been sexually abused there. The applicant made several written complaints to the regional authorities. 22. On an unspecified date the applicant’s daughter had a new episode of pneumonia, which the doctors related to the sepsis (inflammation) she had developed as a result of the purulent ulcers.", "She also developed tetraparesis (muscular weakness of all four limbs). 23. On 27 October 2003 a special panel was set up by the regional administration, which examined Oksana Belenko’s case. It concluded that the doctors’ actions had been adequate, that the worsening of her condition was due to external factors, and that the actions of the doctors did not present any danger to her life. 24.", "On 30 October 2003 the applicant’s daughter was admitted to the regional hospital. Her physical and mental health continued to deteriorate. According to the Government, while in the hospital she had continued to receive adequate medical care, such as treatment with fourth generation antibiotics. 25. On 4 November 2003 the applicant lodged a written criminal complaint regarding the allegedly inadequate treatment of her daughter.", "On 14 November 2003 the investigator refused to open an investigation in this connection. 26. On 7 December 2003 Oksana Belenko died. 27. On 8 December 2003 doctors examined her body.", "The doctors who carried out the post-mortem (вскрытие) concluded that she had died as a result of cerebral oedema, related to her psychiatric condition and aggravated by the pneumonia. The examination did not reveal any ligature marks. At the same time the doctors discovered that her left hip was dislocated, and that she had purulent necrotic wounds in the groin area and on her shins. B. Criminal investigation into the death of the applicant’s daughter 28.", "A few days after Oksana Belenko’s death, the applicant lodged a criminal complaint to have the doctors who had treated her daughter prosecuted. The inquiry was reopened. 29. On 31 December 2003 investigator O., following an additional inquiry, decided not to open a criminal investigation into her death. 30.", "On 4 February 2004 the Deputy Regional Prosecutor overruled the above decision and decided to open a criminal investigation, to be treated as a medical negligence case. The case was entrusted to investigator O. 31. On 20 May 2004 the Presidium of the Novosibirsk Regional Court, by way of supervisory review, quashed the Zheleznodorozhniy District Court’s decision of 20 August 2003 (see paragraph 12 above). The Presidium held that Oksana Belenko’s relatives had not been duly informed of the hearing, and furthermore, that the District Court had not verified whether her condition had warranted her confinement.", "Since she had died by that time, it was decided that the proceedings should be discontinued. 32. On 17 May 2004 a group of doctors from the No. 6 Regional Psychiatric Hospital examined her case and concluded that it was impossible to discern a direct link between her mental condition and her death. In their report, they concluded that the death had actually been caused by a brain oedema and pulmonary valve insufficiency caused by pneumonia.", "The experts approved the diagnosis of the psychiatric clinic and hospitals and confirmed that the methods and medication used to treat her had been appropriate. 33. On 22 June 2004 the applicant was given victim status in the case (see paragraph 30 above). 34. On 11 October 2004 the Serbskiy Institute of Psychiatry conducted a second psychiatric expert examination of Oksana Belenko’s case.", "It concluded that the doctors had made the correct assessment of her condition, and had prescribed and administered her adequate treatment in a timely manner. 35. On 12 January 2005 a new forensic examination of the case concluded that she had died primarily as a result of the brain oedema caused by her psychiatric disorder. The expert team had at its disposal samples of tissue taken from her body during the post‑mortem examination and her medical records. The experts confirmed that the earlier diagnosis had been correct and that the treatment she had received had been adequate, excluding any possibility that she had died as result of inappropriate treatment.", "The report, in summarising the doctors’ earlier observations, noted that the examination of 1 September 2003 had revealed ligature marks on her shins and later mentioned marks on her arms. 36. Between 14 and 28 January 2005 a new forensic examination was carried out of the tissue taken from various parts of Oksana Belenko’s body. In addition, the investigator held a face-to-face confrontation between the applicant and doctors L., P., and Zh. Several of the psychiatric clinic staff were questioned, as were staff of the town and regional hospitals.", "37. On 4 February 2005 the criminal investigation was closed, the investigator concluding that the applicant’s daughter had died of natural causes. 38. On 5 May 2005 the Deputy Prosecutor of the Novosibirsk Region ordered that the case be reopened and informed the investigator of the additional steps to be taken. 39.", "On 19 May 2005 the applicant requested the investigator in charge of the case to conduct an additional expert examination to establish the cause of her daughter’s death. In particular, the applicant alleged that her daughter had developed pneumonia because of the poor sanitary and hygienic conditions in the psychiatric clinic and the town hospital. In her opinion, her daughter had contracted the infection through her ulcers. In addition, the experts had failed to establish why her daughter had had ligature marks on her body. In the applicant’s opinion, the purulent wounds discovered on her daughter’s lower legs were not the “decubitus ulcers” caused by her immobility but rather a result of her being tied up in the psychiatric clinic.", "In addition, the expert reports did not establish the cause of her dislocated hip. The applicant invited the investigator to commission a new expert examination and put relevant questions to the experts. 40. On 12 June 2005 the investigator decided to close the case again. According to the report of that date, the ligature marks discovered on Oksana Belenko’s body during her examination on 1 September 2003 had been located around her shins.", "41. On 11 July 2005 the case was reopened but then closed again on 14 July 2005. 42. On 25 January 2006 the case was reopened by the supervising prosecutor but then closed again on 26 February 2006. 43.", "The applicant contested the closure of the case in court. 44. On 20 March 2006 the supervising prosecutor ordered the case to be reopened and the investigator to carry out additional investigative measures, such as identifying and questioning other patients of the psychiatric clinic and establishing the cause of the ligature marks discovered on her body during the examination of 1 September 2003. 45. On 19 January 2007 the Zheleznodorozhniy District Court noted that the case file contained conflicting expert opinions on the cause of Oksana Belenko’s death.", "Furthermore, the cause of the second episode of pneumonia and the purulent wounds on the lower legs had not been established. The court instructed the investigator to commission a new comprehensive forensic examination (комплексная судебно-медицинская экспертиза) to establish the cause of her death, and to carry out other investigative measures if necessary. 46. On 9 February 2007 the investigator commissioned the new comprehensive forensic examination, ordered by the court, into the cause of the death of the applicant’s daughter. He entrusted it to the No.", "6 Regional Psychiatric Hospital. However, in 12 February 2007 the hospital refused to carry out the examination on the grounds that it had already prepared a similar report on the matter at an earlier date. 47. On 9 March 2007 the investigator closed the case again. 48.", "The applicant challenged that decision in court. On 26 June 2007 the Zheleznodorozhniy District Court ordered the investigation to be continued. The court held, in particular, that the refusal of the No. 6 Regional Psychiatric Hospital to conduct a new expert examination did not prevent the investigator from seeking an expert opinion from another competent institution elsewhere. 49.", "On 13 August 2007 the court’s decision was upheld by the Novosibirsk Regional Court on appeal. 50. The criminal investigation was reopened but closed again on 5 September 2007. 51. In 2008 the applicant challenged the discontinuation of the criminal proceedings in court again.", "On 18 September of that year the Zheleznodorozhniy District Court examined the applicant’s complaint against the investigator’s decision of 5 September 2007 and ordered the case to be reopened. However, it appears from the documents submitted by the Government that this decision was not enforced and the case not reopened until 15 April 2011, as confirmed in a letter by the Zheleznodorozhniy District Prosecutor dated 19 April 2011. 52. On 15 April 2011 the District Prosecutor quashed the decision of 5 September 2007 and ordered the case to be reopened again. 53.", "On 20 April 2011 the investigator ordered another forensic examination of Oksana Belenko’s body to be commissioned and entrusted this task to the Krasnoyarsk Region Forensic Centre. However, on 22 April 2011 it refused to conduct the examination on the grounds that the investigator had failed to produce her medical records and the “tissue archive” (гистологический архив). 54. On 20 May 2011 the investigator decided to close the case again. The investigator reiterated the findings of the earlier expert examinations of the case and in particular the report of 12 January 2005 (see paragraph 35 above).", "Among other things, the investigator acknowledged that it proved impossible to find the medical records of the applicant’s daughter and the “tissue archive” and that, as a result, the experts were not in a position to conduct an additional forensic examination into the cause of her death. He further noted that: “... during the preliminary investigation it was established that ... [Oksana Belenko] had suffered from psychiatric disease in the form of schizophrenia, the febrile catatonic form. The reason for [her] death was [this disease]. From the medical examination report dated 12 January 2005 it follows that [her] death resulted from cerebral oedema, which itself had resulted from [the above-mentioned disease] ... It was noted on 1 September 2003 that on a few occasions [she] had been seen as carrying [marks on her arms], but from the statements of the questioned persons, it was impossible to establish with certainty any facts of the use of violence (tying up) in respect of [her] ... At the present time in this criminal case all of the indications of the Prosecutor’s office of the Novosibirsk Region were executed.", "The results of the conducted preliminary investigation demonstrated that no crime set out in Article 109 § 2 of the Criminal Code had taken place because [Oksana Belenko’s] death resulted from the cerebral oedema resulting from the psychiatric disease, that is from the natural factor, [her] treatment having been conducted in accordance with modern methods of treatment. It follows that the death of [Oxana Belenko] did not result from anyone’s unlawful actions.” 55. It does not appear that there have been any developments in the applicant’s case since the decision of 20 May 2011. II. RELEVANT DOMESTIC LAW A.", "The Criminal Code of the Russian Federation 56. Article 109 § 2 of the Criminal Code (“CC”) provides that negligent infliction of death due to improper execution of professional duties shall be punishable by compulsory works for a period of up to three years and/or the stripping of the right to occupy certain posts or to work in certain spheres for a period of up to three years. B. The Code of Criminal Procedure of the Russian Federation 57. Article 144 of the Code of Criminal Procedure (“CCrP”) provides that prosecutors, investigators and inquiry bodies must consider applications and information about any crime committed or being prepared, and take a decision on that information within three days.", "In exceptional cases, that time-limit can be extended to ten days. The decision should be one of the following: (a) to institute criminal proceedings; (b) to refuse to institute criminal proceedings; or (c) to transmit the information to another competent authority (Article 145 of the CCrP). 58. Article 125 of the CCrP states that the decision of an investigator or a prosecutor to dispense with or terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a District Court, which is empowered to check the lawfulness and grounds of the impugned decisions. 59.", "Article 213 of the CCrP provides that, in order to terminate the proceedings, the investigator should adopt a reasoned decision with a statement of the substance of the case and the reasons for its termination. A copy of the decision to terminate the proceedings should be forwarded by the investigator to the prosecutor’s office. The investigator should also notify the victim and the complainant in writing of the termination of the proceedings. 60. Under Article 221 of the CCrP, the prosecutor’s office is responsible for general supervision of the investigation.", "In particular, the prosecutor’s office may order that specific investigative measures be carried out, transfer the case from one investigator to another, or reverse unlawful and unsubstantiated decisions taken by investigators and inquiry bodies. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 61. The applicant complained under Article 2 of the Convention that her daughter had died as a result of the negligence of the doctors. Article 2 of the Convention, insofar as relevant, reads as follows: “1.", "Everyone’s right to life shall be protected by law ...” A. The parties’ submissions 1. The Government 62. The Government argued that the applicant’s daughter had received timely and adequate treatment, and that the quick worsening of her state of health and ultimately her death had been as a result of natural causes. She had developed ulcers, not as a result of “being tied” but due to the stiffness of her posture for weeks on end, and high muscular tension in her arms and legs.", "The ligature marks had not been in the same place where the ulcers had developed. Even if the applicant’s daughter had been tied to her bed once, it had been a necessary measure: it appears from the testimony of the psychiatric clinic staff that she had tried to run away and had scratched one of the paramedics. She had been making impulsive and irrational brisk movements; she had been potentially a danger to herself and others, so tying her up had been inevitable. 63. As to the procedural aspect, the Government described the inquiries and investigations that had taken place in the case.", "The Government argued that the decisions to close the case had been quashed by the supervising prosecutors owing to the incompleteness of the investigation. Even if there had been delays in the investigation of the case, these had been related to the need to conduct additional medical examinations and had been justified given the complexity of the case. 2. The applicant 64. The applicant argued that her daughter had not received timely and adequate medical treatment.", "Thus, the ambulance doctor who had examined her daughter on the evening of 14 August 2003 had underestimated the seriousness of her condition. She had not been hospitalised until the second day, on 15 August 2003. Her confinement to the psychiatric clinic had been unlawful. 65. According to the applicant, because of the negligence of the medical staff at the psychiatric clinic her daughter had caught a cold; as a result, she had contracted pneumonia.", "Furthermore, a lack of due care in the clinic had resulted in her developing a septic infection and several ulcers. Her daughter had been tied to her bed, which had been noticed by the doctor on her transfer to the town hospital (see paragraph 18 above). The applicant classed the tying up of her daughter as ill‑treatment. In addition, her left hip had been dislocated; that injury remained unexplained by the investigator. The applicant believed that the hip dislocation had been caused by her daughter being tied up in the psychiatric clinic.", "The applicant indicated that during the last investigation the experts had been unable to conduct an additional forensic examination because her daughter’s medical records and tissue samples (“archive”) had been lost, and that this had made any further examination into the circumstances of her death impossible. B. Admissibility 66. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "C. Merits 67. The Court observes that the applicant’s daughter died as a result of a sudden and serious illness. In such circumstances, the first issue that it needs to address is whether the authorities were under an obligation to take “appropriate steps to safeguard” Oksana Belenko’s life and, if so, whether they have complied with it (see, inter alia, L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III, and Keenan v. the United Kingdom, no. 27229/95, § 89, ECHR 2001-III).", "68. The Court will then examine whether the subsequent investigation into the events leading to the applicant’s daughter’s death was compatible with the requirements of the procedural aspect of Article 2 of the Convention (see Kudra v. Croatia, no. 13904/07, §§ 100 and 101, 18 December 2012). 1. Substantive aspect 69.", "The Court reiterates that Article 2 does not solely concern deaths resulting from the use of unjustified force by agents of the State but also, in the first sentence of its first paragraph, lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction (see, for example, L.C.B., cited above, § 36, and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 54, ECHR 2002‑II). 70. Those principles apply in the public-health sphere too. The aforementioned positive obligations therefore require States to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients’ lives (see, for instance, Calvelli and Ciglio v. Italy [GC], no.", "32967/96, § 49, ECHR 2002‑I; Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000‑V; and Oyal v. Turkey, no. 4864/05, §§ 53-54, 23 March 2010). 71. Turning to the circumstances of the present case, the Court observes that despite having been subjected to an involuntary confinement (see paragraphs 6 and 12 above), the applicant’s daughter was not a detainee.", "It was not in dispute between the parties that her condition was extremely serious (see paragraphs 6-8 above) and her parents put her in the clinic on their own initiative; it had been done for their daughter’s own good and with the aim of her being treated in the clinic (see paragraph 7 above). 72. The Court next notes that according to the expert reports obtained by the investigators (see paragraphs 32 et seq. above) the doctors who treated her respected the applicable regulations and procedures, used scientifically tested treatment methods, and employed approved medical substances and equipment. 73.", "Where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, the Court cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life (see Byrzykowski v. Poland, no. 11562/05, § 104, 27 June 2006). 74. Having examined the materials at its disposal, the Court cannot detect such flaws in the case at hand and concludes that the State complied with its substantive positive obligation to safeguard the applicant’s daughter’s right to life. There has therefore been no violation of Article 2 of the Convention on this account.", "2. Procedural aspect 75. The Court will now turn to the issue of the State’s compliance with its procedural obligations under Article 2 of the Convention. 76. The Court reiterates that Article 2 of the Convention requires an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see, among other authorities, Calvelli and Ciglio, cited above, § 49).", "Where the infringement of the right to life or physical integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal‑law remedy in every case. In the sphere of medical negligence, the obligation may, for instance, also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged (ibid., § 51; Lazzarini and Ghiacci v. Italy (dec.), no. 53749/00, 7 November 2002; and Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002-VIII).", "77. What is important is that the domestic legal system as a whole and the particular proceedings that the applicant engaged in the specific circumstances of the case satisfied all of the guarantees required by the Convention (see Dodov v. Bulgaria, no. 59548/00, §§ 87-98, 17 January 2008; Bajić v. Croatia, no. 41108/10, § 93, 13 November 2012; and, in the context of Russia, Korogodina v. Russia, no. 33512/04, § 53, 30 September 2010).", "78. Turning to the present case, the Court notes that Oksana Belenko’s death gave rise to two sets of preliminary inquiries and seven rounds of investigation. The criminal investigation into her death was closed seven times: on 4 February 2005, 12 June 2005, 14 July 2005, 26 February 2006, 9 March 2007, 5 September 2007, and 20 May 2011 (see paragraphs 37, 40‑42, 47, 50 and 54 above). On each of these occasions the supervising prosecutors and courts pointed out various defects in the quality of the investigation, refused to confirm the conclusions of the investigation and instructed the investigators to pursue the investigation and carry out new investigative measures. 79.", "The Court recalls its findings in Korogodina, cited above, § 58: “... [F]ollowing the opening of the criminal case, the prosecuting authorities discontinued the investigation on six occasions. Each time, the applicant appealed and the supervising prosecutor quashed the relevant decision and reopened the investigation noting the investigator’s or the subordinate prosecutor’s failure to fully determine the circumstances of the case. The Court considers that such remittals of the case for re-examination disclose a serious deficiency of the criminal investigation which irreparably protracted the proceedings. ...” 80. In the present case, the investigation into the circumstances of Oksana Belenko’s death lasted with interruptions from 2003 to 2011.", "Although a reopening of a criminal investigation is not in itself ultimate proof of its “deficiency” in terms of the Court’s case-law, the sheer number of the reopenings shows that no genuine attempt to establish the truth was made. In particular, the Court is struck by the fact that although on 18 September 2008 the Zheleznodorozhniy District Court ordered the case to be reopened, that was not done until 15 April 2011 (see paragraph 51 above). This means that for over two and a half years, the decision of the court to continue the investigation was simply disregarded. 81. Furthermore, during the last round of the proceedings the investigator held that it had been impossible to obtain an additional expert examination into the circumstances of Oksana Belenko’s death because the “tissue archive” of the deceased (the samples of her tissue) and her medical records had been lost (see paragraphs 53 and 54 above).", "The Court considers unexplained loss of a central piece of evidence sufficient in itself to compromise the findings of an investigation (see, mutatis mutandis, Maslova and Nalbandov v. Russia, no. 839/02, § 94, 24 January 2008). It also notes with regret that the mentioned deficiencies resulted in the investigation’s inability to shed any light on the origin of suspect ligature marks on her body (see paragraphs 16, 18 and 27 above). This information could constitute an important element in the analysis of the cause of her death as well as clarify the circumstances surrounding the events. 82.", "The Court is not called upon to determine or to identify what sort of steps the domestic authorities should have taken in the case at hand. Therefore, it confines itself to noting that the investigation in this case was protracted, inefficient and failed to determine with sufficient clarity the cause of death of the patient in the care of the medical profession, so as to make those responsible for it accountable, if anyone (see Bajić, cited above, §§ 91-108). 83. The Court would next recall that any deficiency in the criminal proceedings is not sufficient in itself to find a procedural violation of Article 2 (see, for example, Šilih v. Slovenia [GC], no. 71463/01, §§ 202‑211, 9 April 2009, and Dodov, cited above, §§ 91-98), unless the deficiencies in the criminal-law remedy affect the effectiveness of the other remedies available (see, for example, Byrzykowski, cited above, § 116).", "In the present case, the Court finds that the availability of the “tissue archive” of the deceased as well as her medical records was so important for a proper resolution of the applicant’s claims that their loss critically undermined the applicant’s prospects of success in any other types of domestic proceedings that she could have brought in respect of these events. In this context, the Court also recalls the conflicting medical reports on the cause of Oksana Belenko’s death (see paragraph 45 above). 84. Against the above background, the Court finds that the Government failed to demonstrate that the domestic system as a whole, faced with a case of an allegation of medical negligence resulting in death of the applicant’s daughter, provided an adequate and timely response consonant with the State’s procedural obligations under Article 2 of the Convention. 85.", "It follows that in the present case, there has been a violation of Article 2 of the Convention under its procedural limb. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 86. The applicant complained that her daughter, while in the psychiatric clinic and the hospital, had been neglected and ill-treated. She referred to Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 87.", "The parties’ submissions under Article 3 of the Convention are virtually identical to their observations under Article 2. The Court decides that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other grounds. It must therefore be declared admissible. However, in view of its findings under Article 2, the Court considers that the applicant’s complaint under Article 3 does not require separate examination. III.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 88. The applicant also complained under Article 5 of the Convention that Oksana Belenko’s detention had been unlawful. The Court notes that the latest decision in connection with this complaint was taken on 20 May 2004, whereas the application was lodged on 20 May 2006, which is more than six months later. It follows that this complaint was introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. 89.", "To the extent that the applicant referred to Articles 6 and 13 in connection with the refusal of the authorities to prosecute the doctors, the Court finds that, in so far 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. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 90. 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 91. The applicant claimed 100,000,000 Russian Roubles (RUB) in respect of non-pecuniary damage. 92. The Government considered that amount to be excessive. 93.", "The Court observes that the prolonged failure of the authorities to give satisfactory answers to questions which Oksana’s death raised, must have caused the applicant, her mother, acute mental suffering. At the same time, the Court findings under Article 2 in the present case are of a procedural nature. In the light of all materials in its possession, on an equitable basis the Court awards the applicant EUR 15,000 on account of non‑pecuniary damage, plus any tax that may be charged on this amount. B. Costs and expenses 94.", "The applicant did not claim anything under the head of costs and expenses, so the Court does not make any award in this respect. C. Default interest 95. 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 complaints under Articles 2 and 3 admissible, and the remainder of the application inadmissible; 2.", "Holds that there has been no violation of Article 2 of the Convention under its substantive limb; 3. Holds that there has been a violation of Article 2 of the Convention under its procedural limb; 4. Holds that there is no need to examine this complaint separately under Article 3 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent state, at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 18 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]
[ "FIFTH SECTION CASE OF CHERNYSHEVA v. UKRAINE (Application no. 22591/04) JUDGMENT STRASBOURG 10 August 2006 FINAL 10/11/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Chernysheva v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: MrP. Lorenzen, President,MrsS.", "Botoucharova,MrK. Jungwiert,MrV. Butkevych,MrsM. Tsatsa-Nikolovska,MrR. Maruste,MrJ.", "Borrego Borrego, judges,and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 10 July 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 22591/04) 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, Mrs Natalya Nikolayevna Chernysheva (“the applicant”), on 7 June 2004. 2. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V.Lutkovska and Mr Y.Zaytsev.", "3. On 15 March 2005 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 4. On 1 April 2006 this case was assigned to the newly constituted Fifth Section (Rule 25 § 5 and Rule 52 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1953 and resides in the town of Novogrodovka, Donetsk region, Ukraine. 6. The applicant instituted proceedings in the Novogrodovskiy Town Court of the Donetsk Region against the Novogrodovskaya Mining Company No.", "1/3 - a State-owned enterprise - to recover salary arrears and other payments due to her late husband. 7. On 7 October 2003 the Novogrodovskiy Town Court found in favour of the applicant (Решение Новогродовского городского суда Донецкой области) and awarded her UAH 10,317.71[1]. On 17 November 2003 the Novogrodovskiy Town Bailiffs’ Service (Отдел Государственной исполнительной службы Новогродовского городского управления юстиции) refused to initiate the enforcement proceedings because the debtor was located in a different district. 8.", "The applicant instituted proceedings in the Novogrodovskiy Town Court of the Donetsk Region against the Novogrodovskiy Town Bailiffs’ Service for failure to institute enforcement proceedings. On 13 February 2004 the Town Court rejected the applicant’s claim, finding that no fault had been committed by the Bailiffs’ Service. On 22 April 2004 the Court of Appeal of the Donetsk Region upheld this decision. The applicant appealed in cassation to the Supreme Court of Ukraine. The proceedings are still pending.", "9. On 25 February 2004 the Selidovskiy Town Bailiffs’ Service (Отдел Государственной исполнительной службы Селидовского городского управления юстиции) initiated the enforcement proceedings. 10. In August-October 2004 the applicant has received UAH 8,281.50[2], the rest of the debt awarded remains unpaid. 11.", "The applicant instituted proceedings in the Selidovskiy Town Court against the Selidovskiy Town Bailiffs’ Service claiming compensation for material and moral damage caused by a lengthy non-enforcement of the judgment in her favour. On 12 October 2004 the court found against the applicant. On 17 January 2005 the Court of Appeal of the Donetsk Region upheld this judgment. On 22 March 2005 the Selidovskiy Town Court returned the applicant’s appeal in cassation as submitted too late. The applicant appealed against this decision.", "Proceedings are still pending. II. RELEVANT DOMESTIC LAW 12. The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).", "THE LAW I. SCOPE OF THE CASE 13. The Court notes that, after the communication of the case to the respondent Government, the applicant introduced new complaints, alleging violation of Articles 2 and 13 of the Convention on account of the non-enforcement of judgment in her favour. 14. In the Court’s view, the new complaints are not an elaboration of the applicant’s original complaints, lodged with the Court approximately one year earlier, on which the parties have commented.", "The Court considers, therefore, that it is not appropriate now to take these matters up separately (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005). II. ADMISSIBILITY 15. The applicant complained about the length of the non-enforcement of the judgment in her favour.", "She invoked Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. These Articles provide, insofar as relevant, as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” Article 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 ....” 16. The Government raised objections regarding the exhaustion of domestic remedies similar to those which the Court has already dismissed in the case of Romashov v. Ukraine (no. 67534/01, §§ 28-32, 27 July 2004). The Court considers that the present objections must be rejected for the same reasons.", "17. The Court concludes that the applicant’s complaint under Article 6 § 1 of the Convention about the delay in the enforcement of the judgment of the Novogrodovskiy Town Court 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. For the same reasons, the applicant’s complaint under Article 1 of Protocol No.", "1 cannot be declared inadmissible. III. MERITS 18. The Government maintained that the responsibility of the State in this situation was limited to the organisation and proper conduct of enforcement proceedings and that the length of the enforcement proceedings had been caused by the critical financial situation of the debtor company and the energy sector of the Ukrainian economy in general. The Government contended that the Bailiffs’ Service performed all necessary actions and cannot be blamed for the delay.", "The regularity of the enforcement proceedings in the present case was confirmed by the domestic courts. The Government finally argued that the State could not be considered responsible for the debts of its enterprises. 19. The applicant disagreed. 20.", "The Court notes that the judgment in the applicant’s favour has not been fully enforced for more than two years and eight months. 21. The Court recalls that it has already found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases like the present application (see, Sokur v. Ukraine, cited above, §§ 30-37; Shmalko v. Ukraine, no. 60750/00, §§ 55-57, 20 July 2004).", "22. 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. 23. There has, accordingly, been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 24. 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 25. The applicant claimed EUR 9,903 in respect of pecuniary and non-pecuniary damage.", "26. The Government maintained that the applicant has not substantiated her claims. 27. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 28.", "However, in so far as the judgment in the applicant’s favour has not been enforced in full (paragraph 10 above), the Court considers that, if the Government were to pay the remaining judgment debt owed to the applicant, it would constitute full and final settlement of her claim for pecuniary damage. 29. The Court further considers that the applicant must have sustained non-pecuniary damage, and awards her EUR 600 in this respect. B. Costs and expenses 30.", "The applicant claimed EUR 100 in costs and expenses. 31. The Court considers that the applicant has not provided any substantiation of her costs and expenses claimed; however, it is obvious that she has had postal expenses in relation to filing her application with the Court. The Court, therefore, awards the applicant EUR 30 in this respect. C. Default interest 32.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No.", "1 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the judgment debt still owed to her, as well as EUR 630 (six hundred thirty euros) in respect of non-pecuniary damage and postal expenses; (b) that the above amount shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (c) 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 10 August 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident [1].", "At the material time around 1,700.86 euros (EUR). [2]. Around EUR 1,433.71." ]
[ "FIFTH SECTION CASE OF YEROKHIN AND OTHERS v. UKRAINE (Application no. 4043/08 and 3 others - see appended list) JUDGMENT STRASBOURG 30 November 2017 This judgment is final but it may be subject to editorial revision. In the case of Yerokhin and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: André Potocki, President,Síofra O’Leary,Mārtiņš Mits, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 9 November 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Ukrainian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law.", "THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION 6. The applicants complained that the length of the civil proceedings in question had been incompatible with the “reasonable time” requirement and that they had no effective remedy in this connection.", "They relied on Article 6 § 1 and Article 13 of the Convention, which read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... 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.” 7. 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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 8. In the leading case of Krasnoshapka v. Ukraine, (no.", "23786/02, 30 November 2006), the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. 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. 10.", "The Court further notes that the applicants did not have at their disposal an effective remedy in respect of these complaints. 11. These complaints are therefore admissible and disclose a breach of Article 6 § 1 and of Article 13 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 12.", "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.” 13. Regard being had to the documents in its possession and to its case‑law (see, in particular, Krasnoshapka v. Ukraine, no. 23786/02, §§ 61 and 66, 30 November 2006), the Court considers it reasonable to award the sums indicated in the appended table. 14. 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. Decides to join the applications; 2. Declares the applications admissible; 3. Holds that these applications disclose a breach of Article 6 § 1 and Article 13 of the Convention concerning the excessive length of civil proceedings; 4. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, 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.", "Done in English, and notified in writing on 30 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtAndré Potocki Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 6 § 1 and Article 13 of the Convention (excessive length of civil proceedings and lack of any effective remedy in domestic law) No. Application no. Date of introduction Applicant name Date of birth Representative name and location Start of proceedings End of proceedings Total length Levels of jurisdiction Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (en euros)[1] 4043/08 28/12/2007 Sergey Ivanovich Yerokhin 01/04/1962 09/06/1998 29/03/2000 17/12/1999 28/11/2007 1 year, 6 months and 9 days 3 levels of jurisdiction 7 years and 8 months 3 levels of jurisdiction 2,300 65291/14 16/09/2014 Oksana Anatoliyivna Shtokalo 04/01/1957 06/10/2003 10/02/2014 10 years, 4 months and 5 days 3 levels of jurisdiction 3,100 62164/16 18/10/2016 Volodymyr Vasylyovych Chaykin 19/10/1946 Denys Sergiyovych Kucherenko Zaporizhzhya 23/12/2005 pending More than 11 years and 10 months 3 levels of jurisdiction 3,600 2635/17 21/12/2016 Volodymyr Mykolayovych Pasichnyk 25/12/1966 Yevgen Oleksiyovych Grishyn Zhytomyr 25/02/2009 13/04/2016 7 years, 1 month and 20 days 3 levels of jurisdiction 600 [1] Plus any tax that may be chargeable to the applicants." ]
[ "FIRST SECTION CASE OF PANASENKO v. RUSSIA (Application no. 9549/05) JUDGMENT STRASBOURG 1 April 2010 FINAL 01/07/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Panasenko v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Giorgio Malinverni,George Nicolaou, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 11 March 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "9549/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Grigoriy Fedorovich Panasenko (“the applicant”), on 7 February 2005. 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3. On 15 May 2008 the President of the First 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 4. The applicant was born in 1949 and lives in Shakhty, the Rostov Region. 5.", "In the 1990s the applicant subscribed to a State savings scheme which would entitle him to receive a passenger car in 1993. He paid the car's full value but never received the car. 6. On 17 July 2002 the applicant received 31,375.48 Russian roubles (RUB) of compensation in accordance with the State Programme for the redemption of the State internal debt (see paragraphs 20-22 below). This amount equalled to 33.41% of the car value.", "7. The applicant brought the court action against the authorities, claiming the full monetary value of the promissory notes for purchasing of a car. 8. On 1 April 2003 the Ust-Yanskiy District Court of the Sakha Republic (Yakutiya) allowed the applicant's action, having found that the State had failed in its obligation to grant the applicant a car and had only provided a partial compensation instead. The court further held that a unilateral change of the conditions of the redemption of the commodity bonds by the State in accordance with the Federal Law of 2 June 2000 and the respective State Programme (see below) did not “comply with the constitutional principles and principles of the civil law”, because a partial payment of a car's value did not constitute a sufficient remedy of the damage caused to the bond holders.", "The court awarded the applicant RUB 66,693.35, that is the full car price less the amount already paid to him in July 2002, to be paid at the expense of the Federal Treasury. 9. On 30 April 2003 the Supreme Court of the Sakha (Yakutiya) Republic upheld the judgment and it became final. The award remained unenforced. 10.", "In June 2004 the respondent authority lodged a request for supervisory review of the case with the Presidium of the Supreme Court of the Sakha (Yakutiya) Republic. 11. On 14 October 2004 the Presidium reviewed the lower courts' judgments by way of the supervisory review proceedings and established, in particular, that the lower courts had failed to take into account the provisions of the amended State Commodity Bonds' Act and the Government's Resolution no. 1006. The Presidium ruled as follows: “Having regard to the substantive violation of the material law, the judicial decisions taken in the case under consideration cannot be held lawful and well-founded and should be quashed [...].” 12.", "The Presidium annulled the judgment of 1 April 2003 and the appeal decision of 30 April 2003 and delivered a new judgment in which it dismissed the applicant's claim in full. II. RELEVANT DOMESTIC LAW A. Review of the compliance of the federal laws with the Constitution 13. According to Article 15 § 1 of the Constitution of the Russian Federation, the Constitution has the supreme juridical force, direct action and shall be used on the whole territory of the Russian Federation.", "Laws and other legal acts adopted in the Russian Federation shall not contradict the Constitution. 14. In accordance with Article 125 § 4 of the Constitution, the Constitutional Court of the Russian Federation reviews constitutionality of the law applied or due to be applied in a specific case in accordance with procedures established by federal law, upon requests of the courts. 15. By the Ruling no.", "19-П of 17 June 1998 the Constitutional Court of the Russian Federation held that it had exclusive competence to decide whether federal or regional laws violated the Constitution of the Russian Federation. Ordinary courts were not entitled to rule on the constitutionality of federal laws. In case of doubt as to whether a law complied with the Constitution, they should direct an inquiry to the Constitutional Court. B. Redemption of the State commodity bonds 16.", "The State Commodity Bonds Act (federal law no. 86-FZ of 1 June 1995) provided that the State commodity bonds, including special-purpose settlement orders, were to be recognised as the State internal debt (section 1). They were to be enforced in accordance with the general principles of the Civil Code (section 2). The relevant parts of section 3 read as follows: “The Government of the Russian Federation shall draft the State Programme for the redemption of the State internal debt... The Programme shall provide for the terms of redemption of State commodity bonds that would be convenient for citizens, including, of their choice: provision of goods indicated in ... special-purpose bonds for the purchase of passenger cars ...; redemption of State commodity bonds at consumer prices prevailing at the moment of the redemption...” 17.", "On 2 June 2000, section 3 of the Act was amended to read, in the relevant parts, as follows: “To establish that the repayment of the State internal debt of the Russian Federation under State commodity bonds ... is carried out in 2001-2004 in accordance with the State Programme... To set, in the above-mentioned Programme, the following sequence and terms of redemption of State commodity bonds: - [...] in respect of bearers of special-purpose settlement orders that gave the right to purchase passenger cars in 1993-1995 – payment of monetary compensation equal to a part of the value of the car described in the order, as determined on account of the percentage of the part of the full value of car paid by the owner by 1 January 1992 (in accordance with the price scales in force until 1 January 1992), as well as the price of the cars determined in co-ordination with car manufacturers at the moment of redemption” 18. On 27 December 2000 the Government approved, by Resolution no. 1006, the State Programme for the redemption of the State internal debt of the Russian Federation arising from State commodity bonds in the period of 2001-2004. Paragraph 2 of the Programme set out that the State commodity bonds were to be redeemed by way of payment of pecuniary compensation. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 19. The applicant complained under Article 1 of Protocol No. 1 to the Convention about the quashing of the judgments of 1 and 30 April 2003 in his favour on supervisory review. This Article, in so far as relevant, reads as follows: 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.” 20. The Government argued that the supervisory review had not breached the Convention. It had been initiated by a party to the proceedings within less than one year from the judgments' entry into force. The supervisory review had aimed at remedying a fundamental defect of the first instance and appeal proceedings.", "The lower courts were not competent to rule on compliance of the provisions of the Federal Law of 2 June 2000 with the Constitution of the Russian Federation. Instead, they should have introduced a request for review of the constitutionality of the Federal Law in question with the Constitutional Court and suspend the proceedings pending delivery of the relevant ruling. However, they failed to make such request, and no suspension of the proceedings took place. Therefore, the examination of the applicants' cases before the lower courts was tarnished by a fundamental defect, namely abuse of power by the courts and jurisdictional error. In these circumstances, the quashing was the only available way to rectify the fundamental defect and to restore legal certainty in the present cases.", "The Government further reiterated that in July 2002 the applicant received compensation from the Ministry of Finance in the amount established by the domestic law. In their view, his subsequent claim in respect of the full monetary value of the car had been unfounded and therefore he had not had a “possession” within the meaning of Article 1 of Protocol No. 1. 21. The applicant maintained his claim arguing that he had been entitled to obtain the full monetary value of the car, but had never received that sum.", "A. Admissibility 22. The Court notes that the 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 existence of a debt confirmed by a binding and enforceable judgment constitutes the beneficiary's “possession” within the meaning of Article 1 of Protocol No. 1. Quashing of such a judgment amounts to an interference with his or her right to peaceful enjoyment of possessions (see, among other authorities, Brumărescu v. Romania [GC], no. 28342/95, § 74, ECHR 1999-VII, and Androsov v. Russia, no.", "63973/00, § 69, 6 October 2005). 24. At the outset the Court notes that in the Government's view the annulment of the judgments on supervisory review was required by the need to rectify a fundamental defect in the initial domestic proceedings. The Court reiterates its constant approach that a jurisdictional error, a serious breach of court procedure or abuses of power may, in principle, be regarded as a fundamental defect and therefore justify the quashing (see, mutatis mutandis, Luchkina v. Russia, no. 3548/04, § 21, 10 April 2008).", "However, nothing in the text of the Presidium's ruling of 14 October 2004 enables the Court to conclude that the lower courts' judgments were indeed quashed because these courts had ruled on the constitutionality of the federal law in excess of their jurisdiction. Neither the alleged jurisdictional error nor abuse of competence was cited by the Presidium as a ground for the annulment of the judgments of 1 and 30 April 2003. On the contrary, it clearly follows from the wording of the supervisory instance ruling that the sole ground for the quashing was the misinterpretation and incorrect application of the provisions of the State Commodity Bonds Act by the courts. Furthermore, it was not claimed before the supervisory-review instance by the respondent authority that the previous proceedings had been tarnished by a fundamental defect, such as, in particular, a jurisdictional error, serious breaches of court procedure or abuses of power (see Luchkina, cited above). Such argument was only advanced in the Government's observations.", "In the absence of any reference to the ground for quashing cited by the Government in the texts of the supervisory-instance ruling of 14 October 2004, the Court is unable to conclude that the quashing was caused, and even less justified by the substantive jurisdictional error by the lower courts. It therefore rejects the Government's argument. 25. The Court further observes that the applicant obtained a binding and enforceable judgment in his favour, by the terms of which the State was to pay him a substantial amount of money at the expense of the Federal Treasury. The Court further reiterates that the existence of a debt confirmed by a binding and enforceable judgment constitutes the beneficiary's “possession” within the meaning of Article 1 of Protocol No.", "1 (see, among other authorities, Androsov, cited above, § 69). However, he was prevented from receiving the award through no fault of his own. The quashing of the enforceable judgment frustrated the applicant's reliance on a binding judicial decision and deprived him of an opportunity to receive the money he had legitimately expected to receive. In these circumstances, even assuming that the interference was lawful and pursued a legitimate aim, the Court considers that the quashing of the enforceable judgment in the applicant's favour by way of supervisory review placed an excessive burden on the applicant and was incompatible with Article 1 of the Protocol No. 1.", "26. There has therefore been a violation of that Article. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 27. The applicant complained under Article 13 of the Convention that he had no effective remedy against the quashing of his final judgment on supervisory review and under Article 1 of Protocol No.", "1 about the State's failure to comply with its obligation to provide a car. 28. The Court has examined these complaints as submitted by the applicant. However, having regard to all the material in its possession, it finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 29. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 30. The applicant claimed 100,000 United States dollars (USD) in respect of non-pecuniary damage.", "31. The Government challenged the claim as unsubstantiated and manifestly excessive. 32. Having regard to the nature of the breach in this case, making its assessment on an equitable basis, the Court awards the applicant 3,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable, and dismisses the remainder of his claims for just satisfaction. B.", "Costs and expenses 33. The applicant did not claim costs or expenses and there is accordingly no call to make an award under this head. C. Default interest 34. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaint under Article 1 of Protocol No. 1 concerning the quashing of the final judgment in the applicant's favour admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 1 of Protocol No. 1 to 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, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles 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; 4.", "Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 1 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachChristos RozakisDeputy RegistrarPresident" ]
