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Convention, however, the position taken by the majority in the Standing Committee, in connection with the constitutional amendment, is of considerable interest, in any event. Since the majority in the Standing Committee found the current total prohibition of televised political advertising to be 'unfortunate from the point of view of freedom of expression' and in the underlying grounds overruled the main arguments that were adduced in support of the prohibition at the time it was adopted, I cannot see that it can be claimed with any particular degree of credibility that there is such a pressing social need for such a prohibition that it can be accepted as compatible with paragraph 2 of Article 10. In this connection, I find it necessary to emphasise that the change in the Parliamentary majority's attitude was not caused by changes in society, but is solely due to the fact that the majority has realised that there is no sufficiently pressing social need for such interference with the right to freedom of expression.
(85) The Media Authority's administrative decision of 10 September 2003 to impose a fine on TV Vest was taken under section 3-1(3) (see also section 10-3) of the Broadcasting Act. The advertisements concerned in this case were aired during the election campaign for municipal and county elections in 2003. I see no reason to address the question whether prohibiting political advertising on television during election campaigns is compatible with paragraph 2 of Article 10 of the Convention. The norm that constitutes the legal basis for the administrative decision of the Media Authority contains a total prohibition of political advertising on television. As Lorenzen et al. (op. cit. p. 51) points out, when examining the question whether an interference in the exercise of a human right is compatible with the Convention, it is necessary to 'assess whether the national legal basis meets the human rights requirements as regards quality of law in relation to the powers of interference that derive from the Convention and the Court's case-law'. When examining the question whether the national norm that provides legal authority for interference satisfies the requirements set out in the Convention, the question whether the national legal authority for interference is circumscribed sufficiently narrowly so as to satisfy the requirement of proportionality must also be examined. Since the prohibition of political advertising on television, which constitutes the legal basis for the Media Authority's decisions, is not circumscribed sufficiently narrowly so as to satisfy the proportionality requirement set out in paragraph 2 of Article 10, the decision that was made pursuant to this provision must, in my opinion, be found to conflict with the Convention, even though the Convention might authorise the prohibition of political advertising on television during an election campaign. If the Norwegian legislature should wish to have such a prohibition, it would in such cases have to be the subject of special consideration, and relevant, sufficiently weighty and convincing grounds would have to be provided. The grounds adduced by the legislature for the existing total prohibition cannot justify a limited prohibition of this nature.
(86) On this basis it is my conclusion that the Norwegian Media Authority's administrative decision to impose a fine on TV Vest AS is invalid (see section 3 and also section 2, of the Human Rights Act)....”
II. RELEVANT DOMESTIC LAW AND PRACTICE
22. Section 3-1(3) of the Broadcasting Act 1992 reads:
“Broadcasters shall not transmit advertisements for life philosophy or political opinions through television. This applies also to teletext.”
23. The Government submitted that in 2005 the Media Authority had found that an advertisement broadcast by TV2 for an anti-terrorism group named the European Security Advocacy Group (ESAG) contained a political message which clearly fell within the meaning of the Broadcasting Act (section 3-1(3)). However, the Authority had concluded that the prohibition could not be enforced because to do so would violate Article 10 of the Convention. The Authority distinguished the facts from the Supreme Court's ruling in the TV Vest case. The ESAG advertisement had to be regarded as a contribution to a general public debate on how to fight terrorism, it had been transmitted outside the election period, and had not been connected to any political party or political organisation, but to a (social) interest group. Accordingly, the Authority found more similarities with the Court's judgment in the VgT case and, by applying a narrower margin of appreciation, that the interference could not be said to be necessary for the purposes of Article 10 § 2.
III. COMPARATIVE LAW
24. The respondent Government produced a copy of a survey performed by the Secretariat of the European Platform of Regulatory Authorities (“23rd EPRA Meeting, Elsinore, Denmark, 17-19 May 2006, Background paper - Plenary, Political advertising: case studies and monitoring”) on the basis of answers to a questionnaire, received from the authorities of 31 countries, i.e., Austria, Belgium (x2), Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece,
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Hungary, Ireland, the Isle of Man, Israel (x2), Italy, Latvia, Lithuania, Luxembourg, FYROM, Malta, the Netherlands, Norway, Poland, Portugal, Romania, Spain, Sweden and Switzerland (x2). The report included the following observations:
“• Countries with a ban on paid political advertising
Paid political advertising is statutorily forbidden in the vast majority of Western European countries such as Belgium, Denmark, France, Germany, Ireland, Malta, Norway, Portugal, Sweden, Switzerland, and the UK. Several countries from central and Eastern Europe such as the Czech Republic and Romania, also have a prohibition of paid political advertising.
The most traditional justification for this prohibition is that rich or well-established parties would be able to afford significantly more advertising time than new or minority parties – thus amounting to a discriminatory practice. Another rationale invoked for the restriction or the ban is that it may lead to divisiveness in society and give rise to public concern. It has also been suggested, albeit less frequently, that a prohibition would preserve the quality of political debate.
•Countries allowing paid political advertising
Paid political advertising is allowed in many central and Eastern countries such as Bosnia and Herzegovina, Bulgaria, Croatia, Hungary, Macedonia, Poland, and the Baltic States: Estonia, Latvia and Lithuania. In a few countries such as in Bosnia-Herzegovina (60 days prior to Election Day), and Croatia, political advertising is only permitted during the election period.
It is often overlooked that several countries in Western Europe, such as in Austria, Finland, Luxembourg (for the moment, this will change shortly) and the Netherlands also allow paid political advertising.
In Italy, until 2003 paid political advertising, i.e. self-managed spaces, was allowed also for national broadcasters, provided that they also transmitted 'political communications spaces' (spazi di comunicazione politica), i.e. discussion programmes with the participation of political representatives; now it is allowed only for local broadcasters and has to cost no more than 70% of the price applied to commercial advertisements, whereas national broadcasters may only broadcast them for free.
In Greece, while there is a permanent and wide-ranging ban on the political advertisement of persons, paid political advertising of political parties is not prohibited.
In Spain, while the ban of political advertising applies permanently for television broadcasters, the Spanish Electoral Code permits paid electoral advertising on commercial radio stations, only during the election period.
The main rationale for paid political advertising is that it may enable new candidates to obtain recognition and a profile. It is also often argued that the right to political advertising is an integral part of the right to freedom of expression and information.
...
•Countries allocating free airtime for political parties and/or candidates
In the vast majority of countries, such as Belgium (French Speaking Community), Czech Republic, Estonia, France, Germany, Greece, Ireland, Italy, Latvia, Luxembourg, Malta, parties are usually granted free airtime to present their programmes, sometimes in the format of short advertising spots. The broadcasters are usually reimbursed for their technical costs either by the State or directly by the parties.
...
•Countries with no system of allocation of free airtime.
Several countries have no specific provisions concerning free airtime for political parties. In a few countries, such as Belgium (Flemish speaking Community), Bulgaria, Norway, Sweden, parties are not granted any free airtime to present their programmes. In other countries such as Switzerland, Finland or Cyprus, this is a matter left to the broadcasters, who sometimes allow this practice on a voluntary basis.”
25. Recommendation No. R (99) 15 of the Council of Europe's Committee of Ministers on measures concerning media coverage of election campaigns provided as follows:
5. Paid political advertising
“In member States where political parties and candidates are permitted to buy advertising space for electoral purposes, regulatory frameworks should ensure that:
- the possibility of buying advertising space should be available to all contending parties, and on equal conditions and rates of payment;
- the public is aware that the message is a paid political advertisement.
Member States may consider introducing a provision in their regulatory frameworks to limit the amount of political advertising space which a given party or candidate can purchase.”
26. The Explanatory Memorandum to that Recommendation included the following comments in relation to the above:
Paid political advertising
“Paid political advertising in the broadcast media has traditionally been prohibited in many Council of Europe member States, whilst it has been accepted in others. One of its major advantages is the opportunity which it provides for all political forces to widely disseminate their messages/programmes. On the other hand, it may give an unfair advantage to those parties or candidates who can purchase important amounts of airtime.
In view of the different positions on this matter, the Recommendation does not take a stance on whether this practice should be accepted or not,
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and simply limits itself to saying that if paid advertising is allowed it should be subject to some minimum rules: one, that equal treatment (in terms of access and rates) is given to all parties requesting airtime, and two, that the public is aware that the message has been paid for.
It may also be considered important to set limits on the amount of paid advertising that can be purchased by a single party. Nevertheless, the Recommendation does not specify whether it is desirable to do so nor does it set any precise limits on the amount of paid advertising, as it is considered that the decision on this matter should be taken at the national level.”
27. The Committee of Ministers, on 7 November 2007, adopted recommendation Rec(2007)15, which entailed a revision of Recommendation No. R (99) 15. In so far as the above provisions were concerned it may be noted that the Draft Explanatory Memorandum ((2007) 155 add) included the following addition:
“78. In view of the different positions on this matter, Recommendation CM/Rec(2007)... does not take a stance on whether this practice should be accepted or not, and simply limits itself to saying that if paid advertising is allowed it should be subject to some minimum rules, in particular that equal treatment (in terms of access and rates) is given to all parties requesting airtime.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
28. The applicants complained that the fine imposed by the Media Authority on 10 September 2003, upheld by the Supreme Court at last instance on 12 November 2004, constituted a violation of Article 10 of the Convention, of which the relevant part reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers....
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society,... for the protection of the reputation or rights of others,... or for maintaining the authority and impartiality of the judiciary.”
29. The parties shared the view that the impugned measure amounted to an interference with the applicants' right to freedom of expression as guaranteed by paragraph 1 of the above provision. They further agreed that the measure was prescribed by law, namely sections 3-1(3) and 10-3 of the Broadcasting Act, and pursued the legitimate aim of protecting “the rights of others” within the meaning of paragraph 2 of Article 10. The Court sees no reason to hold otherwise.
On the other hand, the parties were in disagreement as to whether the interference was necessary in a democratic society.
A. Submissions of the parties
1. The applicants
30. The applicants maintained that the existence of an absolute prohibition of political advertising on television combined with the absence of rules providing for party political broadcasts had had the effect that the Pensioners Party had been prevented from communicating directly with its electorate on television. The absolute prohibition was neither supported by sufficient reasons nor proportionate to the aims pursued.
31. They submitted that in Norway political advertising was allowed without any limitation in all media other than television and that no weighty reasons could justify such different treatment of television broadcasting.
32. The broadcast advertisements had focused on the Pensioners Party's core values and did not contain any statements that could reasonably be viewed as distorting or reducing the quality of political debate.
33. The Pensioners Party was a small political party, without powerful financial means or support from strong financial groups. It seldom received any coverage in editorial television broadcasting and thus had a real need to establish direct communication between itself and the electorate.
34. This need had been especially pressing, since, unlike the situation in many other European States, including the United Kingdom, there was no system of party political broadcasts providing for free airtime with a possibility for political parties to present their statements directly to the electorate. As confirmed by the survey conducted by the ERPA Secretariat (see paragraph 24 above) Norway was one of very few Contracting States that not only prohibited political advertising on television but also failed to regulate party political broadcasts, which was important to bear in mind in determining the scope of the margin of appreciation. This state of affairs in effect meant that political speech on television was channelled through broadcasters' editorial staff functioning as gate keepers. Such a regulation favoured established political parties and established politicians, while small political parties such as the Pensioners Party suffered and were in fact prevented from gaining efficient access to public space through television. A total ban on all forms of political advertising on television had an opposite effect to that of creating an equal playing field between the political parties.
35. As shown by the ERPA
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Survey, many countries had been able to regulate paid political advertising by less stringent means than an absolute prohibition. This cast doubt on the Government's argument that a prohibition was the only possible way of achieving the legitimate aims pursued. The Government's contention that a finding of a violation of Article 10 in the present case would affect important aspects of Norwegian democracy, such as the structure and size of political parties, party financing and the conduct of election campaigns, was unsubstantiated.
36. Since the instant case concerned the publication of political speech for a political party before a political election, the speech at issue fell within the core protection area of Article 10 of the Convention. Whereas in the above cited VgT judgment the Court had applied a strict margin of appreciation relating to speech of “general interest”, an even stricter standard should be applied to political speech emanating from political parties. Unlike the finding in the Murphy judgment, there were no country-specific sensitivities in the instant case that could justify a special margin of appreciation or relevance being given to the potency and pervasiveness of the broadcasting media.
37. The applicants did not dispute that the lack of European consensus could be a relevant factor when determining the extent of the Contracting States' margin of appreciation. However, this was only one of many factors to be taken into account. The Court's Article 10 case-law, notably that relating to defamation, illustrated that a lack of consensus had not prevented it from applying a narrow margin. Both the VgT and the Murphy judgments showed that it was the nature of the speech in question which was decisive for the scope of the margin and that it was narrow in the area of political speech.
38. In asserting that it had a wide margin, the majority of the Supreme Court had only made reference to general circumstances that obtained in some of the Contracting States. While the Supreme Court had held that considerable weight should be given to Parliament's decision to prohibit political advertising, it was wrong to consider that a political majority at any given time should be given a wide margin of appreciation when it came to regulations governing the political process. As rightly stressed by the dissenting member of the Supreme Court, the core idea behind fundamental free speech protection was to protect a political minority against being subjected to free speech restrictions imposed by the majority.
39. As a result of its erroneous approach, considering that Parliament's opinion on the matter should prevail unless it appeared unfounded or lacking in objectivity, the Supreme Court had failed to examine the necessity of the prohibition in the concrete circumstances of the case.
40. In the light of the above, the applicants submitted that the reasons relied on by the Supreme Court were not sufficient, nor proportionate, to justify the interference as being necessary in a democratic society.
2. The Government
41. The case did not primarily engage the protection of freedom of expression but first and foremost the integrity of the democratic process and specifically the public's – the voters'- right to fair democratic elections, a right protected by the Universal Declaration of Human Rights and the First Protocol to the Convention. The very essence of democracy was fair elections in which all parties could compete on an equal footing without anyone being able to buy an undue advantage in the form of television advertising.
42. At issue in this case was political advertising in the strict sense: advertisements by a political party in an election period, aimed at influencing the outcome of the elections. It struck at the core of the prohibition in section 3-1(3) of the Broadcasting Act. The impugned prohibition was limited to television advertising owing to the powerful and pervasive impact of this medium. Since no such restrictions applied with regard to other media, the prohibition had limited consequences for freedom of expression. A number of much used and effective alternatives for political advertising were available, such as the print media, radio, the Internet, billboards, leaflets, and so on.
43. The prohibition of political advertising on television was not in any way aimed at restricting political speech or debate on questions of public interest. Its purpose was to guarantee political expression by ensuring fairness and equality, as well as preserving the quality of political debate. Such advertising would typically be conveyed without opposition, correction or filtering in the form of critical journalism and would have a distinctly partial objective. It would often paint a manufactured picture of the candidate and his political message, not unlike the tone or substance frequently found in propaganda in totalitarian regimes. The possibility of advertising on television would clearly benefit the wealthier and/or established interests in society. There was thus a need to avoid de facto discrimination, distorting democratic processes in favour of the wealthy and powerful.
44. The prohibition ensured the political impartiality of television broadcasting. It also had the effect of limiting the total amount of money spent on election campaigns by political parties and interest groups, reducing their dependence on wealthy donors and ensuring a level playing-field in elections. The prohibition was aimed at supporting the integrity of the democratic process, to obtain a fair framework for political and public debate, and to avoid
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a situation where those who could afford it obtained an undesirable advantage by using the most potent and pervasive medium. The right to freedom of expression had therefore to be considered in the light of the right to free elections provided by Article 3 of Protocol No. 1 to the Convention. The Norwegian prohibition, like those in several other Contracting States, was aimed at securing the “free expression of the opinion of the people in the choice of the legislature”. The prohibition thus achieved a very important aim for democracy.
45. The question at issue was inevitably interlocked with the framework for the Norwegian democratic electoral process. A negative outcome of this case would affect important aspects of Norwegian democratic society, such as the structure and size of political parties, political parties' financing and how the election campaigns were carried out. This also militated in favour of a wider margin of appreciation, as held by the Court, inter alia, in Bowman v. the United Kingdom (19 February 1998, § 43, Reports of Judgments and Decisions 1998‑I).
46. In Norway the elected representatives had found it highly necessary only to prohibit political advertising on television, which undoubtedly was a unique medium with regard both to its pervasiveness and to the resources necessary to purchase airtime. As pointed out by the Court in Murphy (cited above, § 69) the potential impact of the medium of expression concerned was an important factor in the consideration of the proportionality of an interference. The Court had acknowledged that account ought to be taken of the fact that the audio-visual media had a more immediate and powerful effect than the print media. Reference could also be made to the Council of Europe's recommendation No. R (99) 15 on “Measures concerning media coverage of election campaigns”, where the Committee of Ministers had emphasised “the need to take into account the significant differences which exist[ed] between the print and the broadcast media”. Hence, based on this commonly acknowledged premise, the question before the Court was whether there was a pressing social need to prohibit political advertising on television in Norway.
47. The general existence of such a pressing social need was clearly illustrated by the fact that numerous Contracting States had found it necessary to ban all political advertising on television.
48. Whilst the applicants implied that an exception from the ban should be made for parties or groups with little means, this approach was unsustainable. As the Court had recognised in the Murphy case with respect to religious advertising, a case-by-case approach would be difficult to apply fairly, objectively and coherently; thus a total ban would generate less discomfort than by filtering the amount and content of expression by such groupings. Nor would limitations on duration and frequency of advertising and/or on related expenditures guarantee equality of arms to the same extent as an absolute ban. Apart from the difficulties involved in defining limits that were fair, circumventing them would be easy and ensuring their effective implementation when it really mattered, in the run-up to an election, would be problematic. Transgressions could always be discovered later but after the elections it would be too late.