[ "SECOND SECTION CASE OF KURSHATSOVA v. UKRAINE (Application no. 41030/02) JUDGMENT STRASBOURG 29 November 2005 FINAL 29/02/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kurshatsova v. Ukraine, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrI. Cabral Barreto,MrV.", "Butkevych,MrsA. Mularoni,MrsE. Fura-Sandström,MsD. Jočienė,MrD. Popović, judges,and Mr S. Naismith, Deputy Section Registrar, Having deliberated in private on 8 November 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 41030/02) 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, Ms Olga Rudolfovna Kurshatsova (“the applicant”), on 15 October 2002. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Mrs V. Lutkovska. 3.", "On 21 January 2005 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1954 and lives in the town of Svitlovodsk, Kirovograd region, Ukraine.", "5. In 1999 the applicant instituted proceedings in the Svitlovodskiy Town Court against her former employer, the State-owned “VAT Chysti Metaly” company, to recover salary arrears. 6. On 2 November 1999 the court awarded the applicant UAH 970.37[1] in salary arrears. On 18 November 1999 the Bailiffs’ Service initiated enforcement proceedings.", "7. In February 2001, upon the applicant’s request, UAH 150 from the above judgment debt were transferred to the Municipal Heating Service to cover the applicant’s debt to the Service. 8. On 25 April 2002 the same court awarded the applicant UAH 1,333.37[2] in compensation for the delay in enforcement of the judgment of 2 November 1999. On 20 June 2002 the Bailiffs’ Service initiated enforcement proceedings.", "9. By letter of 16 October 2002, the local Bailiffs’ Service informed the applicant that the judgments in her favour could not be enforced due to the debtor’s lack of funds, and that the procedure for the forced sale of assets belonging to the debtor was blocked by the Law on the Introduction of a Moratorium on the Forced Sale of Property of 26 November 2001. 10. On 12 May 2003 the enforcement proceedings against the debtor were suspended due to the bankruptcy proceedings initiated against it. On 10 June 2004 the Dnipropetrovs’k Regional Commercial Court approved the recovery plan for the debtor.", "11. On 11 March 2005 the debtor made a postal money order in favour of the applicant for the outstanding debts under the judgments of 2 November 1999 and 25 April 2002. The applicant refused to receive the money, and 10 days later it was transferred to the account of the Bailiffs’ Service. 12. On 31 March 2005 the Bailiffs’ Service informed the applicant that she should provide them with details of her bank account, to which the money could be transferred.", "II. RELEVANT DOMESTIC LAW 13. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004). THE LAW 14.", "The applicant complained of an alleged failure by the State authorities to execute the judgments of 2 November 1999 and 25 April 2002 given in her favour. She invoked Article 6 § 1 of the Convention, and Article 1 of Protocol No. 1, which provide, insofar as relevant, as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” Article 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.” I. ADMISSIBILITY A. The Government’s preliminary objections 1. The applicant’s victim status 15. The Government considered that the applicant could no longer claim to be a victim of a violation of the Convention as the full amount of the judgment debts had been transferred to her, and the question of when to receive the money was entirely within her discretion.", "16. The applicant explained that she had refused to receive the money because she had not been offered any compensation for the delay in its payment. 17. The Court notes that the enforcement proceedings have not yet been formally completed, although the money was made available to the applicant on 11 March 2005. In the Court’s view, the Government can no longer be held responsible for the non-enforcement of the judgment after that date, since the applicant deliberately refused to receive the money.", "The Court therefore concludes that the applicant can no longer claim to be a victim in relation to the non-enforcement as such. 18. However, this belated transfer of the judgment debts to the applicant does not meet the applicant’s complaint concerning the undue length of the procedure, for which no acknowledgment or reparation were offered by the authorities. The Court considers therefore that the applicant may still claim to be a victim of an alleged violation of the rights guaranteed by Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in relation to the period during which the necessary funds were not made available to her (see Voytenko v. Ukraine, no.", "18966/02, § 35, 29 June 2004). 2. Non-exhaustion of domestic remedies 19. The Government contended that the applicant had not exhausted domestic remedies regarding the Bailiffs’ Service and the expedition of proceedings. They submitted examples of domestic case law in which people had successfully obtained compensation from the Bailiffs for delays in enforcement proceedings.", "20. The applicant disagreed. 21. The Court notes that a similar point has already been dismissed in a number of Court judgments (see Romashov v. Ukraine, no. 67534/01, § 31‑33, 27 July 2004).", "In such cases the Court has found that applicants were absolved from pursuing the remedies invoked by the Government. The domestic case law presented by the Government does not demonstrate such sufficient consistency as might enable the Court to reach a different conclusion as to the effectiveness of the domestic remedies in cases of the non-enforcement of judgments. 3. Conclusion 22. In these circumstances, the Court dismisses the Government’s preliminary objections.", "B. The applicant’s complaints 23. In the light of the parties’ submissions, the Court concludes that the applicant’s complaint under Article 6 § 1 of the Convention raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It finds no ground for declaring this part of the application inadmissible. For the same reasons, the applicant’s complaint under Article 1 of Protocol No.", "1 cannot be declared inadmissible. II. MERITS A. The applicant’s complaints under Article 6 § 1 of the Convention 24. The Government maintained that the delay in the enforcement of judgments had been caused by the difficult financial situation of the debtor and by the bankruptcy proceedings against it.", "They maintained that the Bailiffs performed all necessary actions to enforce the judgments and could not be held liable for the delays. They contended that there was no infringement of Article 6 § 1 of the Convention as the awarded sums were made available to the applicant. 25. The applicant did not submit any additional arguments to her original complaint. 26.", "The Court notes that the decisions of 2 November 1999 and 25 April 2002 remained unenforced respectively for five years and four months (November 1999 – March 2005) and two years and nine months (June 2002 – March 2005). It further notes that the full amount of the judgment debts was made available to the applicant after the communication of the application to the respondent Government. 27. The Court considers that by delaying for periods of more than two to five years the enforcement of the judgments in the applicant’s case, the authorities deprived the provisions of Article 6 § 1 of the Convention of much of their useful effect. The Court finds that the Government have not advanced any convincing justification for this delay (see Shmalko v. Ukraine, no.", "60750/00, judgment of 20 July 2004, § 45). 28. There has, accordingly, been a violation of Article 6 § 1 of the Convention. B. The applicant’s complaints under Article 1 of Protocol No.", "1 29. The Government in their submissions confirmed that the amount awarded to the applicant by the domestic courts constituted a possession within the meaning of Article 1 of Protocol No. 1. Nevertheless, the Government maintained that the provision had not been violated since the applicant’s entitlement to the award was not disputed and she was not deprived of her property. The Government noted that the delay in payment was due to the difficult economic situation of the coal industry and its restructuring.", "Therefore, in the Government’s opinion, the delay in enforcement was justified by the public interest of overcoming the economic crisis. 30. The applicant did not make any further comments in addition to her original complaint. 31. The Court recalls its case law that the impossibility for an applicant to obtain the execution of a judgment in his or her favour constitutes an interference with the right to the peaceful enjoyment of possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No.", "1 (see, among other authorities, Burdov v. Russia, no. 59498/00, § 40, ECHR 2002‑III; Jasiūnienė v. Lithuania, no. 41510/98, § 45, 6 March 2003). 32. In the instant case the Court is therefore of the opinion that the impossibility for the applicant to obtain the execution of her judgments for such a long time constituted an interference with her right to the peaceful enjoyment of her possessions, within the meaning of the first paragraph of Article 1 of Protocol No.", "1. 33. By failing to comply with the judgments of the Svitlovodsky Town Court, the national authorities prevented the applicant, for a considerable period of time, from receiving in full the money to which she was entitled. The Government have not advanced any convincing justification for this interference, and the Court considers that economic difficulties cannot justify such an omission. Accordingly there has also been a violation of Article 1 of Protocol No.", "1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 34. 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 1.", "Pecuniary damage 35. The applicant claimed in respect of pecuniary damage the judgment debts due to her, plus compensation for inflation losses, without specifying an amount. 36. The Government maintained that the judgment debts were available to the applicant and that she could not claim this amount twice. As to the claim for compensation for inflation, the Government maintained that the applicant could claim such compensation at the domestic level.", "37. The Court notes that the money from the judgments has been available to the applicant since April 2005 and, therefore, it rejects this part of the claim. As to the applicant’s claim for compensation for inflation losses, the Court notes that it is unspecified and not supported by any documents which would enable the Court to determine the amount. Consequently, the Court also rejects this part of the claim. 2.", "Non-pecuniary damage 38. The applicant further claimed USD 10,000[3] in respect of non-pecuniary damage. 39. The Government maintained that this claim is exorbitant and unsubstantiated. 40.", "The Court takes the view that the applicant has suffered some non-pecuniary damage as a result of the violations found which cannot be made good by the Court’s mere findings. Nevertheless, the amount claimed is excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 2,600 in respect of non-pecuniary damage. B. Costs and expenses 41.", "The applicant did not submit any claim under this head. The Court therefore makes no award. C. Default interest 42. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No. 1; 4. Holds (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 2,600 (two thousand six hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable; (b) that the above amount shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (c) 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 29 November 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. NaismithJ.-P. Costa Deputy RegistrarPresident [1] Around 160 euros (EUR) [2] Around EUR 220 [3] EUR 8,123.81" ]
[ "FOURTH SECTION CASE OF SZYDŁOWSKI v. POLAND (Application no. 1326/04) JUDGMENT STRASBOURG 16 October 2007 FINAL 16/01/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Szydłowski v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG.", "Bonello,MrL. Garlicki,MsL. Mijović,MrJ. Šikuta,MrsP. Hirvelä, judges,and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 25 September 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 1326/04) against the Republic of Poland 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, Mr Jan Szydłowski (“the applicant”), on 30 December 2003. 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.", "3. On 14 March 2006 the Court declared the application partly inadmissible and decided to communicate complaints concerning the length of the applicant's detention and the length of the criminal proceedings to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1970 and lives in Gdynia. The application was lodged on his behalf by his wife, Mrs Beata Szydłowska, who submitted a duly signed written authorisation from the applicant. A. The criminal proceedings against the applicant 5. On 17 March 2000 the Gdańsk District Court remanded the applicant in custody on suspicion of attempted armed robbery.", "It held that there was a reasonable risk that he would tamper with evidence. It also relied on the severity of the anticipated penalty. At the same time the applicant was detained on remand in respect of another, separate set of criminal proceedings (no. IV K 174/98). 6.", "On 6 June 2000 the Gdańsk Regional Court prolonged the applicant's detention until 17 September 2000. On 12 September 2000 the Regional Court extended that period until 15 December 2000. It relied on the complexity of the investigation, the need to obtain expert evidence and the severity of the anticipated penalty. It further found that detention on remand was the only measure which could secure the proper conduct of the proceedings and prevent the applicant from interfering with witnesses. On 5 December 2000 the Regional Court prolonged the applicant's detention until 17 March 2001, invoking the nature of the charges.", "7. The applicant was detained in connection with an investigation conducted by the Department of Organised Crime of the Gdańsk Regional Prosecutor's Office, in which several other persons had already been detained and charged. 8. On 7 March 2001 the Gdańsk Court of Appeal prolonged the applicant's detention until 31 May 2001. It relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged and the severity of the anticipated penalty.", "The Court of Appeal further held that detention on remand was the only measure which could secure the proper conduct of the proceedings, given the nature of the charges and the relations between the suspects who had acted in an organised group. It also considered that the prolongation of detention was justified by the need to obtain DNA evidence in order to corroborate evidence previously obtained. 9. On 15 May 2001 the prosecution filed a bill of indictment with the Gdańsk Regional Court. The applicant was charged with robbery and armed robbery which had been committed in an organised armed criminal group.", "The bill of indictment listed 118 charges brought against 19 defendants, who were all detained on remand. The case file comprised 114 volumes. The prosecution asked the court to hear evidence from 366 witnesses. 10. On 17 May 2001 the Gdańsk Regional Court ordered that the applicant be remanded in custody until 31 October 2001, finding that it was necessary in order to prevent him and his co-defendants from evading justice or tampering with evidence.", "It also referred to the complexity of the case stemming from the number of defendants and witnesses to be heard. 11. On 13 September 2001 the Gdańsk Regional Court refused the request of the applicant and two other defendants (J.N. and R.O.) to grant a severance order with a view to hearing their cases separately, and thus expediting the proceedings.", "Similar requests were refused on 23 January 2003 and 15 April 2003. 12. On 16 October 2001 the Regional Court prolonged the applicant's detention until 17 March 2002, finding that the grounds previously given for remanding him in custody were still valid. 13. The trial began on 28 December 2001.", "However, as of April 2002 the reading out of the bill of indictment by the prosecution had still not been concluded. Initially, the trial court held three hearings per month. As from June 2002 it decided to hold five hearings per month. 14. During the hearing held on 30 January 2002 the trial court ordered the removal of the applicant and some other defendants from the court room because of their disruptive behaviour.", "15. On 25 February 2002 the applicant attempted to commit suicide by hanging himself. He was hospitalised in the detention centre hospital from 25 February to 4 March 2002 and treated for a head injury. 16. During the hearing held on 27 February 2002 the applicant stated that he had a severe headache and was unable to participate in the hearing.", "The trial court ordered him to be examined by a doctor who found that the applicant could participate in the hearing. 17. On 13 March 2002 the Court of Appeal ordered that the applicant be remanded in custody until 30 September 2002. In addition to the grounds previously invoked, it found that the prolongation of detention was justified under Article 263 § 4 of the Code of Criminal Procedure by the particular complexity of the case. It further observed that the delays in the trial were partly attributable to some of the defendants who had attempted to disrupt the proceedings and, consequently, had had to be removed from the court room.", "Furthermore, the Court of Appeal held that no other preventive measure could secure the proper conduct of the trial. In that respect, the Court of Appeal observed that there was a reasonable risk that the applicant and other defendants would interfere with the proceedings, given the nature of the charges, the severity of the anticipated penalty and the fact that some of them had attempted to interfere with the proceedings in the course of the investigation. 18. On 11 September 2002 the Court of Appeal prolonged the applicant's detention until 31 December 2002. In addition to the grounds previously relied on, it held that the applicant's detention was justified under Article 258 § 2 of the Code of Criminal Procedure since that provision established a presumption to the effect that the likelihood of a severe penalty being imposed on the applicant might induce him to obstruct the proceedings[1].", "It also noted that the prolongation of detention was justified by the volume of evidence to be heard during the trial. 19. On 18 December 2002 the Gdańsk Court of Appeal ordered that the applicant be held in custody until 30 June 2003. On 25 June 2003 the Court of Appeal extended the applicant's detention until 31 December 2003, relying on the same grounds as previously. In addition, it observed that the trial could not be terminated earlier due to obstructiveness on the part of the defendants who had filed numerous requests challenging the trial court.", "It also noted that the trial court had taken various procedural steps in order to accelerate the proceedings. 20. On 11 December 2003 the Regional Court made an application under Article 263 § 4 of the Code of Criminal Procedure to the Gdańsk Court of Appeal, asking that the applicant's detention be prolonged beyond the statutory time-limit of 2 years – until 30 June 2004. On 17 December 2003 the Court of Appeal granted that application. The applicant appealed against that decision.", "21. On 29 January 2004 a different panel of the Court of Appeal amended the decision of 17 December 2003, holding that the Court of Appeal could not rule on the Regional Court's application of 11 December 2003, as that application had been premature. The Court of Appeal found that since in the other set of criminal proceedings (no. IV K 174/98) the applicant had been remanded in custody from 29 October 1997 to 3 October 2002, and subsequently had begun to serve his sentence, the period of the applicant's detention in the present case has not yet reached the statutory time-limit of two years. Consequently, a decision on the prolongation of the applicant's detention should be taken by the Regional Court.", "22. On 10 February 2004 the Regional Court ordered that the applicant be remanded in custody until 30 June 2004. It invoked the complexity of the case, the volume of evidence and the severity of the anticipated penalty. Having regard to the latter, it considered that the applicant might attempt to obstruct the proceedings. In addition, the Regional Court observed that up to April 2003, when the court commenced to hear evidence, the defendants had frequently attempted to obstruct the proceedings by filing numerous requests challenging the trial court.", "23. On 17 February 2004 the Regional Court informed the applicant that it was not feasible to schedule more than 5 hearings per month. 24. Subsequently, the Regional Court prolonged the applicant's detention on 29 June 2004 (until 31 December 2004), 27 December 2004 (until 30 June 2005) and 23 June 2005 (until 30 October 2005). In addition to the reasons invoked in its decision of 10 February 2004, the Regional Court relied on the exceptional nature of the case owing to the number of charges and defendants.", "25. During the trial the applicant filed numerous but unsuccessful applications for release and appealed, likewise unsuccessfully, against the decisions prolonging his detention. He maintained that the length of his detention was excessive and that the charges against him lacked a sufficiently strong basis. In a number of decisions refusing his applications for release (of 20 May 2003 and 20 January 2004), the Regional Court relied on the severity of the anticipated penalty. That factor, in the court's view, justified the conclusion that the applicant might attempt to obstruct the proceedings by absconding or interfering with witnesses.", "On that basis the Regional Court considered that other preventive measures would not be sufficient to secure the proper conduct of the proceedings. 26. On 21 March 2005 the trial court made a severance order with a view to expediting the proceedings, and thereafter four defendants (J.N., G.P., Z.S. and Z.C. ), who in the meantime had been released from detention, were to be tried separately.", "27. By June 2005 the trial court had held over 150 hearings and heard more than 400 witnesses. 28. After 20 June 2005 no hearing was held due to the serious illness of the judge rapporteur. On 21 September 2005 the President of the Criminal Section IV of the Gdańsk Regional Court assigned a new judge rapporteur.", "Consequently, the trial had to commence de novo. 29. On 20 October 2005 the Regional Court ordered the applicant's release under police supervision. It found that continued application of the most severe preventive measure was no longer justified since the trial had to commence de novo. 30.", "On 24 November 2005 the trial court made a further severance order and split the case into eleven separate cases. 31. On 19 September 2006 the Gdańsk Regional Court held that it had no jurisdiction to hear the case of the applicant and some other defendants and referred it to the Poznań Regional Court. On 29 January 2007 the latter court objected to the Gdańsk Regional Court's decision and referred the jurisdiction dispute to the Poznań Court of Appeal. On 13 February 2007 the Court of Appeal ruled that the applicant's case was to be heard by the Gdańsk Regional Court.", "It held that the referral of the case to the Poznań Regional Court at this stage of the proceedings would lead to unacceptable delays. It further noted that the case had lain dormant before the Gdańsk Regional Court from 24 November 2005 to 19 September 2006. 32. It appears that the proceedings against the applicant are still pending before the first-instance court. B.", "The applicant's complaint against the unreasonable length of proceedings 33. On 3 November 2004 the applicant filed with the Gdańsk Court of Appeal a complaint about a breach of his right to a trial within a reasonable time and asked for compensation. He relied on section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”). 34. The applicant submitted that the hearings in the case had been short and that a significant number of them had been cancelled.", "He further referred to numerous absences of witnesses and the fact that the trial court had failed to enforce discipline against those witnesses who had failed to appear. Lastly, he submitted that the trial court had refused his request for a severance order in respect of the charges against him. 35. On 28 December 2004 the Court of Appeal dismissed his complaint as unfounded, having regard to the criteria set out in section 2 § 2 of the 2004 Act, namely the conduct of the court and of the parties, the nature of the case, its factual and legal complexity and what was at stake in the proceedings for the complainant. 36.", "It admitted that some hearings had been short, but that had been due to the witnesses' absence or the need to take into account the defendants' health problems. However, there had been a number of hearings in the course of 2004 which had lasted until the late afternoon. Overall, the Court of Appeal considered that the isolated cases of hearings which had not been well prepared in advance could not undermine the substantial efforts of the trial court in handling the case. Furthermore, it considered that it could not be said that the exceptional cancellation of some hearings pointed to inactivity on the part of the trial court. 37.", "The Court of Appeal also found that the absences of certain witnesses referred to by the applicant had been justified; in other cases the trial court had taken steps to discipline unjustified absenteeism. It further considered that the joint examination of the charges against the defendants who had collectively committed a crime was justified under domestic law. 38. In conclusion, the Court of Appeal found that given the nature of the case, its complexity and the attitude of the defendants who, by filing numerous unsubstantiated procedural applications, had contributed to the delays in the trial, there was no ground to hold that the proceedings had been unreasonably long. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 39. The relevant domestic law and practice regarding the imposition of detention on remand (tymczasowe aresztowanie), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) at the material time are stated in the Court's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006. 40.", "The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12‑23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005‑VIII, and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 41. The applicant complained that the length of his detention on remand had been excessive. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 42. The Government contested that argument.", "A. Admissibility 43. 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. Period to be taken into consideration 44. The applicant's detention started on 17 March 2000, when he was detained on remand on suspicion of attempted armed robbery. It continued until 20 October 2005 when the applicant was released. Thus, the total period of his pre-trial detention in the present case comes to 5 years, 7 months and 5 days.", "45. However, between 3 October 2002 and 29 April 2004 the applicant served a prison sentence which had been imposed on him in other criminal proceedings. This term, being covered by Article 5 § 1 (a), must therefore be subtracted from the period of the applicant's pre-trial detention for the purposes of Article 5 § 3. 46. Accordingly, the period to be taken into consideration under Article 5 § 3 amounts to 4 years and 9 days.", "2. The parties' submissions (a) The applicant 47. The applicant argued that the length of his pre-trial detention had been unreasonable. In particular, he maintained that the court's decision to examine jointly all the charges against the very many defendants in one set of proceedings had resulted in the protracted examination of the case. In this respect he submitted that he had been charged with the commission of two offences with two defendants (A.Ł.", "and J.K.) and that he had had no links with other defendants. The applicant also maintained that his attempted suicide had been caused by the manner in which he had been treated by the trial court. (b) The Government 48. The Government argued that the period of the applicant's detention had not been excessive. Thy submitted that his pre-trial detention had been justified by the genuine risk that he would obstruct the proceedings, the gravity of the charges and the severity of the anticipated penalty.", "The necessity of the applicant's continued detention had been thoroughly examined by the courts which on each occasion had given sufficient reasons for their decisions. The applicant's case had been extremely complex on account of the number of charges and defendants and the volume of evidence. 49. Furthermore, the Government maintained that the defendants, including the applicant, had borne the main responsibility for the length of the trial by lodging numerous ill-founded applications and appeals. Lastly, they maintained that the authorities had displayed the requisite diligence in dealing with the applicant's case.", "3. The Court's assessment (a) General principles 50. The Court recalls that the general principles regarding the right “to trial within a reasonable time or to release pending trial”, as guaranteed by Article 5 § 3 of the Convention were stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110 et seq, ECHR 2000‑XI; and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further references).", "(b) Application of the above principles in the present case 51. In their detention decisions, the authorities, in addition to the reasonable suspicion against the applicant, relied principally on four grounds, namely (1) the serious nature of the charges against him, (2) the severity of the penalty to which he was liable and the consequential risk that he might obstruct the trial, (3) the risk that the applicant might abscond or interfere with witnesses, given the fact that he had been a member of a criminal gang and (4) the complexity of the case related to the number of defendants and volume of evidence to be heard. The domestic courts also referred to the obstructive behaviour of the defendants aimed at delaying the trial. 52. The applicant was charged with robbery and armed robbery committed in an organised and armed criminal group (see paragraph 9 above).", "In the Court's view, the fact that the case concerned a member of such a criminal group should be taken into account in assessing compliance with Article 5 § 3 (see Bąk v. Poland, no. 7870/04, § 57, ECHR 2007‑... (extracts)). 53. The Court accepts that the reasonable suspicion against the applicant of having committed the serious offences could initially warrant his detention. In addition, it notes that the authorities were faced with the difficult task of determining the facts and the degree of alleged responsibility of each of the defendants.", "In these circumstances, the Court also accepts that the need to obtain voluminous evidence from many sources, coupled with the fact that in the course of the investigation new suspects had been identified, constituted relevant and sufficient grounds for the applicant's initial detention. 54. However, with the passage of time, those grounds became less and less relevant. The Court must then establish whether the other grounds adduced by the courts were “relevant” and “sufficient” (see, Kudła cited above, § 111). 55.", "According to the authorities, the likelihood of a severe sentence being imposed on the applicant created a presumption that the applicant would obstruct the proceedings. They relied in this respect on the Supreme Court's resolution and its construction of Article 258 § 2 of the Code of Criminal Procedure (see paragraph 18 above). However, the Court would reiterate that, while the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending, the gravity of the charges cannot by itself justify long periods of detention on remand (see, for instance, Ilijkov v. Bulgaria, no. 33977/96, §§ 80-81, 26 July 2001). Having regard to the above, the Court cannot accept the position adopted by the judicial authorities in the present case, namely that the presumption referred to above would alone, after a certain lapse of time, justify the applicant's continued detention, without the need to indicate any concrete facts supporting the risk of obstruction of the proceedings.", "56. Furthermore, the judicial authorities relied on the fact that the applicant had been charged with being a member of an organised criminal gang. In this regard, the Court reiterates that the existence of a general risk flowing from the organised nature of the alleged criminal activities of the applicant may be accepted as the basis for his detention at the initial stages of the proceedings (see, Górski v. Poland, no. 28904/02, § 58, 4 October 2005) and in some circumstances also for subsequent prolongations of the detention (see, Celejewski, cited above, § 37). It is also accepted that in such cases, involving numerous accused, the process of gathering and hearing evidence is often a difficult task.", "Moreover, the Court considers that in cases such as the present concerning organised criminal gangs, the risk that a detainee, if released, might bring pressure to bear on witnesses or other co-accused, or might otherwise obstruct the proceedings, is by the nature of things often particularly high. The Court notes that certain delays during the trial were caused by the defendants' obstructiveness (see paragraphs 14, 19 and 22 above). 57. While all those above factors could justify even a relatively long period of detention, they did not give the domestic courts an unlimited power to prolong this measure. Even if the particular circumstances of the case required detention on remand to be extended beyond the period generally accepted under the Court's case-law, particularly strong reasons would be needed to justify this (Wolf v. Poland, nos.", "15667/03 and 2929/04, § 90, 16 January 2007). In this respect, the Court observes that the applicant was held in custody for 4 years and 9 days. 58. Having regard to the foregoing, even taking into account the fact that the courts were faced with the particularly difficult task of trying a case involving members of an organised criminal group, the Court concludes that the grounds given by the domestic authorities could not justify the overall period of the applicant's detention. In these circumstances it is not necessary to examine whether the proceedings were conducted with special diligence.", "59. There has accordingly been a violation of Article 5 § 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 60. The applicant complained that the length of the 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 ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 61.", "The Government contested that argument. 62. The period to be taken into consideration began on 17 March 2000 when the applicant was charged with attempted armed robbery. The proceedings are pending before the trial court. They have thus lasted 7 years, 6 months and 10 days for one level of jurisdiction.", "A. Admissibility 63. The Government submitted that since the applicant's complaint lodged under the 2004 Act had been dismissed on 28 December 2004, the applicant had a possibility to lodge another complaint about the length of the proceedings after a lapse of 12 months, according to section 14 of that Act. In a new complaint the applicant could have raised his arguments concerning the conduct of the courts after 28 December 2004. Therefore, in the Government's view, the subsequent period should not be taken into account by the Court in the assessment of the overall length of the proceedings. 64.", "The Court recalls that it has already established that the remedies provided by the 2004 Act were effective in respect of excessive length of criminal proceedings (see Charzyński v. Poland, cited above). However, the Court observes that the applicant's complaint was dismissed when the proceedings in his case had already been pending for 4 years and over 9 months. The Court does not consider it necessary for the applicant, in order to comply with the requirements of Article 35 § 1 of the Convention, to lodge a new complaint every 12 months (see Wolf v. Poland, cited above, § 62). 65. For this reason, the Government's plea of inadmissibility on the ground of non-exhaustion of domestic remedies with regard to the period after 28 December 2004 must be dismissed.", "66. The Court further 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 parties' submissions (a) The applicant 67. The applicant submitted that the authorities had been responsible for the delays in the proceedings. He criticised the trial court for having joined all the charges against numerous defendants in one set of proceedings and submitted that he had requested to have his case examined separately but to no avail. (b) The Government 68.", "The Government underlined that the case had been extremely complex. It had concerned an organised criminal group and 118 charges brought against 19 defendants. The trial court has heard so far about 400 witnesses. As of April 2006 the case file comprised more than 200 volumes. The Government relied on the volume of evidence obtained by the prosecuting authorities and on the difficulties in conducting the investigation, given the considerable number of defendants and victims, as well as the serious nature of the offences committed by the criminal gang.", "69. As regards the conduct of the authorities, the Government maintained that they had shown special diligence required in cases of detained persons, both at the investigative and the judicial phase of the proceedings. The trial court had held hearings at regular intervals, initially three, and subsequently five per month. Some of the hearings had to be adjourned due to the absence of witnesses and defence counsel, but the trial court had taken all available measures to ensure their presence at the hearings. Consequently, the Government maintained that there had been no delays in the proceedings for which the authorities could be held responsible.", "70. As to the applicant's conduct, the Government emphasised that the defendants had borne the main responsibility for the length of the proceedings. The conduct of the proceedings was hindered by the excessive exercise of procedural rights by the defendants and their defence counsel. They had lodged hundreds of applications and appealed against every decision, even when they had been informed that the appeal had been inadmissible. The trial court had been required to examine all those applications and the prolongation of the proceedings had thus been inevitable.", "Due to the defendants' attitude the hearing of evidence could only begin in April 2003. The Government referred in that respect to the Court of Appeal's decisions which had observed that the main reason for the delays in the proceedings until April 2003 had been the defendants' obstructiveness. In order to remedy that situation of intentional prolongation of the proceedings the trial court had decided to limit the time assigned for submission of procedural motions during every hearing. In the Government's view, the defendants' behaviour justified the conclusion that they had resorted to delaying tactics. 71.", "As regards the applicant, he had contributed significantly to the length of the proceedings by lodging numerous ill-founded applications and appeals. On many occasions he had challenged the trial court, made applications for a severance order or requested that a different legal-aid counsel be appointed for him. 2. The Court's assessment 72. 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). 73. The Court accepts the Government's argument that the case before the domestic authorities was undoubtedly complex. This is clearly shown, inter alia, by the number of defendants and volume of evidence obtained during the proceedings. During the investigation the prosecuting authorities gathered extensive documentary evidence.", "Numerous witnesses had to be interviewed. Even before the trial had commenced, the case file numbered 114 volumes, and the number reached 204 volumes by April 2006. 74. As regards the applicant's conduct, the Court observes that he lodged several requests for release and appealed against the court decisions prolonging his detention. It further notes that the defendants in the present case, including the applicant, certainly contributed to the length of the proceedings by having made frequent applications on procedural matters which, inevitably, led to delays in the examination of the case.", "The defendants' obstructiveness was referred to expressly on a few occasions by the domestic courts (see paragraphs 14, 19 and 22 above). While the applicant's conduct must have generated delays at the trial and cast doubt on his intention to have the proceedings concluded speedily, the Court cannot subscribe to the view that this factor could justify the entire length of the proceedings. 75. As to the conduct of the authorities, the Court notes that the trial court initially held three hearings per month. On 13 March 2002 the Court of Appeal directed the trial court to increase that number to five per month.", "The Court notes that otherwise hearings were held regularly and when they were adjourned it was normally for reasons not attributable to the court. Furthermore, the trial court took measures to ensure the presence of defence counsel and witnesses at the hearings. On the other hand, the Court cannot but note that following the judge rapporteur's illness and the subsequent change in the composition of the trial court some time after 21 September 2005 the trial had to commence de novo. 76. The Court further observes that on 28 December 2004 the Gdańsk Court of Appeal dismissed as unfounded the applicant's complaint about the breach of his right to a trial within a reasonable time.", "The Court of Appeal concluded that there had been no delays caused by the trial court's inactivity. The Court considers that the Court of Appeal in examining the applicant's complaint generally applied standards which were in conformity with the principles embodied in the Court's case-law. The Court discerns only one shortcoming in the review carried out by the Court of Appeal, namely that the latter did not regard the fact of the applicant's detention as a relevant factor for directing the trial court to conduct the proceedings with particular diligence. 77. In this connection, it recalls that persons kept in detention pending trial are entitled to “special diligence” on the part of the authorities.", "Consequently, in cases where a person is detained pending the determination of a criminal charge against him, the fact of his detention is itself a factor to be considered in assessing whether the requirement of a decision on the merits within a reasonable time has been met (see, for example, Abdoella v. the Netherlands, judgment of 25 November 1992, Series A no. 248-A, p. 17, § 24; Jabłoński v. Poland, no. 33492/96, § 102, 21 December 2000; Mõtsnik v. Estonia, no. 50533/99, § 40, 29 April 2003; Bąk v. Poland, cited above, § 81). 78.", "In this respect, the Court would point out that the duty to administer justice expeditiously was incumbent in the first place on the domestic authorities, especially given that during a substantial part of his trial (4 years and 9 days) the applicant remained in custody. Notwithstanding the significant difficulties which they faced in the present case, the domestic authorities were required to organise the trial efficiently and ensure that the Convention guarantees were fully respected in the proceedings. However, the Court notes that the trial, which has already lasted 6 years and over 4 months, appears to be still pending before the first-instance court. 79. Having regard to all the circumstances of the case and the overall length of the proceedings, the Court considers that the reasonable time requirement of Article 6 § 1 of the Convention has not been respected.", "Consequently, there has been a violation of this provision. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 80. 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 81.", "The applicant claimed 30,000 euros (EUR) in respect of pecuniary and non-pecuniary damage for both alleged violations. He referred to the deterioration of his health which had resulted from the excessive length of pre-trial detention and the maintenance arrears which had accrued during that time. 82. The Government submitted that the applicant's claims were exorbitant and speculative and should be rejected. In respect of the complaint under Article 5 § 3, they argued that a finding of a violation constituted in itself sufficient just satisfaction.", "Alternatively, should the Court find a violation of Article 5 § 3 and a violation of Article 6 § 1, they invited the Court to assess the amount of just satisfaction on the basis of its case-law in similar cases and having regard to national economic circumstances. 83. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. In respect of the non-pecuniary damage, the Court notes that it has found a violation of Article 5 § 3 on account of the excessive length of pre-trial detention and a violation of Article 6 § 1 on account of the unreasonable length of the proceedings. The applicant's claims were submitted in respect of both those violations.", "The Court considers that the applicant has suffered some non-pecuniary damage which is not sufficiently compensated by the finding of the above violations of the Convention. Considering the circumstances of the case, in particular that the facts which gave rise to both violations overlap to a certain extent and making its assessment on an equitable basis, the Court awards the applicant EUR 3,000 under this head. B. Costs and expenses 84. The applicant also claimed EUR 250 for the costs of photocopying documents and postage incurred in the proceedings before the Court.", "85. The Government submitted that the applicant had not produced any documents to confirm his claim. 86. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant, who was not represented by a lawyer, the sum of EUR 100 under this head.", "C. Default interest 87. 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 that there has been a violation of Article 6 § 1 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 3,000 (three thousand euros) in respect of non-pecuniary damage and EUR 100 (one hundred euros) in respect of 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 16 October 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L.", "EarlyNicolas BratzaRegistrarPresident [1]. The Court of Appeal relied on the decision of the Supreme Court of 19 November 1996, no. IV KZ 119/96, published in OSP 1997 no. 4, item 74." ]
[ "SECOND SECTION CASE OF JÁVOR AND OTHERS v. HUNGARY (Application no. 11440/02) JUDGMENT STRASBOURG 23 May 2006 FINAL 23/10/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Jávor and Others v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrI.", "Cabral Barreto,MrsA. Mularoni,MrsE. Fura-Sandström,MsD. Jočienė,MrD. Popović, judges,MrS.", "Naismith, Deputy Section Registrar Having deliberated in private on 2 May 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 11440/02) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Hungarian nationals, Mr István Jávor, Mrs Istvánné Jávor, Mr Csongor Jávor and Ms Diana Jávor (“the applicants”), on 23 October 2001. 2. The Hungarian Government (“the Government”) were represented by their Agent, Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.", "3. On 25 August 2005 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the proceedings. 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 4. The applicants were born in 1954, 1955, 1986 and 1990, respectively, and live in Budapest.", "5. The applicants are husband and wife and their son and daughter. In December 1987 the parents travelled to Cuba on a trip organised by a travel agency. On 13 December 1987 the tourist group had dinner at a restaurant where they were served poisonous sea food. As a consequence, the muscles and the nervous systems of the first and the second applicant were seriously damaged which caused 67% disability.", "6. In 1988 the first applicant brought an action against the travel agency in the Budapest II/III District Court claiming damages. The case was then transferred to the competent Pest Central District Court. 7. In an interim judgment (közbenső ítélet), on 23 March 1990 the District Court established the travel agency’s responsibility.", "After a hearing on 11 June 1993, in a partial judgment (részítélet) of 15 June 1993, it ordered the defendant to pay 600,000 Hungarian forints plus interest to the first applicant, but dismissed his claims for non-pecuniary damage. 8. In the continued proceedings, the District Court held hearings on 16 February, 11 May, 23 September and 9 December 1994, 7 July and 6 October 1995, 17 May 1996, and 9 May and 16 July 1997. The Government stated that further hearings took place on 16 January and 17 April 1998. 9.", "On 24 April 1998 the court delivered a decision ordering the defendant to pay damages and an allowance to the first applicant. 10. On appeal, on 10 December 1998 the Budapest Regional Court confirmed the first-instance decision. The applicant filed a petition for review on 27 January 1999. 11.", "On 30 March 2001 the Supreme Court dismissed the petition. This decision was served on 18 June 2001. 12. Meanwhile, on 14 January 1998 all four applicants brought an action in the Pest Central District Court against the travel agency claiming further damages. Subsequently, the case was transferred to the Budapest II/III District Court.", "On 15 November 1998 the applicants requested in vain that their case be retransferred to the Pest Central District Court in order to facilitate the proceedings. 13. The Budapest II/III District Court held hearings on 27 May 1999 and 19 May 2000. On 27 June 2000 it decided to transfer the case to the Buda Central District Court. However, the file was transferred to the Pest Central District Court by mistake.", "It therefore only reached the Buda Central District Court on 27 September 2000. 14. On 28 March 2001 the Buda Central District Court declared its lack of competence and transferred the case to the Budapest Regional Court. 15. On 29 June 2001 the Regional Court declared its lack of competence and transferred the file to the Supreme Court for the appropriate delegation.", "16. On 17 February 2002 the Supreme Court appointed the Buda Central District Court to hear the case. 17. On 22 April 2002 the District Court established that the proceedings had been stayed since 28 March 2002 because the summonses could not be served on the plaintiffs. 18.", "On 18 October 2002 the court observed that the case had ceased to exist on 28 September 2002, ipso iure, after a stay of six months. This decision became final on 2 January 2003. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 19. The applicants complained that the length of both proceedings had been incompatible with the “reasonable time” requirement of 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...” 20.", "The Government contested that argument. 21. In the first case (see paragraphs 6 to 11 above), the period to be taken into consideration only began on 5 November 1992, when the recognition by Hungary of the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The Court observes that the case had already been pending for about four years on that date.", "The period in question ended on 18 June 2001. It thus lasted more than eight years and seven months for three levels of jurisdiction. 22. In the second case (see paragraphs 12 to 18 above), the period to be taken into consideration began on 14 January 1998 and ended on 2 January 2003. It thus lasted almost five years for three levels of jurisdiction.", "A. Admissibility 23. The Court notes that the complaint concerning the respective lengths of these proceedings 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 24. 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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 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).", "26. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present case. In respect of the second case, the Court notes in particular that, although the overall length of the proceedings was not especially excessive, it took the domestic authorities more than four years to determine the court competent to hear the case. Furthermore, particular importance should be attached to the fact that the subject matter of the cases was compensation for a disabling illness. Having regard to its case-law on the subject, the Court considers that in the instant case the length of both proceedings was excessive and failed to meet the “reasonable time” requirement.", "There has accordingly been a breach of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 27. 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 28.", "Concerning the first case, the first applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage. Concerning the second case, the first and the second applicant claimed EUR 5,000 each; moreover, the third and the fourth applicant each claimed altogether EUR 25,000 plus accrued interest, in respect of non-pecuniary damage. 29. The Government contested these claims. 30.", "The Court considers that the applicants must have sustained some non-pecuniary damage. Ruling on an equitable basis, it awards EUR 7,000 to the first applicant and EUR 2,000 to each of the second, third and fourth applicants under that head. B. Costs and expenses 31. The first applicant also claimed EUR 200 for the costs and expenses incurred before the Court.", "32. The Government did not express an opinion on the matter. 33. The Court considers that the sum claimed is reasonable and should be awarded in full. C. Default interest 34.", "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 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, (i) the first applicant, EUR 7,000 (seven thousand euros) in respect of non-pecuniary damage and EUR 200 (two hundred euros) in respect of costs and expenses; (ii) the second, third and fourth applicants EUR 2,000 (two thousand euros) each in respect of non-pecuniary damage; (iii) plus any tax that may be chargeable on these sums; and (iv) which amounts are to be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 23 May 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. NaismithJ.-P. CostaDeputy RegistrarPresident" ]
[ "THIRD SECTION CASE OF SADRETDINOV v. RUSSIA (Application no. 17564/06) JUDGMENT STRASBOURG 24 May 2016 FINAL 24/08/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sadretdinov v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Helena Jäderblom,Helen Keller,Johannes Silvis,Dmitry Dedov,Branko Lubarda,Pere Pastor Vilanova, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 3 May 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "17564/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Fail Khusyainovich Sadretdinov (“the applicant”), on 20 April 2006. 2. The applicant was represented by Mr I. Yavorskiy and Ms E. Liptser, lawyers practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicant alleged, in particular, that the conditions of his detention had been appalling, that he had not received adequate medical care in detention, that his lengthy detention on remand had lacked justification, and that two of his appeals against detention orders had not been examined. 4. On 30 April 2010 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1969 and lived until his arrest in Moscow, having worked as a notary. A. Murder case 6. On 22 November 2003 the Khamovnicheskiy district prosecutor in Moscow opened a criminal investigation into the attempted murder of a certain Mr P. Police officers questioned the applicant. Two months later the case was closed in view of the finding that there was no actus reus.", "7. On 15 April 2005 the criminal case was reopened and joined to the criminal proceedings instituted in respect of the killings of Mr Paul Khlebnikov, the founding editor of the Russian edition of Forbes magazine, and Mr Yan Sergunin, a former Deputy Prime Minister of Chechnya. Only two weeks separated the two murders, which were believed to have been connected in light of the fact that Mr Khlebnikov had been in contact with Mr Sergunin not long before his death. 1. Arrest and detention 8.", "On 24 May 2005 the applicant was arrested on suspicion of having organised the murders. Two days later the Basmannyy District Court, Moscow, (“the District Court”) authorised his detention during the investigation, having assessed the gravity of the charges and the risk of the applicant absconding, reoffending and interference with witness. 9. On 21 July 2005 the District Court extended the applicant’s detention until 9 October 2005, citing the gravity of the charges and the particular complexity of the case, and having looked into the state of the applicant’s health and not considering it to be serious enough to justify his release. The District Court found that other measures of restraint could not be applied because the circumstances which had prompted the applicant’s arrest had not changed.", "10. The pre-trial investigation was completed on 31 August 2005, and a week later the applicant and his lawyers commenced reading the thirty‑seven-volume case file. 11. In September 2005 an investigator lodged an application with the District Court, seeking a further extension of the applicant’s detention, in particular because the defence had not yet completed its study of the case file. 12.", "On 27 September 2005 the court extended the applicant’s detention until 9 December 2005, having noted, inter alia, that the applicant had only read three, and his lawyer nine, volumes and that they therefore needed additional time. The court also reiterated its previous reasoning invoking the gravity of the charges against the applicant and his ability to hamper the proceedings if released. In addition it noted that the applicant’s personal and family situation, as well as his state of health, did not outweigh the reasons for his continued detention. 13. Having finished studying the file, on 22 November 2005 the applicant was committed to stand trial before the Moscow City Court (“the City Court”).", "14. On 1 December 2005 the City Court scheduled a preliminary hearing and collectively extended the applicant’s and his co-defendants’ detention for an unspecified period. In so doing, the court merely referred to the absence of any change in the circumstances which had initially prompted the accuseds’ detention. 15. After the preliminary hearing the City Court authorised a trial by jury, fixed the first trial hearing for 29 December 2005 and once more collectively extended the detention of the defendants, including the applicant, for an unspecified period of time, again citing exclusively the gravity of the charges.", "16. During a hearing of 15 February 2006 the applicant’s lawyer asked the City Court to release the applicant, arguing that his detention pending trial was not based on sufficient and valid reasons and was therefore in breach of Article 5 § 3 of the Convention. The court refused to release the applicant because the grounds which had been cited in the previous orders extending his detention had not ceased to exist. 17. The applicant appealed against the decision of 15 February 2006.", "His statement of appeal bears the stamp of the City Court and indicates that it was lodged on 21 February 2006. Seventeen days later his lawyer received a letter from the presiding judge, stating that the appeal could not be accepted because Russian procedural law did not provide for the possibility to appeal against intermediate decisions issued by a trial court. 18. In a hearing on 4 April 2006 the applicant’s lawyers again asked the City Court to release him, stating that his health had seriously deteriorated. The court refused the request, using wording identical to that of its decision of 15 February 2006.", "19. The applicant’s lawyers appealed. A stamp on the appeal statement indicates that it reached the City Court on 12 April 2006. Five days later the court returned the statement to the lawyers, noting that the decision of 4 April 2006 was not amenable to appeal. 20.", "A similar request for release was lodged by the applicant’s lawyers on 19 April 2006. That request was also refused by the City Court, which ruled that the detention had been lawfully authorised on 6 December 2005 and that there were no grounds for changing the measure of restraint. 21. On 6 May 2006 the City Court acquitted the applicant and his co‑defendants of all charges and ordered their immediate release. 2.", "Conditions of detention and transport 22. After the arrest the applicant was placed in remand prison no. IZ‑77/5 in Moscow (“the remand prison”). He argued that the conditions of his detention between 31 January and 7 February 2006 had been appalling. The facility had been overcrowded and his cell had been dirty and in a deplorable state.", "23. The applicant also complained about the conditions surrounding his transport to and from the courthouse. According to a certificate issued by the detention authorities on 30 July 2010, as well as the daily transport schedule submitted by the Government, on court hearing dates the applicant had risen at 6 a.m. At around 8 a.m. he had been put in a prison van and had been taken to the court house. He had come back to the remand prison at 10 p.m. Given his late return to the remand prison and subsequent body search, the applicant had allegedly only been able to go to bed at around midnight.", "24. On 21 March 2006 the lawyer complained to the escorting service about the late return of the applicant to the remand prison. The complaint was left unanswered. Six days later the lawyer requested the District Court not to hold hearings on Wednesdays in order to provide the applicant with the possibility to rest. The court agreed that at least one working day per week should be left free for the applicant to recover and prepare for forthcoming hearings.", "25. Between 15 February and 6 May 2006 the applicant took part in thirty-six hearings, with the hearings taking place on no more than four days per week. 3. Medical treatment 26. In 1998 the applicant suffered a craniocerebral injury; in 1999 he was treated in the S.P.", "Botkin Clinical Hospital in Moscow, where he was diagnosed with post-traumatic encephalopathy accompanied by hypertension-hydrocephalus syndrome, disorder of cerebrospinal fluid dynamics, vestibular coordination disorders, and symptomatic epilepsy characterised by frequent systemic convulsive attacks. The following year he was certified as having a second-degree disability. 27. The parties provided differing descriptions of the applicant’s health problems and his treatment in the remand prison. (a) The Government’s version 28.", "According to the Government, the applicant had not had any particular health problems in detention, save for his having lost consciousness once while being transported in a prison van. He had also attempted to commit suicide. The Government stressed that he had not suffered any epileptic fits and had been regularly seen by prison doctors. 29. The medical file submitted by the Government shows that on admission to the remand prison on 8 June 2005 the applicant had undergone a basic medical check-up comprising blood tests, a chest X-ray and a consultation with a prison paramedic.", "Having interviewed the applicant, the paramedic had noted that he had a second-degree disability. According to the medical entry, the applicant had denied having epileptic seizures. A recommendation to request the applicant’s full medical history had been made. 30. In February 2006 the applicant had attempted to commit suicide by cutting his wrist.", "The prison paramedic had treated the cut. 31. A prison paramedic had visited the applicant several times, mostly before and after his transport to the courthouse, each time noting that he was healthy. 32. Once, on 12 April 2006, the applicant had been seen by a prison doctor after he had lost consciousness in a prison van.", "The doctor had diagnosed him with neurocirculatory dystonia and given him Corvalol. 33. During the second set of the criminal proceedings (see paragraph 43 below) the applicant had been placed in remand prison no. 77/1 in Moscow, where his epilepsy had received medical attention. (b) The applicant’s version 34.", "According to the applicant, the medical records had not reflected his actual state of health in detention. His frequent epilepsy seizures had been disregarded by the authorities. 35. On 30 October 2005 nine of the applicant’s cellmates had lodged a complaint with the detention authorities, noting the applicant’s poor health and their (that is to say, the cellmates’) inability to cope with the applicant’s health problems. According to the detainees, the applicant had had frequent epileptic seizures.", "Once he had fallen from the upper tier of his bunk, injuring himself and a cellmate. As a result of another seizure, he had inadvertently poured hot water over himself. The inmates had also submitted that he often talked to himself or with an imaginary interlocutor. Fearing that they might be held responsible for the applicant’s injuries sustained during the seizures, his cellmates had asked the authorities to provide him with adequate medical care and, if necessary, to admit him to a medical institution. 36.", "Medical certificates issued by emergency medical teams called to see the applicant on 14 October 2005 and 30 March 2006 on account of his epileptic seizures had indicated that the applicant had been found by the paramedics in a post-seizure condition and provided with medication. 37. The applicant had further alleged that the authorities had not provided him with the required medical attention or drugs necessary to treat his epilepsy or at least to decrease the frequency of seizures, of which they had been fully aware. Certain drugs had been sent to him by his family or friends. 38.", "The applicant’s lawyer had interviewed three inmates who had shared a cell with the applicant between June 2005 and May 2006. They had consistently stated that the applicant’s epilepsy had been known to the detention authorities, including the resident doctor. The applicant had been initially assigned the upper-tier bunk, but on the doctor’s recommendation, he had been allowed to move to the lower tier to reduce the risk of injuries during seizures. The inmates testified to either having seen the applicant suffering a seizure or having heard about them. They also confirmed that the applicant’s family had sent him parcels with medication, which he had taken under the supervision of the resident doctor.", "(c) Requests for medical examination 39. On 12 October 2005 the applicant’s lawyer sent a letter to the Prosecutor General’s office asking it to authorise a complex psychological and psychiatric examination of the applicant. The lawyer insisted that the applicant’s health had seriously deteriorated during his detention, that his convulsive episodes had become too frequent, that the applicant had started suffering from occasional visual and auditory hallucinations, that he had difficulty concentrating and had experienced memory loss, and so on. Two days later the request was refused as unsubstantiated. The applicant appealed.", "On 4 April 2006 the District Court rejected that appeal on the merits. 40. In the meantime, on 24 October 2005, in view of the deterioration of the applicant’s health, his lawyer requested the head of the remand prison and the Prosecutor General’s office to authorise a complex medical examination of the applicant by doctors from the S.P. Botkin Clinical Hospital and experts from the Main State Centre of Forensic Medical and Criminological Examinations. The head of the remand prison replied that the applicant was under the supervision of a prison doctor and that he was afforded any necessary out-patient treatment.", "His state of health was stable and did not require admission to a hospital. In addition, it was noted that a request for a medical examination of an inmate by civil medical specialists could only be authorised by the investigating authorities. According to the response of the Prosecutor General’s office there was no necessity to authorise a medical examination as there was no evidence that the applicant’s health had deteriorated. 41. On 31 March 2006 the applicant’s lawyer unsuccessfully asked the City Court to authorise a complex medical examination of the applicant.", "B. Fraud case 42. On 6 May 2006 an investigator from the Moscow City prosecutor’s office instituted criminal proceedings against the applicant. The investigating authorities alleged that between June 2002 and February 2003 the applicant, acting in his official capacity as a notary, together with two other individuals, had forged a will and had fraudulently acquired a flat belonging to the deceased. 43.", "On 11 May 2006 the applicant was arrested and on the following day the Zamoskvoretskiy District Court authorised his detention on remand, which was further extended on a number of occasions. 44. On 31 January 2007 the Preobrazhenksiy District Court found the applicant guilty of aggravated fraud, abuse of position and property laundering and sentenced him to nine years’ imprisonment. On 12 November 2007 the City Court upheld the judgment on appeal, amending the legal classification of the offences and reducing the sentence to eight years’ imprisonment. II.", "RELEVANT DOMESTIC LAW A. Health care of detainees 45. The relevant provisions of the domestic and international law on general health care of detainees are set out in the following judgments: Vasyukov v. Russia (no. 2974/05, §§ 36-50, 5 April 2011), and Khudobin v. Russia (no. 59696/00, § 56, 26 October 2006, ECHR 2006‑XII (extracts)).", "B. Extension of detention 46. The Russian legal regulations in respect of detention during judicial proceedings are explained in the judgments of Pyatkov v. Russia (no. 61767/08, § 59, 13 November 2012), and Isayev v. Russia (no. 20756/04, §§ 67-80, 22 October 2009).", "C. Proceedings on the lawfulness of detention 47. The Russian legal regulations regarding proceedings on the lawfulness of the detention are laid down in the judgment of Chuprikov v. Russia (no. 17504/07, §§ 42-45, 12 June 2014). THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF DETENTION AND ARTICLE 5 § 3 OF THE CONVENTION ON ACCOUNT OF THE DETENTION BETWEEN 11 MAY 2006 AND 31 JANUARY 2007 48.", "By a letter on 30 September 2015, the Government submitted a unilateral declaration with a view to resolving issues raised under Article 3 and Article 5 § 3 of the Convention. The declaration read as follows: “I, ..., the Representative of the Russian Federation at the European Court of Human Rights, hereby declare that the Russian Government acknowledge that [the applicant] between 31 January and 7 February 2006 was detained in the IZ-77/5 facility in Moscow in conditions which did not comply with the requirements of Article 3 of the Convention, ... without well-founded justification, in violation of Article 5 § 3 of the Convention; between 11 May 2006 and 31 January 2007 he was detained, in violation of Article 5 § 3 of the Convention. The Government are ready to pay the applicant the sum of EUR 4,400 by way of just satisfaction. The Government therefore invite the Court to strike the present case out of the list of cases. They suggest that the present declaration might be accepted by the Court as [falling under] “any other reason” justifying striking the case out of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention The sum referred to above, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be free of any taxes that may be applicable.", "It will be payable within three months of the date of notification of the decision taken by the Court, pursuant to Article 37 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and shall be converted into Russian roubles at the rate applicable as at the date of payment. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points. This payment will constitute the final resolution of the case.” 49. The applicant did not respond to the Government’s offer. 50.", "The Court reiterates that Article 37 § 1 (c) of the Convention enables it to strike a case out of its list if: “... for any other reason established by the Court, it is no longer justified to continue the examination of the application”. 51. It also points out that, in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. 52. To this end, the Court will examine the declaration carefully in the light of the principles established in its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey (preliminary objections) [GC], no.", "26307/95, §§ 75-77, ECHR 2003-VI; Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007; and WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007). 53.", "The Court is satisfied that the Government did not dispute this part of the allegations made by the applicant and explicitly acknowledged the breaches of Articles 3 in respect of the conditions of his detention and of Article 5 § 3 of the Convention in respect of the detention on remand during the second set of criminal proceedings against him. 54. As to the intended redress to be provided to the applicant, the Government have undertaken to pay 4,400 euros (EUR) by way of just satisfaction. The Court notes that the proposed sum is not unreasonable in comparison with similar cases (see Cocchiarella v. Italy [GC], no. 64886/01, § 105, ECHR 2006‑V).", "The Government have committed themselves to effecting payment of that sum within three months of the Court’s decision, with default interest to be payable in the event of a delay in settlement. 55. The Court has repeatedly found violations of Articles 3 and 5 § 3 of the Convention on account of inadequate conditions of detention in Russian custodial facilities (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012) and the excessively long pre-trial detention of applicants without relevant and sufficient reasons (see, among many other authorities, Kalashnikov v. Russia, no. 47095/99, §§ 104-21, ECHR 2002‑VI).", "It follows that the complaints raised in the present application are based on the clear and extensive case-law of the Court. 56. The Court further notes that the Committee of Ministers remains competent to supervise, in accordance with Article 46 § 2 of the Convention, the implementation of the judgments concerning the same issues. Therefore, the Court is satisfied that respect for human rights, as defined in the Convention (Article 37 § 1 in fine), does not require it to continue the examination of this part of the application. In any event, the Court’s decision is without prejudice to any decision it might take to restore, pursuant to Article 37 § 2 of the Convention, this part of the application to its list of cases should the Government fail to comply with the terms of their unilateral declaration (see Josipović v. Serbia (dec.), no.", "18369/07, 4 March 2008, and Aleksentseva and 28 Others v. Russia (dec.), nos. 75025/01 et al., 23 March 2006). The Court thus considers that it is no longer justified to continue the examination of the case in this part. 57. In view of the above, it is appropriate to strike out of the list the part of the application concerning the inhuman and degrading conditions of the applicant’s detention in the remand prison between 31 January and 7 February 2006 and the lack of relevant and sufficient reasons for his detention on remand in the period between 11 May 2006 and 31 January 2007.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE ADEQUANCY OF MEDICAL CARE 58. The applicant complained that he had not been afforded adequate medical treatment in detention. He relied on Article 3 of the Convention, which reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 59.", "The Government argued that the administrative authorities of the remand prison had not been aware of the applicant’s epilepsy and had not recorded any episodes of epileptic seizures. They argued that the applicant had been subjected to regular medical examinations in detention and had been provided with the required medical care. 60. The applicant argued that the authorities had not ensured his thorough medical examination by competent doctors, that his epileptic seizures had not been recorded and that he had not received any treatment in that respect. He supported his arguments with written statements by inmates, as well as the medical records made by the ambulance teams (see paragraphs 35, 36 and 38 above).", "B. The Court’s assessment 1. Admissibility 61. The Court further notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits (a) General principles in respect of the Court’s evaluation of the facts and the burden of proof 62. In cases in which there are conflicting accounts of events, the Court is inevitably confronted, when establishing the facts, with the same difficulties as those faced by any first-instance court. It reiterates that, in assessing evidence, it has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard.", "Its role is to rule not on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention ‑ conditions its approach to the issues of evidence and proof. In proceedings before the Court there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. In accordance with its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.", "Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012, and the cases cited therein). 63. Furthermore, it should be pointed out that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio (that is to say, the principle that the burden of proof lies on the person making the allegation in question).", "The Court reiterates its case-law under Articles 2 and 3 of the Convention to the effect that – where the events at issue lie within the exclusive knowledge of the authorities, as in the case of persons under their control in custody – strong presumptions of fact will arise in respect of injuries, damage and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII; and Oleg Nikitin v. Russia, no. 36410/02, § 45, 9 October 2008).", "In the absence of such an explanation the Court can draw inferences which may be unfavourable for the respondent Government (see, for instance, Buntov v. Russia, no. 27026/10, § 161, 5 June 2012, and Orhan v. Turkey, no. 25656/94, § 274, 18 June 2002). (b) General principles as regards the standards of medical care for detainees 64. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society.", "It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill‑treatment must, however, attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).", "65. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 of the Convention (see Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002-III, with further references). 66.", "The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure of deprivation of liberty do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000‑XI, and Popov v. Russia, no. 26853/04, § 208, 13 July 2006). In most cases concerning the detention of sick people, the Court has examined whether or not the applicant received adequate medical care in prison. The Court reiterates in this regard that even though Article 3 of the Convention does not entitle a detainee to be released “on compassionate grounds”, it has always interpreted the requirement to ensure that the health and well-being of detainees are adequately secured as an obligation on the part of the State to provide detainees with the requisite medical assistance (see Kudła, cited above, § 94; Khudobin, cited above, § 96; and Kalashnikov v. Russia, no.", "47095/99, § 95, ECHR 2002-VI). 67. The “adequacy” of medical assistance remains the most difficult element to determine. The Court insists, in particular, that authorities must ensure that diagnosis and care are prompt and accurate (see Khatayev v. Russia, no. 56994/09, § 85, 11 October 2011; Yevgeniy Alekseyenko v. Russia, no.", "41833/04, § 100, 27 January 2011; Gladkiy v. Russia, no. 3242/03, § 84, 21 December 2010; Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 115, 29 November 2007; Melnik v. Ukraine, no. 72286/01, §§ 104-06, 28 March 2006; and, mutatis mutandis, Holomiov v. Moldova, no. 30649/05, § 121, 7 November 2006) and that – where necessitated by the nature of a medical condition ‑ supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at successfully treating the detainee’s health problems or preventing their aggravation (see Hummatov, cited above, §§ 109 and 114, and Sarban v. Moldova, no.", "3456/05, § 79, 4 October 2005). The Court reiterates that medical treatment within prison facilities must be appropriate and comparable to the quality of treatment which the State authorities have committed themselves to providing for the entirety of the population. Nevertheless, this does not mean that each detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see Blokhin v. Russia [GC], no. 47152/06, § 137, 23 March 2016, and Cara‑Damiani v. Italy, no. 2447/05, § 66, 7 February 2012).", "68. On the whole, the Court reserves a fair degree of flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008). (c) Application of the above principles to the present case 69.", "Turning to the circumstances of the present case, the Court observes that the parties submitted conflicting descriptions of the applicant’s state of health and the treatment afforded to him. The applicant stated that he had suffered from epileptic seizures and that the authorities, while aware of his condition, had remained idle. The Government argued that the applicant had not informed the authorities of his epilepsy and that he had not had any seizures in detention. 70. The Government based their arguments on the applicant’s medical records, drawn up by a prison paramedic, which did not contain any entries related to the applicant’s epilepsy (see paragraphs 29-32 above).", "71. The applicant challenged the completeness and validity of the records, relying on the written complaint to the detention authorities by the nine inmates (see paragraph 35 above) and the records of the interviews with the three detainees (see paragraph 38 above). The statements described the applicant’s grave health condition and several instances of an epileptic seizure. Two of the episodes of epileptic seizures had occurred during the court hearings and were recorded by the emergency teams in attendance at the time (see paragraph 36 above). 72.", "The above facts accord with the applicant’s previous medical history of epilepsy. Taken together, it refutes the Government’s allegations that the authorities had been unaware of the applicant’s medical condition, and in particular his epilepsy (and the fact that he experienced occasional epileptic seizures) and accordingly his need for anti-epilepsy treatment. The Court therefore accepts that the medical records of the applicant drawn up by the prison paramedic were incomplete and did not reflect his actual state of health. It will accordingly draw inferences from the authorities’ failure to keep proper medical records in the applicant’s case. 73.", "The Court further observes that upon his admission to the remand prison the applicant informed the medical authorities of his disability (see paragraph 29 above). However, this did not prompt the prison authorities to look into the nature of that disability; nor did it prompt them to try to obtain the applicant’s previous medical history, despite the fact that it had been explicitly recommended that this be requested (see paragraph 29 above). The applicant was placed in a regular prison facility. For months after his arrest his health was monitored, mostly by a prison paramedic, who, for unknown reasons, completely disregarded the applicant’s condition and did not record the epileptic seizures which occurred, according to the evidence before the Court, on several occasions – both in the remand prison and in the court house. In this respect, the Court would note that although the emergency teams’ records were attached to the applicant’s medical file, the prison medical authorities took no account of the contents of those records.", "74. Moreover, as can be seen from the inmates’ statements, the applicant demonstrated other disturbing tendencies in his behaviour, which were most probably linked to the state of his health and which could not have remained unnoticed by the authorities, particularly in view of the fact that they had received the inmates’ complaint to that effect. It appears that the authorities did not give any weight to the seriousness of the applicant’s seizures and the accompanying risks, ranging from trauma to the detrimental effect of repeated seizures on the brain and even sudden, disease-related death. In these circumstances, the Court also finds that the lack of any information in the prison record about the applicant’s medical treatment in detention leads to the conclusion that he was not subjected to any medical examination and that he did not receive the treatment required for his epilepsy. The situation was further aggravated by the authorities’ persistent refusals to authorise an in-depth medical examination of the applicant to assess the state of his illness and to formulate the appropriate anti-epilepsy therapy (see paragraphs 39-41 above).", "75. Accordingly, the Court notes a grave failure on the part of the Russian authorities to acknowledge the applicant’s medical needs and afford him the appropriate level of the medical care in detention. As a result of the authorities’ failure to provide the applicant with the medical care he needed he was exposed to prolonged mental and physical suffering, diminishing his human dignity. The authorities’ failure amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention. 76.", "Accordingly, there has been a violation of Article 3 of the Convention on that account. III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION ON ACCOUNT OF THE DETENTION BETWEEN 24 MAY 2005 AND 6 MAY 2006 77. The applicant complained that his pre-trial detention had been counter to the “reasonable time” requirement set out in Article 5 § 3 of the Convention, which reads, in so far as relevant, as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A.", "The parties’ submissions 78. The Government submitted that the applicant’s pre-trial detention had been based on relevant grounds. The domestic courts had taken into account the fact that he had been charged with a serious crime, and that there would have been a risk of his absconding or hampering the investigation if he had been release. Having duly assessed the applicant’s personal situation, the state of his health and the diligence of the investigative authorities, the domestic courts had complied with the requirements of the Convention. 79.", "The applicant maintained his complaint. He considered that his pre‑trial detention had not been based on relevant and sufficient reasons. He claimed that the detention orders had lacked any sound ground and had been issued without an in-depth assessment of the circumstances of his case. B. The Court’s assessment 1.", "Admissibility 80. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2.", "Merits (a) General principles 81. The persistence of reasonable suspicion that the person arrested has committed an offence is a conditio sine qua non for the lawfulness of his or her continued detention, whatever other grounds may exist. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds are found to have been “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings. The presumption is in favour of release.", "As the Court has consistently held, the second limb of Article 5 § 3 of the Convention does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continued detention ceases to be reasonable. A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify his or her continued detention (see, among other authorities, Castravet v. Moldova, no. 23393/05, §§ 30 and 32, 13 March 2007; McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006-X; Jabłoński v. Poland, no.", "33492/96, § 83, 21 December 2000; and Neumeister v. Austria, 27 June 1968, § 4, Series A no. 8). Article 5 § 3 of the Convention cannot be seen as unconditionally authorising detention provided that it lasts no longer than a certain period. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003‑I (extracts)).", "82. It is incumbent on the domestic authorities to establish the existence of specific facts relevant to the grounds for continued detention. Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see Rokhlina v. Russia, no. 54071/00, § 67, 7 April 2005, and Ilijkov v. Bulgaria, no. 33977/96, §§ 84-85, 26 July 2001).", "The national judicial authorities must examine all the facts arguing for or against the existence of a genuine public interest requirement justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty, and must set them out in their decisions dismissing the applications for release. It is not the Court’s task to establish such facts and take the place of the national authorities which ruled on the applicant’s detention. It is essentially on the basis of the reasons given in the domestic courts’ decisions and of the established facts mentioned by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Korchuganova v. Russia, no. 75039/01, § 72, 8 June 2006; Ilijkov, cited above, § 86; and Labita, cited above, § 152). (b) Application to the present case 83.", "The applicant was arrested on 24 May 2005 and was released on 6 May 2006. The period to be taken into consideration therefore lasted for more than eleven months. 84. The Court has already, on a large number of occasions, examined applications against Russia raising similar complaints under Article 5 § 3 of the Convention in respect of the Russian courts’ failure to provide sufficient and relevant grounds for applicants’ detention (see, among many others, Dirdizov v. Russia, no. 41461/10, §§ 108-11, 27 November 2012; Valeriy Samoylov v. Russia, no.", "57541/09, 24 January 2012; Romanova v. Russia, no. 23215/02, 11 October 2011; Khodorkovskiy v. Russia, no. 5829/04, 31 May 2011; Sutyagin v. Russia, no. 30024/02, 3 May 2011; Logvinenko v. Russia, no. 44511/04, 17 June 2010; Goroshchenya v. Russia, no.", "38711/03, 22 April 2010; Gultyayeva v. Russia, no. 67413/01, 1 April 2010; Makarenko v. Russia, no. 5962/03, 22 December 2009; Lamazhyk v. Russia, no. 20571/04, 30 July 2009; Avdeyev and Veryayev v. Russia, no. 2737/04, 9 July 2009; Aleksandr Makarov v. Russia, no.", "15217/07, 12 March 2009; Matyush v. Russia, no. 14850/03, 9 December 2008; Belov v. Russia, no. 22053/02, 3 July 2008; Shukhardin v. Russia, no. 65734/01, 28 June 2007; Mishketkul and Others v. Russia, no. 36911/02, 24 May 2007; Ignatov v. Russia, no.", "27193/02, 24 May 2007; Solovyev v. Russia, no. 2708/02, 24 May 2007; Pshevecherskiy v. Russia, no. 28957/02, 24 May 2007; Mamedova v. Russia, no. 7064/05, 1 June 2006; Rokhlina v. Russia, no. 54071/00, 7 April 2005; Panchenko v. Russia, no.", "45100/98, 8 February 2005; and Khudoyorov v. Russia, no. 6847/02, ECHR 2005-X (extracts)). Each time, having found a violation of Article 5 § 3 of the Convention, the Court noted the fragility of the reasoning employed by the Russian courts to authorise an applicant’s remaining in custody. From case to case it pointed out the following major defects in the courts’ argumentation: reliance on the gravity of the charges as the primary source to justify the risk of the applicant’s absconding; a suspicion, in the absence of any evidentiary basis, that the applicant would tamper with witnesses or use his connections in state bodies to obstruct justice; a failure to thoroughly examine the possibility of applying another, less rigid, measure of restraint, such as bail; and the collective extension of the applicant’s and his co-defendants’ detention without due regard to the individual circumstances of each of the accused. 85.", "The Court observes that the Russian courts did not avoid that pattern of reasoning in the present case. They consistently relied on the gravity of the charges and the possibility of the applicant absconding and obstructing justice, having based their fear on the same set of assumptions as in the cases cited above. The Court notes that, while accepting the investigators’ allegations that the applicant was likely to avoid or pervert the course of justice, the courts gave no heed to important and relevant facts that supported the applicant’s pleas for liberty and reduced the risks of absconding or collusion. Those the Court can identify include the applicant’s fragile health, his strong community ties, and the lack of any evidence that he had ever attempted to contact the victims or witnesses in the course of the criminal proceedings. In these circumstances, the Court concludes that the domestic courts failed to analyse the applicant’s personal situation and to give detailed and specific reasons, supported by evidentiary findings, for holding him in custody.", "86. Having regard to the above, the Court considers that by failing to refer to specific relevant facts or to properly consider alternative “preventive measures”, the authorities extended the applicant’s detention on grounds which cannot be regarded as “sufficient”. They thus failed to justify the applicant’s continued deprivation of liberty for a period of almost a year. It is hence not necessary to examine whether the proceedings against the applicant were conducted with due diligence during that period, as such a lengthy period cannot in the circumstances be regarded as “reasonable” within the meaning of Article 5 § 3 of the Convention (see Pekov v. Bulgaria, no. 50358/99, § 85, 30 March 2006).", "87. There has therefore been a violation of Article 5 § 3 of the Convention on account of the applicant’s detention between 24 May 2005 and 6 May 2006. IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 88. The applicant complained that he had been denied the right to an effective judicial review of the court decisions of 15 February and 4 April 2006 rejecting his application for release.", "He relied on Article 5 § 4 of the Convention, which provides as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. The parties’ submissions 89. The Government submitted that the applicant’s case file did not contain any information supporting the applicant’s submission that he had appealed against the decision of 15 February 2006. They further submitted that Russian law did not provide the applicant with an avenue for appealing the decisions in question, as they were intermediate court decisions rendered in the course of the trial. They alleged that there had been no violation of the applicant’s rights under Article 5 § 4 of the Convention.", "90. The applicant maintained his complaints. B. The Court’s assessment 1. Admissibility 91.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) General principles 92.", "The Court reiterates that Article 5 § 4 of the Convention entitles arrested or detained persons to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty. This means that the competent court has to examine not only compliance with the procedural requirements of domestic law but also the reasonableness of the suspicion underpinning the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention (see Grauslys v. Lithuania, no. 36743/97, § 53, 10 October 2000). In order to satisfy the requirements of Article 5 § 4 of the Convention, a “review of the lawfulness of the applicant’s detention” must comply with both the substantive and the procedural rules of the national legislation and moreover be conducted in conformity with the aim of Article 5 of the Convention, namely to protect the individual against arbitrariness (see Keus v. the Netherlands, 25 October 1990, § 24, Series A no. 185-C).", "(b) Application of those principles in the present case 93. Turning to the circumstances of the present case the Court firstly observes, as regards the Government’s argument that the applicant did not appeal against the decision of 15 February 2006, that he provided the Court with a copy of the appeal statement bearing the stamp of the Moscow City Court. He also submitted the City Court’s letter informing him of the refusal to grant leave to appeal. Therefore the Court has no doubt that the impugned appeal statement was in fact lodged. 94.", "The Court further observes that the City Court refused to examine the appeal against the decisions of 15 February and 4 April 2006, having concluded that they were not amenable to appeal as they had been issued in the course of the trial (see paragraphs 17 and 19 above). 95. The Court has already examined a similar issue in the cases of Makarenko (cited above, §§ 121-25) and Chuprikov (cited above, §§ 83-87). In these cases it considered that, in violation of Article 5 § 4 of the Convention, the applicants’ appeals had not received an adequate judicial response. The Court sees no reason to reach a different conclusion in the present case.", "It follows that there has been a violation of Article 5 § 4 of the Convention on account of the failure to examine the applicant’s appeals against the decisions of 15 February and 4 April 2004 refusing the requests for his release from detention. V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 96. The applicant complained under Article 3 of the Convention of the authorities’ failure to ensure that he enjoyed eight hours’ sleep on court hearing days. The Court has already examined a similar issue in the case of Bagel v. Russia (no. 37810/03, § 70, 15 November 2007), concluding that the six hours’ sleep afforded to the applicant in that case on the days of his participation in court hearings did not reach the threshold proscribed by Article 3 of the Convention.", "Turning to the circumstances of the present case, the Court sees no reason to reach a different conclusion. The applicant had no less than six hours of sleep per night. Moreover, the authorities took steps to ensure that he had enough sleep during at least three nights per week (when he did not take part in court hearings). The Court also does not lose sight of the fact that Wednesdays were chosen as days to allow the applicant to recover from participating in court proceedings and any possible shortage of sleep suffered during the week. Lastly, the situation only continued for a short period of time during the trial.", "Accordingly, this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. 97. The Court has also examined other complaints submitted by the applicant. However, having regard to all the material in its possession, and in so far as those complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be also rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 98. 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 99. The applicant did not claim compensation for pecuniary or non‑pecuniary damage.", "100. Accordingly, the Court considers that there is no call to award him any sum on that account. B. Costs and expenses 101. The applicant claimed 3,150 euros (EUR) for legal services.", "102. The Government argued that the claim was ill-founded. 103. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Given that Mr Yavorskiy and Ms Liptser represented the applicant throughout the proceedings before the national authorities and before the Court, having prepared a number of submissions in the applicant’s defence, the Court considers it reasonable to award the sum claimed in full, plus any tax that may be chargeable to the applicant on that amount.", "C. Default interest 104. 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. Decides, having regard to the terms of the Government’s declaration, and the modalities for ensuring compliance with the undertakings referred to therein, to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it concerns the complaints under Articles 3 and 5 § 3 of the Convention about the inhuman and degrading conditions of the applicant’s detention in remand prison no. IZ-77/5 in Moscow between 31 January and 7 February 2006 and the lack of relevant and sufficient reasons for his detention on remand between 11 May 2006 and 31 January 2007; 2.", "Declares the complaint under Article 3 of the Convention concerning the lack of adequate medical assistance in detention, the complaint under Article 5 § 3 of the Convention in respect of the period of the applicant’s detention from 24 May 2005 to 6 May 2006, and the complaint under Article 5 § 4 of the Convention admissible, and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 3 of the Convention on account of the lack of adequate medical assistance in detention; 4. Holds that there has been a violation of Article 5 § 3 of the Convention on account of the applicant’s detention between 24 May 2005 and 6 May 2006; 5. Holds that there has been a violation of Article 5 § 4 of the Convention; 6. 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 3,150 (three thousand one hundred and fifty euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant on that amount.", "This amount is to be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above 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 24 May 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsLuis López GuerraRegistrarPresident" ]