49. In the view of the Government, the national elected, representative bodies were better equipped than national courts to evaluate the relevant pressing social needs, particularly as the aim of the prohibition was to secure the integrity of the national democratic process. This was even more true with regard to an international court with further distance from and less knowledge of the functioning of the democracy in the State in question. National parliaments were in direct and continuous contact with the vital forces in their countries in this respect. What was more, securing and promoting democracy was a core responsibility for the elected representatives in the Contracting States.
50. The Norwegian prohibition had been thoroughly assessed on several occasions, most recently in May 2006, by the Government and by Parliament, which had found it to be a necessary measure for preserving central elements of Norwegian democracy. The Government invited the Court not to adhere to its findings in its VgT judgment, which was unclear and based on the specific facts of that case and in any event distinguishable. Rather, it should follow the general reasoning in its Murphy judgment and, in particular, its approach in Mathieu-Mohin and Clerfayt v. Belgium (2 March 1987, Series A no. 113) and Bowman v. the United Kingdom (cited above, § 43) in relation to Article 3 of Protocol No. 1.
51. There was no uniform European conception of the requirements of the protection of the rights of others in relation to broadcasting political advertisements on television. Nor was there any legislative consensus as to the need to single out broadcast, as distinct from non-broadcast, political advertising for special regulation, whether within or outside an election period. There was no given solution to the issue of political advertising as indeed the differences throughout Europe showed. Every country had its history and traditions and this might lead to different views on the necessity of a ban. According to the Court's case-
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law, the Contracting States should therefore enjoy a wider margin of appreciation in regulating such advertisements.
3. Third parties
52. The Irish Government supplied information relating to the Irish legislative framework, notably about the application of section 10(3) of the Radio and Television Act 1988, which had been at issue in the above-mentioned Murphy case and which read as follows:
“No advertisement shall be broadcast which is directed towards any religious or political end or which has any relation to an industrial dispute.”
53. Referring to the Irish Supreme Court's rulings in Murphy v. IRTC ([1999] 1 IR 12) and Colgan v. IRTC ([2002] IR 490), the Irish Government submitted that where the prohibition on religious and political advertising stemmed from the same or similar concerns regarding sensitivities as to divisiveness and offensiveness, it was inappropriate to apply differing margins of appreciation. This was particularly so as the dividing line between political and religious advertising was not always clear, as the decision on abortion in the Colgan case demonstrated. Consequently, the Irish Government invited the Court to apply a wide margin of appreciation equally to political advertising, preferring the Murphy approach to that followed in VgT. Furthermore, the Court's acceptance in Murphy that a filtering process was inappropriate and that a blanket prohibition was preferable was a better approach than that followed in VgT, where it had held that a prohibition on political advertising might in certain situations (though not in the VgT case) be compatible with Article 10.
54. The United Kingdom Government provided information about the legal position in the United Kingdom, where political advertising had been prohibited on radio and television by all legislation since the Television Act 1954 first created commercial television. When enacting the Communications Act 2003, Parliament had taken the view that it was important to maintain the prohibition because: (1) Broadcasting was a particularly powerful and pervasive medium and impartiality was of fundamental importance; (2) Without the prohibition there would be an unacceptable danger that the agenda of political debate would be unfairly distorted in favour of the views held by those wealthy enough to spend most on broadcast advertising. Those with a different point of view would either have to find rich backers to pay for equal time, or allow the case to go unanswered; (3) The prohibition applied to all political advertising, irrespective of content. There was no discrimination by reference to the content of the message.
55. The UK Government invited the Court “to confine VgT to its factual circumstances or alternatively to depart from its reasoning”. In that case the Court had rejected without explanation or analysis the contention that the potency and pervasiveness of the broadcast media justified special restrictions on political advertising not applicable to other media. The Court had also omitted to take account of the significance of the availability of alternative means of allowing the applicant to pursue its political objectives. Nor had it addressed the point that advertising could damage the impartiality of the broadcaster – an argument which it had accepted in Murphy with respect to religious advertising. The Court appeared to have misunderstood the justification for a ban on political advertising, namely the fact that such a ban could not distinguish between different groups by reference to the power, funds or influence which they happened to have at a particular time. The legislature was entitled to conclude that there was no workable basis for such a partial prohibition. Nor had the Court addressed, far less answered, the point that the legislature was seeking to protect a fundamental interest of a democratic society: that political debate and the political process should not be altered by those who were able and willing to spend large sums of money propagating their political views through the potent medium of broadcasting. In Bowman, the Court had recognised this as a legitimate aim which could justify restrictions on freedom of political speech. In VgT the Court had also omitted to refer to the fact that Switzerland was far from an isolated example of a State with legislation prohibiting the broadcasting of political advertising when such restrictions were not applied in other media.
56. Like Bowman, the present case did not simply concern restrictions on political speech; it concerned a balance between freedom of expression for political speech and the need to preserve the integrity of the democratic process in the public interest, a matter in which the State had a margin of appreciation. In any event, there was no clear distinction in this context between religion and morals, on the one hand, and politics on the other.
57. The UK Government submitted a copy of a judgment handed down by the House of Lords on 12 March 2008 ([2008] UKHL 15) dismissing an appeal by Animal Defenders International, finding that the prohibition on the broadcasting of political advertising in the UK under the Communications Act 2003 was consistent with Article 10 of the Convention.
B. Assessment by the Court
1. General principles
58. The test of “necessity in a democratic society” requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”, whether
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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 Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 62, Series A no. 30). In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10.
59. In this connection, according to the Court's case-law there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest (see Lingens v. Austria, 8 July 1986, §§ 38 and 42, Series A no. 103; Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports 1996-V; Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV; United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 45, Reports 1998‑I; Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 46, ECHR 1999-VIII; Vgt Verein gegen Tierfabriken, cited above, § 66; and Murphy, cited above, § 67).
60. Moreover, the Court has held that the potential impact of the medium of expression concerned is an important factor in the consideration of the proportionality of an interference. The Court has acknowledged that account must be taken of the fact that the audio-visual media have a more immediate and powerful effect than the print media (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298, and Murphy, cited above, § 69).
61. It should also be pointed out that in the above-mentioned Bowman judgment, concerning certain electoral law limitations on pre-election expenditure, the Court held (see paragraph 41) that in such a context it was necessary to consider the right to freedom of expression under Article 10 in the light of the right to free elections protected by Article 3 of Protocol No. 1 to the Convention, which provides:
“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
Moreover, in that case the Court held as follows:
“42. Free elections and freedom of expression, particularly freedom of political debate, together form the bedrock of any democratic system (see the Mathieu-Mohin and Clerfayt v. Belgium judgment of 2 March 1987, Series A no. 113, p. 22, § 47, and the Lingens v. Austria judgment of 8 July 1986, Series A no. 103, p. 26, §§ 41–42). The two rights are inter-related and operate to reinforce each other: for example, as the Court has observed in the past, freedom of expression is one of the 'conditions' necessary to 'ensure the free expression of the opinion of the people in the choice of the legislature' (see the above-mentioned Mathieu-Mohin and Clerfayt judgment, p. 24, § 54). For this reason, it is particularly important in the period preceding an election that opinions and information of all kinds are permitted to circulate freely.
43. Nonetheless, in certain circumstances the two rights may come into conflict and it may be considered necessary, in the period preceding or during an election, to place certain restrictions, of a type which would not usually be acceptable, on freedom of expression, in order to secure the 'free expression of the opinion of the people in the choice of the legislature'. The Court recognises that, in striking the balance between these two rights, the Contracting States have a margin of appreciation, as they do generally with regard to the organisation of their electoral systems (see the above-mentioned Mathieu-Mohin and Clerfayt judgment, pp. 23 and 24, §§ 52 and 54).”
62. In sum, the Court's task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I).
2. Application of these principles
63. Turning to the particular circumstances of the instant case, the Court observes at the outset
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that the disputed decision by the Media Authority of 10 September 2003 to impose a fine on TV Vest was taken on the ground that TV Vest had broadcast political advertisements for the Pensioners Party in breach of the prohibition of political advertising on television laid down in section 3-1(3) of the Broadcasting Act. The prohibition was permanent and absolute and applied only to television, whilst political advertising through all other media was permitted.
64. The impugned advertisements consisted of a short portrayal of the Pensioners Party and encouraged viewers to vote for the Party in the forthcoming elections. Irrespective of the fact that it was presented as a paid advertisement rather than as part of journalistic coverage of a political debate, the content of the speech in question was indisputably of a political nature. Thus, as was also the case in VgT, the impugned advertisement obviously fell outside the commercial context of product marketing, an area in which States traditionally have enjoyed a wide margin of appreciation (see VgT, cited above, § 69; markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 33, Series A no. 165, and Jacubowski v. Germany, 23 June 1994, § 26, Series A no. 291-A). Moreover, unlike the situation in Murphy (cited above, § 67), there is nothing to suggest that the advertisements included any content that might be liable to offend intimate personal convictions within the sphere of morals or religion. For these reasons alone, the Court is unable to share the opinion held by the Supreme Court's majority that the present case was more akin to Murphy than Vgt (see paragraphs 60-61 of the Supreme Court's judgment, cited at paragraph 20 above). On the contrary, it agrees with the minority (see paragraphs 80-81 of the Supreme Court's judgment, cited at paragraph 21 above) that the political nature of the advertisements that were prohibited calls for strict scrutiny on the part of the Court and a correspondingly circumscribed national margin of appreciation with regard to the necessity of the restrictions (see VgT, cited above, § 71; and Murphy, cited above, § 67).
65. In this connection, the Court has also taken note of the Government's observations, made with reference to the Court's case-law under Article 3 of Protocol No. 1 (see paragraphs 44 and 50 above), arguing that the Contracting States enjoyed a wide margin of appreciation in striking a fair balance between, on the one hand, freedom of expression and, on the other hand, the need to place restrictions thereon in order to secure the free expression of the opinion of the people in the choice of the legislature. As already recognised in the Court's case-law (see references at paragraph 61 above), a lack of consensus between the States making up the Convention community with regard to the regulation of the right to vote and the right to stand for election may justify according them a wide margin of appreciation in this area.
66. However, while it is true that the broadcasts at issue had been aired between 14 August and 13 September 2003 in the run-up to the local and regional elections that year, it should be noted that the advertising ban under section 3-1(3) of the Broadcasting Act was absolute and permanent and did not apply specifically to elections. In these circumstances, the Court does not find it appropriate in the instant case to attach much weight to the various justifications for allowing States a wide margin of appreciation with reference to Article 3 of Protocol No. 1. Otherwise, the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the privileged position of free political speech under Article 10 of the Convention.
67. The Court has further considered whether, going beyond the arguments drawn from Article 3 of Protocol No. 1, the differences between domestic systems with regard to television broadcasting of political advertising could warrant a wide margin of appreciation. According to the comparative law reports compiled by the EPRA, out of the 30 European countries examined, (1) in 13 a statutory ban on paid political advertising in broadcasting applied, (2) in 10 such advertising was permitted; (3) in 11 there were provisions for free airtime for political parties and candidates during election campaigns (five of these were among the 13 under item (1)); (4) in several countries there was no system of allocation of free airtime (see paragraph 24 above). In so far as this absence of European consensus could be viewed as emanating from different perceptions regarding what is “necessary” for the proper functioning of the “democratic” system in the respective States, the Court is prepared to accept that it speaks in favour of allowing a somewhat wider margin of appreciation than that normally accorded with respect to restrictions on political speech in relation to Article 10 of the Convention.
68. The Court also takes note of the difference of opinion in the Supreme Court as to how much importance should be attached to the opinion of
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the legislature, i.e., the political majority at any given time, as to the scope of freedom of expression on political issues (see paragraph 18 above, compare paragraph 75 of the judgment quoted at paragraph 21). The applicants emphasised that the shifting political majority should not be left a wide margin of appreciation to decide on the limits of such speech. However, it is not for the Court to take a stance on such issues of national constitutional law, which fall to the Contracting States to solve within their own domestic legal systems. As stated above, its supervisory function is not to take the place of the national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken in the exercise of their power of discretion.
69. It is against this background that the Court will examine the justifications for the disputed interference in this case; whether it was supported by relevant and sufficient reasons and was proportionate to the legitimate aim pursued, regard being had to the balance to be struck between the applicants' freedom of expression, on the one hand, and the reasons adduced by the Norwegian authorities for the prohibition of political advertising, on the other.
70. In this regard, the Court notes that the rationale for the statutory prohibition of broadcasting of political advertising on television was, as stated by the Supreme Court, that the use of such a form and medium of expression was likely to reduce the quality of political debate generally. In this way complex issues might easily be distorted and groups that were financially powerful would have greater opportunities for marketing their opinions than those that were not. Pluralism and quality were central considerations, as was the fact that it was the legislature which had addressed the relevant issues for the democratic process, the legislature being better placed than any other State organs to assess how best to achieve those objectives. The Government pointed out that the ban had been limited to political advertising on television owing to the powerful and pervasive impact of this type of medium. Moreover, the prohibition had contributed to limiting election campaign costs, to reducing participants' donor dependence and ensuring a level playing field in elections. It was aimed at supporting the integrity of democratic processes, to obtain a fair framework for political and public debate and to ensure that those who could afford it did not obtain an undesirable advantage through the possibility of using the most potent and pervasive medium. Also, it helped to preserve the political impartiality of television broadcasting. These are undoubtedly relevant reasons (see VgT, cited above, § 73).
71. However, the Court is not convinced that these objectives were sufficient to justify the interference complained of.
72. In the first place, there is nothing to suggest that the Pensioners Party fell within the category of parties or groups that were the primary targets of the disputed prohibition, namely those which, because of their relative financial strength, might have obtained an unfair advantage over those with less resources by being able to spend more on television advertising (see VgT, cited above, § 75).
73. On the contrary, while the Pensioners Party belonged to a category for whose protection the ban was, in principle, intended, the Court, unlike the majority in the Supreme Court (see paragraph 62 of its judgment, quoted at paragraph 20 above), is not persuaded that the ban had the desired effect. In contrast to the major political parties, which were given a large amount of attention in edited television coverage, the Pensioners Party was hardly mentioned. Therefore, paid advertising on television became the only way for the Pensioners Party to put its message across to the public through that medium. By being denied this possibility under the law, the Pensioners Party was at a disadvantage compared with major parties which had obtained edited broadcasting coverage, and this could not be offset by the possibility available to it to use other, less potent, media.
74. The Court further notes that it has not been contended that the specific advertising at issue contained elements that were capable of lowering the quality of political debate (see VgT, cited above, § 76).
75. Moreover, as mentioned above, it does not appear that the advertising could give rise to sensitivities as to divisiveness or offensiveness, making a relaxation of the prohibition difficult. In this regard, as already stated, the case under consideration is distinguishable from that of Murphy, where it was such sensitivities that led the Court to accept that the filtering by a public authority, on a case-by-case basis, of unacceptable or excessive religious advertising would be difficult to apply fairly, objectively and coherently, and that a blanket ban would generate less discomfort (§§ 76-77). In VgT, however, where there were no such sensitivities at stake and the issues were more akin to those in the present instance, the Court struck down the blanket ban on political advertising as applied in that case.
76. In these circumstances, the fact that the audio-visual media has a more immediate and powerful effect than other media (see
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Jersild, cited above, § 31), although an important consideration in the assessment of proportionality (see Murphy, cited above, § 69), could not justify the disputed prohibition and fine imposed in respect of the broadcasting of the political advertisements at issue (see VgT, cited above, § 74).
77. The view expounded by the respondent Government, supported by the third-party intervening Governments, that there was no viable alternative to a blanket ban must therefore be rejected.
78. In sum, there was not, in the Court's view, a reasonable relationship of proportionality between the legitimate aim pursued by the prohibition on political advertising and the means deployed to achieve that aim. The restriction which the prohibition and the imposition of the fine entailed on the applicants' exercise of their freedom of expression cannot therefore be regarded as having been necessary in a democratic society, within the meaning of paragraph 2 of Article 10, for the protection of the rights of others, notwithstanding the margin of appreciation available to the national authorities. Accordingly, there has been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
79. 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.”
80. The applicants submitted a claim for just satisfaction outside the time-limit fixed for this purpose. Accordingly, the Court considers that there is no call to award the applicants any sum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 10 of the Convention;
2. Holds that there is no call to award the applicants any sum by way of just satisfaction.
Done in English, and notified in writing on 11 December 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren NielsenChristos RozakisRegistrarPresident
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Judge Jebens is annexed to the judgment.
C.L.R.
S.N.
TV VEST AS & ROGALAND PENSJONISTPARTI v. NORWAY JUDGMENT 1
CONCURRING OPINION OF JUDGE JEBENS
1. I agree that the imposition of a fine on TV Vest because of its broadcasting of political advertisements for the Pensioners Party violated Article 10 of the Convention. My finding of a violation is, however, not based on the prohibition of political broadcasting on television as such, but on the particular context in which it was applied in the present case, namely the Pensioners Party's general lack of access to the medium of television broadcasting.