[ "FIFTH SECTION CASE OF KUTSENKO v. UKRAINE (No. 2) (Application no. 2414/06) JUDGMENT STRASBOURG 3 February 2011 This judgment is final but it may be subject to editorial revision. In the case of Kutsenko v. Ukraine (no. 2), The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Mark Villiger, President,Karel Jungwiert,Isabelle Berro-Lefèvre, judges,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 11 January 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 2414/06) 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, Mrs Tamara Ananyevna Kutsenko (“the applicant”), on 21 September 2004. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice. 3.", "On 10 February 2010 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1960.", "She died in June 2008. Her widower, Mr Kutsenko Oleh Mykolayovych, submitted that he wished to pursue the application. 5. On 14 June 2000 the applicant lodged a claim with the Bahliyskyy District Court of Dniprodzerzhynsk (“the Bahliyskyy Court”) against the State Bailiffs’ Service. She sought compensation for pecuniary and non‑pecuniary damage allegedly caused by lengthy non-enforcement of two judgments given in her favour against a State enterprise.", "The debtor State enterprise participated in the proceedings as a third party. 6. On 10 July 2001 the Bahliyskyy Court found no fault on the part of the Bailiffs and rejected the applicant’s claims. 7. On 26 November 2001 the Dnipropetrovsk Regional Court of Appeal quashed the judgment of 10 July 2001 because of the failure of the first‑instance court to assess all the circumstances of the case and to give reasons for its decision and remitted the case for fresh examination.", "8. On 25 September 2003 the Bahliyskyy Court rejected the applicant’s claims. It noted that the judgments of 15 March 2000 and 25 February 2001 had been enforced in full on 6 July 2000 and 5 April 2002, respectively, and found no fault on the part of the Bailiffs for the alleged lengthy enforcement of the judgments. 9. On 30 June 2004 the Dnipropetrovsk Regional Court of Appeal rejected the applicant’s appeal which she had to re-submit on two occasions in order to comply with procedural requirements and upheld the judgment of 25 September 2003.", "10. On 26 July 2004 the applicant appealed in cassation. 11. On 29 May 2007 the Crimea Court of Appeal, acting as a court of cassation, found no grounds to review the applicant’s case in cassation. 12.", "In the course of the proceedings before the first-instance court the applicant supplemented her claims on four occasions. Six times the proceedings were adjourned on the applicant’s request or because of her or her representative’s failure to appear which in total caused a delay of about six months. Sixteen times the proceedings were adjourned because of other participants’ (respondent, third party, experts) failure to appear or on their requests and on two occasions because of the absence of the judge which in total caused a delay of one year and five months. THE LAW I. AS TO THE LOCUS STANDI OF MR KUTSENKO 13.", "The applicant’s widower, Mr Kutsenko, expressed the wish to pursue the application following the applicant’s death. He submitted that he was the applicant’s heir. 14. The Government submitted that Mr Kutsenko did not present any documents to prove that he was the applicant’s heir. Mr Kutsenko maintained that he was the applicant’s heir.", "15. The Court recalls that in a number of cases in which applicants died in the course of the proceedings, the Court has taken into account the statements of their heirs or of close family members expressing the wish to pursue the proceedings before the Court. This is particularly the case concerning applications which were introduced by applicants themselves and only continued by their widows after the applicants’ death (see, for example, Stojkovic v. “the former Yugoslav Republic of Macedonia”, no. 14818/02, §§25-26, 8 November 2007; and Ivanovski and Others v. “the former Yugoslav Republic of Macedonia”, no. 34188/03, §§ 15 and 18, 26 November 2009).", "16. The Court therefore finds that the applicant’s widower has standing to pursue the application. It will therefore continue dealing with the case at request of Mr Kutsenko. However, reference will still be made to the applicant throughout the ensuing text. II.", "THE COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS 17. The applicant complained that the length of the 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 ...” 18. The Government contested that argument. 19. The period to be taken into consideration began on 14 June 2000 and ended on 29 May 2007.", "It thus lasted six years, eleven months and fifteen days for three levels of jurisdiction. A. Admissibility 20. 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 21. 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). 22.", "Turning to the facts of the present case, the Court notes that the case was not that complex to justify the overall length of the proceedings of about six years and eleven months. While it is true that the applicant caused some delays in the proceedings, substantial delays were caused by other participants in the proceedings all of which represented the State or the State-owned entity (see paragraphs 6 and 13 above). In this connection the Court notes that no appropriate steps were taken by the domestic authorities to ensure their compliance with the procedural obligation of attending the court hearings (see Golovko v. Ukraine, no. 39161/02, § 62, 1 February 2007). The Court further observes that the applicant’s appeal in cassation was pending examination for two years and ten months without any acceptable justification for this (see paragraphs 11 and 12 above).", "The Court therefore concludes that the State authorities bear the primary responsibility for the excessive length of the proceedings in the present case. 23. 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; Voishchev v. Ukraine, no. 21263/04, §§ 25-37, 19 February 2009; and Buryak v. Ukraine, no. 1866/04, §§ 21-22, 19 February 2009).", "24. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. III.", "OTHER COMPLAINTS 25. The applicant also complained under Articles 1, 6, 13 and 34 of the Convention and Article 1 of Protocol No. 1 about the outcome of the proceedings and that the Bailiffs had failed to enforce in due time the judgments against the State enterprise. The applicant further complained of unfairness of the cassation proceedings and alleged lack of access to a court on account of the ruling given on 29 May 2007. 26.", "In the light of the materials in its possession, the Court finds that the applicant’s complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 27. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28.", "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 29. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage. 30. The Government contested the claim.", "31. The Court considers that the applicant must have sustained non‑pecuniary damage on account of the excessive length of the civil proceedings in her case. Ruling on an equitable basis, it awards EUR 1,200 under this head to Mr Kutsenko. B. Costs en expenses 32.", "The applicant did not submit any claim for costs and expenses. Accordingly, the Court makes no award under this head. C. Default interest 33. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaint under Article 6 § 1 of the Convention concerning the length of the proceedings 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 Mr Kutsenko, within three months, EUR 1,200 (one thousand two hundred euros) in respect of non‑pecuniary damage, plus any tax that may be chargeable, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 3 February 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stephen PhillipsMark VilligerDeputy Registrar President" ]
[ "FIRST SECTION CASE OF JARMUŻ v. POLAND (Application no. 63696/12) JUDGMENT STRASBOURG 13 June 2019 This judgment is final but it may be subject to editorial revision. In the case of Jarmuż v. Poland, The European Court of Human Rights (First Section), sitting as a Committee composed of: Pere Pastor Vilanova, President,Krzysztof Wojtyczek,Pauliine Koskelo, judges,and Renata Degener, Deputy Section Registrar, Having deliberated in private on 21 May 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 63696/12) against the Republic of Poland 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, Mr Michał Jarmuż (“the applicant”), on 19 September 2012.", "2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs. 3. On 7 July 2015 notice of the application was given to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1966 and is detained in Włocławek. A. First set of proceedings 5. Criminal proceedings against the applicant concerning charges of leading an organised criminal gang, assault and extortion have been pending since 29 September 2005 (case no.", "IV K 59/09, Łódź Regional Court). B. Second set of proceedings 1. The criminal proceedings 6. On 1 October 2009 the applicant was arrested and detained on remand.", "7. On 2 March 2010 the applicant was indicted before the Łódź Regional Court. The bill of indictment was directed against the applicant and twenty‑two co-accused charged with over 900 offences in total. The applicant was charged on thirty-eight counts with respect to various offences related to stealing cars, dealing in drugs, assaults and burglaries, in the context of an organised criminal gang. 8.", "At a session on 23 November 2010 the trial court decided to sever the remainder of the case from the proceedings against the applicant, which would be dealt with at a separate trial and joined with other charges brought against him. In consequence, the proceedings against the applicant were to be transferred to another division of the Łódź Regional Court. The decision pertaining to the competence of the court was quashed on 14 December 2010. On 28 December 2010 the trial court extended the applicant’s detention on remand. On 4 February 2011 the proceedings were stayed pending the outcome of another trial, but that decision was quashed upon appeal on 16 March 2011.", "The case was transferred to the relevant division of the court in March 2011, and thereafter the presiding judge scheduled the beginning of the trial for 14 September 2011 and undertook other preparative actions (such as tracing the addresses of some twelve witnesses). During the proceedings the applicant lodged multiple procedural requests which were examined by the trial court. In particular, he asked for adjournments of hearings, asked for new evidence to be admitted, and challenged a judge and a prosecutor. 9. The Łódź Regional Court held about twenty-four hearings in total and on 13 May 2013 convicted the applicant and sentenced him to nine years’ imprisonment.", "10. The applicant appealed against the judgment. 11. A hearing of the appellate court scheduled for 15 April 2014 was cancelled due to the absence of the applicant’s lawyer. 12.", "On 12 June 2014 the Łódź Court of Appeal allowed the applicant’s appeal in part and reduced his sentence to eight years’ imprisonment. The applicant lodged a cassation appeal. 13. On 17 December 2014 the Supreme Court dismissed the cassation appeal. 2.", "Proceedings under the 2004 Act 14. The applicant lodged two complaints under the Law of 17 June 2004 on complaints of breaches of the right to have a case examined in an investigation conducted or supervised by a prosecutor, and in judicial proceedings, without undue delay (ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki - “the 2004 Act”). 15. On 7 September 2011 the Łódź Court of Appeal dismissed the first complaint. The court, relying on the Convention principles, ruled that, taking into account the complexity of the case, the length of the proceedings had not been excessive.", "During the period under consideration the trial court had prepared diligently for trial by, for instance, securing the presence of a large number of witnesses who had been summoned from various detention facilities. 16. On 28 November 2012 the Łódź Court of Appeal dismissed the applicant’s second complaint. The court examined the course of the proceedings and ruled that there had been no delays on the part of the courts. It noted that the trial court had taken many procedural decisions requested by the parties, including the applicant.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 17. A detailed description of the relevant domestic law and practice concerning remedies for excessive length of judicial proceedings – in particular, the applicable provisions of the 2004 Act – is set out in the Court’s decisions in the cases of Charzyński v. Poland ((dec.), no. 15212/03, §§ 12-23, ECHR 2005-V) and Ratajczyk v. Poland ((dec.), no. 11215/02, ECHR 2005-VIII), and in its judgments in the cases of Krasuski v. Poland (no.", "61444/00, §§ 34-46, ECHR 2005-V (extracts)) and Rutkowski and Others v. Poland (nos. 72287/10 and 2 others, §§ 75-107, 7 July 2015). THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION 18. The applicant complained of the excessive length of the proceedings in his cases and, under Article 13 of the Convention, of lack of effective remedy for the excessive length of proceedings.", "He relied on Article 6 § 1 and Article 13 of the Convention, which, in so far as relevant, provide: Article 6 “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.” A. First set of proceedings 19. By a letter dated 13 July 2017 the Government informed the Court that they proposed to make a unilateral declaration with a view to partly resolving the issues raised by the application. The Government acknowledged a violation of Article 6 § 1 on account of the excessive length of the first set of criminal proceedings against the applicant and a violation of Article 13 on account of the lack of an effective remedy securing sufficient redress for a violation of Article 6 § 1. They offered payment to the applicant in the sum of 9,180 Polish złotys.", "The Government further undertook to adopt a range of general measures in respect of other persons who were victims of similar violations or might be affected by similar violations in the future. The sum referred to above is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, and is to be paid free of any taxes that may be applicable. It would be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of failure to pay this sum within the said three-month period, the Government undertook to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. In addition, the Government made a declaration as to general measures to be adopted in the implementation of the Rutkowski and Others v. Poland pilot judgment (no.", "72287/10 and 2 others, 7 July 2015 – see Załuska and Rogalska v. Poland (dec.), nos. 53491/10 and 72286/10, §§ 23-25, 20 June 2017). They further requested the Court to strike out this part of the application in accordance with Article 37 of the Convention. 20. On 27 February 2018 the applicant indicated that he was not satisfied with the terms of the unilateral declaration.", "21. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under Article 37 § 1 (a), (b) or (c). In particular, Article 37 § 1 (c) enables the Court to strike a case out of its list if “for any other reason established by the Court, it is no longer justified to continue the examination of the application.” 22. It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the case to be continued. 23.", "To this end, the Court has examined the declarations in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no.", "28953/03, 18 September 2007). 24. The conclusions reached by the Court on the admissions and undertakings contained in the Government’s declarations in the first group of 400 cases submitted in the pilot-judgment procedure also apply to the present case (see Załuska and Rogalska, cited above, §§ 51-53). 25. Having regard to the nature of the admissions contained in the Government’s declarations, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the complaint relating to the first set of proceedings (Article 37 § 1 (c)).", "26. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of that complaint (Article 37 § 1). 27. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the complaint can be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).", "28. In view of the above, it is appropriate to strike this part of the application out of the list. B. Second set of proceedings 1. Article 6 § 1 of the Convention (a) Admissibility 29.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. (b) Merits 30. The applicant complained in general that the length of the second set of criminal proceedings had been unreasonable.", "He argued that he had not contributed to the length of the proceedings as he had had the right to make use of his procedural rights. 31. The Government contested the allegation and considered that there had been no violation of the Convention. The Government submitted that the proceedings had been particularly complex as they had concerned twenty-three defendants charged with some 900 offences in total. Although later on the trial court had severed the case against the applicant from the rest in order to facilitate the proceedings, it had nevertheless remained complex owing to the large number of charges that had been brought against the applicant.", "The courts dealing with the case had been diligent and there had been no significant periods of inactivity attributable to the domestic authorities. At the initial stage, the domestic court took many procedural steps in particular in 2010 decided that another court should be competent to deal with the case and in 2011 stayed the proceedings. Moreover, although the Government acknowledged that the applicant had not substantially contributed to the total length of the proceedings, he had nevertheless lodged multiple unsubstantiated procedural requests. A few hearings had been adjourned due to either his or his lawyer’s absence. 32.", "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 conduct of the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II, and Kuśmierek v. Poland, no. 10675/02, § 62, 21 September 2004). 33. The Court firstly notes that the period to be taken into consideration began on 1 October 2009 and ended on 17 December 2014.", "The proceedings thus lasted five years and two months at three levels of jurisdiction. 34. Considering the nature of the case, the Court accepts the Government’s arguments that it was complex and that the domestic courts dealt with a vast amount of evidence (see paragraph 31 above). The allegations against the applicant were very serious and included charges of acting within an organised criminal gang (see paragraph 6 above). 35.", "As regards the conduct of the applicant, the Court notes that the Government agreed that the applicant had not substantially contributed to the prolongation of the proceedings (see paragraph 31 above). 36. As to the conduct of the authorities, the Court first observes that the bill of indictment was submitted to the Regional Court on 2 March 2010 and that the first hearing on the merits was held on 14 September 2011. The Court notes that this period amounted to eighteen months, which contributed significantly to the overall length of the proceedings. As regards the diligence of the authorities during the above period, the Court is not persuaded by the Government’s arguments that it had been necessary to transfer the case to another court or to stay the proceedings.", "Those decisions of the domestic authorities were flawed and were quashed upon appeal (see paragraph 8 above). The Court considers that for a period of over eighteen months the domestic authorities concentrated on technical and administrative measures and not on the examination of the merits of the criminal case against the applicant. The necessity of those measures, which delayed the examination of the case, was not sufficiently justified by the Government. 37. The Court takes note of the subsequent efforts of the trial and appellate courts to finish the trial against the applicant (see paragraphs 9 and 11 above).", "However, that final consolidation of the court’s actions cannot make up for the previous delays (see Rutkowski and Others, cited above, § 139). 38. Accordingly, having regard in particular to the delays occurring at the initial stage of the proceedings, the Court considers that in the present case there has been a violation of Article 6 § 1 of the Convention on account of the unreasonable length of the second set of the proceedings. 2. Article 13 of the Convention 39.", "The applicant further submitted that he had had no effective domestic remedy in respect of the protracted length of the second set of proceedings in his case. 40. The Government contested the allegation that there had been a breach of this provision of the Convention. 41. 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.", "However, the “effectiveness” of a “remedy” within the meaning of that provision does not depend on the certainty of a favourable outcome for the applicant (see Kudła v. Poland [GC], no. 30210/96, §§ 154 et seq., ECHR 2000-XI). 42. While the subsidiarity principle underlying the Convention system requires the Contracting States to introduce a mechanism addressing complaints about the excessive length of proceedings within the national legal system, they are afforded – subject to compliance with the requirements of the Convention – some discretion as to the manner in which they provide individuals with the relief required by Article 13 and thus conform to their Convention obligations under that provision. 43.", "The Court further reiterates that the word “remedy” within the meaning of Article 13 does not mean a remedy which is bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see, for example, Šidlová v. Slovakia, no. 50224/99, § 77, 26 September 2006; Figiel v. Poland (no. 2), no. 38206/05, § 33, 16 September 2008; and Baszczyński v. Poland (dec.), no. 77103/13, § 51, 12 December 2017).", "44. Having regard to its finding in respect of Article 6 § 1 of the Convention and the fact that the applicant had the opportunity to raise complaints under the 2004 Act, and made use of that opportunity on several occasions, the Court concludes that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 45. 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.” 46.", "The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 and Article 13 of the Convention with respect to the first set of proceedings and of the modalities for ensuring compliance with the undertakings referred to therein; 2. Decides to strike part of the application with respect to the first set of proceedings out of its list of cases in accordance with Article 37 § 1 (c) of the Convention; 3.", "Declares the complaint concerning the unreasonable length of the second set of proceedings admissible and the remainder of the application inadmissible; 4. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the second set of proceedings. Done in English, and notified in writing on 13 June 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Renata Degener Pere Pastor VilanovaDeputy RegistrarPresident" ]
[ "FIRST SECTION CASE OF MOROZOV v. RUSSIA (Application no. 38758/05) JUDGMENT STRASBOURG 12 November 2015 FINAL 12/02/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Morozov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: András Sajó, President,Mirjana Lazarova Trajkovska,Julia Laffranque,Paulo Pinto de Albuquerque,Linos-Alexandre Sicilianos,Erik Møse,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 20 October 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "38758/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vladimir Alekseyevich Morozov (“the applicant”), on 3 October 2005. 2. The applicant, who had been granted legal aid, was represented by Mr A. Derkach, a lawyer practising in Rostov-on-Don. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicant alleged, in particular, that in 2004-05 he had been detained in appalling conditions, and that he had had no effective domestic remedies at his disposal in that respect. 4. On 9 January 2009 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1969 and lives in Morozovsk in the Rostov Region. A. Conditions of the applicant’s detention and transport 1. Temporary detention centre in Morozovsk 6. On 7 July 2004 the applicant was arrested and placed in a temporary detention centre at the Morozovsk police station («Изолятор временного содержания», «ИВС», “IVS”) on suspicion of murder.", "7. The applicant was detained in the IVS on four separate occasions: between 7 and 24 July 2004; 17 August and 8 October 2004; 24 October and 16 November 2004; and 4 and 16 December 2004. (a) The applicant’s account (i) Material conditions of detention 8. In the applicant’s submission, the conditions of his detention in the IVS during those four periods were essentially identical and as described below. 9.", "The IVS was situated in the basement of the police station. The applicant was placed in a cell measuring approximately 12.5 square metres, which housed six to seven people. The walls, floor and ceiling were all covered with cement. There was no ventilation in the cell and consequently it was stuffy. The windows were covered with exterior and interior metal plates with minuscule openings, which gave practically no access to natural light.", "The cell was lit by a lamp set high up in an alcove in the wall, so there was insufficient light for reading or writing. 10. In summer, temperatures inside exceeded 40˚C and the cell had a high level of humidity. There was no glass in the windows and in winter it was cold. 11.", "No mattresses, bedding, cups, eating utensils or toiletries were distributed. There were no pest control measures in place to eliminate cockroaches and mice. The cell was not connected to a sewer and detainees had to relieve themselves in a bucket, which was removed from the cell once a day to be emptied. The water which was distributed once a day (ten litres per cell) was not drinkable. There was no provision for outside exercise or showers.", "12. The applicant was fed once a day. The food was wholly inadequate, both in terms of quality and portion size. (ii) The applicant’s state of health 13. The applicant sustained an injury to his head prior to his arrest.", "While in the IVS, he did not receive adequate medical treatment for the injury. The applicant – who had contracted tuberculosis in 2001 – shared a cell with a person who was actually suffering from the open form of the disease at the time of his detention, and this represented a potential risk to his health. (b) The Government’s account 14. Each of the IVS cells in which the applicant was kept measured approximately 15 square metres and had six sleeping places. However, it was impossible to provide more detailed information, as the registration logs for the IVS had been destroyed.", "15. According to the findings of the inquiry carried out by the Morozovskiy district prosecutor’s office on the basis of the applicant’s complaint, the applicant shared one of the cells in which he was kept – which was equipped with six sleeping places – with four inmates. At some point, he was transferred to a solitary confinement cell upon his request. The applicant received three meals a day. There were no mice or insects in the cells.", "The bucket that acted as a substitute for sanitary facilities was cleaned daily. The applicant had access to drinking water and toiletries. The applicant was provided with adequate medical assistance on request. 2. The applicant’s conviction and subsequent transfer to the post‑conviction detention facility 16.", "On 12 November 2004 the Morozovskiy District Court of the Rostov Region convicted the applicant of murder and sentenced him to eleven years’ imprisonment. On 15 March 2005 the Rostov Regional Court upheld the conviction on appeal. 17. The applicant was then sent to serve his sentence at a post‑conviction detention facility in the town of Pechora in the Komi Republic. The journey there included train travel and accommodation in SIZO-type detention facilities («следственный изолятор временного содержания», «СИЗО»).", "These facilities generally serve as remand prisons, yet can also be used for the temporary detention of people who have already been convicted. (a) Novocherkassk detention facility no. IZ-61/3 (SIZO-3) 18. At certain times between 24 July 2004 and 6 June 2005, the applicant was kept in Novocherkassk detention facility no. IZ-61/3.", "(i) The applicant’s account 19. The applicant was detained in a cell measuring 28 square metres, which was designed to hold ten people. However, he shared this cell with fifteen other detainees, so they had to sleep in shifts. The bedding supplied was dirty, worn out and covered in bloodstains. Mattresses were also worn out and infested with insects.", "There was no ventilation. Lights were on day and night. No toiletries were supplied. 20. In summer, the cell was extremely humid and stuffy.", "Owing to water shortages lasting up to two or three days, the applicant had difficulties in obtaining drinking water and flushing the lavatory. The cell was infested with insects such as cockroaches. Conditions were unsanitary and no showers were available. (ii) The Government’s account 21. While in detention facility no.", "IZ-61/3, the applicant was kept in the following cells: - cell no. 247 measuring 25.7 square metres; - cell no. 243 measuring 23 square metres; - cell no. 244 measuring 25.7 square metres; - cell no. 284 measuring 18.5 square metres; - cell no.", "162 measuring 33.8 square metres; - cell no. 337 measuring 18.7 square metres; - cell no. 372 measuring 18.7 square metres; - cell no. 402 measuring 10.5 square metres; - cell no. 393 measuring 10.5 square metres; - cell no.", "385 measuring 18.5 square metres; - cell no. 316 measuring 18.7 square metres; - cell no. 304 measuring 18.5 square metres; - cell no. 326 measuring 10.5 square metres; - cell no. 332 measuring 10.4 square metres; - cell no.", "330 measuring 10.4 square metres. 22. The Government did not specify the actual number of sleeping places in the cells in question and/or the number of inmates who had shared the cells with the applicant, referring to the fact that the detention facility’s logbooks had been destroyed. 23. The Government provided a number of documents dated 30 April 2009 and signed by the governor of detention facility no.", "IZ-61/3, which stated in particular that: (a) the number of inmates kept together with the applicant in the fifteen cells of Novocherkassk detention facility had not exceeded the number of sleeping places available; (b) on 1 December 2005 an additional new building to accommodate 500 inmates had been opened; (c) there had been no rodents or insects in the facility and the cells had been regularly cleaned and disinfested; (d) each of the fifteen cells had been equipped with lavatories which were separated from the living areas and sinks; and (e) detainees had been provided with good-quality food pursuant to internal regulations. 24. The Government provided three handwritten undated statements from IZ-61/3 officials who stated that they “certainly remembered” that the applicant had been kept in fifteen cells at the facility. In their statements, the officials listed the numbers of the cells and confirmed that he had been provided with an individual sleeping place in each of those cells. (b) Ryazan detention facility no.", "IZ-62/1 (SIZO-1) 25. Between 7 June and 9 July 2005 the applicant was kept in Ryazan detention facility no. IZ-62/1. (i) The applicant’s account 26. In the applicant’s submission, he was kept in a transit cell measuring 49 square metres, which was designed for twenty-two detainees.", "Instead, during the relevant period, the cell housed no fewer than forty-two people, who had to sleep in shifts. The applicant suffered from a lack of food and found the food which he was given to be of poor quality. He also sustained numerous painful insect bites which left marks on his body. (ii) The Government’s account 27. According to the Government, the applicant was kept in cell no.", "32 (measuring 49 square metres), cell no. 46 (measuring 56 square metres) and cell no. 56 (measuring 32 square metres). The number of sleeping places and/or inmates who had been kept in the cells with the applicant was unknown, as the facility’s logbooks had been destroyed. 28.", "The Government provided documents dated 4 May 2009 which had been signed by the deputy governor of IZ-62/1 and which stated that: (a) cell no. 32 had been equipped with a sink; (b) during the applicant’s detention, a private contractor had regularly carried out disinfestation procedures at the detention facility pursuant to a contract which had been concluded on 9 January 2008; and (c) detainees had been provided with three meals a day, pursuant to the relevant regulations. The Government also enclosed a photo of a sink and invoices from the disinfestation contractor which were dated July 2008. (c) Yekaterinburg detention facility no. IZ-66/1 (SIZO-1) 29.", "Between 20 and 27 July 2005 the applicant was kept in Yekaterinburg detention facility no. IZ-66/1. (i) The applicant’s account 30. According to the applicant, he was placed in a cell measuring 25 square metres, together with twenty-three other inmates. No bedding was supplied.", "The cell was infested with insects. After some days there, he was moved to another cell measuring 22.5 square metres, which housed thirty‑five people. The cell had a row of benches, which were no use for sitting on, let alone sleeping on. No food or drinking water was provided. (ii) The Government’s account 31.", "In the Government’s submission, the applicant was kept in cell no. 137 (measuring 12.5 square metres), cell no. 302 (measuring 31.4 square metres), cell no. 307 (measuring 29.2 square metres) and cell no. 404 (measuring 15.2 square metres).", "In each cell, he was provided with an individual sleeping place and bedding. The number of inmates who were kept in the cells with the applicant was unknown, as was the number of sleeping places which were available, as the logbooks had been destroyed. 32. The Government provided documents dated 5 May 2009 and signed by the governor of IZ-66/1 confirming that the applicant had been detained in the facility between 20 and 27 July 2005. There had been no rodents or insects in the cell during this period, and the cell had been equipped with sanitary facilities.", "The applicant had been provided with access to a shower upon his arrival at the facility and had been provided with food, pursuant to the relevant regulations. The cell had been equipped with sixteen sleeping spaces and had housed four to sixteen inmates. The Government also enclosed contracts for disinfestation services, as well as relevant invoices. 33. Another document dated 5 May 2009 and signed by the head of the Sverdlovsk regional department of the Federal Prison Service (“the Sverdlovsk FSIN”) stated that, between 20 and 27 July 2005, the applicant had been kept in cell no.", "307 at IZ‑66/1. According to the document, this cell measured 29.2 square metres and was equipped with twenty sleeping places, and the applicant had shared it with four to sixteen other inmates. B. The applicant’s complaints to various national authorities 34. The applicant made a complaint to various public authorities, including the prosecutor’s office and courts, in relation to the alleged lack of adequate medical assistance and the conditions of detention in the IVS (see paragraphs 6 to 15 above).", "In particular, he alleged that he had sustained a post-traumatic brain injury, contracted tuberculosis and become ill with gastritis, astigmatism, alimentary anaemia and muscular hypotrophy while in detention. 35. As regards his complaint to the prosecutor’s office it appears that on 5 November 2005 the Morozovskiy district prosecutor’s office refused to initiate criminal proceedings regarding the alleged poor conditions of the applicant’s detention in the IVS. The applicant was not provided with a copy of that decision. A further refusal was issued on 16 February 2006.", "However, the prosecutor found that the applicant’s allegations concerning the conditions of detention in the IVS “had been confirmed in part”, but that such conditions did not constitute a crime under the Criminal Code. He also indicated that the head of the police station had been instructed to remedy the irregularities which had been identified. The applicant was not given access to the prosecutor’s inquiry file. 36. On 20 March 2007 the Morozovskiy District Court of the Rostov Region upheld the prosecutor’s decision.", "On 28 August 2007 the Rostov Regional Court upheld the first-instance judgment. 37. As regards other court proceedings, in 2007 the applicant initiated civil proceedings, claiming compensation for the non‑pecuniary damage caused by the conditions of detention in the IVS and the lack of adequate medical assistance rendered to him in that facility. On three occasions – on 26 November and 26 December 2007, and on 11 January 2008 – the Morozovskiy District Court invited the applicant to eliminate discrepancies in his statements of claim. The applicant did not comply with the court’s requests, neither did he appeal against the court’s rulings.", "The Morozovskiy District Court left the claims unexamined. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW 38. The provisions of domestic and international law relating to conditions of detention are set out in the Court’s judgment in the judgment of Ananyev and Others v. Russia (nos. 42525/07 and 60800/08, §§ 25-65, 10 January 2012).", "THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE CONVENTION 39. The applicant complained that while in the IVS he had not been provided with adequate medical assistance in relation to the head injury which he had allegedly sustained. He also claimed that the medical assistance rendered to him in the detention facilities in Novocherkassk, Ryazan and Yekaterinburg had been insufficient. 40.", "The applicant further complained that the conditions of detention in the IVS and in the detention facilities in Novocherkassk, Ryazan and Yekaterinburg had been poor. 41. Lastly, the applicant maintained that his complaints to the domestic authorities in respect of above grievances had been unsuccessful. 42. Being the master of the characterisation to be given in law to the facts of the case (see Margaretić v. Croatia, no.", "16115/13, § 75, 5 June 2014), the Court considers that the applicant’s complaints fall to be examined under Articles 3 and 13 of the Convention. 43. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 44. Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 1. The parties’ submissions 45.", "Having acknowledged that the applicant had complied with the six‑month rule in relation to all periods of his detention, including that in the IVS, the Government, submitted that he had failed to exhaust the effective domestic remedies available to him in connection with his complaints relating to the detention facilities in Novocherkassk, Ryazan and Yekaterinburg, as he had not instituted civil proceedings seeking compensation for non-pecuniary damage before the domestic courts. To prove the effectiveness of that remedy, they referred to two cases which had been resolved at national level. The first case was that of Mr D., who had been awarded 25,000 Russian roubles (RUB) in respect of the non‑pecuniary damage relating to the suffering which had resulted from his transfer outside the region in which he was normally resident in order to serve his sentence, and from the fact that he had contracted scabies while in detention. The second case referred to by the Government was that of Mr R., who had received RUB 30,000 in respect of fifty-six days of unlawful detention, and in view of the fact that he had not been fed for five days while in detention. The Government further asserted that the applicant had failed to comply with the Morozovskiy District Court’s requests in connection with his claims relating to his detention in the IVS, and, accordingly, had not exhausted the remedies available to him.", "46. In response to the Government’s plea, the applicant maintained that he had not had effective remedies at his disposal, as the poor conditions of detention in Russia constituted a systemic problem. He also stated that he had lodged two complaints about the lack of medical assistance in the IVS with both the head of the IVS administration and the prosecutor’s office, neither of which had been properly registered in his personal file. 2. The Court’s assessment (a) Complaints concerning the allegedly inadequate medical assistance and the alleged lack of effective remedies in that respect 47.", "The Court observes that in previous cases against Russia concerning an alleged lack of adequate medical assistance for detainees, it has clearly distinguished between two situations. It has found that no effective remedies existed in Russia for applicants who have complained of an ongoing deterioration in their health as a result of a lack of proper medical care while in detention (see, among other authorities, Koryak v. Russia, no. 24877/10, § 95, 13 November 2012; Dirdizov v. Russia, no. 41461/10, § 91, 27 November 2012; and Reshetnyak v. Russia, no. 56027/10, § 80, 8 January 2013).", "However, when applicants have complained of the detention authorities’ failure to provide them with adequate medical services, but at the time of the complaint were no longer in the situation complained of, the Court has stressed that a civil claim for damages would have been capable of providing redress in respect of that complaint, and would have offered reasonable prospects of success (see Buzychkin v. Russia, no. 68337/01, § 83, 14 October 2008; Shchebetov v. Russia, no. 21731/02, §§ 89-92, 10 April 2012; and Gadamauri and Kadyrbekov v. Russia, no. 41550/02, § 34, 5 July 2011). Given that the applicant’s complaint of inadequate medical assistance relates to his period of detention in the IVS that ended on 16 December 2004 (see paragraph 7 above), and to his detention in the SIZO-type facilities (the latest period of which ended on 27 July 2005 – see paragraph 29 above), his situation in the present case falls into the latter category.", "48. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms, in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Menteş and Others v. Turkey, 28 November 1997, § 89, Reports of Judgments and Decisions 1997‑VIII).", "49. The Court observes that Russian law undoubtedly provided the applicant with the opportunity to bring proceedings in tort against the State (see Gusev v. Russia (dec.), no. 49038/12, § 24, 24 March 2015, and Mumryayev v. Russia (dec.), no. 52025/13, § 14, 21 April 2015). The applicant did not explain why he had failed to comply with the Morozovskiy District Court’s repeated requests to eliminate discrepancies in his statements of claim relating to the alleged non-pecuniary damage caused, in particular, by the lack of adequate medical assistance in the IVS (see paragraph 37 above).", "Neither did he provide any explanation as to why he had not brought any proceedings for damages in relation to the allegedly inadequate medical assistance rendered to him in the detention facilities in Novocherkassk, Ryazan and Yekaterinburg. 