2. My starting point is that political speech is at the very centre of the right to freedom of expression, protected by Article 10 of the Convention. The Court's case-law confirms this, by leaving little room under Article 10 § 2 for the Contracting States to put restrictions on political speech (see, for instance, Lingens, cited in the judgment). However, in order to ensure that political elections reflect the opinion of the people, it may be necessary to impose some restrictions as to which means should be allowed for the transmission of political messages. The right to freedom of expression in Article 10 must therefore be considered in the light of the right to free elections protected by Article 3 of Protocol No. 1 to the Convention (see Bowman, cited in the judgment).
3. On the basis of such considerations, I fail to see why restrictions on paid political advertisements could not be acceptable under Article 10, provided that political parties and interest groups are otherwise afforded reasonable access to the media. It should be noted that neither the Vgt case nor the Murphy case (both cited in the judgment), concerned advertisements for political parties. The fact that the Court reached different conclusions in the two cases illustrates the variety of situations in this field, which calls for individual solutions. It would therefore, in my opinion, seem to be of little value to compare the present case with either of those two cases with the aim of finding the right solution. The correctness of taking an individual approach with regard to political advertisements is confirmed by the Court's case-law; see, for instance, paragraph 75 of the Vgt judgment, where the Court stated that a ban on political advertisements might be compatible with Article 10 in certain situations, provided that it was based on grounds that met the requirements in paragraph 2 of Article 10.
TV VEST AS & ROGALAND PENSJON
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ISTPARTI v. NORWAY JUDGMENT 1
4. Turning to the present case, it should be noted firstly that the prohibition laid down in section 3-1(3) of the Broadcasting Act was limited to political advertising on television. The rationale for the prohibition was that such advertising was likely to reduce the quality of political debate by distorting complex issues, taking into account the powerful and pervasive impact of television. It thus transpires that the prohibition was meant to secure pluralism and quality in the political debate. Another important consideration was to prevent financially powerful groups from dominating the political forum, by being able to buy airtime on television which other, less powerful groups, could not afford. Furthermore, and in line with this, the prohibition was aimed at securing the political independence of the television broadcasters.
5. The reasons outlined above are in my view clearly relevant with respect to Article 10 § 2. Bearing in mind that the Contracting States should have a certain margin of appreciation when balancing the right to freedom of expression against the need to secure free elections, the prohibition on political advertising could not in itself be said to create a violation of Article 10 of the Convention.
6. However, when assessing whether the above restriction met the requirement of being necessary in a democratic society in the sense of Article 10 § 2, a broader evaluation is called for. It should be noted in this respect that Norway, according to the survey by the ERPA (see paragraph 24 of the judgment) had failed to regulate party political broadcasts, unlike the majority of European States. As a consequence, it was for the broadcasters' editorial staff to decide whether to give political parties the possibility of presenting themselves to the electorate. I agree with the applicants that the lack of rules which could have secured political parties access to television is highly relevant when determining the scope of the State's margin of appreciation.
7. Turning to the Pensioners Party's situation, it is important to note that, according to information provided after the public hearing, it was granted very sparse coverage on television prior to the local and regional elections in 2003. It is revealing that, while the Pensioners Party was mentioned several times on Norwegian television channels in connection with the legal action brought by TV Vest concerning the legality of the fine imposed for a breach of the ban on advertising, the party was given no coverage at all with respect to its politics. Nor were any of its members invited to political debates on television. Thus, the prohibition of political advertising on television prevented the Pensioners Party from availing itself of its only opportunity to have access to the most important forum for communication of ideas, and placed the party at a disadvantage, compared with the established political parties in Norway.
8. This, furthermore, shows that the restriction on advertising not only interfered with the right to freedom of expression, but was also not in harmony with the need to secure pluralism in editorial coverage of political campaigns. I refer in this connection to “the obligation to cover electoral campaigns in a fair, balanced and impartial manner in the overall programme services of broadcasters” (see the Appendix to Recommendation No. R (99) 15 of the Committee of Ministers to member States, on measures concerning media coverage of election campaigns).
9. For the reasons explained above, I conclude that the restriction of the right to freedom of expression in the present case was not proportionate to the aims pursued. The interference was therefore not necessary in a democratic society, for which reason there has been a violation of Article 10.
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FOURTH SECTION
CASE OF GRZYWACZEWSKI v. POLAND
(Application no. 18364/06)
JUDGMENT
STRASBOURG
31 May 2012
FINAL
31/08/2012
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Grzywaczewski v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
David Thór Björgvinsson, President,Lech Garlicki,Päivi Hirvelä,George Nicolaou,Ledi Bianku,Zdravka Kalaydjieva,Vincent A. De Gaetano, judges,and Lawrence Early, Section Registrar,
Having deliberated in private on 10 May 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 18364/06) 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 Zbigniew Grzywaczewski (“the applicant”), on 24 April 2006.
2. The applicant, who had been granted legal aid, was 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 applicant alleged that the medical care and treatment offered to him during his detention in Lublin Remand Centre and Zamość Prison had been inadequate in view of his diabetes. He also complained of overcrowding and poor living and sanitary conditions in the above‑mentioned detention facilities.
4. On 30 November 2006 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant, Mr Zbigniew Grzywaczewski, is a Polish national who was born in 1957. He suffers from insulin-dependent diabetes, prostate cancer and mild cardiac disorders. He has been classified by the social security authorities as a person with a “mild-degree disability” (umiarkowany stopień inwalidztwa) making him fit to do only light physical work.
A. The period of the applicant’s detention
6. On 25 January 2006 the applicant turned himself in to serve an outstanding sentence of imprisonment. From that day until 11 December 2008 he was in detention, except for the period from 24 to 27 December 2007 when he was at liberty on a short leave from prison (przepustka). During the relevant period the applicant was detained in a number of different facilities, namely Lublin Remand Centre, Zamość Prison and Hrubieszów and Rzeszów Prisons.
B. The description of the conditions of the applicant’s detention
7. The parties’ statements relating to the conditions of the applicant’s detention are, to a large extent, contradictory. However, the Government’s submissions on the case are limited to the applicant’s detention prior to his transfer from Zamość Prison on 6 February 2007. The Government did not make any comments in relation to the period after that date.
1. First term in Lublin Remand Centre
(a) Uncontested facts
8. From 25 January until 3 March 2006 the applicant was detained in Lublin Remand Centre. He was initially held in cell no. 22 in wing IV. Two weeks later he was transferred to cell no. 22 in wing III.
9. The official statistics published by the Prison Service (Służba Więzienna) reveal that at the relevant time the overcrowding (the degree by which the number of prisoners exceeds the maximum allowed capacity of a particular detention facility, which, in turn, is calculated on the basis of the standard of 3 square metres (m²) of cell floor space per prisoner provided for in Polish law) in Lublin Remand Centre peaked at 22.5 %.
(b) Facts in dispute
(i) The Government
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10. The Government submitted that the applicant’s cell in wing IV measured 32 m² and could hold from 18 to 29 persons (from 1.7 to 1.1 m² of cell space per person). His cell in wing III measured over 21 m² and could hold from 7 to 10 people (from 3 to 2.1 m² of cell space per person). The Government did not specify, however, the actual occupancy rate because, as they submitted, Lublin Remand Centre had not kept any register of detainees’ allocation.
11. The Government submitted that the applicant’s cells in Lublin Remand Centre had been equipped in compliance with the internal regulations and had been adequately lit and ventilated. They also noted that the applicant had had an unlimited access to cold water and that he had been allowed to have one hot shower per week. The toilet annex inside each cell offered sufficient intimacy. Finally, the applicant was allowed to spend several hours outside his cell, either participating in social and cultural activities or staying in a chapel.
(ii) The applicant
12. The applicant submitted that cell no. 22 in wing IV had originally been designed for 14 persons but, in fact, it had been shared by 28 prisoners (1.1 m² of cell space per person). His cell in wing III measured 15 m² and was shared by 10 persons (1.5 m² of cell space per person).
13. The applicant claimed that Lublin Remand Centre had been so severely overcrowded that he had had no room to sleep or to have his meals. For example, in cell 22 in wing IV there were 18 beds and an unspecified number of mattresses spread on the floor. There was no private space. Consequently, the applicant had no choice but to administer his insulin injections in front of his fellow inmates. The applicant had limited access to the toilet inside the cell because it was continuously occupied by other cellmates. The cells were not ventilated and there was a constant foul odour. The conditions of hygiene maintenance were insufficient. The applicant did not specify how many times per week he could have a bath or a shower. He submitted, however, that the shower-room had measured 12 m² and that it had been used by 20 persons at a time. Detainees were allowed to stay there for no longer than five minutes. There was no hot water. The applicant maintained that in Lublin Remand Centre he had been entitled only to a one‑hour period of outdoor exercise.
14. In the applicant’s submission the conditions in Lublin Remand Centre as described above, had been aggravated by the fact that he had been mocked and laughed at by the guards, while his complaints to the remand centre’s administration had been ignored or had not brought the desired effect.
2. Zamość Prison
(a) Uncontested facts
15. From 8 August 2006 until 6 February 2007 the applicant was detained in Zamość Prison which is listed as a semi-open detention facility.
16. According to the official statistics published by the Prison Service the overcrowding in Zamość Prison was at the lowest at 30% in August and September 2006, increased to 38 and 39% in November and December 2006 respectively, peaked at 45% in January 2007 and dropped to 38% in February 2007.
(b) Facts in dispute
(i) The Government
17. The Government submitted that the applicant had been consecutively detained in cells no. 11, 5, 22 and 15. The first two cells measured over 30 m² and were shared by 12 to 14 persons (from 2.5 to 2.1 m² of cell space per person). Cell no. 22 was located in the special-care wing. It measured over 12 m² and was occupied by 4 prisoners (3 m² of cell space per person). Cell no. 15 was in the prison’s hospital wing. It measured over 14 m² and was occupied by 3 persons (4.6 m² of cell space per person). In the Government’s submission, the cells in question were sufficiently lit and ventilated. They were adequately furnished and equipped. The toilets and shower rooms were accessible from the corridor.
18. The Government also submitted that Zamość Prison offered to all prisoners a wide variety of social and sports activities, as well as language courses and workshops. The applicant followed individual rehabilitation programme for alcoholics and, together with his wife, a family therapy.
(ii) The applicant
19. The applicant did not provide any details regarding the occupancy rate or the size of his cells in Zamość Prison. He submitted, however, that all his cells, except cell no. 15, had been overcrowded. He also claimed that on 2 February 2007 a mentally unstable prisoner had been assigned to his cell. That had caused a lot of stress
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to the applicant and posed a real danger to his life and health.
20. The applicant noted that during the day the prisoners in Zamość Prison had been free to walk around the prison building. They had also had daily access to the prison shop and the shower room. The applicant’s meetings with his wife took place in a spacious room.
3. First term in Hrubieszów Prison
21. From 6 February 2007 until 3 January 2008 the applicant was detained in Hrubieszów Prison. From 24 until 27 December 2007, however, he was at liberty as he had been granted a short leave from prison.
22. Hrubieszów Prison was listed at the relevant time as a semi-open detention facility suitable for incarceration of diabetics.
23. According to the official Prison Service’s statistics the overcrowding in Hrubieszów Prison ranged at the relevant time from 23 to 27%.
24. The applicant submitted that he was initially placed in cell no. 203 in wing II. The cell in question measured 13 m² and was shared by 6 prisoners, including the applicant (2.1 m² of cell space per person).
25. On 21 March 2007 the applicant was assigned to cell no. 110 or 111 in wing I. That cell also measured 13 m². It was shared by 6 prisoners, including the applicant, another diabetic and four healthy persons (2.1 m² of cell space per person). The applicant submitted detailed calculations of the size of all equipment and furniture inside his cell and concluded that the actual living space of his cell was no more than 5 m².
26. In the applicant’s submission the living and sanitary conditions in Hrubieszów Prison were appalling. The prison was seriously overcrowded and the building was devastated. The applicant claimed that, during an unspecified period, prisoners had been confined to their cells 23 hours per day. Subsequently, as of April 2007, the prison cells were left open from 10 a.m. until noon and then, from 2 to 5 p.m. However, on 5 November 2007 renovation works started in prison and the cells were opened only from 3 to 5 p.m. The prisoners were allowed to walk around the prison building and stay outside their cells; however, the corridors and the room where prisoners met with their relatives were cramped and noisy. Because of the existing overcrowding queues to the prison pay phone were long, which made it difficult for the applicant to maintain regular contact with his family.
27. The wash room, which was in a very poor condition, was located in a separate building at a distance from the applicant’s wing. The prisoners had to walk in the open to and from the shower room in all weather conditions. The prisoners had little time to dry themselves and to get properly dressed after taking a shower. Because of that they were particularly exposed to catching a cold while walking back to their quarters.
4. Second term in Lublin Remand Centre
28. From 8 until 10 January 2008 the applicant was committed to Lublin Remand Centre and assigned to cell no. 17 in wing IV. He was allowed to have a one-hour period of outdoor exercise per day. In the applicant’s submission, the living and sanitary conditions in the remand centre had not changed since his previous stay there.
29. According to the official Prison Service’s statistics the overcrowding in Lublin Remand Centre was at 11%.
5. Rzeszów Prison
30. From 10 until 31 January 2008 the applicant was detained in Rzeszów Prison. He was detained in cell no. 132 in wing I. The applicant submitted that he had slept on a mattress spread on the floor and that he had had no access to a doctor. He was allowed to make one phone call every eight days. The applicant went on hunger strike because, as he claimed, all his requests to be transferred closer to his home had been dismissed or ignored.
31. According to the official Prison Service’s statistics the overcrowding in Rzeszów Prison was at the relevant time at 18%.
6. Second term in Hrubieszów Prison
32. From 31 January until 11 December 2008 the applicant was detained in Hrubieszów Prison. He was released home on the latter date.
33. It appears that the applicant was assigned to cell no. 527 wing V. In his submission, the living and sanitary conditions in prison had not changed since his last stay there. The applicant’s cell was overcrowded and shabby. He was confined inside the cell 23 hours per day. He was entitled to one five-minute phone call every eight days.
34. According to the official Prison Service’s statistics the overcrowding in Hrubies
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zów Prison ranged from 20 to 26% between January and May, was at the lowest 8% in June and October, oscillated around 9-11% from July to September and increased to 15% in December 2008.
C. The applicant’s medical treatment in detention
35. The applicant suffers from diabetes, prostate cancer and some cardiac disorders. In addition, during his imprisonment, he had been infected with dermatophytosis. He submitted that the medical care available within the penitentiary system had been insufficient.
36. On his detention in Lublin Remand Centre he informed the authorities of his diabetes; however, as the Government submitted, he had initially refused to go on a special diet. Only after experiencing some health problems the applicant agreed to be put on a diet for diabetics. The Government submitted that in the initial phase of his detention in Lublin Remand Centre the applicant had been examined by a doctor and had undergone a series of necessary medical tests. On the other hand, he had never expressed a wish to have his sugar level tested on a regular basis and had never asked for a glucometer.
37. In Zamość Prison the applicant was provided with medicine for diabetes. Between 7 August 2006 and 6 February 2007 he went 36 times to the doctor, including a general practitioner, a neurologist and an ophthalmologist. In this regard, the applicant submitted that the doctor practising in Zamość Prison had been a retired ophthalmologist without any general practice experience or any knowledge of the applicant’s particular disorders. Furthermore, the applicant maintained that he had not been supplied with a glucometer and that his sugar level had never been tested.
38. The applicant claimed that during his detention in Rzeszów Prison in January 2008 he had had no access to a doctor whatsoever.
39. With respect to Hrubieszów Prison the applicant submitted that even though the prison was listed as a facility suitable for incarceration of diabetics, the medical attention he had received there had been much worse than in the other detention establishments. He stressed that virtually no medical care had been provided to him there. His sugar level was never tested during his first detention in Hrubieszów Prison. It was tested twice during his second detention there. In addition, the applicant claimed that he had not received any medication or diet for diabetics.
40. Lastly, the applicant made a general statement that the medical assistance provided to him in detention had not been sufficient. Despite his serious health condition he had been treated by the medical staff as if he suffered from a common ailment, such as a cold. Throughout the entire period of his detention the applicant administered his insulin injections without the assistance of a third person. He did so inside the cell where he lacked privacy and adequate sanitary conditions. That placed him in an awkward position vis‑à‑vis his fellow inmates. Due to the rapid changes of his sugar level he lived with the constant stress and fear of losing consciousness whenever he ran out of snacks. His medical condition worsened during each move to a new detention facility.
D. The applicant’s actions concerning the living conditions and medical care provided to him in detention
41. The applicant filed numerous complaints with the administration of Lublin Remand Centre, Zamość Prison, the penitentiary authorities and the relevant prosecutors in connection with the conditions of his imprisonment and the medical care provided. He submitted that many of his complaints had remained without a reply.
42. On 29 January, 12 and 15 February 2006 the applicant filed complaints about the inadequate medical care in Lublin Remand Centre. The Government, without providing any details, submitted that those complaints had been thoroughly examined and that one of them (concerning the sleeping area) had been considered justified and the applicant had been instructed about a possibility to file a civil action for compensation.
43. On 17 February 2006 the Governor of Lublin Remand Centre (Dyrektor) responded to the applicant’s complaint about the insufficient medical care. He established that the applicant had had a medical check-up by an in-house doctor on the day of his arrival. It was further stated that the applicant himself had refused, in writing, to be put on a special diet and had never expressed a wish to have his sugar level tested.