50. In such circumstances, the Court does not see any reason in the present case to depart from its well-established approach (see Shchebetov, cited above, §§ 89‑92; Buzychkin, cited above, § 84; and Gadamauri and Kadyrbekov, cited above, §§ 34 and 36), and concludes that the remedy available to the applicant satisfied the criteria laid down in paragraph 45 above. It follows that this part of the complaint under Article 13 is manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, and must be rejected pursuant to Article 35 § 4. 51.", "Given this finding, the Court further concludes that the applicant failed to exhaust domestic remedies with regard to his complaints about the poor quality of the medical assistance he received. It follows that this part of his complaint under Article 3 of the Convention must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. (b) Complaints concerning the conditions of detention in the IVS and in the SIZO-type facilities, and the alleged lack of effective remedies in that respect 52. With regard to the Government’s plea of non-exhaustion of domestic remedies in relation to the conditions of the applicant’s detention, the Court points out that it has previously dismissed similar arguments on the part of the Government (see Ananyev and Others, cited above, §§ 70 and 100-19). It finds no reason to reach a different conclusion in the present case (see Yevgeniy Bogdanov v. Russia, no.", "22405/04, § 70, 26 February 2015), and accordingly dismisses the Government’s objection. 53. The Court further reiterates that, in contrast with an objection on the basis of non‑exhaustion of domestic remedies, which must be raised by the respondent Government, it is not open to it to dispense with the application of the six-month rule solely because the respondent Government have not made an objection to that effect (see Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006‑III; Ananyev and Others, cited above, § 71; Fetisov and Others v. Russia, nos. 43710/07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, § 72, 17 January 2012; and Musaev v. Turkey, no.", "72754/11, § 46, 21 October 2014). 54. Article 35 § 1 of the Convention permits the Court to deal with a matter only if the relevant application is lodged within six months of the date of the final decision in the process of exhaustion of domestic remedies. Where no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of the knowledge of that act or its effect on or prejudice to the applicant (see Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002).", "In cases featuring a continuing situation, the six-month period runs from the cessation of that situation (see Fetisov and Others, cited above, § 73). Detention in facilities of different types does not constitute a continuing situation, and the applicant is expected to submit a separate complaint in respect of the conditions of his or her detention in each detention facility (see Mela v. Russia, no. 34044/08, § 45, 23 October 2014). 55. The Court observes that the present application was lodged on 3 October 2005, that is in any event within six months of the end of each respective period of his detention in the SIZO-type detention facilities in Novocherkassk, Ryazan and Yekaterinburg (see paragraphs 18, 25 and 29 above).", "It therefore considers that the applicant has complied with the six‑month rule in respect of the conditions of detention in these three facilities. 56. With regard to the conditions of detention in the IVS, the Court points out that the applicant’s latest period of detention in that facility ended on 16 December 2004 (see paragraph 7 above). The Court reiterates that, in order to satisfy the six-month rule, his complaint about the inadequate conditions of detention in this facility should have been lodged within six months of the day after his transfer out of the detention facility (see Norkin v. Russia (dec.), no. 21056/11, §§ 14-25, 5 February 2013; Zhirko v. Russia (dec.), no.", "8696/12, § 13, 17 September 2013; and Tuvykin v. Russia (dec.), no. 31970/09, § 12, 27 March 2014). In the absence of any arguments or factual information which would warrant a departure from the Court’s constant approach, the part of the application concerning the allegedly inadequate conditions of the applicant’s detention in the IVS, and the lack of effective remedies in that respect, is inadmissible for non‑compliance with the six-month rule set out in Article 35 § 1 of the Convention, and must be rejected pursuant to Article 35 § 4. 57. The Court further notes that the complaints concerning the conditions of detention in the detention facilities in Novocherkassk, Ryazan and Yekaterinburg and the lack of effective remedies in that respect are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that they are not inadmissible on any other grounds and must therefore be declared admissible. B. Merits 1. Article 13 of the Convention (a) The parties’ submissions 58. The Government argued that Article 13 of the Convention had been complied with in the present case.", "Firstly, they submitted that it had been open to the applicant to lodge a complaint with a prosecutor’s office. To demonstrate the effectiveness of that remedy, they referred to an example in the Kaluga region, where the local prosecutor’s office had in 2006 declared 13.1% of complaints about inadequate conditions of detention well‑founded, a proportion which had risen to 18% in the first half of 2007. They also submitted, without providing any further details, that in two detention facilities in the Vladimir and Khabarovsk regions, material conditions of detention had been improved following complaints to prosecutor’s offices. Secondly, the Government argued that it had been open to the applicant to institute civil proceedings before the domestic courts in relation to the pecuniary and non-pecuniary damage caused by the conditions of detention, as, in their submission, that avenue of recourse constituted an effective remedy within the meaning of Article 13 of the Convention. To illustrate their point, the Government stated that an unspecified number of individuals had successfully sought damages in the courts of the Perm region and Kazan.", "They further referred to the case of Mr S., who had been awarded RUB 250,000 by a domestic court for non‑pecuniary damage, and to that of Mr D. – already cited in connection with their plea of non‑exhaustion. Lastly, the Government stated that the applicant had failed to properly bring his civil claims in connection with the conditions of detention in the IVS. Referring to the Court’s case-law (see Whiteside v. the United Kingdom, Commission decision of 7 March 1994, application no. 20357/92, Decisions and Reports 76, p. 80), they pointed out that a mere doubt on the applicant’s part as to the prospects of success was not sufficient to exempt him from submitting his claim to any of the aforementioned national authorities with jurisdiction in such matters. 59.", "The applicant maintained his complaint under Article 13 of the Convention, submitting that no coherent and well-established practice of affording redress in respect of similar complaints existed at national level. (b) The Court’s assessment 60. In the case of Ananyev and Others v. Russia (cited above, §§ 93-119) the Court carried out a thorough analysis of domestic remedies in the Russian legal system in respect of a complaint relating to the material conditions of detention in a SIZO-type detention facility. The Court concluded in that case that it had not been shown that the Russian legal system offered an effective remedy which could be used to prevent a violation, or to prevent a violation from continuing once it had occurred, or to provide an applicant with adequate and sufficient redress in connection with a complaint of inadequate conditions of detention. Accordingly, the Court found that the applicants in that case did not have at their disposal an effective domestic remedy for their grievances, in breach of Article 13 of the Convention.", "61. Having examined the Government’s arguments, the Court finds no reason to depart from that conclusion in the present case. Noting that the applicant raises an “arguable” complaint under Article 3 of the Convention, the Court considers that there has been a violation of Article 13 of the Convention. 2. Article 3 of the Convention (a) The parties’ submissions 62.", "The Government submitted that in all the cells of the detention facilities in Novocherkassk, Ryazan and Yekaterinburg in which the applicant had been kept, the number of inmates had not exceeded the number of sleeping places. The Government were not in a position to advise the Court of the exact number of inmates who had shared the cells with the applicant, as the detention facilities’ logbooks had been destroyed. They submitted the following description of the conditions of the applicant’s detention, based on reports prepared in 2009 by the management of the respective detention facilities. All cells had been equipped with functioning ventilation systems. Each cell had been adequately heated.", "The temperature had been maintained between 18˚C and 22˚C; in summer it had not exceeded 27˚C. The applicant had at all times been provided with an individual sleeping place and bedding so that he had not had to sleep in turns with other inmates, and the bedding had been changed once a week. He had also been provided with a spoon and a mug. The applicant had used the showers once a week. The management of the detention facilities had not received any complaints from the applicant.", "Lavatories had been separated from the living areas of the cells. There had been running tap water in the cells. The applicant had had access to drinking water of acceptable quality. He had been provided with three hot meals of acceptable quality per day. The applicant had been provided with adequate medical assistance and he had not complained about the quality of the medical assistance rendered to him.", "The cells had been equipped with all necessary furniture and had not been infested with insects or rodents. The inmates had been escorted daily on a one-hour walk. 63. The applicant maintained his complaint about the appalling conditions of detention in the detention facilities in Novocherkassk, Ryazan and Yekaterinburg. He pointed out that the Government had failed to submit any documentary evidence to disprove his allegations about these conditions.", "The applicant contended that the Government’s references to the destruction of the relevant logbooks owing to the expiry of the retention periods were unconvincing, and observed that the documents submitted by the Government related to the state of affairs in the detention facilities some years after the respective periods of his detention. (b) The Court’s assessment 64. The Court will examine the merits of this part of the applicant’s complaint under Article 3 in the light of the applicable general principles reiterated in the case of Ananyev and Others (cited above, §§ 139-41). 65. The Court has held on many occasions that cases concerning allegations of inadequate conditions of detention do not lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation), because in such instances the respondent Government alone have access to information capable of corroborating or refuting these allegations.", "It follows that, after the Court has given notice of the applicant’s complaint to the Government, the burden is on the latter to collect and produce relevant documents. A failure on their part to submit convincing evidence relating to the material conditions of detention may give rise to the drawing of inferences as to the well‑foundedness of the applicant’s allegations (see Ananyev and Others, cited above, § 123; and Suldin v. Russia, no. 20077/04, § 39, 16 October 2014). 66. The Court notes that the parties disagreed on most aspects of the conditions of the applicant’s detention in the facilities in Novocherkassk, Ryazan and Yekaterinburg.", "However, where conditions of detention are in dispute, there is no need for the Court to establish the veracity of each and every disputed or contentious point. It can find a violation of Article 3 on the basis of any serious allegation which the respondent Government have failed to refute (see Grigoryevskikh v. Russia, no. 22/03, § 55, 9 April 2009; and Adeishvili (Mazmishvili) v. Russia, no. 43553/10, § 65, 16 October 2014). 67.", "The Court observes at the outset that the Government failed to provide any original documents to refute the applicant’s allegations, claiming that they had been destroyed after the expiry of the statutory time‑limit for their storage. Their submissions are based on documents issued by officials of the detention facilities in April and May 2009 (see paragraphs 23, 28 and 32 above). The Court notes, however, that these documents – issued almost four years after the applicant’s detention in the impugned facilities had come to an end – contain no clear references to the capacity of the cells in which he was detained, or to the number of inmates who were kept there during the relevant periods in 2004-05. The documents provided by the Government are either irrelevant (as they relate to periods of time which followed the applicant’s detention), or give rise to serious doubts as to their reliability. For example, the Court is not prepared to attach any evidential value to the handwritten statements of the officers of the Novocherkassk detention facility – which, albeit undated, appear to have been drafted after 2005 – as it is highly implausible that the officers would “certainly remember” the numbers of all fifteen cells in which one particular detainee had been kept (see paragraph 24 above).", "68. In view of the fact that the Government did not submit any convincing relevant information, the Court will now proceed to examine the issue concerning the number of inmates kept in the relevant cells of the Novocherkassk, Ryazan and Yekaterinburg facilities on the basis of the applicant’s submissions (see Igor Ivanov v. Russia, no. 34000/02, § 35, 7 June 2007). 69. With regard to Novocherkassk detention facility no.", "IZ‑61/3 where he stayed from 24 July 2004 to 6 June 2005, the applicant submitted that he had shared a cell measuring 28 square metres – which had been designed for ten people – with sixteen other inmates (see paragraph 19 above). Even assuming that the number of inmates did not exceed the number of sleeping places, it is clear that the floor space afforded to each detainee would have been less than 3 square metres. In the absence of any submissions by the Government capable of refuting the applicant’s allegations, the Court finds it established that in IZ-61/1 the applicant was provided with 1.75 square metres of floor space. 70. With regard to Ryazan detention facility no.", "IZ-62/1 where the applicant stayed from 7 June to 9 July 2005, the applicant claimed that he had been kept in a cell measuring 49 square meters (see paragraph 26 above), which corresponds to the information provided by the Government in respect of cell no. 32 (see paragraph 27 above). Given the absence of any information submitted by the Government to refute the applicant’s allegations regarding the capacity of the cell, the Court accepts that the cell was equipped with twenty-two sleeping places. Accordingly, even where the number of inmates did not exceed the capacity of the cell, each inmate would have been afforded 2.2 square metres of floor space. Accordingly, the Court finds it established that in IZ-62/1 the applicant was detained in cramped conditions.", "71. With regard to Yekaterinburg detention facility no. IZ-66/1 where the applicant stayed from 20 to 27 July 2005, it follows from the document supplied by the head of the Sverdlovsk FSIN (see paragraph 30 above) that, at some point at least, the applicant shared a cell measuring 29.2 square metres with sixteen other inmates. The Court therefore finds it established that, at some point in time while being detained in the facility in question, the applicant was afforded approximately 1.8 square metres of personal space. 72.", "The Court has frequently found violations of Article 3 of the Convention on account of insufficient personal space being afforded to detainees (see, among numerous other authorities, Ananyev and Others, cited above, §§ 120-66). 73. Having regard to the material in its possession, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case regardless of the fact that the period of detention in IZ-66/1 was of relatively short duration. The Court therefore concludes that the conditions of the applicant’s detention in the SIZO-type detention facilities in question amounted to inhuman and degrading treatment in breach of Article 3 of the Convention. 74.", "In view of the above, the Court does not consider it necessary to examine the remainder of the parties’ submissions on other aspects of the conditions of the applicant’s detention in the facilities in question. 75. Accordingly, there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in the detention facilities in Novocherkassk, Ryazan and Yekaterinburg in 2004‑05. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 76.", "The Court has examined the other complaints submitted by the applicant. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. This part of the application must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 77.", "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 78. The applicant claimed that he had sustained non-pecuniary damage as a result of the poor conditions of his detention, and on that basis invited the Court to establish the appropriate amount of compensation to be awarded. 79. The Government insisted that the applicant’s rights had not been violated and submitted that, should the Court find to the contrary, the finding of a violation would, in itself, constitute sufficient just satisfaction.", "80. Having regard to its above findings of violations of Articles 3 and 13 of the Convention, the Court awards the applicant 5,000 euros (EUR) in respect of non-pecuniary damage. B. Costs and expenses 81. The applicant did not claim costs and expenses.", "Accordingly, there is no call to make an award under this head. C. Default interest 82. 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 complaints concerning the conditions of the applicant’s detention in the detention facilities in Novocherkassk, Ryazan and Yekaterinburg and the lack of effective domestic remedies in this respect admissible, and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 13 of the Convention on account of the lack of an effective domestic remedy in connection with the conditions of the applicant’s detention in the detention facilities in Novocherkassk, Ryazan and Yekaterinburg; 3. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in the detention facilities in Novocherkassk, Ryazan and Yekaterinburg; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (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 12 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenAndrás SajóRegistrarPresident" ]
[ "FOURTH SECTION CASE OF HEGER v. SLOVAKIA (Application no. 62194/00) JUDGMENT STRASBOURG 17 May 2005 FINAL 12/10/2005 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Heger v. Slovakia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrM.", "Pellonpää,MrR. Maruste,MrS. Pavlovschi,MrJ. Borrego Borrego,MrJ. Šikuta, judges,and Mr M. O’Boyle, Section Registrar, Having deliberated in private on 26 April 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 62194/00) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovakian national, Mr Marián Heger (“the applicant”), on 12 July 2000. 2. The Slovakian Government (“the Government”) were represented by their Agent, Mr P. Kresák, succeeded by Mrs A. Poláčková. 3.", "On 21 July 2004 the Court decided to communicate the application. 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 1953 and lives in Modra. The facts of the case, as submitted by the parties, may be summarised as follows.", "A. Proceedings concerning the termination of lease of a flat 5. On 24 August 1993 the Modra municipality sued the applicant before the Bratislava-vidiek District Court. The plaintiff sought to have a contract of lease terminated in respect of a flat which had been earlier allocated to the applicant. 6.", "Between 7 September 1993 and 7 December 1993 the District Court scheduled five hearings. The applicant did not appear. On two occasions he informed the court that he was ill and on another two occasions he stated that his duties prevented him from attending the court hearings. 7. On 30 September 1994 a different judge was assigned to deal with the case.", "A hearing was held on 24 November 1994 at which the applicant failed to appear. The District Court therefore imposed a fine on the applicant as well as on a witness who had also failed to appear. 8. At a hearing held on 19 December 1994 the applicant appealed against the decision on a fine and he also challenged the District Court judge dealing with the case. The file was transmitted to the Bratislava Regional Court.", "On 25 April 1994 the latter quashed the decision on the fine and refused to exclude the District Court judge from dealing with the case. 9. The file was returned to the District Court on 1 June 1995. A hearing was scheduled for 4 March 1996. The court had difficulties in serving the summons on the applicant.", "On 1 March 1996 the applicant requested that the hearing be adjourned as he was ill. 10. On 4 April 1996 the case was again adjourned due to the absence of the applicant. The court requested a doctor to submit information on the applicant’s health. Both the applicant and the plaintiff’s lawyer informed the District Court that they could not attend a hearing scheduled for 5 August 1996. 11.", "On 17 September 1996 the District Court decided to jointly deal with the above case and an action of 31 July 1996 seeking termination of the applicant’s contract of lease on a different ground. 12. On 27 September 1996 the applicant requested that a hearing scheduled for 30 September 1996 be adjourned as he was ill. 13. On 14 November 1996 the District Court heard the parties. 14.", "In the context of a reform of the judiciary the case was transferred to the Bratislava III District Court. The new judge received the file in May 1997. In February 1998 she scheduled a hearing for 6 April 1998. On 16 March 1998 the applicant informed the court that he was ill. The case was adjourned as both the applicant and the plaintiff had failed to appear.", "15. On 17 June 1998 the applicant made a counter-claim. 16. On 31 March 1999 the District Court heard the applicant. On 20 April 1999 the applicant requested that a witness should be heard.", "Subsequently the case was transferred to a different judge. 17. A hearing was held on 12 December 2000. 18. On 22 February 2001 and on 3 April 2001 the case was adjourned due to the applicant’s absence.", "19. On 26 April 2001 the Bratislava III District Court dismissed the action. The decision became final on 10 July 2001. B. Enforcement proceedings 20.", "By a judicial decision which became final in 1990 the applicant’s former wife was ordered to pay a sum of money to the applicant. 21. On 28 January 1991, on the applicant’s request of 3 December 1990, the Bratislava-vidiek District Court started enforcement proceedings in which the sum due was to be obtained by means of selling the defendant’s car. 22. On 8 March 1991 the defendant appealed.", "She alleged that she no longer owned the car in question. On 30 August 1991 the appellate court upheld the District Court’s decision on enforcement of the judgment in question. On 22 November 1991 the new owner of the car requested that it should be excluded from the enforcement. In March 1992 the police withheld the documents relating to the car at the court’s request. 23.", "On 21 October 1992 the court heard the persons concerned. The defendant submitted a sales contract concerning the car in question and informed the court that she had started paying the debt to the applicant. Subsequently the case was transferred to a different judge. On 2 July 1993 the judge requested that the parties should submit further information and documents. The applicant was asked to specify, inter alia, the outstanding sum which the defendant owed him.", "24. On 16 July 1993 the applicant informed the court that he did not agree to the instalments which the defendant had proposed to pay to him. On 8 October 1993 the District Court asked the applicant to submit further information including the sum which the defendant had already paid to him. 25. On 22 December 1993 a different judge was assigned to deal with the case.", "On 5 October 1994 the case was transferred to another judge. 26. Between 12 June 1995 and 29 October 1996 the file was submitted for examination to a judge dealing in a different set of proceedings with the applicant’s claim for compensation against his former wife. On 25 October 1996 the applicant requested that additional evidence should be taken. 27.", "On 22 November 1996 the case was taken over by the Bratislava III District Court as the Bratislava-vidiek District Court had ceased to exist. 28. On 26 February 1997 the President of the Bratislava III District Court admitted, in reply to the applicant’s complaint, that there had been undue delays in the proceedings. The letter stated that the judge dealing with the case had left the judiciary and that the vacant post had not yet been filled. 29.", "On 27 March 1998 the applicant informed the District Court that the defendant had paid a part of the debt and specified the relevant sum. The court therefore discontinued the enforcement proceedings in respect of that sum. 30. On 22 February 2000 the Bratislava III District Court found that the claim for enforcement was inadmissible as the defendant had sold the car in question on 4 January 1991. The sum due could not, therefore, be enforced as claimed by the applicant.", "31. On 5 June 2000 the Bratislava III District Court formally discontinued the enforcement proceedings which had been brought on 28 January 1991. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 32. The applicant complained that the length of the above two sets of proceedings had been incompatible with the “reasonable time” requirement, provided 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...” 33.", "The Government contested that argument. 34. As regards the proceedings concerning the lease of a flat, the period to be taken into consideration began on 24 August 1993 and ended on 26 April 2001. It thus lasted 7 years, 8 months and 2 days. During this period the merits of the case were examined at a single level of jurisdiction and an appellate court once dealt with the applicant’s appeal against a procedural decision and his request for exclusion of a judge.", "35. As regards the enforcement proceedings, the period to be taken into consideration began only on 18 March 1992, when the recognition by the former Czech and Slovak Federal Republic, of which Slovakia is one of the successor States, of the right of individual petition took effect. The period in question ended on 5 June 2000. It thus lasted 8 years, 2 months, 18 days for two levels of jurisdiction. A. Admissibility 36.", "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 37.", "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). 1. As regards the proceedings relating to lease of a flat 38. The Government submitted that the case was not particularly complex.", "They admitted that there had been several periods of inactivity due to the reform of judiciary and changes in judges. However, the Government were of the view that the overall length of the proceedings was mainly due to the conduct of the parties and the applicant in particular. In this context they pointed out that the District Court had scheduled 18 hearings in the case and that the applicant had failed to appear at 11 of them. 39. The applicant disagreed and maintained that the length of the proceedings was excessive for reasons which could not be imputed to him.", "40. The Court notes that the proceedings were considerably prolonged as a result of the fact that the applicant did not attend a number of hearings before the District Court. It also notes that several delays occurred which, as the Government admitted, were due to the organisation of the judiciary in Slovakia. Having examined all the material submitted to it and having regard to its case-law on the subject, the Court considers that the length of the proceedings in issue was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1 as a result of the length of the proceedings concerning the lease of a flat.", "2. As regards the enforcement proceedings 41. The Government submitted that the length of the proceedings was due to the fact that different proceedings had been held, in parallel, relating to the claim of a third person that the car in question should not be the subject of enforcement in respect of the sum due and to the applicant’s claim for compensation against his former wife. They further argued that the applicant had informed the District Court of the sum which the defendant had already paid to him on 27 March 1998, that is almost five years after he had been requested to do so. Without that information, the District Court had been unable to proceed with the case in an appropriate manner.", "They concluded that the applicant’s right to a hearing within a reasonable time had not been violated. 42. The applicant contested this conclusion. 43. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the ones in the present case (see Frydlender, cited above).", "44. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1 as a result of the length of the enforcement proceedings. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 45. 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 46. The applicant claimed 110,000[1] Slovakian korunas (SKK) in respect of damage which he had allegedly suffered as a result of the protracted length of both sets of proceedings. 47.", "The Government contested the claim. 48. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him 2,800 euros (EUR) under that head. B.", "Costs and expenses 49. The applicant also claimed compensation for postal and other expenses which he had incurred. He submitted that he was not in a position to submit the relevant documents permitting the precise sum in question to be determined. 50. The Government contested the claim as being unsubstantiated.", "51. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant, who was not represented by a lawyer, the sum of EUR 100 under this head. C. Default interest 52. 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 as a result of the length of the proceedings concerning the lease of a flat; 3. Holds that there has been a violation of Article 6 § 1 of the Convention as a result of the length of the enforcement proceedings; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 2,800 (two thousand eight hundred euros) in respect of non-pecuniary damage and EUR 100 (one hundred euros) in respect of costs and expenses, the above sums to be converted into the 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 amounts 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 17 May 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O’BoyleNicolas BratzaRegistrarPresident [1] SKK 110,000 is the equivalent of approximately 2,830 euros." ]
[ "FIFTH SECTION CASE OF TRUNK v. SLOVENIA (Application no. 41391/06) JUDGMENT This version was rectified on 5 July 2013 under Rule 81 of the Rules of Court. STRASBOURG 18 April 2013 FINAL 18/07/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Trunk v. Slovenia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President,Angelika Nußberger,Boštjan M. Zupančič,Ganna Yudkivska,André Potocki,Paul Lemmens,Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 19 March 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 41391/06) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Franc Trunk (“the applicant”), on 29 September 2006. 2. The applicant was represented by Ms M. Končan Verstovšek, a lawyer practising in Celje. The Slovenian Government (“the Government”) were represented by their Agent.", "3. The applicant alleged under Article 6 § 1 of the Convention that the length of the proceedings before the domestic courts to which he was a party was excessive. He also complained under Article 13 of the Convention of the lack of an effective domestic remedy in this respect. 4. On 24 November 2010 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1957 and lives in Portorož. 6. The facts of the case, as submitted by the parties, may be summarised as follows.", "A. First set of proceedings (III Pd 489/96) 7. The applicant was a public servant working for the Centre for Educational and Extracurricular Activities (“the Center”). He was laid off following disciplinary proceedings. On 11 October 1996 he instituted proceedings before the Ljubljana Labour and Social Court against the Ministry of Education and Sport (“The Ministry”) and the Centre seeking the annulment of the decision on termination of his employment contract together with all the rights and benefits stemming from the termination of the contract.", "8. On 23 February 1998 the first hearing was held. 9. On 22 September 1998 the court issued a decision after the applicant withdrew his claim against the Ministry. 10.", "Between 8 October 1998 and 8 November 1999 the first-instance court held three hearings. In addition, in May and April 1999 two hearings were postponed on the request of the defendant party. A hearing was held on 8 November 1999. 11. On 22 December 1999 the first-instance court rendered a judgment rejecting the applicant’s request.", "He appealed. 12. On 5 April 2002 the Ljubljana Higher Labour and Social Court upheld the appeal in part and remitted the case for re-examination. The court remitted part of the case because a preliminary submission of the defendant had not been sent to the applicant and he could therefore not submit his comments on the matter. 13.", "On 18 June 2002 the first-instance court held a hearing and rendered a judgment. The court found the first-instance disciplinary decision (see paragraph 7 above) to be lawful and the second-instance decision to be unlawful. Accordingly the court concluded that the applicant’s employment contract had been terminated lawfully, however the decision on termination became final only when the judgment became final. The court therefore found that the applicant was entitled to the employment rights and benefits for the relevant period. The applicant appealed.", "14. On 25 September 2002 the Ljubljana Labour and Social Court issued a corrigendum of the judgment. 15. On 27 August 2004 the Ljubljana Higher Labour and Social Court delivered a judgment. As the applicant kept lodging new requests concerning his rights and benefits throughout the proceedings the appeal court considered one such request in the appeal as a request for a supplementary judgment.", "The court rejected the remainder of the appeal and in this part the judgment became final. The applicant lodged an appeal on points of law. 16. On 4 November 2004 the Ljubljana Labour and Social Court rejected the appeal on points of law on procedural grounds. The applicant appealed.", "17. On 14 January 2005 the Ljubljana Higher Labour and Social Court upheld the appeal. The appeal on points of law was sent to the Supreme Court. 18. On 25 October 2005 the Supreme Court rejected the appeal on points of law.", "The applicant lodged a constitutional appeal. 19. On 7 June 2006 the first-instance court issued a judgment (see paragraph 15 above). The applicant appealed. 20.", "On 5 October 2006 the appeal was rejected. The appeal court found inter alia that the applicant had been requesting rights and benefits after the appeal judgment became final without any grounds. 21. On 12 February 2007 the Constitutional Court rejected the constitutional appeal. B.", "Second set of proceedings (VP 371/96) 22. On 20 December 1996 the applicant’s former employer instituted proceedings against him before the Ljubljana District Court seeking the restitution of work-related material following the dismissal. 23. On 14 May 1997 the Ljubljana District Court issued a decision ordering the applicant to return the disputed material. The applicant appealed.", "24. On 3 July 1997 the court held a hearing and annulled the decision. The plaintiff appealed. 25. On 14 October 1997 the Ljubljana Higher Court rejected the appeal.", "26. On 18 December 1997 a decision was issued, whereby due to lack of jurisdiction the case was transferred to the Piran District Court. 27. On 28 November 1998 the applicant lodged a counter claim seeking payment for the updates he made to a computer and car expenses. 28.", "On 8 January 2001 the proceedings were stayed. The proceedings resumed on 9 April 2001. 29. On 15 October 2001 the Piran District Court issued a decision on termination of proceedings following the withdrawal of the claim by the plaintiff. The applicant, however, decided to pursue his counter claim.", "30. On 5 February 2002 the Piran District Court issued a decision on lack of jurisdiction. The case was transferred to the Ljubljana Labour Court. 31. Between 12 April 2002 and 14 March 2003 the Ljubljana Labour Court held four hearings.", "32. After the last hearing the court rendered a judgment upholding the applicant’s request in part. Both parties appealed. 33. On 18 November 2004 the Higher Labour and Social Court upheld the appeals and remitted the case for re-examination.", "34. On 23 March 2007 the Ljubljana Labour Court held a hearing and rendered a judgment upholding the applicant’s request in part. An appeal was lodged. 35. On 10 September 2008 the Higher Labour and Social Court rendered a judgment.", "II. RELEVANT DOMESTIC LAW 36. For relevant domestic law see Tomažič v. Slovenia (no. 38350/02, 13 December 2007). THE LAW I.", "ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 37. The applicant complained that the length of the 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 ...” 38. In substance, the applicant further complained that the remedies available for excessive legal proceedings in Slovenia were ineffective. Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 39. Firstly, as regards the second set of proceedings the Court notes that they were pending at second instance on 1 January 2007 and continued for more than three months.", "Following the Court’s findings in the cases Grzinčič v. Slovenia (no. 26867/02, § 110, 3 May 2007) and Nezirovič v. Slovenia (no. 16400/06, (dec.), §§ 27-42, 18 November 2008) the complaints under Articles 6 and 13 must be declared inadmissible in accordance with Article 35 §§ 1 and Article 35 §§ 3 and 4 of the Convention, respectively. 40. Secondly, as to the first set of proceedings the Court notes that the present case concerns proceedings that fall into the category of cases where the domestic proceedings had been “finally resolved” before the Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”) entered into force but have afterwards continued before the Supreme and Constitutional Court.", "The case is thus similar to the case Kovinar d.o.o. v. Slovenia (no. 24162/06, 4 December 2012). In that case the Court found that the legal remedies at the applicant’s disposal were ineffective (ibid., §§ 18-21). 41.", "The Court finds that the Government have not submitted any convincing arguments which would require the Court to distinguish the present case from the above mentioned case. 42. The Court further notes that the part of the application concerning the first set of proceedings is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. Article 6 43. The period to be taken into consideration began on 11 October 1996, the date when proceedings were instituted, and ended on 12 February 2007, when the Constitutional Court’s decision was issued. The proceedings thus lasted ten years and four months at four levels of jurisdiction.", "44. 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 for example Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 45. Having examined all the material submitted to it, and having regard to its case-law (see Bedi v. Slovenia, no.", "24901/02, §§ 18-20, 13 April 2006; and Žnidar v. Slovenia, no. 76434/01, §§ 21-23, 9 March 2006) on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable-time” requirement. There has accordingly been a breach of Article 6 § 1. 2. Article 13 46.", "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). 47. In the present case the Court is not persuaded that the applicant could have had access to the compensation claim and finds the remedies of the 2006 Act ineffective (see paragraphs 39-42 above). As regards the remedies available prior to the implementation of the 2006 Act, the Court sees no reason to take a different approach to that taken in earlier cases in which those remedies were considered ineffective (see Lukenda v. Slovenia, no.", "23032/02, 6 October 2005). 48. Accordingly, the Court considers that in the present case there has been a violation of Article 13 on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding his right to have his case heard within a reasonable time, as set forth in Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 49.", "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 50. The applicant claimed 26,800 euros (EUR) in respect of non-pecuniary damage. 51. The Government did not express an opinion on the matter 52.", "The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards award him EUR 2,400 under that head. B. Costs and expenses 53. The applicant also claimed EUR 3,060 for the costs and expenses incurred before the Court.", "54. The Government did not express an opinion on the matter 55. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court notes the representative doubled his fees due to the representation before an international court, which the Court finds unreasonable, since, for example, he was allowed to use the Slovenian language before the Court. The Court therefore considers it reasonable to award the applicant the sum of EUR 1,500 under this head.", "C. Default interest 56. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Declares by a majority the complaint concerning the excessive length of the proceedings and the lack of an effective remedy as regards the first set of proceedings admissible; 2. Declares unanimously the remainder of the application inadmissible; 3.", "Holds by six votes to one that there has been a violation of Article 6 § 1 and Article 13 of the Convention; 4. Holds by six votes to one (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,[1] the following amounts: (i) EUR 2,400 (two thousand four hundred euros) plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 18 April 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekMark VilligerRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Pejchal is annexed to this judgment.", "M.V.C.W. DISSENTING OPINION OF JUDGE PEJCHAL I disagree with the majority’s finding of a violation of the applicant’s right to a fair trial within “a reasonable time” for the reasons given already in my separate opinion in the case Podbelšek Bračič v. Slovenia, no. 42224/04. [1] Rectified on 5 July 2013: “from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention,” has been inserted." ]