44. In a letter of 5 May 2006 the Governor of Lublin Remand Centre found the applicant’s new complaint about medical care to be manifestly ill‑founded. He stated that the applicant had been put on a diet for diabetics as soon as he had asked for it. Moreover, the applicant was examined by an in-house doctor and prescribed new medicines. The applicant was also informed that a medical consultation by a doctor of his choice outside the penitentiary system could be arranged at his own expense.
45. On 26 March
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2007 the Governor of Zamość Prison informed the applicant that his complaint about different aspects of his detention in that establishment had been considered ill-founded. It was noted that the applicant had been assigned to cell no.15 with a bathroom and a toilet. He had constant access to hot water and he shared the cell with one and, at times, with two inmates. It was also stressed that the applicant was supplied on a regular basis with insulin, syringes and needles. He had been seen on many occasions by an internist, a neurologist, a psychiatrist and an ophthalmologist. During the relevant time, the applicant did not raise any objection as to the adequacy of the medical care and treatment provided to him. He was administered the necessary medicines and he administered insulin injections himself whenever he considered it necessary. That was a typical course of treatment for diabetes. Moreover, the Governor pointed to the fact that the applicant had himself requested to be transferred to Zamość Prison because he had wished to complete a therapy for alcoholics there. Both Zamość and Hrubieszów Prisons were semi-open facilities and the same restrictions applied to the applicant.
46. The applicant made numerous requests to the penitentiary court to be granted a short leave from prison. He was released once in 2007 for three days. He also complained about his frequent transfers between different cells or different detention facilities and, lately, of the conditions of his detention in Hrubieszów Prison. The applicant claimed that the authorities had found his complaints concerning Hrubieszów Prison ill-founded in the light of the fact that that prison was listed as a facility suitable for the incarceration of diabetics.
47. The applicant did not bring a civil action in tort to seek compensation for the alleged infringement of his personal rights on account of overcrowding and inadequate conditions and the inadequate medical care provided to him during his detention.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Conditions of detention
48. A detailed description of the relevant domestic law and practice concerning general rules governing the conditions of detention in Poland and domestic remedies available to detainees alleging that the conditions of their detention were inadequate are set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 75-85 and §§ 45-88 respectively). More recent developments are described in the Court’s decision in the case of Łatak v. Poland (no. 52070/08) on 12 October 2010 (see §§ 25-54).
B. Medical care in prison and detention of ill prisoners
49. The relevant domestic law and practice concerning medical care in detention facilities are set out in the Court’s judgment in the case of Kaprykowski v. Poland, no. 23052/05, §§ 36 -39, 3 February 2009.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
50. The applicant complained under Article 3 of the Convention that the medical care provided to him within the penitentiary system had been inadequate and that the conditions of his detention had been very poor and had failed in particular to meet the standard required for persons in his state of health.
Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
51. The Government raised a preliminary objection, arguing that the applicant had not exhausted the domestic remedies available to him.
52. In their initial observations the Government formulated this objection in the same way as they did in the cases of Sławomir Musiał v. Poland (no. 28300/06, §§ 67-69, 20 January 2009) and Orchowski v. Poland (no. 17885/04, §§ 95-98, 22 October 2009).
53. In particular, they stressed that before lodging his Article 3 application with the Court the applicant should have: (1) made an application to the Constitutional Court under Article 191, read in conjunction with Article 79 of the Constitution, asking for the 2006 Ordinance to be declared unconstitutional; (2) brought a civil action seeking compensation for the infringement of his personal rights, namely his dignity and health, under Articles 23 and 24 of the Civil Code, read in conjunction with Article 448 of that Code; and (3) used remedies provided by the Code of Execution of Criminal Sentences, such as an appeal against any unlawful decision issued by the prison administration or a complaint to the relevant penitentiary judge about being placed in a particular cell in prison, or a complaint about prison conditions to the authorities responsible for the execution of criminal sentences or to the O
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mbudsman.
54. In their subsequent submissions, the Government noted that on 11 December 2008 the applicant had been released from prison. In these circumstances, the situation giving rise to the alleged breach of Article 3 of the Convention no longer existed and the applicant should bring a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code in order to seek compensation for the past violation.
55. In that regard the Government relied, in particular, on the Orchowski judgment, reiterating that the Court, having regard to the principle of subsidiarity, had held that in cases where the alleged violation of Article 3 no longer continued and could not be eliminated with retrospective effect, the only means of redress for the applicant was pecuniary compensation.
56. In view of the foregoing, the Government invited the Court to reject the application for non-exhaustion of domestic remedies, pursuant to Article 35 § 1 of the Convention.
57. The applicant in general disagreed with the above arguments and maintained that the remedies suggested by the Government could not be considered “effective” for the purposes of Article 35 § 1 of the Convention. He also submitted that he had lodged formal complaints with the penitentiary authorities on the basis of the Code of Execution of Criminal Sentences which had been either rejected or left without examination.
58. The Court observes that, in principle, the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court (see Orchowski cited above, § 109, and Demopoulos and Others v. Turkey [GC], (dec.) no. 46113/99, ECHR 2010-..., § 87). However, as the Court has held in its leading decision in the Łatak case (cited above, § 79) and on many other occasions prior to that decision, this rule is subject to exceptions which may be justified by the particular circumstances of each case (see Demopoulos and Others, ibid., with further references). Among such exceptions there are certainly situations where, following a pilot judgment on the merits in which the Court has found a systemic violation of the Convention, the respondent State makes available a remedy to redress at domestic level grievances of similarly situated persons (see Demopoulos and Others, cited above, §§ 87-88; Broniowski v. Poland (merits) [GC], no. 31443/96, §§ 191-93, ECHR 2004-V; and Nagovitsyn and Nalgiyev v. Russia (dec.), nos. 27451/09 and 60650/09, §§ 25-26 and 33-44, 23 September 2010).
59. To that effect, in the lead inadmissibility decision in the case of Łatak v. Poland (cited above), the Court has expressly held that the above‑mentioned exception applies to subsequent applications concerning conditions of detention filed with the Court which have not yet been declared admissible and that it is appropriate to assess the adequacy of the remedy relied on by the Government in the light of the present-day situation.
60. In so doing, the Court had regard to the fact that on the date of the adoption of its decision there were 271 cases pending before it where the applicants had raised complaints similar in substance, alleging a violation of Article 3 in that at various times and for various periods they had been adversely affected by the same structural problem, having been detained in overcrowded, insanitary cells (ibid. § 84 and § 75 respectively).
61. Having found that a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code could be considered an “effective remedy” for the purposes of Article 35 § 1 of the Convention as from 17 March 2010 and having regard to the 3-year limitation period for lodging such an action, the Court held that essentially in all cases in which in June 2008 the alleged violation had either been remedied by placing the applicant in Convention-compliant conditions or had ended ipso facto because the applicant had been released, the applicants concerned should bring a civil action for the infringement of personal rights and compensation (ibid. § 85 and § 76 respectively).
62. In the present case the applicant was deprived of liberty from 25 January 2006 until 11 December 2008, with a three-day interruption, between 24 and 27 December 2007, when he was at liberty on a short leave from prison (see paragraph 6 above).
63. The Court notes that the applicant’s complaint under Article 3 of the Convention is two-fold. The applicant, who suffers from insulin-dependent diabetes, prostate cancer and various cardiac disorders, complained that the medical care provided to him within the penitentiary system had been inadequate. In parallel, he complained about overcrowding and the resultant poor living and sanitary conditions of his detention, failing in particular to meet the standard required for persons in his state of health.
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64. The Court has already held, in a case which was brought by a mentally ill detainee who, like the applicant in the instant case, complained of inadequate medical care combined with prison overcrowding and inadequate living conditions, that only a remedy able to address the applicant’s complaint in its entirety and not merely its selected aspects, could realistically redress his situation (see Sławomir Musiał v. Poland, no. 28300/06, § 80, ECHR 2009-... (extracts)).
65. In any event, it must be noted that the applicant in the present case filed numerous complaints with the penitentiary authorities in connection with the conditions of his imprisonment and the medical care provided. He also applied a number of times to be released from prison on health grounds (see paragraphs 42‑47 above). By taking those actions the applicant had sufficiently drawn the attention of the penitentiary authorities to the question of the compatibility of his living conditions and medical care in prison with the state of his health.
66. Moreover, the situation giving rise to the alleged violation of Article 3 ended on 11 December 2008 when the applicant was released from Hrubieszów Prison. The Court considers that, since the relevant civil action under Articles 24 and 448 of the Civil Code by which, as the Government claimed, the applicant could seek compensation for the infringement of his personal rights, including his dignity and health, is barred by a three-year statute of limitation, the applicant cannot presently be required to avail himself of the civil remedy in question.
67. In addition, the Court reiterates that in its pilot judgments in the cases of Orchowski and Norbert Sikorski (see Orchowski, cited above, § 96 and Norbert Sikorski, cited above, §§ 100-101) it has already held that the findings made by the Constitutional Court and by this Court that overcrowding in Polish detention facilities was of a structural nature, “undermined the effectiveness of any domestic remedy available, making them theoretical and illusory and incapable of providing redress in respect of the applicant’s complaint” at the time when he lodged the present application with the Court (ibid. § 111 and § 121 respectively). This conclusion equally applies to the present case in so far as it concerns the applicant’s detention which lasted from January 2006 until December 2008, especially given that the Government and the penitentiary authorities explicitly acknowledged the existence and the systemic nature of the problem of overcrowding in Polish detention facilities at the relevant time (ibid. § 146 and § 148 respectively).
68. Accordingly, the Court dismisses the Government’s preliminary objection as to the non-exhaustion of domestic remedies.
69. 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. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
70. The applicant complained that he had not received adequate medical treatment and care during his detention. He also alleged that the living and sanitary conditions in each detention facility in which he had been held from 25 January 2006 until his release on 11 December 2008 had been inadequate for a healthy person and even more so for someone like him, who suffered from diabetes and other serious health ailments. In particular, the applicant complained that his diabetes had not been monitored because he had had no access to specialised medical care and his sugar level had hardly ever been tested. Moreover, the applicant complained that he had not had any privacy or adequate sanitary conditions when he wished to administer his daily insulin injections. Lastly, the applicant alleged that because of the overcrowding and poor sanitary conditions in his detention facilities, his frequent transfers between different cells or prisons and limitations on his contact with his wife he had been exposed to situations which had added to his stress and the deterioration of his health.
71. The Government argued that during his detention the applicant had not suffered inhuman or degrading treatment which had attained the minimum level of severity within the meaning of Article 3 of the Convention.
72. The applicant’s health and life were not in danger as he received regular specialised medical care and treatment. In particular, throughout his detention the applicant was administered all necessary drugs for diabetes and between August 2006 and February 2007 he had seen a general practitioner, a neurologist and an ophthalmologist on thirty-six occasions.
73. Moreover, the Government submitted that despite the overcrowding the prison authorities, taking into account the applicant’s special needs, had made efforts to secure to him the best possible conditions of detention. As a result, the applicant had been detained in a slightly smaller cell than prescribed by the domestic law only for a transitional period. The Government stressed, however, that Zamość
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Prison was a semi-open detention facility and the applicant had been free to leave his cell to use the toilets and showers which were located outside.
2. The Court’s assessment
74. The case raises the issue of the compatibility of the applicant’s state of health with the conditions of his detention in Lublin Remand Centre and Zamość, Hrubieszów and Rzeszów Prisons and the adequacy of the medical care provided to him. The Court must also answer the question whether the applicant’s situation attained the required minimum level of severity to fall within the ambit of Article 3 of the Convention.
75. A summary of the general principles concerning the examination of medical care and conditions of detention under Article 3 may be found in the Court’s recent judgments in Sławomir Musiał v. Poland (no. 28300/06, §§ 85-88, ECHR 2009-...(extracts)) and Orchowski v. Poland (cited above, §§ 119-229).
76. The Court notes that the parties have disputed certain circumstances pertaining to the general conditions of the applicant’s detention at Lublin Remand Centre and Zamość Prison in the period from 25 January 2006 until 6 February 2007. The Government did not make any comments as regards the remaining period of the applicant’s detention, namely from the date on which notice of the application had been given to the parties until the applicant’s release on 11 December 2008.
77. The Court considers, nevertheless, that it can make its assessment of the case relying on the parties’ submissions, the official statistics published by the Prison Service and on the recent findings made by the Polish Constitutional Court and by this Court.
78. The Court has already found in its two pilot judgments in the cases of Orchowski v. Poland and Norbert Sikorski v. Poland that, for many years, namely from 2000 until at least mid-2008, the overcrowding in Polish prisons and remand centres had revealed a structural problem consisting of “a practice that [was] incompatible with the Convention” (see Orchowski, cited above § 151 and Norbert Sikorski, cited above, §§ 155-156).
79. This finding is confirmed in the instant case by the official statistics of the Prison Service, which show that each of the applicant’s detention facilities was at the relevant time overcrowded with the occupancy rates ranging from 108 to 145% (see paragraphs 9,16, 23, 29, 31 and 34 above).
80. As to whether the applicant himself was affected by the problem of overcrowding, the Court makes the following observations.
81. The Government did not contest the applicant’s submission that during a two-week period in the course of his first detention in Lublin Remand Centre, his cell in wing IV, measuring 32 m², had been occupied by 28 prisoners. That resulted in a little over 1 m² of floor space per person (see paragraphs 10 and 12 above).
82. In the subsequent three weeks’ period, the applicant was detained with 9 other prisoners in a cell in wing III which measured 21 m², according to the Government, or 15 m², according to the applicant. Even relying on the Government’s submissions, the space per person in that cell was 2.1 m² (see paragraphs 10 and 12 above).
83. The Court notes that such severe overcrowding must have resulted in further hardship for the applicant, such as reduced accessibility to the toilet, poor air circulation and, most importantly, inconvenient sleeping arrangements.
84. In connection with the latter element, the Court is struck by the fact that in cell no. 22, nearly one third of the inmates had to sleep on mattresses spread on the floor, impeding movement in the cell (see paragraph 13 above). Irrespective of whether or not the applicant himself had to sleep on the floor, this arrangement was clearly a source of aggravated nuisance to him and the other inmates.
85. In view of the parties’ partly conflicting submissions and the vagueness of the remainder of the Government’s comments regarding the uncontested high overcrowding rates in Lublin Remand Centre, the Court is not convinced that the applicant had access to activities offering social interaction and stimulation outside his cell. Conversely, the Court considers established that the applicant had a one-hour period of outdoor exercise per day and one cold or hot shower per week, possibly lasting a very short time and in a cramped shower room (see paragraphs 11 and 13 above).
86. As regards Zamość Prison, where the applicant was held for six months, the Court takes note of the Government and the applicant’s own submissions that the ventilation, lighting, conditions of hygiene, opportunities for social interaction and a break from prison
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routine were good (see paragraphs 18 and 20 above). The Court observes, nonetheless, that even in that facility, with the exception of the hospital cell no. 15, the domestic minimum standard of cell space per prisoner was either not met or barely met (see paragraph 17 above).
87. The Court will now examine the conditions of the applicant’s subsequent detention. It must be noted that the Government did not make any submissions in this connection.
88. For eleven months, from 6 February 2007 until 3 January 2008 and for an additional ten and a half months, from 31 January until 11 December 2008, the applicant was detained in Hrubieszów Prison.
89. In the applicant’s submission, during his first and second detention there the floor space of his cells was 2.1 m² per person. Moreover, the toilet annex, equipment and furniture inside the cells significantly reduced the actual living space in the cells (see paragraphs 25 and 33 above).
90. The official statistics of the Prison Service reveal that the average rate of overcrowding in Hrubieszów Prison ranged between 23 and 27%, during the applicant’s first detention and between 8 and 26%, during his second stay there (see paragraphs 23 and 34 above).
91. The applicant also complained of other hardships during his detention in Hrubieszów Prison, namely the dreadful technical condition of the prison, the cramped and noisy visiting-rooms, queues to the pay-phone and the fact that he had to walk in the open to and from the shower-room in all weather conditions (see paragraphs 26 and 27 above).
92. The Court observes that the nuisance resulting from overcrowding, which undoubtedly existed in Hrubieszów Prison, and the prison’s poor infrastructure were alleviated to some extent by the degree of freedom of movement enjoyed by the applicant during his first detention in the semi‑open wing. The applicant submitted that during an unspecified period he had been allowed to remain outside his cell for five hours a day. On the other hand, during certain periods his cells were opened only for two hours in the afternoon or locked for 23 hours a day (see paragraph 26 above). It also appears that during his second detention in Hrubieszów, the applicant did not enjoy any freedom of movement outside his cell and was allowed to have only a one-hour period of outdoor exercise per day (see paragraph 33 above).
93. In this regard the Court considers that the overcrowding, the prison’s infrastructure and the degree of the applicant’s freedom of movement in Hrubieszów Prison were substantially worse than those established by the Court in the Valašinas case (Valašinas v. Lithuania, no. 44558/98, ECHR 2001‑VIII), where no violation of Article 3 was found inter alia in view of the fact that the applicant was allocated at different times approximately 5, 3.2 and 2.7 m² of space in the dormitory and enjoyed considerable freedom of movement from wake-up time at 6.30 a.m. to lock-in at 10.30 p.m. within the whole prison area, consisting of a separate dormitory, a leisure room, a kitchen, sanitation areas and an open courtyard (Valašinas, cited above, § 103).
94. Lastly, the Court notes that during his second detention in Lublin Remand Centre overcrowding reached 11% and the applicant was confined to his cell for 23 hours a day (see paragraphs 28 and 29 above). The Government did not provide any information with respect to this period of the applicant’s detention. Nor did they contest the applicant’s submission that when he had been detained for 20 days in Rzeszów Prison he had slept on a mattress spread on the floor. The official statistics reveal that overcrowding in Rzeszów Prison was at the relevant time at 18% (see paragraphs 30 and 31 above).
95. As already noted in the Orchowski judgment, the Polish Constitutional Court found in its judgment of 26 May 2008 that a person could not be afforded humane treatment in a prison cell in which individual living space was less than 3 m² (Article 41 § 4 of the Constitution) and that such overcrowding as had existed in Polish prisons could in itself be qualified as inhuman and degrading treatment (Article 40 of the Constitution) (Orchowski, cited above, § 123).
The Court, mindful of the principle of subsidiarity, found that the above‑mentioned ruling of the Constitutional Court could constitute a basic criterion in the Court’s assessment of whether overcrowding in Polish detention facilities breached the requirements of Article 3 of the Convention. In consequence, all situations in which a detainee was deprived of a minimum of 3 m² of personal space inside his or her cell, would be regarded as creating a strong indication that Article 3 of the Convention had
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been violated.
96. The second limb of the applicant’s Article 3 complaint relates to the adequacy of his medical care in prison.
97. The Court notes that during his detention the applicant undeniably suffered from insulin-dependent diabetes, prostate cancer and mild cardiac disorders. The case materials, however, reveal that the applicant’s ailments, although chronic, were at no stage life threatening (see paragraph 5 above).
98. Moreover, it does not transpire from the documents submitted that the applicant’s health deteriorated during his detention as a result of either the conditions of his detention or any negligence on the part of the prison medical services. Likewise, there is no indication that his state of health deteriorated as a result of the inadequacy of the available medical care.
99. It is clear that the applicant was provided, throughout the entire period of his detention, with insulin, needles and syringes (see paragraphs 13, 40 and 45 above). When it was considered necessary, he was administered additional medicine for diabetes (see paragraphs 37 and 44 above). A special diet for diabetics was made available to the applicant in Lublin Remand Centre (see paragraphs 36, 43 and 44 above) and, as it appears, despite the applicant’s submission to the contrary, also in Zamość and Hrubieszów Prisons (see paragraphs 39, 45 and 46 above). The applicant’s complaints about his poor health were followed-up by medical examinations and consultations. At the beginning of his detention in Lublin Remand Centre, he was examined by a doctor and underwent a series of medical tests (see paragraph 36 above). During a period of six months in the course of his detention in Zamość Prison he consulted different doctors on 36 occasions (see paragraph 37 above). For an unspecified period he was assigned to cells in a hospital and to a special-care wing in Zamość Prison (see paragraph 17 above).
100. It is a matter of regret that the prison medical services had failed to carry out routine tests of the applicant’s sugar level and to provide him with a glucometer.
101. On the other hand, the Court accepts that diabetes patients are expected to administer their own insulin injections in their home environment without the assistance of a third person. The fact that the applicant had to administer his injections inside the cell where he lacked privacy and adequate sanitary conditions must have given rise to considerable anxiety on his part and must have placed him in a position of inferiority vis-à-vis other prisoners.
102. Assessing the facts of the case as a whole, having regard in particular to the cumulative effects of the overcrowding and inappropriate living conditions provided to the applicant during his detention and the fact that, because of his state of health, the applicant was in a vulnerable position vis-à-vis other prisoners, the Court considers that the nature, duration and severity of the ill-treatment to which the applicant was subjected are sufficient to be qualified as inhuman and degrading treatment.
103. There has accordingly been a violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
104. With regard to the issue of overcrowding seen from the standpoint of the applicant’s right to respect for his physical and mental integrity or his right to privacy and the protection of his private space, the Court considered it appropriate to raise of its own motion the issue of Poland’s compliance with the requirements of Article 8 of the Convention, which in its relevant part reads as follows:
“1. Everyone has the right to respect for his private... 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.”
105. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.
106. However, having found a violation of Article 3, the Court considers that no separate issue arises under Article 8 of the Convention with regard to the conditions of the applicant’s detention and the medical treatment he received.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
107. 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
108. The applicant
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claimed 250,000 Polish zlotys (PLN) in respect of non-pecuniary damage. He did not allege any pecuniary damage.
109. The Government contested the applicant’s claim as exorbitant.
110. Deciding on an equitable basis, the Court awards the applicant 6,000 euros (EUR) in respect of non‑pecuniary damage.
B. Costs and expenses
111. The applicant claimed no costs and expenses, either for the Convention proceedings or for any proceedings before the domestic courts or authorities.
C. Default interest
112. 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 that there is no need to examine separately the complaint under 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 6,000 (six 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 31 May 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence EarlyDavid Thór BjörgvinssonRegistrarPresident²
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SECOND SECTION
CASE OF DURSUN v. TURKEY
(Application no. 17765/02)
JUDGMENT
STRASBOURG
3 May 2007
FINAL
03/08/2007
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 Dursun v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
MrsF. Tulkens, President,MrA.B. Baka,MrI. Cabral Barreto,MrR. Türmen,MrM. Ugrekhelidze,MrsA. Mularoni,MsD. Jočienė, judges,and Mrs S. Dollé, Section Registrar,
Having deliberated in private on 3 April 2007,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 17765/02) 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 a Turkish national, Ali Dursun (“the applicant”), on 18 February 2002.
2. The applicant was represented by Mrs F. Karakaş Doğan, a lawyer practising in İstanbul. The Turkish Government (“the Government”) did not designate an Agent for the purpose of the proceedings before the Court.
3. On 3 March 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
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1969 and lives in İstanbul.
5. On 18 July 1992 the applicant was arrested and taken into custody by police officers at the İstanbul Security Directorate on suspicion of membership of an illegal organisation.
6. On 3 August 1992 the applicant was brought before the public prosecutor at the İstanbul State Security Court. On the same day, he was also brought before a judge at the İstanbul State Security Court who ordered his remand in custody.
7. On 30 September 1992 the public prosecutor at the İstanbul State Security Court filed an indictment against the applicant and sixteen other co-accused and requested the applicant's conviction under Article 125 of the Criminal Code for his activities aimed at breaking up the unity of the State and removing part of the national territory from the State's control.
8. The first hearing, held before the İstanbul State Security Court on 23 October 1992, in the applicant's absence, was taken up with procedural matters, such as the measures to be taken for securing the presence of the accused.
9. Between 23 October 1992 and 11 April 2003, the İstanbul State Security Court held hearings at regular intervals. On 26 November 1992 the first-instance court decided to join another case against the applicant to the proceedings. It further decided to join to the proceedings against the applicant several other cases brought against other persons who were also accused of membership of the same organisation. At the end of each hearing, the İstanbul State Security Court considered releasing the applicant pending trial both ex officio as well as upon his requests. At each hearing, the court, taking into account the content of the case file and the state of the evidence, decided to prolong the applicant's remand in custody.
10. On 11 April 2003 the İstanbul State Security Court convicted the applicant as charged and sentenced him to life imprisonment.
11. On 7 June 2004 the Court of Cassation quashed the judgment of the first instance court.
12. Subsequent to promulgation of Law no. 5190 on 16 June 2004, which abolished the State Security Courts, the İstanbul Assize Court acquired jurisdiction over the applicant's case.
13. On 30 December 2004 the İstanbul Assize Court released the applicant pending trial.
14. According to the information available in the file, the case is apparently still pending on the date on which the present judgment was adopted.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 §§ 3, 4 AND 5, ARTICLE 6 § 2 AND ARTICLE 13 OF THE CONVENTION
15. The applicant complained that the length of his remand in custody was unreasonably long, and that his requests for release pending trial received no serious consideration
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by the first-instance court. He invokes Articles 5 §§ 3, 4 and 5, 6 § 2 and 13 of the Convention.
16. The Court considers that this complaint should be examined from the standpoint of 5 § 3 alone, which reads:
“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.”
A. Admissibility
17. 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
18. The Government contended that the domestic authorities displayed diligence when considering the applicant's requests for release pending trial. Moreover, they claimed that the seriousness of the crime and the special circumstances of the case justified his continued detention on remand.
19. The applicant maintained his allegations.
20. The Court reiterates that it falls in the first place to the domestic judicial authorities to ensure that, in a given case, the detention of an accused person pending trial 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 presumption of innocence, a departure from the rule of respect for individual liberty, and set them out in their decisions on the applications for release. It is primarily on the basis of the reasons given in these decisions, and of the established facts mentioned by the applicants in their appeals, that the Court must determine whether or not there has been a violation of Article 5 § 3 of the Convention (see Sevgin and İnce v. Turkey, no. 46262/99, § 61, 20 September 2005).
21. The persistence of a reasonable suspicion that the person arrested has committed an offence is a sine qua non for the validity of the continued detention but, after a certain lapse of time, it no longer suffices; the Court must then establish whether the other grounds cited by the judicial authorities continued to justify the deprivation of liberty (see, among other authorities, Ilijkov v. Bulgaria, no. 33977/96, § 77, 26 July 2001, and Labita v. Italy [GC], no. 26772/95, §§ 152-153, ECHR 2000-IV).
22. In the instant case, the Court notes that there were two periods of pre-trial detention. The first period began on 18 July 1992 with the applicant's arrest and ended on 11 April 2003, the date of the judgment of the İstanbul Assize Court. From that point on, and until the Court of Cassation's decision of 7 June 2004, the applicant was detained “after conviction by a competent court”, which falls within the scope of Article 5 § 1 (a) of the Convention. The second period began on 7 June 2004 and ended on 30 December 2004 when the applicant was released pending trial. It thus lasted approximately eleven years and three months in total (see, in particular, Solmaz v. Turkey[1], no. 27561/02, §§ 23-36, 16 January 2007). During this time, the first-instance court considered the applicant's continued detention at the end of each hearing, either on its own motion or upon the request of the applicant. However, the Court notes from the material in the case file that the State Security Court ordered the applicant's continued detention on remand using identical, stereotyped terms, such as “having regard to the nature of the offence and the state of the evidence”.
23. The Court takes note of the seriousness of the offence attributed to the applicant and the severity of the relevant punishment. However, it recalls that the danger of absconding cannot solely be assessed on the basis of the severity of the sentence risked, but must be analysed with reference to a number of other relevant additional elements, which may either confirm the existence of such a danger or make it appear so slight that it cannot justify detention pending trial (see Muller v. France, judgment of 17 March 1997, Reports of Judgments and Decisions 1997‑II, § 43, and Letellier v. France, judgment of 26 June 1991, Series A no. 207, § 43). In this regard, the Court notes the lack of such sufficient reasoning in the domestic court's decisions to prolong the applicant's remand in custody.
24. Finally, although, in general, the expression “the state of the evidence” may be a relevant factor for the existence and persistence of serious indications of guilt, in the present case it nevertheless, alone, cannot justify the
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length of the detention of which the applicant complains (see Letellier, cited above; Tomasi v. France, judgment of 27 August 1992, Series A no. 241-A; Mansur v. Turkey, judgment of 8 June 1995, Series A no. 319-B, § 55, and Demirel v. Turkey, no. 39324/98, § 59).
25. The foregoing considerations are sufficient to enable the Court to conclude that the length of the applicant's pre-trial detention, which lasted, in total, approximately eleven years and three months, has exceeded the reasonable-time requirement.
26. There has accordingly been a violation of Article 5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
27. The applicant complained that the length of the criminal proceedings exceeded the “reasonable time” requirement under Article 6 § 1 of the Convention, the relevant part of 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
28. The Government submitted that the applicant had failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention, as the criminal proceedings against him were still pending. They further maintained that the applicant failed to raise the substance of his complaint before the domestic courts.
29. The applicant disputed the Government's arguments.
30. The Court reiterates that it has already examined and rejected the Government's similar objections in previous cases (see, in particular, Karakullukçu v. Turkey, no. 49275/99, §§ 27-28, 22 November 2005, and Tutar v. Turkey, no. 11798/03, §§ 12-14, 10 October 2006). The Court finds no particular circumstances in the instant case, which would require it to depart from its findings in the above-mentioned applications. It therefore rejects the Government's objections under this head.
31. Moreover, the Court notes that the application is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible has been established. It must therefore be declared admissible.
B. Merits
32. The Government disputed that the length of the proceedings were unreasonably long.
33. The applicant maintained his allegations.
34. The Court observes that the period to be taken into consideration began on 18 July 1992, when the applicant was arrested and taken into police custody. According to the information in the case file, the case has apparently not yet ended. It has already thus lasted more than fourteen years and eight months.
35. 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, in particular, Pakkan v. Turkey, no. 13017/02, § 44, 31 October 2006).
36. Having examined all the material submitted to it and 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.
37. There has accordingly been a breach of Article 6 § 1.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
38. The applicant initially complained that he was discriminated against because he was charged with crimes committed against the State in breach of Article 14 of the Convention, which provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
39. The Court has examined the applicant's allegation in the light of the evidence submitted to it and considers it unsubstantiated. It follows that this part of the application should be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
IV. 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 3,000 euros (EUR) in respect of pecuniary and EUR 22,000 for non-pecuniary damages. In support of his pecuniary damage claims,
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which included the expenses incurred by his relatives and lawyers during his incarceration, the applicant submitted a number of bus and ferry ticket receipts.
42. The Government contested the amounts.
43. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. However, deciding on an equitable basis, it awards the applicant EUR 12,000 in respect of non‑pecuniary damage.
B. Costs and expenses
44. The applicant also claimed EUR 5,800 for the costs and expenses incurred before the Court. In support of his claim, the applicant submitted the İstanbul Bar Association's recommended minimum fees list for 2006.
45. The Government contested the amount.
46. 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 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 under this head.
C. Default interest
47. 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 applicant's detention pending trial and the length of the criminal proceedings admissible, and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 5 § 3 of the Convention;
3. Holds that there has been a violation of Article 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, the following sums, to be converted into new Turkish liras at the rate applicable at the date of settlement;
(i) EUR 12,000 (twelve thousand euros) for non-pecuniary damage,
(ii) EUR 1,000 (one thousand euros) for costs and expenses,
(iii) 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 3 May 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. DolléF. Tulkens Registrar President
[1] The judgment is not final yet.
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FIFTH SECTION
CASE OF SHEHOVA v. BULGARIA
(Application no. 68185/11)
JUDGMENT
STRASBOURG
18 January 2018
This judgment is final but it may be subject to editorial revision.
In the case of Shehova v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
André Potocki, President,Mārtiņš Mits,Lәtif Hüseynov, judges,and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having deliberated in private on 12 December 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 68185/11) 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 a Bulgarian national, Ms Iskra Antimova Shehova (“the applicant”), on 4 October 2011.
2. The applicant was represented by Ms V. Tenova, a lawyer practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.
3. On 10 July 2014 the complaint concerning the failure of the national authorities to enforce two final domestic judgments in the applicant’s favour was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1959 and lives in Smolyan.
5. In two final judgments of 28 February 2005 and 8 May 2006 the Supreme Court of Cassation awarded the applicant pecuniary damages in respect of breach of contract for construction works which she had carried out. The awarded damages comprised BGN 52,784 for the principal amount, plus BGN 17,685 in default interest and BGN 5,433 in costs and expenses, or a total amount of BGN 75,902.93, the equivalent to 38,000 euros (EUR). The damages were awarded to the applicant against the National Centre for Recreation, Rehabilitation and Sport – Ministry of Education and Science (“the Centre”, a State body subsidised by the Ministry of Education and Science and exercising certain functions delegated by the Ministry).
6. By an order of 25 May 2005 the Minister of Education closed down the Centre and ordered that its remaining property be managed by the Ministry of Education. The Ministry then established a State-owned joint‑stock company with part of the Centre’s property, including the real estate in which the applicant had carried out the construction works.
7. On 13 May 2005 and 15 March 2007 the applicant was issued with two writs of enforcement for the amounts awarded in the final judgments of 2005 and 2006 (see paragraph 5 above) and on 6 February 2008 she presented the writs to the Ministry of Education asking it to pay.
8. The Ministry replied in writing that it was not the successor to the Centre and did not owe payment to the applicant. In October 2009 the applicant reiterated her request but received a similar reply by the Ministry. The Ministry also pointed out that payment could not be sought from the State-owned joint-stock company either as it had a legal personality separate from that of the Ministry. By a letter of 23 September 2010, the Minister provided a similar explanation to the applicant.
9. The applicant brought judicial review proceedings challenging the Minister’s refusal. In a final decision of 8 April 2011 the Supreme Administrative Court rejected the appeal as inadmissible.
10. As of 19 March 2015, the date of the applicant’s last communication to the Court, no change in the above circumstances had been reported.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Enforcement of monetary claims vis-à-vis State institutions
11. The relevant provisions concerning enforcement of monetary claims vis-à-vis State bodies until 2007 have been set out in the case of Mancheva v. Bulgaria, no. 39609/98, §§ 36-38, 30 September 2004. The relevant provisions as of 2008 can be found in the Code of Civil Procedure 2007. In particular, Article 519 of the Code of Civil Procedure 2007 provides as follows:
“1. The enforcement of money
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claims against State bodies is not allowed.
2. Money claims against State bodies shall be paid out of funds allotted for that purpose in their budgets. For this purpose, the writ of execution shall be presented to the financial department of the [State] body in issue. If no funds have been allocated, the higher [State] body shall take the necessary measures to provide such funds at the latest in the next budget.”