[ "SECOND SECTION CASE OF SAÇILIK AND OTHERS v. TURKEY (Applications nos. 43044/05 and 45001/05) JUDGMENT (Final merits and partial just satisfaction) STRASBOURG 5 July 2011 FINAL 05/10/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Saçılık and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Danutė Jočienė,David Thór Björgvinsson,Dragoljub Popović,András Sajó,Işıl Karakaş,Guido Raimondi, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 7 June 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos.", "43044/05 and 45001/05) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by 25 Turkish nationals (“the applicants”) on 30 November 2005. 2. The 24 applicants in application no. 43044/05, whose particulars are set out in the attached table, are Turkish nationals. The applicants Ali Rıza Dermanlı, Birsen Dermanlı and Gönül Aslan were represented before the Court by Ms Meral Hanbayat, Mr Mehmet Ali Kırdök and Ms Mihriban Kırdök, lawyers practising in Istanbul.", "The applicants Barış Gönülşen, Hüsne Davran and Mürüvet Küçük were represented by Mr Kazım Bayraktar, a lawyer practising in Ankara. The remaining applicants were represented by Ms Akça Yüksel and Ms Rahşan Aytaç Sala, lawyers practising in Gaziantep and Istanbul respectively. One of these remaining applicants, namely, Mr Cavit Temürkürkan, informed the Court on 24 May 2011 that he had appointed Ms Ursula Metzger Junco, a lawyer practising in Switzerland, to take over from Ms Akça Yüksel and Ms Rahşan Aytaç Sala as his representative. 3. The applicant in application no.", "45001/05, Mr Emre Güneş, who was granted legal aid, is a Turkish national who was born in 1976 and lives in Antalya. He was represented before the Court by Ms Akça Yüksel, a lawyer practising in Gaziantep. The Turkish Government (“the Government”) were represented by their Agent. 4. The applicants alleged that, in the course of a security operation conducted in their prison in 2000, they had been subjected to ill-treatment within the meaning of Article 3 of the Convention and that their allegations had not been adequately examined by the national authorities.", "5. On 9 June 2009 the Court joined the applications, declared them partly inadmissible and decided to communicate the complaint under Article 3 of the Convention concerning the alleged ill-treatment to the Government. It also decided to examine the merits of the applications at the same time as its admissibility (Article 29 § 3). THE FACTS THE CIRCUMSTANCES OF THE CASE A. Introduction 6.", "On 5 July 2000 the applicants were in detention in Burdur Prison when a large-scale security operation was conducted there by 415 members of the security forces consisting mainly of gendarmes and soldiers. As the remaining facts of the case are in dispute between the parties, they will be set out separately. The facts as presented by the applicants are set out in Section B below (paragraphs 7-12). The Government’s submissions concerning the facts are summarised in Section C below (paragraphs 13‑21). The documentary evidence submitted by the applicants and the Government is summarised in Section D (paragraphs 22‑60).", "B. The applicants’ submissions on the facts 7. On 4 April 2000 a number of remand prisoners in Burdur Prison were beaten by gendarmes on their way back from a court hearing. On 4 July 2000 eleven detainees, including nine of the applicants, informed the prison administration that, unless steps were taken to guarantee their safety, they would not be appearing at a hearing in the Burdur Assize Court scheduled for the following day. Neither the prison authorities nor the prosecutors responded to their calls.", "8. At around 8.30 a.m. on 5 July 2000, members of the security forces arrived at the prison in large numbers. Using the furniture in their dormitories the inmates unsuccessfully tried to block the doors to stop the soldiers from coming in. The soldiers locked the windows to the prison cells, set fire to the cell doors and tried to confine the inmates in one part of the prison, measuring 25-30 square metres. The applicants Yunis Aydemir and Cemil Aksu suffered burns in the fire.", "When the inmates were confined in the same 25-30 square metres the soldiers used tear gas and various other chemical gases on them. 9. A hole was opened in the walls of this room with a digger. When the digger went through the hole and into the room the applicant Mr Saçılık waved his arm at the operator of the machinery, trying to tell him to withdraw the digger. The operator saw Mr Saçılık but proceeded, tearing off Mr Saçılık’s left arm from above his elbow.", "The severed arm was not collected by the authorities with a view to preserving and reattaching it, but was left there in the rubble. It was later taken from the mouth of a stray dog which had snatched it from the rubble. 10. Furthermore, a gas bomb detonated nearby seriously damaged the applicant Şahin Geçit’s right hand and eardrum. 11.", "The soldiers then started beating the inmates, dragging them on the floor, sexually assaulting female detainees and threatening them with rape. The detainees were then handcuffed, with their hands behind their backs, and were kept in that position for a period of 15 hours. The beatings continued even after the detainees were handcuffed. The soldiers attempted to insert a truncheon and a fluorescent light stick into the anuses and vaginas of the applicants Azime Arzu Torun and Mürüvet Küçük and started raiding the detainees’ personal belongings. 12.", "The injured detainees, some with life-threatening injuries, were subsequently taken to hospital. However, it was too late for Veli Şaçılık’s arm to be stitched back on, so he permanently lost his arm. The health of a number of other applicants also worsened because of the delays. Moreover, the soldiers prevented some of the detainees from receiving medical assistance at the hospital and took them back to the prison before their treatment had been completed. C. The Government’s submissions on the facts 13.", "On 4 July 2000 eleven detainees, including nine of the applicants, refused to obey the prison authorities and attend a hearing at the Burdur Assize Court. The Burdur Gendarmerie Headquarters requested assistance from a number of other military headquarters in an operation to be carried out in the prison. 14. The applicants and a number of other detainees began rioting in the prison. At around 10.00 a.m. on 5 July 2000, members of the security forces entered the prison in order to restore safety and security.", "They warned the prisoners and asked them to stop rioting. Ten prisoners complied with the soldiers’ instructions, but the remaining ones, including the applicants, continued to riot. They barricaded themselves in, opened fire, set fire to the dormitories and corridors, attacked members of the security forces with hand-made harpoons and iron bars and threw various explosive and corrosive chemicals at them. Seventeen gendarmes were injured as a result of the attacks. 15.", "As soon as members of the security forces managed to pass the barricades, the prisoners moved to the next dormitory after setting fire to the one they had been in. At that point the soldiers opened holes in the ceilings of the dormitory where the prisoners had gathered, and threw in tear gas canisters with a view to stopping the riots and minimising further damage. 16. A total of two holes were opened. The applicant Veli Saçılık was injured when a machine was opening the holes.", "17. At the end of the operation a search was carried out. A number of documents belonging to an illegal organisation, 81 iron bars, 25 wooden bars, 52 hand-made objects used for cutting and digging holes, two saws, 20 pairs of scissors and three hammers were found during the search. 18. Apart from the severe damage caused to the prison building, ten security force personnel, six prison guards, one civilian and sixteen prisoners were wounded during the operation.", "The sixteen wounded prisoners were taken to hospitals. When 45 other prisoners refused to go to hospital for medical checks, three doctors were taken to the prison to provide medical assistance to them. 19. Although the applicant Azime Arzu Torun alleged that she had been raped with a truncheon, the medical reports pertaining to her examination revealed that her hymen was intact. 20.", "In the course of the investigation prosecutors questioned the applicants and members of the security forces, and examined the medical reports. On 30 March 2005 the Burdur prosecutor concluded that the soldiers’ actions had become unavoidable as a result of the prisoners’ behaviour, and decided not to prosecute any members of the security forces. 21. The applicant Veli Saçılık successfully filed a civil suit for his injuries, claiming 100,000 Turkish liras (TRL) in respect of pecuniary damage and TRL 50,000 in respect of non-pecuniary damage. On 31 March 2005 the sum of TRL 244,150 (approximately 140,000 euros (EUR) at the time), which included accrued interest, was paid to Mr Saçılık.", "D. Documentary evidence submitted by the parties 22. The following information emerges from the documents submitted by the parties. 1. Documents pertaining to the operation and the subsequent criminal investigations 23. On 21 June 2000 the president of the Burdur Assize Court sent a letter to the Burdur prosecutor and stated that eleven inmates at the prison had failed to attend a hearing scheduled for that day.", "The president urged the prosecutor to ensure the inmates’ attendance at the next hearing scheduled for 5 July 2000, “if necessary by forceful means so that judicial functions could be performed and the authority of the State would not be undermined”. 24. In his letter of 4 July 2000 the governor of Burdur Prison informed the Burdur prosecutor’s office about the Burdur Assize Court president’s letter. In the opinion of the prison governor, force would need to be used to uphold the “State’s authority” but there was an insufficient number of prison guards at the prison to handle such an intervention. 25.", "On 4 July 2000 the Burdur public prosecutor asked the Burdur Gendarmerie Headquarters to ensure the attendance of the eleven detainees at the hearing, if necessary by forceful means. The same day the Burdur Gendarmerie Headquarters asked a number of other military headquarters, including the special forces at the Antalya and Konya Commando Headquarters, to assist them in an operation to be carried out in Burdur Prison the following day. 26. According to incident reports drawn up by soldiers on 5 July 2000, the soldiers went to the prison in the early hours and asked the eleven detainees to leave the prison and go to the hearing. When this request met with the inmates’ refusal, the soldiers entered the prison and saw that the inmates had barricaded themselves in their dormitories using their bunk-beds, tables, lockers and other furniture.", "When the inmates were all confined in one room, the walls of the room were demolished and the soldiers threw in gas canisters. However, the inmates covered their heads with wet fabrics to protect themselves from the effects of the gas, before proceeding to throw the gas canisters back at the soldiers. The inmates then started throwing cleaning products containing acid and bleach at the soldiers and hitting them with metal rods made from window bars. When the soldiers finally gained control of the prison, sixteen of their number had either been beaten up by the inmates or intoxicated by the tear gas. When the operation ended at around 10.00 p.m. the injured inmates were taken to hospitals.", "27. The applicants were all examined by doctors on a number of occasions. Details of their injuries, as noted in the medical reports, are as follows: Veli Saçılık: Mr Saçılık was taken to hospital on 5 July 2000 and was discharged again on 27 July 2000. It was not possible to stitch his arm back on and his injury was deemed to be life-threatening by the doctors. His injury prevented him from working for 60 days.", "Hüseyin Tiraki: Examined by three doctors. Various injuries to the face, arms and legs. Unable to work for a period of between one and seven days. Halil Tiryaki: Examined by three doctors. Various injuries, some infected, and bruising on the torso, arms and legs, requiring a ten-day healing period.", "Unable to work for a period of between five and seven days. Yunis Aydemir: Examined by two doctors. Various injuries and bruising on the head and on the back of his body, legs and ankles. Unable to work for a period of between five and seven days. Yusuf Demir: Examined by one doctor.", "His injury prevented him from working for a period of two days. İbrahim Bozay: Examined by three doctors. Various injuries and bruising on the shoulders and arms. Unable to work for a period of between three and seven days. Hakan Baran: Examined by three doctors.", "Various injuries, some infected, and bruising on the shoulders and the back of the body, arms and legs. Unable to work for a period of between three and seven days. Kazım Ceylan: After the operation Mr Ceylan was taken to a hospital suffering from gas intoxication and his condition was deemed to be life-threatening by doctors who also observed various injuries and bruises on the left ear, head, arms and legs. Unable to work for a period of between two and seven days. Hüseyin Bulut: Examined by three doctors.", "Various injuries and bruises on the back of the body, ribs, arms and legs. Unable to work for ten days. Cemil Aksu: Examined by two doctors. Various injuries and bruises on the head and round the eyes and extensive injuries to the shoulders, the back of the body and the arms, wrists and fingers. Unable to work for a period of between seven and eight days.", "Necla Çomak: Ms Çomak was examined by two doctors. Various injuries and bruises on various parts of the body including the head and the eyes. Unable to work for a period of between five and seven days. Şahin Geçit: Examined by two doctors one of whom was an ear, nose and throat consultant. Various infected injuries on the right hand.", "Various injuries and bruises on the head, face, eyes, ears, shoulders, arms and legs. Perforated ear drum and hearing loss. Unable to work for a period of between ten and fifteen days. Hayrullah Kar: Examined by two doctors. Various injuries and bruises on the head and the right shoulder blade.", "Unable to work for a period of between seven and eight days. Mehmet Leylek: After the operation Mr Leylek was taken to a hospital suffering from gas intoxication and his condition was deemed to be life-threatening by doctors. He was discharged from the hospital the following day. The doctors also observed various injuries and bruises on the ribs, knees, legs and torso, which prevented him from working for a period of between two and seven days. Birsen Dermanlı: After the operation Ms Dermanlı was taken to a hospital suffering from gas intoxication and her condition was deemed to be life-threatening by doctors, who also observed extensive injuries and bruising on her face and legs.", "Unable to work for a period of between two and seven days. Veysel Yağan: Examined by two doctors. Extensive injuries and bruising on the back of the body, arms, hands, legs and feet. Unable to work for a period of seven days. Fikret Lüle: Examined by three doctors and taken into hospital for a head trauma.", "Various injuries and bruises around the eyes, nose, face, ears, lips, shoulders, arms and knees and a nose fracture. Unable to work for ten days. Ali Rıza Dermanlı: Examined by two doctors. Various injuries and bruises on the face, chest and back of the body, arms and legs. Unable to work for a period of between seven and thirteen days.", "Cavit Temürtürkan: Examined by three doctors. Extensive injuries and bruising on the head, face, back of the body and legs. Unable to work for a period of between five and seven days. Azime Arzu Torun: Examined by three doctors. Extensive injuries and bruising on the head, knees, lumbar region, sternum, arms and legs.", "On 10 July 2000 Ms Torun was also examined by a doctor in relation to her allegations of sexual attacks and it was established that her hymen was intact. Her various injuries rendered her unfit for work for a period of between five and seven days. Gönül Aslan: Examined by two doctors. Various injuries and bruises on the face, back of the body, lumbar region and legs. Unable to work for a period of between two and seven days.", "Barış Gönülşen: After the operation Mr Gönülşen was taken to a hospital suffering from gas intoxication and his condition was deemed to be life-threatening by doctors, who also observed extensive injuries and bruising on his head, ears, chest, back of his body, arms, legs and feet. His injuries prevented him from working for a period of between two and seven days. Hüsne Davran: Examined by three doctors, who observed various injuries and bruises on her back, arms, and legs, which prevented her from working for a period of between one and five days. Mürüvet Küçük: Examined by a doctor who observed various injuries and bruises on her head, eyes, neck, shoulders and legs. Her injuries rendered her unfit to work for a period of between five and twelve days.", "Emre Güneş: Examined by three doctors. Various injuries and bruises on the head, face, chest, back of the body, arms and legs. Unable to work for a period of between five and seven days. 28. On 6 and 7 July 2000 the applicants were questioned by public prosecutors.", "They told the prosecutors that they had been subjected to various forms of ill-treatment. 29. Between 8 July and 19 July 2000 the applicants submitted nineteen separate complaint petitions to prosecutors and asked for the security personnel responsible for their injuries to be prosecuted. 30. On 21 July 2000 lawyers representing the applicants, as well as twenty-nine other detainees, submitted a joint and detailed complaint to the office of the Burdur public prosecutor and asked for prosecutions to be brought against those responsible for the ill-treatment and injuries.", "31. In his letter of 24 July 2000 the Burdur Governor Kaya Uyar informed the relevant ministerial authorities that the force used by the soldiers had remained within the permissible limits of the applicable legislation. The soldiers had been particularly cautious in not using their weapons and careful not to infringe the inmates’ human rights; they had never attacked the inmates and had not caused any injury to any of them. The inmates who had been intoxicated by the gas used by the soldiers, as well as Mr Saçılık, who had been “injured while throwing bricks at the driver of the digger”, had “promptly” been taken to hospital. In his letter the governor also stated that “20 of the 61 inmates had been taken to hospitals in ambulances after the operation had ended at around 9.30 p.m. and 10.00 p.m. and the remaining inmates had been held in the prison”.", "32. On 2 August 2000 the soldiers who took part in the operation were questioned by an army officer. Between 4 and 10 August 2000 they were further questioned by prosecutors. They all denied having ill-treated the applicants, and maintained that respect for human rights had been paramount during the operation. A number of prison guards who had been on duty at the prison that day stated that they had not seen or heard anything.", "33. In the meantime, on 7 August 2000 the applicant Azime Arzu Torun submitted a separate complaint to the Burdur prosecutor and gave details of the sexual assault to which she claimed she had been subjected during the operation. According to Ms Torun, the soldiers had forced a truncheon into her vagina and the doctor who examined her had refused to establish whether her hymen had been torn. She asked the prosecutor to refer her to a hospital specialising in post-traumatic stress disorders and to carry out an investigation “in compliance with the European Convention on Human Rights”. 34.", "On 7 August 2000 the Burdur gendarmerie commander Ali Erduran drew up his preliminary investigation report in which he concluded that the soldiers had not ill-treated any of the inmates. The inmates had made the allegations of ill-treatment in order to damage the reputation of the armed forces. 35. Acting on officer Erduran’s advice, on 8 August 2000 the Burdur Governor Kaya Uyar declined to grant the necessary authorisation to the prosecutors to investigate a number of gendarme officers. The Burdur Prosecutor Tahsin Uyav lodged an objection against that decision on 18 August 2000.", "36. On 14 August 2000 Prosecutor Uyav asked for permission to prosecute three officers implicated in the allegations. 37. In his letter of 24 August 2000 Prosecutor Uyav informed the Ministry of Justice that “a number of inmates had been injured in the course of an operation which had been necessary to quell a large-scale riot against the prison administration”. In a similarly worded letter addressed to the Gendarmerie General Command in Ankara on 13 October 2000, Prosecutor Uyav stated that “during forceful resistance by terrorists, security forces had to use force and a number of security personnel and terror convicts were injured”.", "38. On 1 November 2000 Prosecutor Uyav brought prosecutions against the applicants and a number of other inmates for “having caused a riot”. 39. The same day Prosecutor Uyav requested permission from the Burdur governor to investigate the actions of 404 members of the security forces who had taken part in the operation. The Burdur governor appointed his deputy Mr Azizoğlu to carry out a preliminary investigation 40.", "In its decision of 2 November 2000 the Antalya Regional Court upheld the prosecutor’s objection of 18 August 2000, and held that the preliminary investigation should have been conducted by the Ministry of the Interior. 41. In its decision of 8 January 2001 the Ministry of the Interior appointed gendarmerie colonel Adnan Kandemir to examine the allegations with a view to advising as to whether a prosecution should be brought against the soldiers. 42. In his report of 19 February 2001 Colonel Kandemir recommended the Ministry of the Interior to refuse the authorisation sought by the Burdur prosecutor to prosecute the 404 members of the security forces.", "It appears from this report that a total of 389 of the 404 security personnel had been questioned by Colonel Kandemir and they had all denied the allegations against them. Colonel Kandemir concluded that the operation had been a success, the uprising had been halted and the authority of the State had been restored. Other than their abstract allegations, there was no evidence to support the applicants’ “ill-intentioned allegations”. 43. Acting on Colonel Kandemir’s advice, on 23 February 2001 the Burdur governor declined the authorisation sought by the Burdur prosecutor.", "44. On 27 March 2001 Burdur prosecutor Uyav lodged an objection against the Burdur governor’s decision of 23 February 2001. 45. In his decision of 11 October 2002 the Burdur governor refused to grant authorisation for the prosecution of a further eleven gendarme officers. 46.", "On 23 January 2003 Antalya Regional Administrative Court upheld the Burdur prosecutor’s objection and the file was forwarded to that prosecutor’s office for a judicial investigation to be opened. 47. In the course of the investigation the prosecutors questioned the applicants and examined the medical reports detailing their injuries. 48. On 12 January 2005 a colonel at the Gendarmerie General Headquarters in Ankara wrote to the Burdur public prosecutor informing him that exorbitant sums of compensation were being awarded to the inmates by administrative courts despite the absence of a court decision placing criminal responsibility on the administration and despite the fact that the operation in question had been conducted with a view to protecting the right to life and quelling riots staged by prisoners acting under orders from illegal organisations.", "The colonel added that there was a need for the investigation to be concluded as soon as possible so that it could be established whether or not the administration was at fault. He asked the prosecutor to provide him with information about the investigation. 49. In his decision of 30 March 2005 the Burdur public prosecutor decided not to prosecute any members of the security forces. The prosecutor noted that the driver of the digger which had severed Veli Saçılık’s arm had subsequently been tried for, and acquitted of, the offence of causing bodily injury by recklessness.", "The prosecutor also noted that a number of doctors and nurses working at the hospital where Mr Saçılık had been treated had also been tried for neglecting their duties, but had been acquitted. Criminal proceedings brought against the inmates for causing a riot, on the other hand, were still pending. 50. The prosecutor considered that the soldiers’ intervention had become unavoidable as a result of the actions of inmates who had refused to surrender but had instead gone on to set fire to the objects in their dormitories and to attack the soldiers with wooden sticks and iron bars. Veli Saçılık’s arm had been severed when he had tried to throw bricks at the soldiers through the hole in the prison wall opened by the digger.", "51. The prosecutor observed that, according to the medical reports, all applicants had suffered various injuries, preventing them from working for different periods. Although Azime Arzu Torun had alleged that she had been raped with a truncheon, the medical reports showed that her hymen was intact. There was no medical evidence of any sexual assault of the other female detainees and, as such, their allegations of sexual abuse were unfounded. 52.", "In the prosecutor’s opinion, the soldiers had had to resort to the use of force in order to quell the prisoners’ riot, and the amount of force used had been “no more than absolutely necessary” within the meaning of Article 2 § 2 of the Convention. 53. An objection lodged against the prosecutor’s decision was rejected on 30 May 2005 by the Isparta Assize Court, which considered that the prosecutor’s decision was in accordance with the applicable legislation and procedure. 54. Furthermore, on 12 February 2008 the Burdur Assize Court terminated the criminal proceedings against the applicants for causing a riot, as the statutory time-limit for such proceedings had been reached.", "2. Documents pertaining to the compensation claim brought by the applicant Veli Saçılık 55. In 2002 Mr Saçılık brought proceedings against the Ministry of Justice and the Ministry of the Interior, claiming TRL 100,000 for pecuniary damage and TRL 50,000 for non-pecuniary damage. 56. On 31 March 2005 the Antalya Administrative Court concluded that the use of heavy machinery in a prison had been unusual.", "Even assuming that its use had been necessary, Mr Saçılık had at that time been intoxicated by the gases used by the soldiers and had been trying to get fresh air through the hole opened by the digger. It had not been alleged that he was posing any threat to the soldiers or to the driver of the digger; indeed that would have been most improbable given his state of health at the time. It was also clear that the driver of the digger had seen Mr Saçılık but had carried on regardless. The Ministries were therefore responsible for his injury caused by the use of disproportionate force. It thus awarded Mr Saçılık the sums claimed by him in full, plus statutory interest.", "57. The Ministries appealed. According to the applicable procedure, appeal proceedings do not affect the execution of first-instance court decisions. Thus, the total sum of TRL 244,150 was paid to Mr Saçılık before the appeal was decided. 58.", "The appeal lodged by the Ministries was upheld by the Supreme Administrative Court on 15 February 2008 and the decision awarding Mr Saçılık the compensation was quashed. The applicant’s request for a rectification of that decision was rejected by the Supreme Administrative Court on 25 February 2009. 59. Proceedings were restarted before the Isparta Administrative Court, which decided on 24 June 2010 to reject the applicant’s claim for compensation. According to the Isparta Administrative Court, the applicant had contributed to the incidents in the prison and members of the security forces had had to restore discipline in the prison.", "The applicant’s actions had thus severed the link of causation between the actions of the security forces and the ensuing damage. 60. On 20 August 2010 the judgment was served on the applicant, who lodged an appeal through the Isparta Administrative Court. The latter failed to transfer the applicant’s appeal to the Supreme Administrative Court within the statutory time-limit. Following the applicant’s challenge and, having noted this administrative error, the Supreme Administrative Court granted the appeal on 9 December 2010.", "In the meantime, in his observations the Chief Prosecutor at the Supreme Administrative Court opined that the applicant’s appeal should be dismissed. The proceedings are still pending. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 61. The applicants complained that the treatment to which they had been subjected in the prison amounted to ill-treatment within the meaning of Article 3 of the Convention.", "They also complained that no effective investigations had been carried out into their allegations at the national level. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 62. The Government contested that argument. A. Admissibility 63. The Government argued that the applicants had failed to exhaust the domestic remedies available to them, within the meaning of Article 35 § 1 of the Convention.", "In this connection they submitted, firstly, that the applicants had failed to raise their complaints before the domestic courts. Secondly, the Government argued that the applicants had failed to bring an administrative action and claim compensation in accordance with the principle of “objective responsibility of the State”. Finally, the Government submitted that the applicant Veli Saçılık had applied for, and been paid, compensation. Thus Mr Saçılık’s complaints should be declared inadmissible. 64.", "The applicants maintained that they had brought their complaints to the attention of the national authorities on a number of occasions and lodged objections against decisions closing the investigations. 65. As to the Government’s reference to the administrative remedy, the applicants referred to a number of judgments adopted by the Court, and submitted that domestic remedies leading solely to awards of compensation could not be regarded as effective remedies in the context of Article 3 of the Convention. 66. Finally, Mr Saçılık submitted that, although he had been paid compensation, the decision awarding him that compensation had subsequently been quashed and the proceedings were still continuing.", "Thus, there was a risk that those proceedings might result in a rejection of his compensation claim. He would then be ordered to repay the sum paid to him. 67. Regarding the Government’s first objection, the Court observes that on many occasions the applicants brought their complaints to the attention of the national authorities who had the power to bring criminal prosecutions. In some instances they informed the relevant prosecutors orally and in others they submitted written applications (see paragraphs 28-30 above).", "In some of those complaints the applicants also referred to their rights under the Convention (see paragraph 33 above). Moreover, they lodged an objection against the prosecutor’s decision not to prosecute the members of the security forces who they alleged had been responsible for their injuries. 68. Concerning the Government’s reference to the administrative remedy, and assuming that reference to be an argument to the effect that payment of compensation would constitute adequate redress, the Court reiterates that it has already examined and rejected the Government’s preliminary objections in similar cases (see, in particular, Atalay v. Turkey, no. 1249/03, § 29, 18 September 2008; Karayiğit v. Turkey (dec.), no.", "63181/00, 5 October 2004). It reiterates that the remedy referred to by the Government cannot be regarded as sufficient for a Contracting State’s obligations under Article 3 of the Convention as it is aimed at awarding damages rather than identifying and punishing those responsible. The Court finds no particular circumstances in the instant case which would require it to depart from its findings in the above-mentioned cases. It therefore rejects the Government’s objection. 69.", "As for the Government’s reference to the compensation paid to the applicant Mr Saçılık, the Court observes that the decision awarding Mr Saçılık the compensation was quashed and the proceedings which started subsequently ended in the rejection of his claims by the first instance court. The appeal proceedings against that decision are still pending (see paragraphs 59-60 above). In any event the Court considers that, regardless of the outcome of the administrative proceedings currently pending, the sum of compensation received by the applicant Mr Veli Saçılık, though it may have a bearing on his claim for just satisfaction (see paragraphs 111-112 below), cannot remedy his victim status. In that connection the Court reiterates that, if the authorities could confine their reaction to incidents of wilful police ill-treatment to the mere payment of compensation, while not doing enough in the prosecution and punishment of those responsible, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity and the general legal prohibitions of killing and torture and inhuman and degrading treatment, despite their fundamental importance, would be ineffective in practice (see Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 55, 20 December 2007).", "The Court reiterates that, for complaints about treatment suffered in police custody, criminal proceedings are the proper means of obtaining redress (Okkalı v. Turkey, no. 52067/99, § 58, ECHR 2006‑XII (extracts)). 70. In the light of the foregoing the Court rejects the Government’s preliminary objections. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "Nor is it inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 71. The applicants maintained their complaints of ill-treatment, and argued that the inmates’ refusal to attend the hearing because of the authorities’ failure to ensure their personal safety had been used by the soldiers as a pretext to carry out the operation.", "Up until the arrival of the soldiers there had been no problems or uprisings in the prison. Thus, the Government’s submission that the soldiers had entered the prison in order to restore security was baseless. 72. When the soldiers had confined the inmates in one part of the prison, measuring 25-30 square metres, the walls of that part had been demolished by heavy machinery and tens of gas canisters had been thrown in. This had been completely unnecessary because at that stage there was nowhere the inmates could go; the soldiers could simply have waited for them to surrender.", "Indeed, the Government had not sought to argue that alternatives to forceful means had been considered by the security forces. 73. Instead, the security forces, which included soldiers and prison guards, had subjected the applicants to systematic, disproportionate and unjustified violence. The applicants referred to the medical reports detailed above (see paragraph 27 above) and submitted that their injuries, some of which had been life-threatening, were serious enough to amount to ill-treatment within the meaning of Article 3 of the Convention. They argued that the Government had failed to provide plausible explanations for their injuries.", "74. The applicant Azime Arzu Torun also submitted that her gynaecological examinations had been carried out some six days after the sexual attacks and that crucial evidence had thus been destroyed with the passage of the time. 75. The applicants accepted that an investigation had been carried out into their allegations, but alleged that it had only been done for the sake of appearances. They argued that the prosecutor who conducted the investigation had been unduly influenced by the administrative authorities.", "For example, the letter of 24 August 2000 (see paragraph 37 above) illustrated that the Burdur prosecutor Uyav had already made up his mind, without having carried out any investigations and some four and a half years before he closed the investigation, that the inmates had caused a “riot” and that the soldiers’ intervention had been “necessary”. This, in the opinion of the applicants, showed that the subsequent steps taken by that prosecutor had been mere procedural formalities. 76. The applicants also criticised the fact that the initial investigations had been conducted by members of the same security forces who had been involved in the events. 77.", "The Government denied that the applicants had been subjected to ill-treatment within the meaning of Article 3 of the Convention. In the Government’s opinion the applicants and other inmates had caused a riot, opened fire at the soldiers, set fire to their dormitories and corridors and attacked the soldiers by throwing stones at them and hitting them with sticks. It had not been possible to provide medical assistance to the applicants until after the riot was over, because they had continued rioting even after they were injured. 78. The Government also argued that the medical reports showed that the applicants Azime Arzu Torun and Mürüvet Küçük had not been sexually assaulted.", "79. Finally, the Government considered that the national authorities had carried out all necessary examinations and investigations concerning the operation. 80. The applicants responded to the Government’s arguments by submitting that the reason why some of the detainees in the prison had refused to go to the hearing on 6 July 2000 was because of the authorities’ failure to respond to their calls to ensure their safety on their way to and from the courthouse. 81.", "The applicants confirmed that they had set up barricades when the soldiers entered the prison, but submitted that they had only done so in order to protect themselves from the soldiers’ attacks. Only a year previously a number of inmates had been killed in another prison by soldiers[1]. In such circumstances, their attempts at protecting themselves from the soldiers’ attacks could not be categorised as a riot, as suggested by the Government. Also, the fact that the Government’s allegations were baseless was further supported by the fact that the criminal proceedings brought against the inmates for rioting had been dropped under the statute of limitations. 82.", "The applicants challenged the Government’s allegations that the inmates had opened fire on the soldiers and had used hand-made harpoons and iron bars, injuring a total of seventeen members of the security forces. They drew the Court’s attention to the absence of medical reports to prove that the soldiers had been treated by doctors for any physical injury. Indeed, other than arguing that the soldiers had been injured by the inmates, the Government had not even attempted to detail those alleged injuries or to support them with any evidence. The applicants also pointed out that no firearms belonging to the inmates had been found in the prison during the searches carried out after the operation. 83.", "The applicants also challenged the accuracy of the assertion that objects such as iron and wooden bars, hammers and harpoons had been used by them to attack the soldiers. They submitted that such items, if they existed, would have been discovered during the regular searches which the prison authorities had carried out in the prison prior to the operation. 84. Challenging the Government’s assertion that they had refused to accept medical treatment after the operation, the applicants alleged that they had been beaten up by the soldiers even when they were being taken to hospital many hours after the operation. Veli Saçılık argued that he lost his arm because no precautions had been taken to preserve it, and he had been made to wait for hours at the prison after his arm had been severed by the machine.", "85. The Court reiterates at the outset that Article 3 of the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see Labita v. Italy [GC], no. 26772/75/ § 119, ECHR 2000‑IV). 86. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention.", "The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). 87. The Court has examined the reports pertaining to the applicants’ medical examinations. It considers that the injuries, some of which were life-threatening, were sufficiently severe to exceed the minimum level of severity (see paragraph 27 above).", "The Court further observes that the conclusions reached by the doctors in their reports were not contested by the respondent Government, which nevertheless maintained that the applicants had not been ill-treated. 88. In this regard, the Court observes that it is not disputed by the Government that the applicants’ injuries were caused while they were detained in a prison. According to the Court’s established case-law, States bear the burden of providing plausible explanations for injuries sustained in custody, failing which a clear issue arises under Article 3 of the Convention (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V, and Satık and Others v.Turkey, no.", "31866/96, § 54, 10 October2000). The underlying reason for this is that persons in custody are in a vulnerable position and the authorities are under a duty to protect them. 89. Moreover, regard must also be had to the investigation carried out by the national authorities and the conclusions reached by them. The Court reiterates here that, where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation.", "This investigation, as with that under Article 2, should be capable of leading to the identification and punishment of those responsible (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII). 90. It must be stressed, however, that the obligation to investigate “is not an obligation of result but of means”: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant’s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible. 91. The Court will examine whether the investigation carried out by the domestic authorities in the present case was capable of establishing the true facts surrounding the applicants’ injuries and whether the Government have thus satisfactorily discharged their burden of explaining them (see, mutatis mutandis, Beker v. Turkey, no.", "27866/03, § 53, 24 March 2009, and Özcan and Others v. Turkey, no. 18893/05, § 73, 20 April 2010). 92. Before proceeding to examine the investigation, the Court notes that, according to the applicants – some of whom were among the eleven inmates in question –, the inmates’ refusal to attend the hearing was based on their concern for their safety. They claimed that they had informed the authorities that if their safety was guaranteed on the way to and from the courthouse they would attend the hearing.", "The Court notes that the veracity of the applicants’ claims in this respect was not disputed by the Government. However, no attempt appears to have been made by the national authorities to question those inmates about their concerns and, if necessary, to ensure their safety. 93. Similarly, the Court has not been provided with any documents or information to show that alternative, non-life-threatening methods of ensuring the inmates’ attendance at the hearing were considered by the national authorities. On the contrary, according to the documents referred to above, the president of the Burdur Assize Court, the governor of Burdur Prison and the local prosecutor were convinced that the situation could only be solved by forceful means, and requested a large number of soldiers to intervene (see paragraphs 23-25 above).", "94. Furthermore, the letters sent by the above-mentioned president, governor and prosecutor sit ill with the Government’s submissions that the inmates had already been rioting before the arrival of the soldiers and that the soldiers had had to intervene to stop the riots. It is clear from those letters that there had been no riots in the prison prior to the arrival of the soldiers. Indeed, the fact that the incidents at the prison started with the arrival of the soldiers is further evidenced by the reports drawn up by the soldiers themselves (see paragraph 26 above). 95.", "As for the events that unfolded following the soldiers’ arrival, the Court finds the applicants’ version of the events, namely that they had barricaded themselves from the soldiers’ attacks, entirely credible. Indeed, contrary to what was suggested by the Government, there is no evidence to suggest that the applicants used force against the soldiers. 96. Moreover, contrary to what was suggested by the Government, there is no information or documentation to suggest that the inmates opened fire on the soldiers. In fact, no such allegation against the applicants has ever been made at the national level.", "None of the documents in which the specifics of the military operation were set out mentions any firearms having been used. The Court thus disregards the Government’s allegations concerning the use of firearms by the inmates. 97. In the light of the above, the Court considers that the Government failed to prove that the applicants’ injuries were caused as a result of their own actions. As to the actual cause of those injuries, the Court will now examine the steps taken during the investigation conducted into the applicants’ allegations of ill-treatment.", "98. The Court notes that the initial investigations were conducted by governors and military officers all of whom were hierarchical superiors of the soldiers allegedly responsible for the ill-treatment to which the applicants were subjected. It reiterates that investigations conducted by such persons cannot meet the independence and impartiality requirement of an effective investigation within the meaning of the Convention, and the Court thus cannot attach any importance to them (see, mutatis mutandis, Ümit Gül v. Turkey, no. 7880/02, §§ 53‑57, 29 September 2009). 99.", "The Court must nevertheless express its regret that the initial stage of the investigation was conducted by the military, with the result that the judicial authorities’ access to the evidence at the early and crucial stages was irretrievably delayed. 100. The Court must also express its doubts about the independence and impartiality of the civilian prosecutors who conducted the subsequent investigations. Firstly, as pointed out by the applicants, even before any meaningful investigation was conducted by him, the Burdur prosecutor wrote to the Ministry of Justice and expressed his opinion that the soldiers’ intervention had been “necessary to quell a large-scale riot against the prison administration”. In a similarly worded letter addressed to the Gendarmerie General Command in Ankara on 13 October 2000, the same prosecutor stated that “during forceful resistance by terrorists, security forces had to use force and a number of security personnel and terror convicts were injured” (see paragraph 37 above).", "The Court considers, as it has done in its previous judgments concerning similar operations in prisons in Turkey, that the prosecutor’s statements were entirely inconsistent with the duties and functions of a public prosecutor at a time when an investigation was being conducted into the involvement of gendarmes in the incident (see, inter alia, Satık and Others v. Turkey, no. 31866/96, § 59, 10 October 2000). 101. Secondly, the Court notes the letter sent to the investigating prosecutor by an army colonel some two and a half months before the prosecutor closed his investigation, urging the prosecutor to bring the investigation to an end because those injured during the soldiers’ intervention were being awarded exorbitant sums of compensation by administrative courts. In the Court’s opinion the colonel’s intervention tainted the independence and impartiality of the entire investigation (see paragraph 48 above).", "The Court observes that although it specifically requested the respondent Government to deal in their observations with the issue of the colonel’s letter, they did not do so. 102. In the light of the foregoing the Court considers that the entire investigation into the applicants’ allegations was devoid of one of the most important elements of an effective investigation within the meaning of its case-law on Article 3 of the Convention, namely independence and impartiality. 103. As for the steps taken during the prosecutor’s investigation, the Court notes the Government’s submission that their authorities had conducted all necessary examinations and investigations.", "The Court disagrees with that submission for the following reasons. 104. Firstly, no documents or information have been submitted to the Court to show that the nature and extent of the applicants’ injuries were adequately examined or that their allegations – which they maintained consistently throughout the domestic proceedings – were taken seriously by the investigating authorities. Instead, the applicants and other inmates injured during the soldiers’ intervention were repeatedly referred to as “terrorists”, and their allegations were deemed to be “ill-intentioned” and aimed at tainting the reputation of the security forces (see paragraphs 34, 37 and 42 above). 105.", "The Court observes that every single member of the security forces denied using force against the inmates. Similarly, both the Burdur governor (see paragraph 31 above) and the Burdur gendarmerie commander (see paragraph 34 above) confirmed that the applicants’ injuries had not been caused by the soldiers. However, the prosecutor concluded in his decision closing the investigation that “the soldiers had had to resort to the use of force in order to quell the prisoners’ riot”, and that the amount of force used had been “no more than absolutely necessary” within the meaning of Article 2 § 2 of the Convention” (see paragraph 52 above). In the absence of documents or information showing that any examination was made by the national authorities of the nature and extent of the force used, and having regard to the denials of all those involved in the operation, the Court is unable to comprehend exactly what evidence or information formed the basis of the prosecutor’s conclusion. 106.", "Secondly, the Court considers that the applicants’ injuries are unlikely to have been caused accidentally. Moreover, on account of their nature and location they cannot be regarded as consequential to the use of force necessitated by the applicants’ own actions. Nevertheless, in deciding to close the investigation the prosecutor seems to have disregarded those injuries entirely, and relied solely on the official account of what happened on the day in question. 107. In the light of the foregoing the Court considers that the documents in its possession indicate that the investigation was carried out without meeting the requirements of an effective investigation within the meaning of the Convention.", "Owing to the defects identified above, the investigation was not capable of establishing the true circumstances surrounding the applicants’ ill-treatment. Thus, the Court considers that the Government failed to discharge its burden of providing a plausible explanation as to how the applicants suffered their injuries while detained in the prison. 108. There has accordingly been a violation of Article 3 of the Convention, under both the substantial and the procedural limbs, regarding the 25 applicants (see paragraph 27 above). 109.", "Concerning the alleged sexual attacks on Mrs Azime Arzu Torun and Mrs Mürüvet Küçük, the Court, in the absence of conclusive medical evidence or any other relevant strong, clear and concordant inferences in this respect, considers that no separate issue arises on this ground. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 110. 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 111.", "The first applicant Mr Saçılık claimed 250,000 euros (EUR) in respect of pecuniary damage and EUR 60,000 in respect of non-pecuniary damage. He submitted that the sum claimed by him in respect of pecuniary damage was based on his claim for compensation at the national level, that is TRL 100,000 (see paragraph 55 above) and the interest payable thereon up to 25 November 2009, that is the date of submission to the Court of his claims for just satisfaction. He argued that, were the outcome of the administrative proceedings pending in Turkey to be the rejection of his claim, he would have to pay back the compensation already paid to him by the two Ministries (see paragraph 57 above). 112. The Court observes that Mr Saçılık brought an administrative action and claimed compensation from the two Ministries in respect of the pecuniary and non-pecuniary damage sustained.", "In its decision of 31 March 2005 the Antalya Administrative Court awarded him the full amounts claimed. Those amounts and the statutory interest on them, which amounted to a total of approximately EUR 140,000, have already been paid to Mr Saçılık before the completion of the administrative proceedings. However, if the proceedings were to culminate in a decision in favour of the two Ministries, Mr Saçılık would be required to repay the sum. The Court thus considers that the question of the application of Article 41 of the Convention, in so far as it concerns the claims made by Mr Saçılık for pecuniary and non-pecuniary damage, is premature and not ready for decision. Therefore, the Court reserves the said question.", "113. The applicant Mr Şahin Geçit claimed the sum of EUR 20,000 in respect of pecuniary damage as a result of his loss of hearing. He claimed that the hearing loss was affecting his working life. 114. The Court observes that Mr Geçit has failed to substantiate his claim for pecuniary damage with adequate documentation showing the extent to which his hearing loss problem was preventing him from pursuing his professional activities.", "It thus rejects his claim. 115. The remaining 23 applicants argued that even though they had all suffered financial damage, they were unable to substantiate it with documentary evidence. They thus did not make a claim in respect of pecuniary damage. 116.", "In respect of non-pecuniary damage the 24 applicants – that is all the applicants with the exception of Mr Veli Saçılık, whose claims were set out separately above – claimed the following sums: – Hüseyin Tiraki: EUR 20,000 – Halil Tiryaki: EUR 20,000 – Yunis Aydemir: EUR 20,000 – Yusuf Demir: EUR 20,000 – İbrahim Bozay: EUR 20,000 – Hakan Baran: EUR 20,000 – Kazım Ceylan: EUR 25,000 – Hüseyin Bulut: EUR 20,000 – Cemil Aksu: EUR 20,000 – Necla Çomak: EUR 20,000 – Şahin Geçit: EUR 30,000 – Hayrullah Kar: EUR 20,000 – Mehmet Leylek: EUR 25,000 – Birsen Dermanlı: EUR 25,000 – Veysel Yağan: EUR 20,000 – Fikret Lüle: EUR 25,000 – Ali Rıza Dermanlı: EUR 20,000 – Cavit Temürtürkan: EUR 20,000 – Azime Arzu Torun: EUR 30,000 – Gönül Aslan: EUR 20,000 – Barış Gönülşen: EUR 20,000 – Hüsne Davran: EUR 20,000 – Mürüvet Küçük: EUR 25,000 – Emre Güneş: EUR 20,000 117. The Government did not deal with the above-mentioned claims separately, but submitted that the “different amounts” claimed by the applicants were excessive, highly fictitious and unsupported by documentary evidence. In the opinion of the Government, an award for just satisfaction should not lead to unjust enrichment. 