12. In March 2010 the Ombudsman of the Republic challenged that provision before the Constitutional Court. In a judgment of 21 December 2010 (реш. № 15 от 21 декември 2010 г. по к. д. № 9/2010 г., обн. ДВ, бр. 5/2011 г.), the Constitutional Court refused to declare Article 519 unconstitutional in so far as it concerned State bodies, but declared it unconstitutional in so far as it concerned municipalities.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
13. The applicant complained that the failure of the authorities to implement the final judgments in her favour, by virtue of which a State body owed her a sum of money, breached her right to access to a court under Article 6 § 1 of the Convention. The Court, which is master of the characterisation to be given in law to the facts of the case, finds that the complaint at issue falls to be examined under Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention, which read respectively as follows:
Article 6 § 1
“1. In the determination of his civil rights and obligations... everyone is entitled to a fair and public hearing within a reasonable time by [a]... tribunal...”
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....”
A. Admissibility
14. At the time of submitting their observations in respect of the applicant’s claim for just satisfaction, the Government advanced that the applicant had failed to exhaust domestic remedies. In particular, the writs of enforcement presented by her to the Ministry had indicated that the indebted institution had been the Centre. According to the Government the Ministry was not a legal successor of the Centre and had not taken part in the judicial proceedings concerning the Centre’s debts to the applicant. Consequently, the applicant’s complaint concerned a legal dispute which had not been dealt with at the domestic level.
15. The Court considers that the issue of admissibility is closely linked to the merits and must therefore be joined to the merits. The Court furthermore notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
16. The applicant reiterated her complaint.
17. The Government did not elaborate further.
18. In accordance with the Court’s established case-law, execution of a final judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention and an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see, among many other authorities, Burdov v. Russia, no 59498/00, §§ 34–35, ECHR 2002‑III; Mancheva v. Bulgaria, no. 39609/98, § 54, 30 September 2004; Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, § 51, 15 October 2009). Likewise, the impossibility for an applicant to obtain the execution of a judgment in his or her favour in due time 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 Yuriy Nikolayevich Ivanov, cited above, § 52).
19. It is the State’s obligation to ensure that final decisions against its organs, or entities or companies owned or controlled by the State, are enforced without an unreasonably long delay (see Yuriy Nikolayevich Ivanov, cited above, § 54, with further references). The Court has earlier held in this respect that liquidation proceedings against a State organ cannot absolve the State of its responsibility to enforce a final judgment. To conclude otherwise would allow the State to use this avenue to avoid payment of
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the debts of its organs, especially taking into account that changing needs force the State to make frequent changes in its organisational structure, including by forming new organs and liquidating old ones (see Kuksa v. Russia, no. 35259/04, § 26, 15 June 2006; and Nikitina v. Russia, no. 47486/07, § 19, 15 July 2010).
20. Turning to the present case, the two final judgments of 2005 and 2006 in the applicant’s favour have remained unenforced (see paragraphs 8 and 10 above) and the Government have not provided any justification for that (see paragraph 17 above). The Court has already established, including in the context of Bulgarian cases before it, that the prolonged failure of State bodies to enforce a final judgment in accordance with which they owed the payment of a sum of money breached both Article 6 § 1 and Article 1 of Protocol No. 1 (see Mancheva, cited above, §§ 61–62 and §§ 66–68; Sirmanov v. Bulgaria, no. 67353/01, §§ 33–34 and §§ 38–39, 10 May 2007; and Pashov and Others v. Bulgaria, no. 20875/07, §§ 59–63, 5 February 2013).
21. The Court accordingly dismisses the Government’s objection concerning non-exhaustion of domestic remedies and finds that, by failing for over ten years to comply with the enforceable judgments in the applicant’s favour, the domestic authorities prevented her from receiving an amount of money she could reasonably have expected to receive and deprived the provision of Article 6 § 1 of all useful effect.
22. It follows that there has been a violation of Article 6 § 1 and Article 1 of Protocol No. 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
23. 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
24. The applicant claimed approximately EUR 38,000 in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage.
25. The Government submitted that the claim for non-pecuniary damages was excessive and unjustified.
26. The Court observes that the amount claimed by the applicant in respect of pecuniary damage is the same as that awarded to her in the final judgments and it has remained unpaid. Accordingly, it awards her EUR 38,000 for pecuniary damage.
27. The Court furthermore finds that the failure of the authorities to pay the applicant what was due to her on the basis of the final judgments must have caused her emotional distress. It accordingly awards the applicant EUR 3,600 in respect of non-pecuniary damage.
B. Costs and expenses
28. The applicant also claimed EUR 2,000 for the costs and expenses in the form of legal fees which she had incurred before the Court.
29. The Government submitted that this sum was exaggerated and not accompanied by the relevant account of expenses.
30. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 1,000 covering costs for the proceedings before the Court.
C. Default interest
31. 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 to the merits the Government’s objection concerning non-exhaustion of domestic remedies and dismisses it;
2. Declares the application admissible;
3. Holds that there has been a violation of Article 6 § 1 of the Convention and 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 the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:
(i) EUR 38,000 (thirty-eight thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
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(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 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Anne-Marie DouginAndré PotockiActing Deputy RegistrarPresident
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THIRD SECTION
CASE OF DUDNIKOV AND OTHERS v. RUSSIA
(Application no. 63928/13 and 7 others -
see appended list)
JUDGMENT
STRASBOURG
4 May 2017
This judgment is final but it may be subject to editorial revision.
In the case of Dudnikov and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Luis López Guerra, President,Dmitry Dedov,Branko Lubarda, judges,and Karen Reid, Section Registrar,
Having deliberated in private on 30 March 2017,
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 inadequate conditions of their detention.
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 3 OF THE CONVENTION
6. The applicants complained of the inadequate conditions of their detention. They relied on Article 3 of the Convention, which reads as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
7. The Court notes that the applicants were kept in detention in poor conditions. The details of the applicants’ detention are indicated in the appended table. The Court refers to the principles established in its case‑law regarding inadequate conditions of detention (see, for instance, Kudła v. Poland [GC], no. 30210/96, §§ 90‑94, ECHR 2000‑XI, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 139‑165, 10 January 2012). It reiterates in particular that extreme lack of space in a prison cell or overcrowding weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see, amongst many authorities, Karalevičius v. Lithuania, no. 53254/99, §§ 36–40, 7 April 2005).
8. In the leading case of Sergey Babushkin v. Russia, no. 5993/08, 28 November 2013, 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 applicants’ conditions of detention were inadequate.
10. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
11. 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.”
12. Regard being had to the documents in its possession, to its case‑law and the long delay for some of the applicants in filing the application, the Court considers it reasonable to award the sums indicated in the appended table.
13. 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
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a breach of Article 3 of the Convention concerning the inadequate conditions of detention;
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 4 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Keren ReidLuis López GuerraRegistrarPresident
APPENDIX
List of applications raising complaints under Article 3 of the Convention
(inadequate conditions of detention)
No.
Application no.Date of introduction
Applicant name
Date of birth
Representative name and location
Facility
Start and end date
Duration
Number of inmates per brigade
Sq. m. per inmate
Number of toilets per brigade
Specific grievances
Amount awarded for pecuniary and non‑pecuniary damage and costs and expenses
per applicant
(in euros)[1]
63928/13
17/01/2013
(8 applicants)
Yuriy Pavlovich Dudnikov
01/01/1955
Eduard Petrovich Timoshin
04/02/1970
Vladimir Viktorovich Menkov
12/10/1982
Mikhail Borisovich Konstantinov
20/04/1984
Anton Vasilyevich Bolsheshapov
09/09/1985
Anatoliy Anatolyevich Berestnev
01/01/1961
Arslan Faritovich Sayfutdinov
01/01/1986
Sergey Borisovich Kutnyuk
01/01/1969
Romanenko Luydmila Viktorovna
Tulun
IK-56 Sverdlovsky Region
09/01/2013
pending
More than 4 year(s) and
2 month(s) and 22 day(s)
no water-supply or sewage systems in cells, a bucket serving as a lavatory was not separated from the rest of the cell, thus offering no privacy, dim light and no fresh air, an allowed daily walk of no more than two hours in one of the five recreation yards located close to a waste dump, each yard measuring 6 square metres
14,800
70723/13
23/10/2013
Aydar Abuzarovich Mubarakshin
04/04/1978
IK-3 Samara Region
11/06/2010
pending
More than 6 year(s) and
9 month(s) and 20 day(s)
160 inmate(s)
1.3 m²
4 toilet(s)
overcrowding, poor quality of water, poor quality of food, poor heating, 8 sinks for 160 inmates
15,500
71658/13
25/09/2013
Yevgeniy Aleksandrovich Gladkikh
23/08/1984
IK-11 Stavropol
15/07/2013
pending
More than 3 year(s) and
8 month(s) and 16 day(s)
160 inmate(s)
1.6 m²
no hot water, lack of requisite medical assistance
13,300
75596/13
05/11/2013
Igor Viktorovich Khakhulin
07/02/1961
IK-8, punishment ward, Republic of Udmurtiya
11/02/2013 to
28/03/2013
1 month(s) and 18 day(s)
4.25 m²
lack of requisite medical assistance, no drinking water, no washstand, broken pan, stench, high humidity, sleeping on the floor, low temperature, poor sanitary conditions
1,400
77417/13
11/11/2013
Arkadiy Valeryevich Shmalakov
14/10/1984
IK-29 Kirov Region
23/03/2012
pending
More than 5 year(s) and
8 day(s)
1.9 m²
no ventilation, insects and rats in the toilet house, bedbugs
15,300
33654/14
20/
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10/2014
Vyacheslav Valeryevich Datsik
31/12/1980
IK-31 Krasnoyarsk Region
07/11/2013 to
16/10/2014
11 month(s) and 10 day(s)
1.9 m²
overcrowding, lack of fresh air, constant cigarette smoke
5,000
12889/15
04/03/2015
Ravil Mirsaitovich Khakimov
09/02/1969
Kochneva Natalya Vladimirovna
Yekaterinburg
IK-5 Sverdlovskiy Region
16/03/2014 to
17/10/2014
7 month(s) and 2 day(s)
lack of requisite medical assistance, no access to natural light or fresh air, constant electric light, dining table close to toilet, video surveillance denies privacy when using toilet, insects and rodents, no hot water, shower once a week or less often, handcuffing during outside exercises that were irregular
3,600
13252/15
02/03/2015
Aleksey Viktorovich Kinev
03/09/1981
Vinogradov Aleksandr Vladimirovich
Kostroma
IK-7 Kostroma
01/07/2010 to
13/02/2015
4 year(s) and 7 month(s) and 13 day(s)
120 inmate(s)
2 m²
3 toilet(s)
3 sinks, no drinking water, poor quality of water, bedbugs and rats
5,000
[1]. Plus any tax that may be chargeable to the applicants.
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SECOND SECTION
CASE OF MEČIĆ v. CROATIA
(Application no. 37226/13)
JUDGMENT
STRASBOURG
19 July 2016
This judgment is final. It may be subject to editorial revision.
In the case of Mečić v. Croatia,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Paul Lemmens, President,Ksenija Turković,Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 28 June 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 37226/13) 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, Mr Igor Mečić (“the applicant”), on 16 April 2013.
2. The applicant was represented by Ms V. Šnur, an advocate practising in Vinkovci. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3. The applicant alleged that enforcement of the judgment ordering his former employer to pay him remuneration for overtime work had been unduly delayed.
4. On 30 August 2013 the complaint concerning the length of the proceedings 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 1974 and lives in Vinkovci.
A. Background to the case
6. By a judgment of 1 June 2006 the Vinkovci Municipal Court (Općinski sud u Vinkovcima) ordered the applicant’s former employer, the company MD Profil d.o.o. (hereinafter “the debtor company”), to pay him 20,921.18 Croatian kunas (HRK)[1] as remuneration for overtime work, together with accrued statutory default interest, and HRK 19,495.90[2] in costs. On 10 March 2008 the Vukovar County Court (Županijski sud u Vukovaru) upheld the first-instance court’s judgment, which thereby became final.
7. By a judgment of 17 January 2008 the Županja Municipal Court (Općinski sud u Županji) found the applicant guilty of the criminal offence of embezzlement committed against his former employer, the debtor company. It sentenced him to ten months’ imprisonment, suspended for a period of two years provided that in that period he did not commit a further offence. The court also ordered the applicant to pay the debtor company HRK 20,311.78[3] in compensation for pecuniary damage caused by his offence.
B. Enforcement proceedings
8. On 14 April 2008 the applicant applied to the Đakovo Municipal Court (Općinski sud u Đakovu) for enforcement of the above judgment of 1 June 2006 (see paragraph 6 above).
9. The next day, on 15 April 2008, that court issued a writ of execution (rješenje o ovrsi) whereby it ordered the seizure of funds in the debtor company’s bank account in order to satisfy the applicant’s claim.
10. The debtor company lodged an appeal, and on 28 August 2008 the Osijek County Court (Županijski sud u Osijeku) quashed the writ of execution and remitted the case to the first-instance court. It found that the judgment sought to be enforced had not been stamped with a certificate of enforceability and that a grace period for voluntary compliance (paricijski rok) had not been set.
11. In the new proceedings before the Đakovo Municipal Court the applicant submitted on 25 September 2008 a copy of the judgment that he was seeking to enforce stamped with a certificate of enforceability. At the same time, he asked the court to set a grace period for voluntary compliance, pursuant to the law.
12. On 7 November 2008 the court issued a new writ of execution. It
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ordered the debtor company to pay the applicant, within a grace period of eight days (a) the sums it had been ordered to pay under the judgment of 1 June 2006 (that is to say the main debt, together with accrued statutory default interest, and the costs of the civil proceedings, see paragraph 6 above), (b) the statutory default interest accrued on the costs of the civil proceedings from the date of delivery of that judgment, and (c) the costs of enforcement proceedings, together with the statutory default interest accrued on those costs from the date of issuance of the writ of execution.
13. By a decision of 19 February 2009 the Osijek County Court dismissed the debtor company’s appeal and upheld the writ of execution.
14. Upon receiving, on 27 February 2009, the final judgment of the criminal court of 17 January 2008 (see paragraph 7 above), the debtor company on 9 March 2009 sent a letter containing a set-off statement to the applicant’s legal representative whereby it set off (prijeboj) its claim for compensation against the applicant stemming from that judgment with his claim for payment of overtime work against the debtor company stemming from the judgment he was seeking to enforce.
15. On the same day, 9 March 2009, the debtor company informed the court that it had received the above-mentioned final judgment of the criminal court and that it had executed the set-off described above (see the preceding paragraph). The debtor company at the same time lodged an extraordinary appeal against the writ of execution of 7 November 2008 (see paragraph 12 above) and lodged an application to postpone the enforcement.
16. By a decision of 27 March 2009 the Đakovo Municipal Court decided on the debtor company’s motion for postponement, instructing the debtor company to institute separate civil proceedings for the enforcement to be declared inadmissible (in full or in part). At the same time it postponed the enforcement pending the final outcome of those proceedings.
17. The debtor company instituted those civil proceedings on 14 April 2009. They ended on 31 March 2011, when the Osijek County Court upheld the first-instance judgment of the Đakovo Municipal Court of 21 October 2010, whereby the enforcement of up to HRK 20,095.30[4] was declared inadmissible. The second-instance judgment was served on the debtor company on 11 May 2011 and on the applicant a day later.
18. Following an appeal lodged by the applicant, on 21 January 2010 the Osijek County Court quashed the first-instance decision of 27 March 2009 (see paragraph 16 above) in so far as it allowed the postponement of the enforcement and in this respect remitted the case. It dismissed the remainder of the applicant’s appeal and upheld the first-instance decision in the remaining part.
19. In the resumed proceedings, by a decision of 17 June 2010 the Đakovo Municipal Court again postponed the enforcement.
20. On 3 February 2011 the Osijek County Court dismissed the applicant’s appeal against that decision and upheld it.
21. On 24 May 2011 the applicant informed the Đakovo Municipal Court that the judgment declaring the enforcement inadmissible in part had become final (see paragraph 17 above) and asked it to continue with the enforcement in the remaining part.
22. By a decision of 2 June 2011 that court decided to resume the enforcement in the remaining part. By another decision of the same date that court ordered the debtor company to pay the applicant: (a) HRK 599.40[5] for unpaid overtime work, together with statutory default interest accrued since 11 March 2009, (b) HRK 19,495.90[6] in costs of civil proceedings, together with statutory default interest accrued since 1 June 2006, and (c) HRK 2,606.25[7] in costs of enforcement proceedings, together with statutory default interest accrued since 7 November 2008. This decision became final on 17 June 2011.
23. On 20 June 2011 the court informed the Domestic Payments Agency (Financijska agencija – FINA) of its second decision of 2 June 2011 (see the preceding paragraph). In the execution of that decision the agency on 21 July 2011 transferred HRK 38,306.87[8] from the debtor company’s bank account to those of the applicant and his legal representative.
C. Proceedings following the applicant’s request for protection of the right to a hearing within a reasonable time
24. Meanwhile, on 9 October 2009 the applicant lodged a request for protection of the right to a hearing within a reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) with the Osijek County Court, complaining about the length of the above enforcement proceedings.
25. By a decision of 9 November 2010 the
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Osijek County Court dismissed the applicant’s request. It held that, while the case was indeed important for the applicant, the proceedings complained of were complex and he had contributed to their length in that he had not initially submitted a copy of the judgment he was seeking to enforce stamped with a certificate of enforceability (see paragraphs 8-11 above).
26. On 25 November 2010 the applicant appealed against that decision.
27. By a decision of 6 June 2011 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed the applicant’s appeal and served its decision on his representative on 26 August 2011.