118. Having regard to the consequences of the ill-treatment detailed above (see paragraph 27 above) and to the applicants’ suffering on account on the deep feelings of anxiety at the time of the events when faced with violence from which they could not have known whether, and to what extent, they would escape, the Court considers that they sustained personal injury for which the finding of a violation in this judgment does not afford sufficient satisfaction.", "Thus, making its assessment on an equitable basis as required by Article 41, the Court awards each of the 24 applicants (paragraph 116 above) EUR 20,000 in respect of non-pecuniary damage. B. Costs and expenses 119. Ali Rıza Dermanlı, Birsen Dermanlı and Gönül Aslan claimed TRL 10,320 (approximately EUR 4,600) for the costs and expenses incurred before the Court. Approximately EUR 4,500 of this sum was claimed in respect of the fees of their legal representatives.", "In support of this claim the applicants submitted official bills from their legal representatives, showing that these amounts have already been paid. In respect of the remaining EUR 100 the applicants submitted a breakdown showing that that sum was spent for various expenses such as stationery, postage and translation. 120. Each of the applicants Barış Gönülşen, Hüsne Davran and Mürüvet Küçük claimed the sum of EUR 2,000 for the fees of their legal representatives to represent them before the domestic courts and subsequently before the Court. In support of their claims the applicants stated that they would subsequently submit to the Court a fee agreement but they have failed to do so.", "However as further support for their claims these applicants submitted to the Court a breakdown of the hours spent by their legal representatives on the case before the Court. These three applicants also claimed the total sum of TRL 280 (approximately EUR 125) in respect of various expenses such as stationery, postage and translation, for which they submitted a bill from their legal representatives. 121. The applicant Veli Saçılık claimed the sum of EUR 7,000 for the fees of his legal representatives to represent him before the domestic courts and subsequently before the Court. In support of his claims the applicant submitted to the Court a fee agreement and a breakdown of the hours spent by his legal representatives on the case.", "He also claimed the sum of TRL 1,000 (approximately EUR 450) in respect of various expenses such as stationery, postage and translation, for which he submitted a bill from his legal representatives. 122. Each of the remaining 18 applicants, namely Hüseyin Tiraki, Halil Tiryaki, Yunis Aydemir, Yusuf Demir, İbrahim Bozay, Hakan Baran, Kazım Ceylan, Hüseyin Bulut, Cemil Aksu, Necla Çomak, Şahin Geçit, Hayrullah Kar, Mehmet Leylek, Veysel Yağan, Fikret Lüle, Cavit Temürtürkan, Azime Arzu Torun and Emre Güneş claimed the sum of EUR 2,000 in respect of the fees of their legal representatives to represent them before the domestic courts and subsequently before the Court. In support of their claims 13 of these applicants submitted to the Court fee agreements with their legal representatives. The remaining applicants İbrahim Bozay, Hakan Baran, Kazım Ceylan, Mehmet Leylek and Cavit Temürtürkan did not submit any fee agreements.", "As further support for their claims the applicants submitted to the Court a breakdown of the hours spent by their legal representatives on the case. 123. The 18 applicants also claimed the sum of TRL 1,100 (approximately EUR 500) in respect of various expenses such as stationery, postage and translation, for which they submitted a bill from their legal representatives. 124. The Government were of the opinion that the documents submitted to the Court by the applicants in support of their claims were “irrelevant”.", "They invited the Court to take into account the recommended fees proposed by the Turkish Bar Association which had a binding effect on the domestic courts. 125. 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 were 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 following sums to the applicants, covering costs under all heads: (a) EUR 3,500 jointly to Ali Rıza Dermanlı, Birsen Dermanlı and Gönül Aslan; (b) EUR 3,500 jointly to Barış Gönülşen, Hüsne Davran and Mürüvet Küçük; (c) EUR 2,000 to the applicant Veli Saçılık; (d) EUR 12,000 jointly to the remaining 18 applicants, Hüseyin Tiraki, Halil Tiryaki, Yunis Aydemir, Yusuf Demir, İbrahim Bozay, Hakan Baran, Kazım Ceylan, Hüseyin Bulut, Cemil Aksu, Necla Çomak, Şahin Geçit, Hayrullah Kar, Mehmet Leylek, Veysel Yağan, Fikret Lüle, Cavit Temürtürkan, Azime Arzu Torun and Emre Güneş. From this sum should be deducted the EUR 850 granted to the applicant Emre Güneş by way of legal aid under the Council of Europe’s legal aid scheme (see paragraph 3 above).", "C. Default interest 126. 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 1. Declares unanimously the remainder of the applications admissible; 2. Holds unanimously that there has been a violation of Article 3 of the Convention, under both the substantial and the procedural limbs, regarding the 25 applicants; 3.", "Holds by five votes to two that the respondent State is to pay each of the 24 applicants (see paragraph 116 above) – that is all the applicants with the exception of Mr Veli Saçılık (see paragraph 112 above), within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of settlement; 4. Holds unanimously (a) that the question of the application of Article 41 of the Convention should be reserved in so far as it concerns the claims made by Mr Veli Saçılık for pecuniary and non-pecuniary damage. It thus reserves the procedure in this respect and delegates to the President of the Chamber the power to fix the same; (b) that the respondent State is to pay the applicants, within the said three-month period the following sums 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 applicants: – EUR 3,500 (three thousand five hundred euros) jointly to Ali Rıza Dermanlı, Birsen Dermanlı and Gönül Aslan; – EUR 3,500 (three thousand five hundred euros) jointly to Barış Gönülşen, Hüsne Davran and Mürüvet Küçük; – EUR 2,000 (two thousand euros) to the applicant Veli Saçılık; and – EUR 12,000 (twelve thousand euros), less the EUR 850 (eight hundred and fifty euros) granted by way of legal aid to Emre Güneş, jointly to the remaining 18 applicants, Hüseyin Tiraki, Halil Tiryaki, Yunis Aydemir, Yusuf Demir, İbrahim Bozay, Hakan Baran, Kazım Ceylan, Hüseyin Bulut, Cemil Aksu, Necla Çomak, Şahin Geçit, Hayrullah Kar, Mehmet Leylek, Veysel Yağan, Fikret Lüle, Cavit Temürtürkan, Azime Arzu Torun and Emre Güneş; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses unanimously the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 5 July 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Françoise Elens-PassosFrançoise TulkensDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint concurring opinion of Judges Sajó and Popović is annexed to this judgment. F.T. F.E.P. ANNEX List of applicants in application no. 43044/05 Name Date of birth Place of residence 1 Mr Veli Saçılık 1977 Ankara 2 Mr Hüseyin Tiraki 1977 Adana 3 Mr Halil Tiryaki 1959 Vevey, Switzerland 4 Mr Yunis Aydemir 1971 Ankara 5 Mr Yusuf Demir 1957 Istanbul 6 Mr İbrahim Bozay 1956 Malatya 7 Mr Hakan Baran 1971 Ankara 8 Mr Kazım Ceylan 1969 Delémont, Switzerland 9 Mr Hüseyin Bulut 1952 Istanbul 10 Mr Cemil Aksu 1977 Artvin 11 Ms Necla Çomak 1975 Ankara 12 Mr Şahin Geçit 1968 İzmir 13 Mr Hayrullah Kar 1955 Antalya 14 Mr Mehmet Leylek 1959 Malatya 15 Ms Birsen Dermanlı 1971 Austria 16 Mr Veysel Yağan 1967 Germany 17 Mr Fikret Lüle 1972 Ankara 18 Mr Ali Rıza Dermanlı 1969 Greece 19 Mr Cavit Temürtürkan 1974 Basel, Switzerland 20 Ms Azime Arzu Torun 1975 Istanbul 21 Ms Gönül Aslan 1976 Ankara 22 Mr Barış Gönülşen 1974 İzmir 23 Ms Hüsne Davran 1960 Adana 24 Ms Mürüvet Küçük 1970 Tunceli JOINT CONCURRING OPINION OF JUDGES POPOVIĆ AND SAJÓ We agree with the majority’s findings, as well as with the operative provisions in this case, except on one point: the amounts of money awarded to the applicants in just satisfaction.", "The amount awarded to each applicant in just satisfaction in part 3 of the Operative Part of the judgment is EUR 20.000. The sums thus awarded take into account neither the gravity of the injuries suffered by each applicant nor the respective periods for which they were unable to work. It is true that the sums awarded are intended to repair the violations of their human rights, in the sense that they are meant to cover non-pecuniary damage. However, we find it indispensable to consider the amount of suffering inflicted on the applicants when awarding just satisfaction, especially in a situation such as the present one, where the only information available relating to the inhuman and degrading treatment (including, for example, the anxiety and helplessness the prisoners must have felt) concerns the gravity of the injuries. Those who suffered less should be awarded a smaller sum than those who suffered more.", "We are aware that the Court’s practice when applying Article 41 of the Convention has so far been averse to such distinctions, but at the same time we find it appropriate to draw the attention of our colleagues to this particular matter, which we feel calls for future reflection. [1]. For details of the incidents at Ulucanlar Prison referred to by the applicants, see Kavaklıoğlu and 73 others v. Turkey (dec.), no. 15397/02, 5 January 2010." ]
[ "FIFTH SECTION CASE OF KULYK v. UKRAINE (Application no. 30760/06) JUDGMENT STRASBOURG 23 June 2016 FINAL 30/01/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kulyk v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President,Erik Møse,Faris Vehabović,Yonko Grozev,Síofra O’Leary,Mārtiņš Mits, judges,Sergiy Goncharenko, ad hoc judge,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 31 May 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "30760/06) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), by Mr Anatoliy Vasilyevich Kulyk (“the applicant”), on 17 July 2006. 2. The applicant was represented by Mr D. Groysman, a lawyer who was practising in Vinnytsya, Ukraine. The Ukrainian Government (“the Government”) were represented most recently by their Acting Agent, Ms O. Davydchuk of the Ministry of Justice. 3.", "The applicant alleged that he had been ill-treated by police officers, that there had been no effective investigation following his complaints, and that there had been an interference with his right of individual application to the Court. 4. On 17 January 2011 the application was communicated to the Government. Mrs Ganna Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). Accordingly, the President of the Fifth Section decided to appoint Mr Sergiy Goncharenko to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1963 and lives in the town of Shargorod, Ukraine. A. Events of 30-31 December 2002 1.", "The applicant’s version 6. According to the applicant, at around 1.30 p.m. on 30 December 2002, while working in the backyard of his home, he saw three young men on the premises of the nearby Shargorodskiy Food Products Factory (“the factory”). Since there had previously been thefts at the factory premises, during which scrap metal had been thrown over the fence into the applicant’s yard, the latter decided to enter the factory yard to chase after the young men. However, having climbed over the fence and realising the young men were no longer there, the applicant went to look inside the building, entering “through an opening in the wall”. The factory premises were empty but the applicant claimed to have heard adult voices.", "He did not want to meet anybody and so he crawled out through the same opening and quickly returned home. 7. Five to ten minutes later a police officer, L., arrived at the applicant’s house. According to the applicant, he had a gun in his hand, swore at the applicant, grabbed him by his collar and hit him on the head with the gun handle. The applicant fell to the ground and the police officer started kicking him.", "The applicant’s mother-in-law appeared and asked the police officer not to beat the applicant, whereupon he grabbed the applicant by the sleeve and took him to the police station. The applicant was accused of stealing aluminium sheets from the factory. 8. The applicant also submitted that, at the police station, L., in the presence of two other police officers, had kicked him in the kidneys, at which point the applicant fell to the ground. After he got up, one of the police officers gave him some water.", "L. then took the applicant into one of the offices, where he and another police officer, P., beat the applicant about the head and kicked him on various parts of his body for 15-20 minutes. Another police officer, G., arrived and L. and P. continued to beat the applicant, wanting him to confess to theft. After a while the applicant was placed in a cell. 9. That night the applicant complained of a headache and general sickness.", "He was told by the duty police officer that a doctor would come. After some time a man wearing a white coat arrived, emptied two ampules labelled “Analgin” and “Dimedrol” (diphenylhydamine) into a plastic water bottle and gave it to the applicant. 10. On the morning of 31 December 2002 the applicant was taken to court, where he was fined in administrative proceedings for disobeying a police officer’s order to stop. According to the applicant, he had wanted to show the judge his injuries but the latter refused, advising the applicant to go to a hospital and file a complaint.", "11. The applicant was brought back to the police station, where he signed a paper stating that nobody had ill-treated him and that his personal belongings had been returned to him. The material in the case-file includes a note, allegedly signed by the applicant and dated 31 December 2002, stating that he had no complaints about the police officers and that no physical force had been used against him. 12. On the same day a decision not to institute criminal proceedings against the applicant for stealing aluminium was adopted.", "It was noted that the applicant had not had any intention of stealing the aluminium sheets and that he had entered the factory premises out of curiosity. 13. The applicant came home and told his family what had happened. The applicant’s sister-in-law, who is a nurse, gave him an injection but the applicant did not feel any better. He was suffering from headache, nausea and fever which he claimed continued for eight months.", "2. The Government’s version 14. The Government did not provide a detailed description of the events of 30-31 December 2002 but it appears from their observations that they agreed with the findings of the national investigation authorities (see paragraphs 48-50 below). B. Applicant’s stay in hospital 15. On 2 January 2003 the applicant was examined at a hospital and was hospitalised the next day.", "The applicant stayed in hospital until 11 February 2003. According to the applicant’s medical records, upon arrival at the hospital, his condition was of “medium seriousness”. He had bruises mostly on the left side of his body and some scratches on his back. On his left thigh there was a large bruise measuring 12 by 6 centimetres. The applicant was suffering from headache and nausea.", "He told the doctors that he had been beaten by police officer L. 16. In a medical certificate dated 11 February 2003, issued by the hospital, the applicant was diagnosed with multitrauma, closed brain injury, brain contusion of medium severity causing numerous neurological problems, two broken ribs, post-traumatic pneumonia and injuries to his kidneys, face and body. C. Investigation into the events of 30 December 2002 17. On 10 February 2003 the applicant requested the Vinnytsya Regional Prosecutor that criminal proceedings be instituted against the police officers. In support of his complaint the applicant outlined his version of the events which took place on 30-31 December 2002 (see paragraphs 6‑13 above).", "18. On 18 February and 3 March 2003 several factory employees (F., S., Lo. – the wife of police officer L. –, V. and A.) testified before the investigation authorities that a noise had been heard in one of the factory buildings. V. had asked a police officer, L., to check the origin of this noise.", "All of the above persons had approached the building and had seen footprints in the snow leading to a conveyor belt opening in the wall. Two of them had stayed outside while the others, accompanied by L., had entered the building and had seen aluminium sheets from the ceiling piled on the floor and a man trying to escape through the conveyor belt opening. V., who had stayed outside, had tried to catch the man, but the latter had broken free. When jumping from the conveyor belt, the man had slipped and fallen onto the asphalt and had then run away. The police officer had chased after the man.", "The latter had climbed over the 2.5 metre high fence but had lost his balance and fallen onto the other side. The witnesses had heard a thud and a shriek. 19. L. gave similar testimony. He added that the applicant had also fallen when jumping over the fence of his house.", "L. had found the applicant in a coal bunker in the backyard of the applicant’s house and said that he had taken him to a police station. 20. On 3 March 2003 the applicant’s mother-in-law, M., testified that L. had arrived at her house and had said that he was looking for a criminal. Later she had heard a noise behind the barn and had seen L. aiming a blow with the handle of his gun at the applicant, who was lying on the ground. M. had begged L. not to beat the applicant.", "After that L. had taken the applicant to a police station. 21. On the same day the Vinnytsya Regional Police Department (Управління МВС України у Вінницькій області) approved the results of an internal investigation in response to the applicant’s complaint. The investigation found that on 30 December 2002 around 2 p.m. the factory employees had asked L. to check the origin of a suspicious noise that had been coming out of one of the factory’s abandoned halls. L., accompanied by five factory employees, checked the hall and found aluminium sheets, which had been torn from the ceiling and piled up on the floor.", "He also saw the applicant, who tried to escape. While running away, the applicant fell twice – once when climbing through a conveyor belt opening in the wall and a second time when climbing over the fence. He fell for a third time when jumping over the fence of his house. In the yard of his house the applicant hid in a coal bunker, where he was found and taken to a police station. The police officers testified that they had not ill-treated the applicant.", "The applicant’s mother-in-law testified that a police officer L. had aimed a blow at the applicant as he was lying on the ground but she had not seen the applicant being beaten. Although summoned by a prosecutor, the applicant did not appear for questioning and neighbours ‒ who did not want their names to be cited ‒ described him as an alcoholic inclined to involvement in scandalous conduct, theft and fraud. The internal police investigation concluded that since the submissions of the applicant, the police officers and the witnesses were contradictory, the case-file of material should be sent to a prosecutor’s office. 22. On 7 March 2003 the deputy prosecutor of the Shargorodskiy District (заступник прокурора Шаргородського району) refused to institute criminal proceedings following the applicant’s complaint.", "The deputy prosecutor noted that the applicant had stated that he had not intended to steal aluminium but had entered the factory premises out of curiosity and had run away out of fear of being accused of theft, that L. and P. had denied using physical force on the applicant and that the factory employees said that they had not seen L. beat the applicant. It was also noted that the applicant had not appeared for the forensic medical examination. The deputy prosecutor concluded that the applicant had sustained his injuries when trying to run away from L. 23. On 10 April 2003 this decision was quashed by a higher prosecutor since it had not been established how the applicant’s injuries had been inflicted. 24.", "According to a forensic medical conclusion of 12 May 2003, the applicant had sustained the following injuries: closed concussion, two broken ribs on the left and one on the right, post-traumatic pneumonia and a kidney injury. He had numerous bruises: on the chest (20x15 cm), left shoulder (3x3 cm and 4x3 cm), left hip (12x6 cm), under the right knee (2x2 cm), left shoulder blade (5x4 cm) and scratches on the back. Those injuries were of medium severity and had been inflicted by a blunt, hard object possibly on 30 December 2002. 25. Between 15 June 2003 and 27 October 2004 the Shargorodskyy District Prosecutor’s Office (прокуратура Шаргородського району) twice refused to institute criminal proceedings in response to the complaint from the applicant.", "Those decisions were quashed by higher prosecutors for reasons similar to those mentioned in the decision of 10 April 2003 and the case was referred for additional investigation. 26. Between 15 June 2003 and 27 October 2004 the following investigative steps were taken:  on 30 August 2004 the applicant’s mother-in-law testified that she had seen L. kicking the applicant whilst he was lying on the ground;  on 30 August-1 September 2004 the applicant, his wife and the factory employees were questioned;  on 30 August 2004 a forensic expert concluded that the applicant had sustained bodily injuries of medium seriousness and that those injuries could have been inflicted by blunt objects or by several falls from different heights;  on 6-8 September 2004 police officers P. and L. were questioned;  on 27 September 2004 the factory premises were examined;  according to a forensic medical report dated 6 October 2004, the applicant could have sustained his injuries between 30 December 2002 and 2 January 2003 by being beaten or by falling from a height. 27. On 27 October 2004 the Vinnytsya Regional Prosecutor’s Office (прокуратура Вінницької області) instituted criminal proceedings on suspicion of abuse of power.", "28. On 30 November 2004 the applicant was questioned and he reiterated his version of events (see paragraphs 6-10 above), submitting, in particular, that in the police station ‒ in the presence of two police officers ‒ L. had struck him on the chest; P. had hit him several times on the head; P. and L. had kicked him on various parts of his body and P. had struck him on the chest and on the abdomen and had then beaten him in the presence of a police officer. 29. On 10 January 2005 the forensic medical commission confirmed the previous expert conclusions and added that the applicant had been able to move after the injuries had been inflicted. 30.", "Between February and June 2005 the applicant, his family members, factory employees and police officers were again questioned and a reconstruction of events was staged in the police station. The applicant’s mother-in-law testified that she had seen L. kicking the applicant as he lay on the ground. She also stated that L. had hit the applicant on the head with his gun handle. The factory employees F. and A. testified that they had seen the applicant running away and falling over on his way to the fence and again when climbing over the fence. Face-to-face confrontations between the applicant and police officers P., L. and G., and between the applicant and the factory employees were conducted.", "31. On 19 April 2005 the police officers P. and L. were charged with abuse of power accompanied by violence. 32. By a letter of 5 May 2005 the Vinnytsya Regional Prosecutor’s Office informed the applicant that investigating officers K. and T. had been disciplined for delaying the investigation. 33.", "On 18 May 2005 P. and L. were questioned as witnesses. 34. On 26 May 2005 the Vinnytsya Regional Prosecutor’s Office asked the Head of the Internal Security Department of the Vinnytsya Region, which is part of the Ministry of the Internal Affairs of Ukraine (начальник УВБ у Вінницькій області ДВБ ГУБОЗ МВС України), to identify and question witnesses who had seen or talked to the applicant at the time of the events in question. On an unspecified date the police stated that it had not been possible to find any witnesses. Similar requests were also submitted on 16 May 2006 and 11 January 2007.", "The answers to those requests were also negative. 35. On 2 June 2005 the Shargorod Territorial Medical Unit (Шаргородське територіальне медичне об’єднання), in reply to a request from Vinnytsya Regional Prosecutor’s Office, submitted that on 30 and 31 December 2002 the applicant had not received any medical assistance from an ambulance team. 36. On the same day, judge Tr.", "was questioned. He submitted that when he had seen the applicant in court on 31 December 2002 the applicant had had no injuries to his head or hands, nor had he complained about any health problems. The applicant also did not complain that he had been beaten. 37. On 10 June 2005 the investigating officer from the Vinnytsya Regional Prosecutor’s Office terminated the proceedings against the police officers for absence of corpus delicti.", "On 16 August 2005 this decision was upheld by the Leninskyy District Court of Vinnytsya. On 22 September 2005 the Vinnytsya Regional Court of Appeal quashed these decisions and remitted the case for a fresh investigation. The court found that the investigating officer had failed to check whether an ambulance had been called for the applicant when he had been at the police station, and had failed to question the witnesses to the applicant’s arrest. It was also unclear whether the applicant’s injuries could have occurred as a result of his falls. 38.", "On 28 October 2005 the Shargorod Territorial Medical Unit again submitted that on 30 and 31 December 2002 the applicant had not received any medical assistance from an ambulance team while at the police station. 39. In November 2005 L., A. and S. were again questioned. 40. On 22 December 2005 the forensic experts concluded that the applicant’s injuries could have occurred as a result of several falls.", "41. On 28 December 2005 the investigating officer of the Vinnytsya Regional Prosecutor’s Office again terminated the proceedings for absence of corpus delicti. 42. On 20 February 2006 the Leninskyy District Court of Vinnytsya quashed that decision because witnesses to the applicant’s arrest had not been sought and the hospital doctors had not been questioned. The applicant’s family members and some factory employees were to be additionally questioned and the evidential material from the administrative case-file against the applicant was to be included in the file.", "The case was remitted for further investigation. 43. On 13 April 2006 the Vinnytsya Regional Court of Appeal rejected the prosecutor’s appeal against the decision of 20 February 2006. 44. Between 13 April 2006 and 19 October 2008 the proceedings were terminated three times for absence of corpus delicti and re-opened, in particular, in the light of the failure to obtain the applicant’s medical file from the hospital or to conduct a reconstruction of events with the participation of L., witnesses and a forensic medical expert in order to establish where the applicant had fallen and the circumstances in which the applicant had suffered his injuries.", "45. By letters of 7 July 2006 and 7 February 2007 the Shargorodskyy District Prosecutor’s Office informed the Vinnytsya Regional Prosecutor’s Office, inter alia, that the applicant’s mother-in-law, wife and sister-in-law had refused to testify, that a factory guard who had been on duty on 30 December 2002 had moved to Russia, and that “it had been impossible to question doctors at Shargorod Hospital since there was no information about any medical assistance that might have been provided to the applicant”. 46. On 14 October 2008 a reconstruction of events at the factory had been conducted with the participation of L. and a forensic medical expert. The expert had also been asked additional questions on the same day.", "47. On 19 October 2008 an investigating officer of the Tomashpilskyy District Prosecutor’s Office terminated the criminal proceedings against the police officers for absence of evidence of a crime. 48. It was found that on 30 December 2002 at around 1 p.m. employees of the Shargorodskiy Food Products Factory had asked a police officer L., who had been present at that time on the factory premises, to check the origin of noises coming from inside one of the locked factory buildings. L. together with V., F., A., Lo.", "and S. went to the premises in question. Inside the building, L. and the factory employees found aluminium sheets torn from the ceiling and piled up against a wall. They also saw the applicant, who ran away after tripping up several times. The applicant was later apprehended at his home and taken to a police station. 49.", "After being questioned on 30 August and 30 November 2004 (see paragraphs 26 and 28 above), the applicant admitted that whilst running away he had heard people shouting behind him but had not paid any attention to them. The applicant also submitted that he had climbed over the fence having stepped on a manure pile on another side. However, the applicant’s neighbours testified that the manure pile was located 1.5 metres away from the wall. The prosecutor also referred to the testimonies given by the police officer L., factory workers, other police officers and a judge Tr. during the investigation.", "Numerous forensic medical experts concluded that the applicant’s injuries could have been caused by having fallen onto hard objects several times. The forensic medical expert who participated in the reconstruction of events testified that the applicant’s injuries had most probably been caused as a result of his having fallen down several times, bearing in mind the frozen ground, the height of the conveyor belt and the fence, and the body’s acceleration when running. 50. In view of the above the Tomashpilskyy District Prosecutor’s Office concluded that there was no evidence of any crime and, since the events in question had taken place six years earlier, that there was no possibility of finding such evidence. D. Search of the office of the applicant’s representative 51.", "On 22 September 2010 the Leninskyy District Court authorised a search of premises at K. Street 54/1. This search was the result of criminal proceedings instituted the previous day following the placement of pornographic material on an Internet page which allegedly belonged to the applicant’s representative. 52. On 15 October 2010 Ya., who was using the premises at K. Street 54/3, allowed the police to inspect those premises after receiving authorisation from the owner. She confirmed that the items of property in the room at that address belonged to the applicant’s representative.", "53. On the same day the police officers inspected the premises at K. Street 54/3 and seized, inter alia, three computers. According to the applicant’s representative, the office of a human rights organisation was located at that address, which was where he worked. 54. The applicant’s representative complained about the seizure to a prosecutor indicating that one of the seized computers contained part of confidential correspondence with the Court in the present case.", "55. On 5 November 2010, in response to complaints by the applicant’s representative about alleged breaches of the law in the course of the search and seizure, the Vinnytsya City Prosecutor’s Office issued a decision refusing to institute criminal proceedings. According to the applicant’s representative, he appealed against that decision but to no avail. 56. According to reports in the media, in August 2013 the applicant’s representative was acquitted.", "II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS A. Joint Decree of the Ministry of Health and the Ministry of Internal Affairs of Ukraine No. 307/105 of 10 May 1993 57. The Decree provides that the heads of medical facilities must immediately inform the internal affairs authorities about any request for medical assistance in respect of injuries (firearms, knife or sustained by other means) that have allegedly resulted from a crime.", "B. Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 9 to 21 October 2013 58. The relevant parts of the report provide as following: “24. In the report on its 2009 visit, the CPT urged the Ukrainian authorities to set up an independent agency specialised in the investigation of complaints against public officials which is demonstratively separate from Internal Affairs structures and the Prosecution Service. A “State Bureau of Investigation” (SBI) should be set up by November 2017 at the latest.", "The SBI should focus on particularly serious crimes as well as criminal offences committed by public officials. However, pending the adoption of a law establishing it, the design and terms of reference of this future body has remained under discussion. In this context and given the urgency of the matter, the CPT recommended in the report on its 2012 visit that a two-step approach be adopted: as a first step, to set up without delay a national specialised team, whose role is to carry out investigations throughout the country into cases involving alleged ill-treatment inflicted by public officials, and to provide it with its own support staff for the operational conduct of the investigations; as a second step, to examine the feasibility, in the medium term, of completely separating such a team from the Prosecution Service so as to establish a genuine independent specialised agency for investigations of this type.” THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 59. The applicant complained that he had been subjected to ill-treatment at the hands of police officers which amounted to torture.", "He further complained that no effective investigation had been carried out into his complaints. The applicant invoked Articles 3 and 13 of the Convention, which read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 60. The Government submitted that the applicant had failed to exhaust the available effective domestic remedies in respect of his complaint about ill-treatment since he had not appealed to either a prosecutor or a court against the decision to terminate the proceedings in his case. There was no evidence of such an appeal either in the criminal case-file or among the documents submitted by the applicant to the Court. In the Government’s view such an appeal could have influenced the course of the proceedings since all of the applicant’s previous appeals had been successful.", "61. The applicant submitted that he had not received a copy of the decision of the Tomashpilskyy District Prosecutor’s Office of 19 October 2008 to terminate criminal proceedings until July 2009. He had challenged that decision before the General Prosecutor’s Office but had received no reply. 62. The Court observes that the Government’s objection raises issues concerning the effectiveness of the criminal investigation in establishing the facts regarding the events of which the applicant complained and responsibility for those events.", "It is therefore closely linked to the substance of the applicant’s complaints under Articles 3 and 13 of the Convention and the Court joins it to the merits of the case (see Lotarev v. Ukraine, no. 29447/04, § 74, 8 April 2010). 63. The Court further considers that the applicant’s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and they are not inadmissible on any other grounds. The complaints should therefore be declared admissible.", "B. Merits 1. Alleged ill-treatment (a) The parties’ submissions (i) The applicant 64. The applicant contested the Government’s assertion that he had sustained the injuries referred to in the medical certificate of 11 February 2003 (see paragraph 16 above) after falling over when being chased by a police officer. 65.", "The applicant stated that the Government had failed to provide any evidence to show that the applicant had sustained the injuries in question before his alleged encounter with the police officer on the factory premises. Furthermore, there was no evidence showing that the applicant had sustained the injuries after being released from police custody. There were therefore two possible explanations for the origin of the applicant’s injuries: ill‑treatment by police officers or falling over during the course of being chased by a police officer. 66. The applicant noted that the Government claimed that their version of events was supported by witness statements and had not been refuted by the conclusions of the forensic medical examinations.", "This would mean that the applicant had sustained all his injuries before being arrested, but, contrary to legal requirements, no such injuries had been documented at the time of the applicant’s arrival at the police station. Moreover, if the applicant had indeed had such injuries at the moment of his arrest, the police officers would have taken him to hospital, which did not happen. 67. The applicant argued that his claim that he had been ill-treated by police officers had not been contradicted by the results of the forensic medical examinations and was the more plausible explanation. 68.", "Lastly, the applicant alleged that his ill-treatment at the hands of police officers had amounted to torture in breach of Article 3 of the Convention. (ii) The Government 69. The Government contested the applicant’s version of events, submitted that the applicant’s statements were unsubstantiated, and argued that the alternative version proposed by the national authorities is supported by the material in the case-file, including the testimonies of several impartial witnesses. 70. The Government stated that the police officers had denied allegations of ill-treating the applicant and the judge who had seen the applicant on the day following the events in question had later testified that the applicant neither had any injuries, nor complained about any health problems.", "Given the applicant’s doubtful version of events at the factory, the Government considered that his statements regarding events at the police station were also implausible. 71. The only witness to the applicant’s alleged ill-treatment was his mother-in-law. However, she was related to the applicant and had changed her testimony during the proceedings. Two months after the events in question she had testified that the police officer had merely aimed a blow at the applicant, whereas more than a year and a half later she had stated that the police officer had kicked him.", "72. The Government noted that there had been five forensic medical examinations in the applicant’s case. It was established that the injuries in question could have been inflicted between 30 December 2002 and 2 January 2003 following blows and kicks, or as a result of multiple falls onto various hard objects. On 14 October 2008 a forensic expert had concluded that the applicant’s injuries had probably originated from the multiple falls in the circumstances described. 73.", "According to the Government, it had therefore been established beyond reasonable doubt that the applicant had already sustained serious bodily injuries when brought to the police station. It further stated that “even assuming that the applicant did in fact sustain injuries at the police station, given that he had fallen down before being arrested, it was impossible to establish the degree of seriousness of the injuries sustained in the police station”. Therefore, in the Government’s view, it is impossible in the present case to establish “beyond reasonable doubt” that the applicant’s injuries had been inflicted in the police station. (b) The Court’s assessment 74. As the Court has stated on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of a democratic society.", "It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances or the victim’s behaviour (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000‑IV). 75. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000).", "Nevertheless, when allegations are made under Article 3 of the Convention, the Court must apply a particularly thorough scrutiny, even if certain domestic proceedings and investigations have already taken place (see, Avşar v. Turkey, no. 25657/94, § 283, ECHR 2001‑VII (extracts); Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 148, 21 April 2011). 76. The Court recalls its jurisprudence confirming that the standard of proof applied when assessing evidence is that of proof “beyond reasonable doubt” (see, Avşar v. Turkey, cited above, § 282).", "Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. 77. The Court reiterates that to fall under Article 3 of the Convention, ill-treatment must attain a minimum level of severity. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the gender, age and state of health of the victim (see Valašinas v. Lithuania, no. 44558/98, § 101, ECHR 2001‑VIII).", "The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000‑XI). The Court emphasizes that in respect of a person who is deprived of his liberty, or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is an infringement of the right set forth in Article 3 (see, Bouyid v. Belgium [GC], no. 23380/09, § 88, 28 September 2015).", "78. Turning to the present case, the Court notes that, according to the hospital certificate and forensic medical documents, the applicant sustained several bodily injuries of medium severity (see paragraphs 16 and 24 above) including broken ribs and concussion, and was kept in hospital for nearly forty days. 79. The Court considers that, in the present case, the applicant’s injuries were sufficiently serious to fall within the ambit of Article 3 of the Convention. It remains to be determined whether the State authorities can be held responsible for having inflicted those injuries and held accountable under the above provision.", "80. The Court emphasizes that where an individual is taken into police custody in good health but is found to be injured at the time of release, there is a rebuttable presumption that the injuries suffered are the result of ill‑treatment. It is incumbent on the State to provide a plausible explanation of the cause of such injuries, failing which a clear issue arises under Article 3 of the Convention (see Tomasi v. France, 27 August 1992, §§ 108-111, Series A no. 241‑A; Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336).", "Nevertherless, in order to benefit from this presumption, individuals claiming to be victims of a violation of Article 3 of the Convention must demonstrate that they display traces of ill-treatment after having been under the control of the police or a similar authority. Many of the cases with which the Court has dealt show that such persons usually provide medical certificates for that purpose, describing injuries or traces of blows, to which the Court attaches substantial evidential weight (see Bouyid v. Belgium [GC], cited above, § 92). 81. In the present case the Court notes that there is no evidence that the applicant had any injuries before his entry into the factory, which took place a maximum of one hour before he was brought to the police station. As for the events in the factory, the Court notes that the parties’ accounts differ considerably.", "While the applicant stated that he had left the factory quietly, according to the Government ‒ which referred to several witness statements ‒ the applicant left the factory in a hurry, running away from police officer L. and falling over several times on his way, including a fall from a two metre-high fence. Contrary to the applicant’s statement that he had climbed over the fence by stepping onto a pile of manure on the other side, according to the statements of the applicant’s neighbours, that pile was located 1.5 metres away from the wall (see paragraph 49 above). The forensic experts also repeatedly concluded that the applicant could have sustained the injuries in question by falling from various heights onto hard objects. 82. In these circumstances, the Court considers that it is not self-evident that the applicant was still in good health when taken into police custody (see Kobets v. Ukraine, no.", "16437/04, §§ 46-48, 14 February 2008). Moreover, the applicant did not go to hospital until two days after the events in question. According to one of the forensic medical reports, the applicant’s injuries could have been sustained between 30 December 2002 and 2 January 2003 and he had been released from police custody on 31 December 2002. Furthermore, the Court notes that the applicant’s submissions regarding his complaint before the judge is not corroborated (see paragraph 36 above). 83.", "In such circumstances, given all the information in its possession and notwithstanding the principles established by the Court in the recent case of Bouyid v. Belgium [GC] (cited above), where there was compelling evidence pointing to the applicants’ ill-treatment when they were in police custody, the Court cannot conclude “beyond reasonable doubt” that the applicant’s injuries were caused by the police officers as stated by the applicant. Therefore, the Court cannot conclude that there has been a violation of the substantive limb of Article 3 of the Convention. 2. Adequacy of the investigation (a) The parties’ submissions (i) The applicant 84. The applicant disagreed with the Government’s submission that there existed an effective investigation mechanism in Ukraine.", "85. The applicant stated at the outset that it was not his fault that his complaint about ill-treatment had been lodged more than a month after the events in question. The applicant had told the hospital doctors that he had been ill-treated by the police and the doctors had been under a legal obligation to inform the police about it. Since it was a public hospital, the applicant argued that it was the State which was to blame for the delay in initiating the investigation. In any event, in the applicant’s view, the doctors’ failure to report his ill-treatment had actually had a positive effect, since the doctors would otherwise have been forced by the police to forge his medical data.", "86. The applicant also submitted that there had been no witness questioning in his case for nearly two years because proper questioning was only possible once criminal proceedings have been instituted. 87. As an example of the delays that had occurred in investigating his case, the applicant pointed out that the investigative authorities had failed to verify in good time his allegation that an ambulance had been called for him whilst in detention and later such verification had become impossible. Those authorities had also failed to investigate why the applicant had been brought back to the police station after the court hearing on 31 December 2002 and had not taken into account the fact that ultimately the applicant was not prosecuted for theft.", "While the Government dismissed the applicant’s version of events according to which he had entered the factory premises to fulfil his citizen’s duty and to prevent a crime, it remained unclear what police officer L. had been doing at the factory. 88. The applicant also remarked that he had not been provided in good time with copies of the decisions refusing to instigate criminal proceedings in relation to his complaints, which had caused further delays in the investigation. 89. As for the forensic medical examinations, the applicant claimed that all of them except for the first one had been limited to perfunctory studies of the applicant’s medical files.", "Moreover, they had all been performed by experts from the same forensic bureau. The questions for the experts had never been discussed with the applicant and he had not been informed about the results of the examinations. Nor had the applicant participated in the inspection, on 27 September 2004, of the site where the incident had occurred. 90. Lastly, the applicant argued that the investigation in his case had not been independent.", "The prosecutor’s office had, on numerous occasions, ordered police officers to conduct various investigative actions such as the identification of witnesses to the applicant’s arrest. Moreover, police officers L. and P. had continued to occupy their posts throughout the investigation. (ii) The Government 91. The Government submitted that, contrary to the applicant’s statements, the investigation into his complaints had complied with all the requirements of an effective investigation under Article 3 of the Convention. 92.", "The Government noted at the outset that the applicant had not complained about his alleged ill-treatment until 10 February 2003, although the events in question had taken place on 30 December 2002. Between 3 January and 10 February 2003 the applicant had been in a hospital where a number of his injuries were documented. The applicant claimed, in particular, that he had been hit on the head with a gun handle. However, there is no record of such an injury in the applicant’s hospital medical file and after 10 February 2003, when the applicant lodged his complaint, a forensic expert examination of the applicant’s hospital medical records was all that had been possible, since after more than forty days the traces of inflicted blows had already disappeared. The fact that the applicant lodged his complaint with a considerable delay therefore undermined the effectiveness of the investigation.", "93. The Government stated that all the necessary investigative actions had been conducted aimed at establishing the circumstances in which the bodily injuries of the applicant had been sustained. The police officers’ and the applicant’s versions had both been checked. All possible witnesses had been questioned several times – in particular, the applicant had been questioned four times, L. seven times and P. twice. Everyone who had seen the applicant at the factory had been questioned three or four times, the applicant’s mother-in-law and his other family members had been questioned four times.", "A number of other witnesses had been questioned, including the police officers who had been in contact with the applicant at the police station and the judge who had seen the applicant the day after his arrest. A number of face-to-face confrontations had been held in order to clarify the contradictions between the testimonies of the applicant and those of the aforementioned persons. Other investigative actions such as forensic medical examinations, reconstructions of events, site examinations etc. had also been conducted. 