28. On 23 September 2011 the applicant lodged a constitutional complaint against the second-instance decision.
29. By a decision of 12 December 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) declared inadmissible the applicant’s constitutional complaint and served that decision on his representative on 31 December 2012. It held that the contested second-instance decision was not open to constitutional review.
II. RELEVANT DOMESTIC LAW AND PRACTICE
30. The relevant domestic law and practice is set out in Vrtar v. Croatia, no. 39380/13, §§ 50, 52-56 and 61-63, 7 January 2016.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
31. The applicant complained that the delays in the enforcement proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention and that he had not received any compensation at the domestic level on that account. The relevant part of that Article 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...”
32. The Government contested that argument.
33. The period to be taken into consideration began on 14 April 2008, when the applicant applied for enforcement (see paragraph 8 above), and ended on 21 July 2011, when the Domestic Payment Agency transferred an amount corresponding to the revised judgment debt to the bank accounts of the applicant and his legal representative (see paragraph 23 above). It thus lasted some three years and three months.
A. Admissibility
34. The Government disputed the admissibility of this complaint on three grounds. Specifically, they argued that the applicant had failed to observe the six-month rule, that he had not suffered a significant disadvantage, and that he had abused the right of application.
35. The applicant did not submit observations in reply to those of the Government but only his claim for just satisfaction. Thus, he did not comment on the Government’s inadmissibility objections.
1. Compliance with the six-month rule
36. The Government submitted that the applicant had failed to comply with the six-month rule because he had erroneously believed that the constitutional complaint that he had lodged against the Supreme Court’s decision of 6 June 2011 (see paragraphs 27-28 above) had constituted an effective remedy to be exhausted for the purposes of Article 35 § 1 of the Convention and had thus been capable of interrupting the running of the six-month time-limit prescribed in that Article. They explained that after the entry into force on 29 December 2009 of amendments to the relevant legislation providing a remedy for the excessive length of judicial proceedings, a constitutional complaint could no longer be lodged in respect of Supreme Court decisions rendered in proceedings for protection of the right to a hearing within a reasonable time. According to the Government, the Constitutional Court had already adopted that view in its decision no. U‑IIIVs-3669/2006 of 2 March 2010, which was published in the Official Gazette on 19 March 2010. The applicant, who had been represented by an advocate, should have been aware of that. Consequently, the final decision, within the meaning of Article 35 § 1 of the Convention, for the purposes of calculating the six-month time limit in the applicant’s case was not the Constitutional Court’s decision of 12 December 2012 (see paragraph 29 above) but the Supreme Court’s decision of 6 June 2011 (see paragraph 27 above). However, the applicant lodged his application with the Court on 16 April 2013 (see paragraph 1 above), that is to say more than six months later.
37. The Court notes that in another case it has already rejected a similar objection raised by the Government (see Vrtar, cited above, §§ 71-85) and sees no reason to hold otherwise in the present case. It follows that the Government’s objection regarding non-compliance with the six-month rule must be dismissed.
2. As to whether the applicant suffered a significant disadvantage
38. The Government submitted that the applicant had sought enforcement
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of the judgment of 1 June 2006 ordering his former employer to pay him a certain amount of money as remuneration for his overtime work (see paragraphs 6 and 8 above). However, he had subsequently been convicted for embezzling funds belonging to his employer and ordered to pay compensation in an amount approximately corresponding to that of the above-mentioned remuneration (see paragraph 7 above). Specifically, after the set-off of 9 March 2009, the remaining sum his employer had still owed him for his overtime work had amounted to HRK 599.40 only (see paragraphs 14 and 22 above), that is to say some 80 euros (EUR). In this connection the Government referred to cases where the amounts at stake had been higher than that in the present case and had ranged from EUR 90 (see Ionescu v. Romania (dec.), no. 36659/04, 1 June 2010) to EUR 228 (see Burov v. Moldova (dec.), no. 38875/03, 14 June 2011) and even EUR 504 (see Kiousi v. Greece (dec.), no. 52036/09, 20 September 2011). Since the Court had declared those cases inadmissible for lack of a significant disadvantage, the Government invited it to do the same with the applicant’s case.
39. The Court considers that the judgment debt relevant for the purposes of establishing what was at stake for the applicant is the sum he had initially sought (HRK 20,921.18 for overtime work and HRK 19,495.90 for the costs of civil proceedings, together with the accrued statutory default interest – see paragraphs 6 and 8 above), regardless of the fact that, in view of the set-off of 9 March 2009, the debtor company had eventually owed him a significantly lower amount, cited by the Government, as remuneration for overtime work (see paragraphs 14, 17, 22 and 38 above).
40. In any event, the Court notes that the debt the applicant’s former employer ultimately had to pay him did not consist only of remuneration for overtime work equaling HRK 599.40, as the Government suggested (see paragraph 38 above). Rather, as specified in the decision of 2 June 2011 (see paragraph 22 above), it also included (i) statutory default interest accrued on that amount from 11 March 2009, (ii) HRK 19,495.90 for the costs of civil proceedings, plus statutory default interest accrued on that amount from 1 June 2006, and (iii) HRK 2,606.25 for the costs of enforcement proceedings, plus interest accrued on that amount from 7 November 2008. In this connection the Court further notes that in the execution of that decision, on 21 July 2011 the Domestic Payments Agency transferred from the debtor company’s account to the accounts of the applicant and his legal representative a total of HRK 38,306.87, that is to say some EUR 5,125.12 (see paragraph 23 above). In the Court’s view, that sum cannot be considered insignificant. The Government’s objection concerning the alleged lack of a significant disadvantage must therefore be dismissed.
3. Abuse of the right of application
41. The Government argued that the applicant had abused the right of application in that he had not informed the Court that the enforcement proceedings complained of had ended.
42. The Court notes that the applicant in the present case complained (primarily) that he had not received any compensation for the delays in the enforcement proceedings (see paragraph 31 above) rather than of the fact that the judgment he had been seeking to enforce had not been enforced. In that context the fact that the enforcement was completed, while indeed important, is nevertheless not of such crucial importance that the applicant’s failure to inform the Court of it would constitute an abuse of the right of application. The present case therefore cannot be compared to the case of Kerechashvili v. Georgia ((dec.), no. 5667/02, 2 May 2006), where the applicant complained of the non-enforcement of a judgment in his favour but concealed the fact that the judgment in question had been enforced in part more than a year before he had lodged his application, and in full before it had been communicated to the respondent Government. It follows that the Government’s objection concerning the alleged abuse of the right of application must also be dismissed.
4. Conclusion as regards admissibility
43. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
44. 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).
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It further reiterates that enforcement proceedings by their very nature need to be dealt with expeditiously (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 23, ECHR 2000-IV) and that special diligence is necessary in employment disputes (see Ruotolo v. Italy, judgment of 27 February 1992, Series A no. 230-D, p. 39, § 17).
45. To decide whether the delay was reasonable, the Court will look at the complexity of the enforcement proceedings, how the applicant and the authorities behaved, and the nature of the award (see Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007).
46. The Court accepts that the applicant contributed to the delay in the proceedings complained of in that he did not immediately submit a copy of the judgment that he was seeking to enforce, stamped with a certificate of enforceability (see paragraphs 10 and 25 above). However, that omission on his part protracted the proceedings by some four months only (see paragraphs 8-11 above). Furthermore, the Court is not persuaded that the proceedings were of such complexity that could justify their remaining length amounting to some two years and eleven months. In particular, the Court is not convinced that the issue of whether the majority of the applicant’s claim for overtime work was extinguished by the set-off of 9 March 2009 (see paragraph 14 above) could not have been resolved earlier than 31 March 2011 (see paragraph 17 above).
47. 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, mutatis mutandis, Chernysheva v. Ukraine, no. 22591/04, §§ 20 and 23, 10 August 2006, and Bormotov v. Russia, no. 24435/04, §§ 17 and 19, 31 July 2008).
48. 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 delay in the enforcement 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
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 10,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.
51. The Government contested that claim.
52. 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 3,250 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
53. The applicant also claimed EUR 6,000 for the costs and expenses incurred before the domestic courts and for those incurred before the Court.
54. The Government contested that claim.
55. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 1,000 for costs and expenses incurred in the domestic proceedings and EUR 975 for those incurred in the proceedings before the Court, plus any tax that may be chargeable to the applicant on those amounts.
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 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, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement:
(i) EUR 3,250 (three thousand two hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,975 (one thousand nine hundred and seventy-five euros), plus any tax that may be chargeable to the applicant
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, 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 19 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan BakırcıPaul LemmensDeputy RegistrarPresident
[1] Approximately 2,876.55 euros (EUR) at the time.
[2] Approximately EUR 2,680.58 at the time.
[3] Approximately EUR 2,756.28 at the time.
[4] Approximately EUR 2,716.18 at the time
[5] Approximately EUR 80.27 at the time.
[6] Approximately EUR 2,610.78 at the time.
[7] Approximately EUR 349 at the time.
[8] Approximately EUR 5,125.12 at the time.
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FIRST SECTION
CASE OF PLOTNIKOVY v. RUSSIA
(Application no. 43883/02)
FINAL
JUDGMENT
This version was rectified on 30 June 2005
under Rule 81 of the Rules of the Court
STRASBOURG
24 February 2005
In the case of Plotnikovy v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
MrC.L. Rozakis, President,MrsS. Botoucharova,MrA. Kovler,MrsE. Steiner,MrK. Hajiyev,MrD. Spielmann,MrS.E. Jebens, judgesand Mr S. Nielsen, 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. 43883/02) 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 Ms Lyubov Aleksandrovna Plotnikova, the first applicant, and Mr Petr Vasilyevich Plotnikov, the second applicant, Russian nationals, on 26 November 2002.
2. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
3. On 13 May 2003 the Court decided to communicate the application. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicants were born in 1948 and 1944 respectively and live in Voronezh.
5. In 2000 the applicants each brought a set of proceedings against the welfare office of the Levoberezhnyi District of Voronezh to claim a raise of their pensions by a statutory index ratio.
6. On 10 October 2000 the Levoberezhnyi District Court of Voronezh granted both applicants' claims. It awarded them arrears of 1,123.07 roubles (RUR) and RUR 1,089.51 respectively. Both judgments entered into force on 21 October 2000.[i]
7. On 19 December 2000 the bailiff service instituted enforcement proceedings in respect of the judgments of 10 October 2000.
8. On 27 April 2001 the bailiff service terminated execution proceedings in respect of both judgments of 10 October 2000, which had not been enforced because of the lack of funds on the debtor's accounts.
9. On 30 May 2002, following the applicant's request, the bailiff service instituted new enforcement proceedings in respect of the judgments of 10 October 2000.
10. On 27 June 2002 the bailiff service terminated execution proceedings, again because of the lack of funds on the debtor's accounts.
11. The judgments of 10 October 2000 have not been enforced to date.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
12. The applicant complained that the prolonged non-enforcement of their respective awards provided for in the judgments of 10 October 2000 violated their “right to a court” under Article 6 § 1 of the Convention and their right to the peaceful enjoyment of possessions as guaranteed in Article 1 of Protocol No. 1 to the Convention. These Articles in so far as relevant provide as follows:
Article 6 § 1
“In the determination of his civil rights and obligations..., everyone is entitled to a fair... hearing... by [a]... tribunal...”
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
13. The Government contested the admissibility of the application on the ground that the applicants had failed to exhaust domestic remedies. They claimed that the applicants should have brought an action against the Administration of the Voronezh Region
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, which was liable for outstanding debts of the welfare office. They also alleged that the applicants should have brought an action against the bailiff service which was in charge of the execution proceedings.
14. The applicants contested the Government's objection and maintained their application.
15. The Court reiterates that Article 35 § 1 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 (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V, and Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII). The Court further recalls that the domestic remedies must be “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 (see Kudła v. Poland [GC], no. 30210/96, § 158, ECHR 2000‑XI).
16. The Court notes that the validity of the judgments held against the welfare office on 10 October 2000 is undisputed. The Court considers that having obtained a judgment and an execution order against a particular State authority the applicants should not be required to institute, on their own initiative, other proceedings against different State agency to meet their claims. Moreover, even assuming that the applicants brought an action against the Administration of the Voronezh Region, the underlying problem of non-enforcement of the judgments at issue would remain. The Court concludes that such an action would not have been an effective remedy within the meaning of Article 35 § 1 of the Convention.
17. In so far as the Government suggest an action against the bailiff service, no reasons were put forward why it should be considered an effective remedy. Neither party suggested that it was any inefficiency of the bailiff service which prevented the enforcement of the judgments at issue; it was apparently the lack of funds. The Court therefore finds that an action against the bailiff office would not have enhanced the applicants' prospects of receiving their awards. The Court considers that in the present case it could not be said to have constituted an effective remedy against non‑enforcement.
18. The Court therefore does not accept that the applicant was required to exhaust domestic remedies through a further court action against the Administration of the Voronezh Region or the bailiff service.
19. The Court notes that the application 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 Government did not dispute the validity of the judgments in question and admitted that the authorities were under obligation to enforce them. They did not present any justification for the failure to do so.
21. The applicants maintained their complaints.
Article 6 § 1 of the Convention
22. 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 the 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 v. Russia, no. 59498/00, § 34, ECHR 2002-III, and Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, p. 510, § 40).
23. The Court further reiterates that it is not open to a State authority to cite the lack of funds or other resources as an excuse for not honouring a court award. Admittedly, a delay in the execution of a judgment may be justified in particular
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circumstances, but the delay may not be such as to impair the essence of the right protected under Article 6 § 1. The applicant should not be prevented from benefiting from the success of the litigation on the ground of alleged financial difficulties experienced by the State (see Burdov v. Russia, cited above, § 35).
24. Turning to the instant case, the Court notes that the judgments of 10 October 2000 have until now remained unenforced for more than four years.
25. By failing for such a substantial period of time to take the necessary measures to comply with the final judicial decisions in the present case, the Russian authorities deprived the provisions of Article 6 § 1 of their useful effect.
26. There has accordingly been a violation of Article 6 § 1 of the Convention.
Article 1 of Protocol No. 1 to the Convention
27. The Court reiterates that a “claim” can constitute a “possession” within the meaning of Article 1 of Protocol No. 1 if it is sufficiently established to be enforceable (see Burdov v. Russia, cited above, § 40, and Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301-B, p. 84, § 59). The judgments of 10 October 2000 provided their respective beneficiaries with enforceable claims and not simply a general right to receive support from the State. The judgments had become final as no ordinary appeal was made against them, and enforcement proceedings had been instituted. It follows that the impossibility for the applicants to have the judgments enforced for a substantial period of time constitutes an interference with their right to peaceful enjoyment of their possessions, as set forth in the first sentence of the first paragraph of Article 1 of Protocol No. 1.
28. By failing to comply with above judgments, the national authorities have prevented the applicants from receiving their awards. The Government have not advanced any other justification but the lack of financial resources for this interference. However, the Court considers that the lack of funds cannot justify such an omission (see Burdov v. Russia, cited above, § 41).
29. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
30. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
31. The applicants claimed 5,000 euros (EUR) each in respect of pecuniary and non-pecuniary damage.
32. The Government consider that the amounts claimed are unreasonable and unsubstantiated. They believe that, in any event, their awards should be proportionate to the amounts due under the judgments which have not been enforced.
33. The Court notes that the applicants did not quantify the amount claimed in respect of pecuniary damage. In so far as their claims can be understood as referring to the amounts due under the judgments, the Court notes that the State's outstanding obligation to enforce the judgments at issue is not in dispute. Accordingly, the applicants are still entitled to recover the principal amount of the debt in the course of domestic proceedings. The Court recalls that the most appropriate form of redress in respect of a violation of Article 6 is to ensure that the applicant as far as possible is put in the position he would have been had the requirements of Article 6 not been disregarded (see Piersack v. Belgium (Article 50), judgment of 26 October 1984, Series A no. 85, p. 16, § 12, and, mutatis mutandis, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). The Court finds that in the present case this principle applies as well, having regard to the violations found. It therefore considers that the Government shall secure, by appropriate means, the enforcement of the awards made by the domestic courts. For this reason the Court does not find it necessary to make an award for pecuniary damage in so far as it relates to the principal amount.
34. As for non-pecuniary damage, the Court accepts that the applicants suffered distress because of the State authorities' failure to enforce the judgments. However, the amounts claimed in respect of non-pecuniary damage appear excessive. The Court takes into account the award made in the Burdov v. Russia case (cited above, § 47), such factors as the applicants' age, personal income, the nature of the awards in the present case, i.e. arrears in respect of the increase of retirement pension, the length of the enforcement proceedings and other relevant aspects. Making its
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assessment on an equitable basis, it awards each of the applicants EUR 1,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
35. The applicants made no claim 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. Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of each applicant;
3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention in respect of each applicant;
4. Holds
(a) that the respondent State, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, shall secure, by appropriate means, the enforcement of the awards made by the domestic courts, and in addition pay to each applicant EUR 1,500 (one thousand five hundred euros) in respect of non-pecuniary damage to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable 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;
5. Dismisses the remainder of the applicants' claim for just satisfaction.
Done in English, and notified in writing on 24 February 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren NielsenChristos RozakisRegistrarPresident
[i] Paragraphs 5 and 6 were rectified on 30 June 2005. The former version read as follows:
“5. In 2000 the applicants each brought a set of proceedings against the welfare office of Novovoronezh to claim a raise of their pensions by a statutory index ratio.