94.", "The Government stated that all the investigative steps needed to establish the truth in the case had been performed. However, it could not be concluded that the applicant had been ill-treated by the police officers L. and P. Moreover, there was evidence suggesting the contrary. 95. The Government concluded that the investigation in the present case had complied with the requirements of Article 3. (b) The Court’s assessment 96.", "The Court reiterates that where an individual raises an arguable claim that he has been ill-treated by State authorities in breach of Article 3, that provision ‒ read in conjunction with the State’s general duty under Article 1 of the Convention ‒ requires that there should be an effective official investigation. Such an investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice, and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII, and Labita v. Italy [GC], cited above, § 131). 97. Article 3 requires that the investigation should start as soon as an arguable claim has been lodged by the applicant or, even in the absence of an express complaint, if there are sufficiently clear indications that ill‑treatment might have occurred (see Begheluri v. Georgia, no.", "28490/02, § 99, 7 October 2014). 98. Once an investigation has been triggered, the following elements establishing its effectiveness can be derived from the Court’s case-law. 99. The investigation should be conducted promptly.", "A prompt response by the authorities in the investigation of a case of ill-treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and preventing any appearance of collusion in or tolerance of unlawful acts (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004‑IV (extracts)). In order to accomplish the necessary steps, the collection and securing of evidence should also be done promptly (see Poltoratskiy v. Ukraine, no. 38812/97, § 126, ECHR 2003‑V). 100.", "The investigation must be thorough, that is to say the authorities should make a serious attempt to find out what happened and not rely on hasty or ill-founded conclusions (see Assenov and Others v. Bulgaria, cited above, §§ 103 et seq.). In particular, all reasonable available steps should be taken to secure the evidence concerning the incident, including eyewitness statements and forensic evidence which provides a complete and accurate record of injuries and an objective analysis of the clinical findings. The investigation’s conclusions must be based on thorough, objective and impartial analysis of all relevant elements. 101. The authorities undertaking the investigation should be independent (both institutionally and in practical terms) from those involved in the events (see, for example, Barbu Anghelescu v. Romania, no.", "46430/99, § 66, 5 October 2004) and the victim should be able to actively participate therein (see Savitskyy v. Ukraine, no. 38773/05, § 114, 26 July 2012). 102. Turning to the present case, the Court notes that the investigation into the events in question started after the applicant lodged a complaint on 10 February 2003, that is to say more than forty days after these events. While the applicant stated that the public hospital doctors had failed, contrary to their legal obligation, to inform the police about his injuries, the Court questions to what extent such an obligation exempts an applicant from lodging a formal complaint.", "In the present case, the applicant did not submit any evidence indicating that he or his lawyer had not had any possibility of lodging such a complaint before 10 February 2003. 103. In the Court’s view, this delay of over 40 days in submitting his complaint to the relevant authorities had a negative impact on the subsequent investigation since it rendered it more difficult to examine the applicant in a timely fashion, record his injuries and draw the correct inferences therefrom. Consequently, all the forensic experts reached their conclusions on the basis of the applicant’s hospital medical records, which are kept in order to track the applicant’s diagnosis and treatment and not to document injuries for the purpose of a criminal investigation. 104.", "However, the Court notes that, even accepting that the applicant was responsible for some delay in beginning the investigation, once it had been initiated it was marred by significant shortcomings for which the investigative authorities must be held responsible. In particular, the decision not to institute criminal proceedings was taken nearly a month after the applicant had lodged his complaint, without a reconstruction of events having been staged or a forensic medical opinion having been issued on how the injuries in question could have been sustained. Those shortcomings were noted by the national authorities when decisions refusing the institution of criminal proceedings were quashed and the case remitted for additional investigation. 105. The Court also notes that, after criminal proceedings were finally instituted in October 2004, there were six subsequent decisions to terminate them.", "Five of those decisions were quashed by higher prosecutors or a court for various shortcomings. As a result, those proceedings lasted for more than five and a half years and were eventually terminated with the finding that it had been impossible to find any evidence of a crime due to the passage of time (see paragraph 50 above). 106. The Court takes note of the Government’s submissions that, by the end of the investigation, the witnesses and the persons involved in the incident had been questioned on numerous occasions, and that five forensic medical examinations and other investigative steps had been conducted. Nevertheless the Court observes that those investigative steps, although relevant, were very often performed only as a response to instructions from higher prosecutors or the court and resembled formal perfunctory steps rather than parts of a prompt and thorough investigation.", "107. Lastly, the Court notes that on several occasions the police bodies were asked by the prosecutor’s office to conduct certain investigative steps, in particular to find witnesses. Although those requests were addressed to an entity different from the one where the police officers L. and P. were employed, the fact that an entity within the Ministry of Interior was involved in an investigation concerning employees of that same Ministry is capable of undermining the independence of such an investigation. In this respect the Court also refers to the findings of the CPT, which has long been urging the Ukrainian authorities to create an independent investigative agency specialised in the investigation of complaints against public officials (see paragraph 58 above). 108.", "In view of the above, the Court concludes that the applicant’s complaints were not the subject of an effective investigation. Moreover, the Court would like to underline that apart from the applicant’s failure to substantiate his complaint under the substantive limb of Article 3 of the Convention it was the authorities’ failure to carry out an effective investigation into it that kept the crucial issues of the case unclear (see Dzhulay v. Ukraine, no. 24439/06, 3 April 2014). Consequently, there has been a violation of the procedural limb of Article 3 of the Convention. It follows that the Government’s preliminary objection (see paragraph 60 above) must be dismissed.", "109. Having regard to its finding under Article 3, the Court considers that it is not necessary to examine whether in this case there has also been a violation of Article 13 of the Convention (see Kobets v. Ukraine, cited above, § 57). II. ALLEGED BREACH OF ARTICLE 34 OF THE CONVENTION 110. In a fax dated 12 December 2010 the applicant’s representative submitted that on 15-16 October 2010 the police had searched the office where he worked and had seized his computer, which contained some documents and letters relating to the present case.", "111. The Court considers that this information is to be examined in the light of Article 34 of the Convention, the relevant parts of which read: “The Court may receive applications from any person... The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” A. The parties’ submissions 1. The applicant 112.", "According to the applicant, the Government did not advance any reasons for the seizure of the computers and documents or for breaching the right to respect for a person’s home notwithstanding the absence of a court decision authorising the search and seizure and the lack of permission from the premises’ owner for such a search. 113. According to the applicant, the State agents had been in possession of a court decision authorising them to search the premises at K. Street 54/1, where the applicant’s representative resided, but they possessed no such decision in respect of the premises at K. Street 54/3. A video recording of the search shows that the employees of the human rights organisation protested against the police officers’ presence on the premises. The State agents had been aware that there were no personal belongings of the applicant’s representatives on the premises and the employees present had reiterated this.", "114. The applicant submitted that although the police officers had allegedly been looking for “pornographic material”, they had seized 15 kilograms of papers which included refugees’ files as well as documents relating to the applicant’s case. 115. Despite the Government’s assertions to the contrary, the applicant’s representative lodged a complaint and then appealed against the decision not to institute criminal proceedings, but that appeal was at the time of submitting the present observations still pending. 116.", "According to the applicant, the fact that State agents who were allegedly looking for pornographic material unlawfully seized the documents in question ‒ despite being informed about the nature of their contents ‒ raises doubts about the agents’ real intentions. 117. Lastly, the applicant submitted that the seized computers contained files concerning a psychological examination of the applicant carried out for the purpose of substantiating the amount of non-pecuniary compensation sought, correspondence with the experts involved, and copies of preliminary documents which at that time had not yet been submitted to the Court. Therefore, in the applicant’s view, the State had not respected the procedural guarantees regarding confidentiality of correspondence with the Court, which constituted a breach of Article 34 of the Convention. 2.", "The Government 118. The Government submitted that the applicant’s complaint under Article 34 of the Convention was manifestly ill-founded and unsupported by any evidence. The Government further argued that the search of the office of the applicant’s representative had been lawful, had not been intended to exert any pressure on the applicant or his representative, and had not influenced the proceedings before the Court. 119. The search in question had been conducted in the apartment containing the belongings of the applicant’s representative within the framework of criminal proceedings that had been instituted on suspicion of the distribution of pornographic materials.", "120. In the Government’s view the search and seizure of the documents and equipment had not affected the applicant’s representation before the Court. The applicant’s representative never asked for the documents and files which he allegedly needed for the applicant’s representation before the Court to be returned to him. Nor did he provide any evidence that the aim of the search was to hinder the representation of the applicant’s interests before the Court or that this search had any effect on his representation in the present case. 121.", "Following the complaints about an allegedly unlawful search, the prosecutor refused to institute criminal proceedings and the applicant’s representative did not appeal against that decision. 122. In view of the above the Government stated that there had been no interference with the exercise of the right of individual application in the present case. B. The Court’s assessment 123.", "The Court reiterates that a complaint under Article 34 of the Convention is of a procedural nature and therefore does not give rise to any issue of admissibility under the Convention (see Iulian Popescu v. Romania, no. 24999/04, § 29, 4 June 2013). 124. The Court furthermore points out that for the effective operation of the system of individual application instituted by Article 34, it is of the utmost importance that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 105, Reports of Judgments and Decisions 1996‑IV). In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy (see Kurt v. Turkey, 25 May 1998, § 159, Reports of Judgments and Decisions 1998‑III).", "125. Furthermore, the question of whether or not a particular form of contact between the authorities and an applicant is tantamount to unacceptable practice from the standpoint of Article 34 must be determined in the light of the particular circumstances of the case. In this respect, regard must be had to the vulnerability of the complainant and his or her susceptibility to influence exerted by the authorities (see Akdivar and Others, § 105, and Kurt, § 160, both cited above). 126. Turning to the present case, the Court notes that the computers and documents of the applicant’s representative were seized by the authorities in the course of the unrelated criminal proceedings instituted against the applicant’s representative.", "The Court observes, however, that there is no evidence that, at the moment of the seizure, the State authorities were aware what material the computer contained. There is equally no evidence that their real aim was to hinder the applicant’s representation in the present case or to discourage him from pursuing it. In particular, when complaining about the seizure to the national authorities, the applicant’s representative stated only that “one of the seized computers contained, inter alia, some confidential correspondence” to the Court in the present case. He did not request access to the seized documents, nor did he state at any stage that he was unable to substantiate his submissions before this Court because of the above seizure. 127.", "In such circumstances, the Court cannot conclude that the State has failed to fulfil its obligation under Article 34 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 128. 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.” 129. The applicant did not submit a claim for just satisfaction.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Joins to the merits the Government’s objection as to the admissibility of the applicant’s complaint of ill-treatment by the police (on the grounds of non-exhaustion of domestic remedies) and dismisses this objection after an examination on the merits; 2. Declares the application admissible; 3. Holds that there has been no violation of Article 3 of the Convention under its substantive limb; 4. Holds that there has been a violation of Article 3 of the Convention under its procedural limb; 5.", "Holds that there is no need to examine the complaint under Article 13 of the Convention; 6. Holds that the State has not failed to fulfil its obligation under Article 34 of the Convention. Done in English, and notified in writing on 23 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekAngelika NuβbergerRegistrarPresident" ]
[ "FIFTH SECTION CASE OF MAYSTER v. UKRAINE (Application no. 18951/04) JUDGMENT STRASBOURG 9 December 2010 This judgment is final but it may be subject to editorial revision. In the case of Mayster v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Rait Maruste, President,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva, judges,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 16 November 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 18951/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Grygoriy Ivanovych Mayster (“the applicant”) on 5 April 2004.", "2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev. 3. On 12 May 2009 the Court decided to give notice of the application to the Government. In accordance with Protocol No.", "14, the application was allocated to a Committee of three judges. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant is a Ukrainian national who was born in 1948 and lives in Vinnytsia. A. Proceedings for reinstatement 5.", "On 20 May 1997 the applicant was dismissed from his position of managing director of a private company, V.Ph. 6. In May 1997 he instituted proceedings in the Leninsky District Court of Vinnytsia (“the Leninsky Court”) against a joint-stock company, V.M., the owner of V.Ph., seeking: reinstatement as director; recovery of salary arrears for the period of involuntary leave between dismissal and reinstatement; recovery of court fees; and compensation for loss of working time. 7. On 17 April 2001 the Zhytomyr Regional Court (“the Regional Court”), following several hearings in the case, endorsed a friendly settlement between the applicant and V.M., pursuant to which V.M.", "undertook to reinstate the applicant and pay him the amounts claimed. 8. V.M. paid the applicant the amounts due to him pursuant to the friendly settlement. On 17 April 2001 it approved his reinstatement but on 18 April 2001 it issued a resolution abolishing the position of the director of V.Ph.", "on the grounds of a reduction in staff. On 19 April 2001 V.M. made the applicant redundant as of 20 April 2001. 9. On 14 May 2001, at the applicant’s request, the Regional Court issued a warrant of execution in relation to its ruling of 17 April 2001.", "The applicant lodged the warrant with the State Bailiffs’ Service (“the bailiffs”). 10. On 7 August 2001 the bailiffs terminated the enforcement of the Regional Court’s judgment. On 7 September 2001 the Leninsky Court quashed the termination, holding that the ruling in question had only been partially enforced because the applicant had not in fact been allowed to perform his job. 11.", "On 9 August 2002, 8 July and 20 August 2003 and 12 August 2005 respectively, the Leninsky Court quashed the bailiffs’ subsequent resolutions terminating the enforcement and ordered them to enforce the ruling of 17 April 2001. 12. On 17 February and 26 April 2004, the Leninsky Court and the Regional Court respectively issued reminders to the bailiffs that the ruling of 17 April 2001 remained unenforced. 13. On 14 June 2004 the Regional Court issued a duplicate of the warrant.", "On 16 July 2004 it reprimanded the bailiffs for their continued non‑enforcement. 14. According to the applicant, the ruling at issue remains unenforced. B. First proceedings against the bailiffs 15.", "On 16 July 2002 the applicant instituted proceedings in the Leninsky Court against the bailiffs, complaining of their failure to enforce the ruling of 17 April 2001 and claiming compensation for non-pecuniary damage. 16. In a judgment of 28 October 2002 the Leninsky Court awarded the applicant damages and ordered the bailiffs to enforce the ruling concerned. 17. On 18 March 2003 the same court, following the bailiffs’ request for review in the light of newly discovered facts, quashed its above-mentioned judgment.", "18. In two separate rulings of 23 October 2003 it terminated the proceedings, leaving the applicant’s claim for compensation without consideration. The applicant appealed against the first ruling. 19. On 2 December 2003 the Vinnytsia Regional Court of Appeal (“the Court of Appeal”) upheld the ruling at issue.", "The applicant appealed in cassation. 20. On 27 September 2005 the Supreme Court of Ukraine transferred the case to the Higher Administrative Court which, on 25 July 2007, returned the case to the Supreme Court for lack of jurisdiction. According to the Government, on 13 August 2007 the case was transferred to the Lviv Regional Court of Appeal in accordance with new cassation procedures. 21.", "On 8 January 2008 the Lviv Regional Court of Appeal, sitting as a court of cassation, quashed the decision of 2 December 2003, stating that the lower court had misapplied the law, and remitted the case to the Court of Appeal. 22. According to the Government, on 19 March 2008 the Court of Appeal upheld the Leninsky Court’s ruling of 23 October 2003. The applicant did not contest this statement, nor did he inform the Court of any further appeals. C. Second proceedings against the bailiffs 23.", "On 29 December 2004 the applicant instituted proceedings in the Leninsky Court against the bailiffs, challenging their refusal to institute enforcement proceedings regarding an unspecified judgment in his favour. 24. On 8 February 2005 the court left his action without consideration noting that the Court of Appeal was competent to deal with it. 25. On 24February 2005 the Court of Appeal, having found that the applicant’s action was outside its jurisdiction, left it unexamined.", "26. On 23 October 2007 the Lviv Regional Court of Appeal, sitting as a court of cassation, upheld this decision. D. Proceedings for recovery of salary arrears 27. In March 2003 the applicant instituted proceedings in the Zhytomyr Regional Court of Appeal against V.M., seeking recovery of salary arrears for the period from 19 June 2001 to 1 March 2003. 28.", "On 7 July 2002 the court rejected his claims as unsubstantiated. 29. On 4 December 2003 the Supreme Court of Ukraine upheld this judgment. E. Criminal proceedings 30. Since September 2002 the applicant had repeatedly requested that criminal proceedings be instituted against various managers of V.M.", "who, according to him, were partially responsible for the non-enforcement of the ruling of 17 April 2001. 31. The criminal proceedings were opened, closed and subsequently resumed several times following the applicant’s complaints to the courts: most recently on 25 March 2009, the District Court quashed a decision by the prosecutor to terminate the investigation. By letter of 17 April 2009 the applicant informed the Court that the investigation was pending before the prosecutors, but that he had not been granted victim status. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 32. The applicant complained of the excessive length of the first proceedings against the bailiffs. He relied on Article 6 § 1 of the Convention which, so far as relevant, 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 ...” A. Admissibility 33. 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 34. 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).", "1. Period to be taken into consideration 35. The Court notes that the proceedings at issue began on 16 July 2002. 36. The Government maintained that the proceedings ended on 23 October 2003 with the relevant court ruling.", "37. The Court considers that the applicant’s action was in fact terminated on 19 March 2008, as he challenged one of the court decisions of 23 October 2003 and the proceedings continued until the court of appeal’s decision of 19 March 2008. Thus, the overall duration of the proceedings in question was five years and eight months at three levels of jurisdiction. 38. The Court considers it, however, appropriate to take into account only the period when the case was actually pending before the courts (see, mutatis mutandis, Golovko v. Ukraine, no.", "39161/02, § 49, 1 February 2007). If the period between the adoption of the final judgment and its quashing in the light of newly discovered circumstances is excluded, the length of proceedings was five years and three months. 2. Reasonableness of the length of the proceedings before the domestic courts 39. The Court considers that the issue at stake was important for the applicant professionally as well as economically.", "It does not, however, find any grounds for the domestic courts to have handled the applicant’s case with particular urgency vis-à-vis other cases pending before them as, at least from April 2001, the applicant’s post was abolished and his claims for salary and other sums were moot thereafter. 40. It further considers that the subject matter of the litigation was not complex and that the applicant did not contribute to the length of the proceedings by his conduct. 41. The Court observes that the main delay in the proceedings took place during the examination of the applicant’s appeal in cassation.", "This procedure lasted more than four years and included two reassignments of jurisdiction between courts (see paragraph 20 above). 42. The Court has already 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). 43. Having examined all the material submitted to it, the Court considers that the Government have not put forward any facts or arguments 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. 44. There has accordingly been a breach of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.", "1 45. The applicant further complained that the inordinate length of the proceedings had infringed his right to the peaceful enjoyment of his possessions, as guaranteed by Article 1 of Protocol No. 1 to the Convention. 46. The Court notes that this complaint is linked to that examined under Article 6 § 1 of the Convention and must therefore likewise be declared admissible.", "However, having regard to its finding under Article 6 § 1 of the Convention (see paragraph 44 above), it does not consider it necessary to examine whether, in the present case, there has been a violation of Article 1 of Protocol No. 1 (see Khurava v. Ukraine, no. 8503/05, § 26, 8 April 2010). III. OTHER COMPLAINTS 47.", "The applicant complained of the non-enforcement of the ruling of 17 April 2001. He also complained of the unfairness and outcome of the first proceedings against the bailiffs and the proceedings for recovery of salary arrears. He further complained about the excessive length of the criminal proceedings and of the lack of access to court in the course of the second proceedings against the bailiffs. 48. Having carefully examined the applicant’s submissions in the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.", "49. It follows that these complaints must be declared manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 50. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 51. The applicant claimed 12,038 euros (EUR) in respect of pecuniary damage and EUR 8,025 in respect of non-pecuniary damage. 52. The Government contested these claims. 53.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged. It therefore rejects this claim. However, it considers that the applicant must have sustained non-pecuniary damage as regards the excessive length of the proceedings in his case. The Court, making its assessment on an equitable basis, as required by Article 41 of the Convention, considers that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage (see Silin v. Ukraine, no. 23926/02, § 46, 13 July 2006).", "B. Costs and expenses 54. The applicant also claimed EUR 16 for costs and expenses incurred before the Court. 55. The Government left the matter to the Court’s discretion.", "56. 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 16 under this head. C. Default interest 57. The Court considers it appropriate that default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the excessive length of the first proceedings against the bailiffs admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of length of the proceedings; 3. Holds that there is no need to examine the complaint under Article 1 of Protocol No. 1 to the Convention; 4.", "Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 16 (sixteen euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (b) that, from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 9 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsRait MarusteDeputy Registrar President" ]
[ "FOURTH SECTION CASE OF KROWIAK v. POLAND (Application no. 12786/02) JUDGMENT STRASBOURG 16 October 2007 FINAL 16/01/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Krowiak v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG.", "Bonello, Mr S. Pavlovschi,MrL. Garlicki,MsL. Mijović,MrJ. Šikuta, judges,and Mr T.L. Early, Section Registrar, Having deliberated in private on 25 September 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 12786/02) against the Republic of Poland 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, Mr Artur Krowiak (“the applicant”), on 30 July 2001. 2. The applicant was represented by Mr A. Braum, a lawyer practising in Krakow. The Polish Government were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.", "3. On 3 July 2006 the President of the Fourth Section of the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1970 and lives in Kraków, Poland. 1. Criminal proceedings against the applicant. 5. On 16 January 1998 the Cracow District Court (Sąd Rejonowy) ordered the applicant's detention on remand, on charges of attempted murder.", "The court also issued a wanted notice in respect of the applicant. 6. On 25 February 1998 the applicant was arrested and placed in custody. 7. On 2 March 1998 the Cracow District Court prolonged the applicant's detention until 25 May 1998.", "The court referred to the reasonable suspicion that the applicant had committed the offence in question and the need to continue the investigation. 8. On 19 March 1998 the Cracow Regional Court (Sąd Okręgowy) dismissed the applicant's appeal against this decision. The court referred to the reasons given by the District Court. It also stressed that the applicant's detention had been necessary to secure the proper conduct of the proceedings.", "9. On 21 May and 14 July 1998 the applicant's pre-trial detention was further prolonged. The court found that keeping the applicant in custody was justified by the strong suspicion that he had committed the offence in question and the severe sentence that might be imposed on him. In addition, the court referred to the fact that the applicant had been sought by means of a wanted notice. 10.", "The applicant appealed against this decision. He asked the court to consider imposing alternative measures - such as bail or police supervision -to secure the proper conduct of the criminal proceedings. He further claimed that he needed to take care of his disabled parents and his child. 11. On 13 July 1998 the applicant was indicted before the Cracow Regional Court.", "12. On 30 July 1998 the Cracow Court of Appeal (Sąd Apelacyjny) upheld the first-instance decision. The court referred to the reasons given by the Regional Court. It further stressed that in view of the applicant's going into hiding at the initial stage of the proceedings, it was justified to keep him in custody to secure the proper conduct of the proceedings. 13.", "On 27 October 1998 and 16 February 1999 the applicant's detention was again prolonged by the Regional Court. On the latter date, the court found: “The fact that [the applicant] has been charged with attempted murder is a sufficient ground to impose the most severe preventive measure, that is detention on remand.” 14. The applicant's detention was further prolonged on 14 May and 16 August 1999. The court relied on the strong probability that the applicant had committed the offence with which he had been charged and the advanced stage of the trial. 15.", "On 15 September 1999 the Cracow Court of Appeal dismissed the applicant's appeal against the decision to prolong his detention. 16. It appears that in 1999 the trial court held in total thirteen hearings. 17. At the hearing held on 27 December 1999 the Regional Court again prolonged the applicant's detention.", "18. On 10 January 2000 the Cracow Regional Court gave judgment. The applicant was convicted as charged and sentenced to fifteen years' imprisonment. The court also prolonged the applicant's detention. 19.", "The applicant lodged an appeal. On 13 April 2000 the Cracow Court of Appeal allowed the appeal, quashed the impugned judgment and remitted the case. 20. On 27 July 2000 the Regional Court held the first hearing at which it prolonged the applicant's detention. The court referred to the reasons given previously, in particular to the reasonable suspicion that the applicant had committed the offence in question and the severity of the penalty that could be expected.", "21. The applicant's detention was further prolonged on 30 January 2001, and at public hearings held on 29 March, 13 June, 27 September and 13 December 2001. The applicant and his lawyer were present at these hearings. On each occasion the Regional Court repeated the grounds for detention given previously: the reasonable suspicion that the applicant had committed the offence with which he had been charged and the severity of the penalty that could be expected. In addition, it stressed the fact that a wanted notice had had to be issued in order to find the applicant.", "All these decisions were upheld on appeal by the Cracow Court of Appeal. 22. The applicant's numerous applications for release were to no avail. 23. On 6 February 2002 the Cracow Regional Court gave judgment.", "The applicant was convicted as charged and sentenced to fifteen years' imprisonment. The applicant lodged an appeal against this judgment. 24. On 19 September 2002 the Cracow Court of Appeal gave judgment. The applicant was convicted of causing bodily harm and his sentence was reduced to five years' imprisonment.", "25. On 19 December 2002 the Cracow Regional Court imposed a cumulative sentence (wyrok łączny). 26. On 23 December 2002 the applicant was released from detention. 2.", "Facts relating to the conditions of the applicant's detention. 27. The applicant submitted that the conditions of his detention on remand were inhuman and degrading. In particular, he maintained that he had not been provided with vegetarian food. 28.", "It appears that during the period of the applicant's detention on remand, he changed detention centres on several occasions. In the first five centres in which he had been kept he had been either provided with a vegetarian diet, or he had been allowed to prepare his own vegetarian meals. In February 2002 the applicant was transported to Tarnów Prison were he stayed until his release in December 2002. The prison authorities refused to provide the applicant with a vegetarian diet, or to allow him to prepare his own meals on the grounds of technical difficulties and safety regulations. The applicant's numerous complaints were dismissed by the prison administration.", "All these decisions were further upheld by the Tarnów Regional Penitentiary Court (Sąd Okręgowy Wydział Penitencjarny). II. RELEVANT DOMESTIC LAW 29. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so‑called “preventive measures” (środki zapobiegawcze). Article 249 § 5 provides that the lawyer of a detained person should be informed of the date and time of court sessions at which a decision is to be taken concerning the prolongation of detention on remand.", "30. A more detailed rendition of the relevant domestic law provisions is set out in the Court's judgment in Kudła v. Poland [GC], no. 30210/96, § 75, ECHR 2000‑XI, Celejewski v. Poland, no. 17584/04, §§ 22 and 23, 4 May 2006. 31.", "The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court's decisions in cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12‑23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005‑VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 32. The applicant complained under, inter alia, Article 3 of the Convention about the conditions of his detention, and in particular that he had not been provided with vegetarian food while in custody. “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 33. However, the Court recalls that in order to fall within the scope of Article 3, the alleged treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc (see, for example, Kudła v. Poland [GC], no. 30210/96, §§ 91-99, ECHR 2000‑XI).", "The suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002‑VI). 34. In the present case, it appears from the evidence provided by the applicant that while in detention since 1998 he was provided with a vegetarian diet except for a period of several months in 2002 when he had been detained in the Tarnow Prison. Regard being had to the duration and type of the alleged ill-treatment and given the practical demands of imprisonment, the Court considers that there is no evidence that the treatment complained of has reached the threshold of severity required to bring the matter within the ambit of Article 3 of the Convention.", "It follows that this complaint is manifestly ill-founded under Article 35 § 3 of the Convention and must be rejected under Article 35 § 4. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 35. The applicant complained that the length of his detention on remand had been unreasonable. He relied on Article 5 § 3 of the Convention, which reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial.", "Release may be conditioned by guarantees to appear for trial.” 36. The Government refrained from expressing an opinion on whether the applicant's pre-trial detention satisfied the requirements of Article 5 § 3. A. Admissibility 37. 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. Principles established under the Court's case-law 38. The Court recalls that the general principles regarding the right “to trial within a reasonable time or to release pending trial”, as guaranteed by Article 5 § 3 of the Convention, were stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no.", "30210/96, § 110 et seq, ECHR 2000‑XI; and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further references). 2. Application of the principles to the circumstances of the present case 39. The Court first notes that the applicant was detained on remand on 25 February 1998 and that the first-instance judgment was given on 10 January 2000.", "Subsequently, on 13 April 2000, the appeal court quashed the judgment and remitted the case. The applicant's detention on remand lasted until 6 February 2002 when the trial court again convicted him. The detention thus lasted 3 years, 8 months and 10 days. 40. The Court observes that in the present case the authorities relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged and on the severity of the sentence that might be imposed.", "They further considered that there existed the risk that the applicant might go into hiding relying on the fact that he had been in hiding before his arrest in 1998 and that a warrant had been issued for his arrest. They repeated those grounds in all their decisions. The authorities failed to advance any other justifications for prolonging the applicant's detention. 41. The Court accepts that the suspicion against the applicant of having committed the offences and the need to secure the proper conduct of the proceedings, might initially justify his detention, particularly since he had gone into hiding before his arrest.", "However, with the passage of time, these grounds became less relevant and cannot justify the entire period of 3 years and 8 months during which the most serious preventive measure had been imposed on the applicant (see Malik v. Poland, no. 57477/00, § 45, 4 April 2006 and Depa v. Poland, no. 62324/00, § 38, 12 December 2006 Czajka v. Poland, no. 15067/02, § 46, 13 February 2007). 42.", "Moreover, the authorities relied heavily on the likelihood that a severe sentence would be imposed on the applicant given the serious nature of the offences at issue. In this respect, the Court agrees that the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending. However, the Court has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention on remand (see Ilijkov v. Bulgaria, no. 33977/96, §§ 80‑81, 26 July 2001). 43.", "The Court further observes that the applicant was detained on charges of, inter alia, attempted homicide and was finally convicted of causing bodily harm. Moreover, even though the applicant had committed these crimes with the help of accomplices, there is no indication that he was a member of an organised criminal group. It does not appear therefore that his case presented particular difficulties for the investigation authorities and for the courts to determine the facts and mount a case against the perpetrator, as would undoubtedly have been the case had the proceedings concerned organised crime (see Celejewski v. Poland, no. 17584/04, § 37, 4 May 2006; Dudek v. Poland, no. 633/03, § 36, 4 May 2006).", "44. Finally, the Court would emphasise that under Article 5 § 3 the authorities, when deciding whether a person is to be released or detained, are obliged to consider alternative measures of ensuring his appearance at the trial. Indeed, that Article lays down not only the right to “trial within a reasonable time or release pending trial” but also provides that “release may be conditioned by guarantees to appear for trial” (see Jablonski, cited above, § 83). In the present case the Court notes that there is no express indication that during the entire period of the applicant's pre-trial detention the authorities envisaged any other means of guaranteeing his appearance at trial. Nor did they give any consideration to the possibility of ensuring his presence at trial by imposing on him other “preventive measures” expressly foreseen by Polish law to secure the proper conduct of criminal proceedings.", "45. The Court is, therefore, not satisfied that the reasons given to justify the applicant's detention for 3 years and 8 months were “relevant” and “sufficient”, as required under Article 5 § 3. There has therefore been a violation of Article 5 § 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 46.", "The applicant complained about the procedure relating to the prolongation of his pre-trial detention, in particular that he and his lawyer did not attend the sessions at which his detention was prolonged. The Court will examine this complaint under Article 5 § 4 of the Convention, which reads as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 47. The Government submitted that, taking into consideration all the proceedings devoted to the review of the lawfulness of the applicant's pre-trial detention, the principles guaranteed in Article 5 § 4 of the Convention had been respected in the present case. 48. The Court recalls that the principles relevant in the present case which emerge from the Court's case law on Article 5 § 4 were stated in a number of its previous judgments (see for instance, Assenov and Others v. Bulgaria, judgment of 28 October 1998 and Telecki v. Poland, (dec.), no.", "56552/00, 3 July 2003 and Celejewski v. Poland, no. 17584/04, § 47, 4 May 2006; Depa v. Poland, no. 62324/00, § 49, 12 December 2006). 49. Turning to the circumstances of the instant case, the Court firstly notes that it cannot examine events complained of by the applicant which took place before 30 January 2001, that is more than six months before the date on which this complaint was submitted to the Court (see Depa v. Poland, cited above, § 46).", "50. The procedure for the prolongation of the applicant's pre‑trial detention during the period under consideration was based on Article 249 § 5 of the Code of Criminal Procedure which required the domestic courts to inform the lawyer of a detained person of the date and time of court sessions at which a decision was to be taken concerning prolongation of detention on remand, or an appeal against a decision to impose or to prolong detention on remand was to be considered. It was open to the lawyer to attend such sessions. 51. The Court observes that, during the period under consideration, all decisions to prolong the applicant's detention, with one exception, were given at public hearings at which the applicant was present and was legally represented (see paragraph 21 above).", "He was therefore able to personally support his applications for release. As regards the remaining session at which his detention was prolonged, the Court notes that the applicant has not advanced any evidence that would establish that the authorities departed from the general rule and failed to summon his lawyer so to enable him to participate and to ensure respect for equality of arms in those proceedings. In this connection the Court reiterates that in cases where characteristics pertaining to the applicant's personality and level of maturity and reliability are of importance in deciding on his dangerousness, Article 5 § 4 requires an oral hearing in the context of an adversarial procedure involving legal representation (see Waite v. the United Kingdom, no. 53236/99, § 59, 10 December 2002). On the basis of the material before it the Court considers, however, that in the present case the questions of assessment of the applicant's character or mental state did not arise and that his personal attendance at all of the sessions at which his detention on remand had been prolonged was therefore not required.", "52. In view of the above, the Court is of the opinion that the proceedings in which the prolongation of his detention was examined satisfied the requirements of Article 5 § 4 (see Telecki v. Poland, (dec.) cited above and Kozimor v. Poland, no. 10816/02, § 41, 12 April 2007). 53. It follows that this complaint must be rejected as being manifestly ill‑founded pursuant to Article 35 §§ 3 and 4 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 54. The applicant complained under Article 6 § 1 of the Convention that the length of the criminal proceedings had exceeded a “reasonable time” within the meaning of this provision and that he had not had a “fair trial”. 55. However, pursuant to Article 35 § 1 of the Convention: “The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law...” 56.", "As regards the complaint about the unreasonable length of the proceedings, the Court observes that the present application was lodged with the Court when the relevant proceedings were pending before the domestic courts. 57. It further observes that, pursuant to section 18 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”), it was open to an applicant whose case was pending before the Court to lodge, within six months from 17 September 2004, a complaint about the unreasonable length of the proceedings with the relevant domestic court, provided that his application to the Court had been lodged in the course of the impugned proceedings and had not yet been declared admissible. The applicant in the present case satisfied these requirements. 58.", "The Court has already examined that remedy for the purposes of Article 35 § 1 of the Convention and found it effective in respect of complaints about the excessive length of judicial proceedings in Poland. In particular, it considered that it was capable both of preventing the alleged violation of the right to a hearing within a reasonable time or its continuation, and of providing adequate redress for any violation that has already occurred (see Charzyński v. Poland (dec.), no. 15212/03, ECHR 2005‑V). 59. However, the applicant, despite having been informed by the Registrar of the possibility of lodging a complaint about the length of the proceedings under the 2004 Act, has chosen not to avail himself of this remedy.", "It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. 60. With regard to the applicant's assertion that the proceedings in his case were unfair, the Court notes that it is not clear whether the applicant lodged a cassation appeal with the Supreme Court. However, even assuming that the applicant had exhausted domestic remedies, the Court reiterates that it is not called upon to deal with errors of fact and law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).", "61. The Court observes that the applicant does not allege any particular failure to respect his right to a fair hearing. Assessing the criminal proceedings against the applicant as a whole, it finds no indication that they were conducted unfairly. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 62.", "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 63. The applicant claimed 25,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. 64. The Government considered that the claim was exorbitant and unsubstantiated.", "65. 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 2,000 in respect of non‑pecuniary damage. B. Costs and expenses 66.", "The applicant, who was represented before the Court by a lawyer, did not submit any claim for the costs and expenses incurred before the domestic courts or before the Court. C. Default interest 67. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the unreasonable length of the applicant's detention on remand admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 5 § 3 of the Convention; 3. Holds (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 2,000 (two thousand euros) in respect of non-pecuniary damage, to be converted into Polish zlotys 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; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 16 October 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L.", "EarlyNicolas BratzaRegistrarPresident" ]