6. On 10 October 2000 the Novovoronezh Town Court of the Voronezh Region granted both applicants’ claims. It awarded them arrears of 1,123.07 roubles (RUR) and RUR 1,089.51 respectively. Both judgments entered into force on 21 October 2000.”
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COURT (PLENARY)
CASE OF BROZICEK v. ITALY
(Application no. 10964/84)
JUDGMENT
STRASBOURG
19 December 1989
In the Brozicek case[*],
The European Court of Human Rights, taking its decision in plenary session pursuant to Rule 50 of the Rules of Court and composed of the following judges:
Mr R. Ryssdal, President,
Mr J. Cremona,
Mr Thór Vilhjálmsson,
Mrs D. Bindschedler-Robert,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr J. Pinheiro Farinha,
Mr L.-E. Pettiti,
Mr B. Walsh,
Sir Vincent Evans,
Mr R. Macdonald,
Mr C. Russo,
Mr R. Bernhardt,
Mr A. Spielmann,
Mr J. De Meyer,
Mr J.A. Carrillo Salcedo,
Mr N. Valticos,
Mr S.K. Martens,
Mrs E. Palm,
Mr I. Foighel,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy Registrar,
Having deliberated in private on 28 September and 22 November 1989,
Delivers the following judgment which was adopted on the last- mentioned date:
PROCEDURE
1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 11 May 1988, within the three-month period laid down by Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). It originated in an application (no. 10964/84) against the Italian Republic lodged with the Commission under Article 25 (art. 25) by Mr Georg Brozicek, a German national, on 7 May 1984.
The Commission's request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Italy recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of certain of its obligations under Article 6 §§ 3 (a) and 1 (art. 6-3-a, art. 6-1).
2. In response to the enquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings. He was given leave to present his own case (Rule 30 § 1, second sentence).
3. The Chamber to be constituted included ex officio Mr C. Russo, the elected judge of Italian nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On 30 May 1988, in the presence of the Registrar, the President drew by lot the names of the other five members, namely Mr F. Matscher, Mr L.-E. Pettiti, Mr J. Gersing, Mr A. Spielmann and Mr J. De Meyer (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43). Subsequently, Mr Thór Vilhjálmsson, substitute judge, replaced Mr Gersing, who had died (Rules 22 § 1 and 24 § 1).
4. Mr Ryssdal assumed the office of President of the Chamber (Rule 21 § 5) and, through the Registrar, consulted the Agent of the Italian Government ("the Government"), the Delegate of the Commission and the applicant on the need for a written procedure (Rule 37 § 1). In accordance with the orders made in consequence, the registry received the applicant's memorial on 29 September 1988 and the Government's memorial on 2 November 1988.
In a letter which reached the registry on 10 January 1989, the Deputy Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing.
5. At the Government's request, the Court decided, on 23 February 1989, to hear five witnesses on a specific point and to order an opinion by a handwriting expert (Rule 40 § 1, first sub-paragraph).
6. The applicant for his part requested that other persons be called and the President agreed to this pursuant to Rule 40 § 1, second sub-paragraph, on the understanding that the evidence adduced should remain within the terms of reference already laid down by the Chamber
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.
7. The Chamber appointed Judges Matscher and Pettiti who took evidence from the various witnesses at a hearing held on 28 April 1989, in the presence of the participants in the proceedings before the Court.
They authorised one of the witnesses, who had a legitimate reason for being unable to come to Strasbourg, to submit a written statement which would be assessed by the Court as to its admissibility and relevance. Written statements by two other persons, which the applicant had sent to the registry on 24 April, were dealt with in the same way.
8. On 5 May 1989 the President received the opinion of Mrs A.-M. Jacquin-Keller, a handwriting expert at the Colmar Court of Appeal and approved by the French Court of Cassation, on the task which had been assigned to her by the Chamber (see paragraph 5 above).
The Court had previously obtained from the Commission, for the purposes of the investigative measure in question, various documents from the national proceedings and specimens of the applicant's handwriting.
9. On the same day, having consulted, through the Registrar, those who would be appearing before the Court, the President directed that the oral proceedings should open on 22 May 1989 (Rule 38).
10. The hearing took place in public in the Human Rights Building, Strasbourg, on the appointed day. The Court had held a preparatory meeting immediately beforehand.
There appeared before the Court:
- for the Government
Mr L. Ferrari Bravo, Head of the Diplomatic Legal Service
of the Ministry of Foreign Affairs, Agent,
Mr G. Grasso, avvocato,
Mr G. Raimondi, magistrato, Counsel;
- for the Commission
Mr G. Batliner, Delegate.
On the day of the hearing the applicant informed the Court that he was unable to attend because of an illness. He agreed to the hearing's being conducted in his absence. On 20 May he had supplied the text of his address.
The Court heard addresses by Mr Ferrari Bravo for the Government and Mr Batliner for the Commission as well as their replies to its questions.
11. On various dates between 22 May and 9 October, the participants in the proceedings before the Court sent to the registry observations, communications and documents, on their own initiative or at the Court's request, as the case may be.
12. On 26 May, after having deliberated, the Chamber relinquished jurisdiction forthwith in favour of the plenary Court (Rule 50).
13. Having taken note of the Government's agreement and the concurring opinions of the Commission and the applicant, the Court decided, on 28 September 1989, to proceed to judgment without holding a further hearing (Rule 26).
AS TO THE FACTS
I. PARTICULAR CIRCUMSTANCES OF THE CASE
14. Mr Georg Brozicek was born in Czechoslovakia and now resides at Steinalben in the Federal Republic of Germany, of which country he is a national.
15. On 13 August 1975 the municipal police of Pietra Ligure (Savona) detained him on the public highway shortly after he had torn down some small ornamental flags erected in connection with a fête organised by a political party. The police, who had intervened at the request of one of the organisers, took him to the police station because he did not have any identity papers with him and, according to their version of events, because he had to be protected against the hostility of the participants. On this occasion he wounded one of the police officers.
On 14 August the carabinieri, who had also intervened on the previous day, submitted a report on the incident to the Savona Public Prosecutor's Office. On the same day Mr Brozicek sent a letter, in French, to the Police Chief (questore) of Savona, which was subsequently transmitted to the Public Prosecutor, who ordered its translation into Italian on 31 January 1976.
16. The Public Prosecutor's Office opened an investigation and on 23 February 1976 sent to the applicant - by registered letter requiring acknowledgment of receipt and bearing the address of the applicant's then residence in Nuremberg - a "judicial notification" (comunicazione giudiziaria; see paragraphs 24-25 below). It informed him that proceedings had been instituted against him for the offences of resisting the police and assault and wounding (Articles 337 and 582 of the Criminal Code). In addition, it invited him to appoint a defence lawyer of his choice and informed him that if he failed to do so Mr T. S., avvocato, would be appointed by the authorities.
On 1 March 1976 Mr Brozicek returned the document to the Public Prosecutor's Office with the following note (translation from the German):
"I return the enclosed document to the sender as I find it difficult to understand. In lodging my detailed complaint of 14 August - on which no action has yet been taken even though the facts complained of could have
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far-reaching consequences - and in all correspondence to date with the Italian authorities, I have always expressly requested that either the mother tongue of the persons concerned or one of the international official languages of the United Nations be used, in order to avoid from the outset any risk of misunderstanding."
The Public Prosecutor's Office received this letter on 3 March 1976. It did not send any reply and did not have the letter translated.
17. On 17 November 1978 the Public Prosecutor's Office sent to the applicant by registered letter requiring acknowledgment of receipt a second "judicial notification". In addition to the information contained in the first notification, it asked the applicant to provide an address for service in Italy (Article 177 bis of the Code of Criminal Procedure).
On 5 December 1978 the German postal authorities returned the letter to the sender marked "unclaimed".
The acknowledgment of receipt bore the name "Brozicek", in a different space to that provided for the addressee's signature. The Government maintained that it was the applicant's signature but he has always denied this; he claimed that he had not received the communication because he had just moved house. The expert opinion ordered by the Court (see paragraphs 5 and 8 above) did not resolve this question.
18. By an order (decreto) of 13 December 1978 the Public Prosecutor stated that it had not been possible to notify the applicant and that "further enquiries at the place of birth and place of last residence" had not produced any result. He appointed a defence lawyer and directed that all the documents for notification to the accused during the investigation should thereafter be lodged at the secretariat of the Public Prosecutor's Office.
At the hearing before the European Court on 22 May 1989, the Government affirmed that the reference to further enquiries was probably an oversight. They maintained that the provision applied to the applicant was the second part of the second paragraph of Article 177 bis of the Code of Criminal Procedure (concerning an accused who has given no address for service, see paragraph 26 below), which does not require such enquiries.
The Public Prosecutor summonsed Mr Brozicek to appear for examination on 30 December 1978, but to no avail, and, on that day, he asked the President of the Savona Regional Court to commit the applicant for trial.
19. The trial was set down for 3 November 1980 but when the time came the proceedings had to be adjourned because the date of the hearing had not been notified to the accused.
On 11 March 1981 the President of the Savona Court decided that any notification would be lodged with the court registry because the accused had not provided an address for service in Italy (Articles 170 and 177 bis of the Code of Criminal Procedure, see paragraph 26 below). He also appointed a lawyer to represent the accused.
After an adjournment for reasons extraneous to the proceedings, the trial took place on 1 July 1981.
On that date the applicant was convicted in absentia, sentenced to five months' imprisonment and ordered to pay the costs. The sentence was, however, suspended and no reference to the conviction was to be included in criminal-record certificates issued at the request of private individuals.
20. This decision too was notified to the applicant by being lodged at the court registry because, still pursuant to Article 177 bis of the Code of Criminal Procedure, the president of the court had again noted, on 2 July, that Mr Brozicek had not provided an address for service in Italy.
As there was no appeal, the judgment became final on 7 July 1981.
21. On 5 May 1984 the applicant received a letter from the Principal Public Prosecutor at the German Federal Court of Justice (Bundesgerichtshof). The letter informed him of his conviction by judgment of the Savona court of 1 July 1981, which had become final on 7 July 1981, and that the conviction had been entered in the German criminal records (Article 52 of the Criminal Records Act, Bundeszentralregistergesetz).
22. On 7 May Mr Brozicek lodged an application with the Commission, stating, inter alia, that "the possibilities for appealing [were] manifestly time-barred under Italian law...". On the same day he also wrote to the German Ministry of Foreign Affairs and the Italian Ministry of Justice.
In his letter to the German Ministry he requested its assistance in securing, as soon as possible, the rectification or the annulment of the Savona judgment.
In his letter to the Italian Ministry he claimed that he had not received any information in his own language on the trial and had been unable to defend himself because neither the indictment nor the judgment had been notified to him. He asked what possibilities of appealing against the decision were open to him.
On 5 October the Italian Ministry replied that he could lodge an appeal against the judgment outside the normal time-limits (hereinafter referred to as a "late appeal"; see paragraph 26 below), if the notification to him had not been lawfully made, and seek a
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retrial.
The applicant did not avail himself of either of these possibilities.
23. The German Ministry of Foreign Affairs instructed the Consulate General of the Federal Republic of Germany at Genoa to determine whether there was any possibility of appealing against the judgment of 1 July 1981. As the first result of its communications with the Savona court, the Consulate forwarded to the applicant, on 10 July 1989, a photocopy of the Italian text of the judgment, which was for the most part handwritten. Mr Brozicek acknowledged receipt of this text by a letter dated 18 July 1984.
II. DOMESTIC LAW
A. Judicial notification
24. A judicial notification is the document by which the judicial authorities inform the person suspected of having committed an offence that an investigation has been opened and invite him to appoint a defence lawyer of his choice and to provide an address for service. It must specify the legal provisions infringed and the date of the alleged offence.
25. The investigating judge, in the event of a "formal" investigation, or the public prosecutor, where the investigation is "summary", must send the notification at the very beginning of their investigation (Articles 304 and 390 of the Code of Criminal Procedure).
The notification must be sent by registered letter requiring acknowledgment of receipt. If the letter is not delivered because the addressee is untraceable (irreperibile), a bailiff must serve the notification in accordance with the normal procedure (Articles 168-175 of the Code of Criminal Procedure).
B. Notifications, trial in absentia (contumacia) and "late appeal" (appello apparentemente tardivo)
26. In its Foti and Others judgment of 10 December 1982 and its Colozza judgment of 12 February 1985 (Series A no. 56, p. 12, §§ 33-36, and Series A no. 89, p. 11, §§ 18-19, and pp. 12-13, §§ 21-23) the Court gave a brief description of the Italian legislation then in force as regards the notification to a person or an accused who is "untraceable", trial in absentia (contumacia) and "late appeal" (appello apparentemente tardivo).
In this regard Article 177 bis of the Code of Criminal Procedure provides as follows (translation from the Italian):
"Where there is precise information in the documents in the proceedings as to the place where the accused resides abroad, the Public Prosecutor or trial judge (pretore) shall send him by registered letter notification of the proceedings against him with an invitation to declare or otherwise give notice of an address for service in the place where the proceedings are conducted. This formality shall neither suspend nor delay the proceedings.
Where the accused's address abroad is unknown or where he has not declared or otherwise given notice of an address for service or if the information provided by him is insufficient or inadequate, the judge or the public prosecutor shall make the order (decreto) provided for in Article 170.
The above provisions shall not apply where the issue of an arrest warrant is mandatory."
The second sub-paragraph of Article 170 states that (translation from the Italian):
"The judge or the public prosecutor... shall take a decision appointing a defence lawyer to act for the accused where he does not yet have one in the place where the proceedings are conducted and ordering that notification which has proved or proves impossible to carry out be effected by means of lodging the relevant documents at the registry of the judicial organ before which the proceedings are pending. The defence lawyer shall be informed without delay of any such notification."
The possibility of lodging a "late appeal" was at the time derived from judicial interpretation of Articles 500 and 199 of the Code of Criminal Procedure, according to which (translation from the Italian):
Article 500
"In the case of in absentia proceedings, an extract of the decision or judgment shall be notified to the accused who may lodge against it any appeal that would have been open to him in respect of a judgment delivered in adversarial proceedings, subject to the provisions of the third paragraph of Article 199."
Article 199
"...
For the decisions or judgments referred to in Article 500, the period within which the accused may appeal shall begin to run from the notification of the decision or judgment.
..."
On the basis of these provisions the courts had consistently held that if the notification of an extract of a decision or judgment delivered in absentia was not lawful because it had been wrongly assumed that the accused did not intend to participate in the proceedings, the person concerned could, within three days, contest such notification and challenge the finality of the decision in question. If he was successful in so doing, he was accorded a new time-limit within which to appeal against the said decision.
The new Code of Criminal Procedure, which came into force on 24 October 1989, now makes express provision for this possibility of "re-establishing the time-limit".
PROCEEDINGS BEFORE THE COMM
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ISSION
27. Mr Brozicek lodged his application with the Commission on 7 May 1984 (no. 10964/84). He alleged a breach of Article 6 § 3 (a) (art. 6-3-a) of the Convention inasmuch as he had not been informed in a language which he understood of the nature and the cause of the accusation against him. He also complained of a violation of Article 6 § 1 (art. 6-1) on the ground that, since he had been tried in absentia without having any opportunity to defend himself, he had not had a fair trial.
28. The Commission declared the application admissible on 11 March 1987. In its report of 22 March 1988 (Article 31) (art. 31), it expressed the opinion that there had been a violation of Article 6 § 3 (a) (art. 6-3-a) (by eleven votes to one, with two abstentions) and of Article 6 § 1 (art. 6-1) (by thirteen votes, with one abstention). The full text of its opinion and of the two separate opinions accompanying it is reproduced as an annex to this judgment[*].
AS TO THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
29. According to the Government, Mr Brozicek had three domestic remedies available to him which he failed to exhaust. These were: the right to lodge a "late appeal"; the right to apply for a review of the compatibility of Articles 170 and 177 bis of the Code of Criminal Procedure with Articles 10 and 24 of the Constitution; and the possibility, with regard to the complaint concerning the use of language, of pleading, at the stage of the proceedings brought before the Savona Regional Court and thereafter, the nullity of the judicial notification and of other documents relating to the investigation.
A. Admissibility
30. In accordance with its established case-law, the Court has jurisdiction to examine preliminary objections of this kind. However, amongst other conditions, the State in question must have raised them before it not later than the expiry of the time-limit laid down for the filing of its memorial (Rule 47 § 1 of the Rules of Court).
The second limb of the Government's submission does not satisfy this requirement as regards the possibility of relying on Article 10 of the Constitution. To this extent, it must therefore be dismissed as out of time (see, inter alia, the Barberà, Messegué and Jabardo judgment of 8 December 1988, Series A no. 146, p. 27, § 56).
B. The merits of the remainder of the objection
1. A "late appeal"
31. In the Government's view, the applicant could have entered a "late appeal" in order to contest the lawfulness of the notification to him of an extract of the judgment of 1 July 1981 by lodgement with the court registry and, consequently, to challenge the finality of the decision in question. This would have made it possible for him first to raise the question of the application in his case of the rules concerning accused persons residing abroad whose whereabouts are known and who have no address for service in the place where the proceedings are conducted (second possibility envisaged under the second paragraph of Article 177 bis of the Code of Criminal Procedure, see paragraph 26 above), and then to appeal against his conviction.
The Commission considered nevertheless that the shortness of the time-limit to be complied with - three days from the notification of the judgment, or from the date on which the person concerned had adequate knowledge thereof - made the exercise of such a remedy purely theoretical in the present case.
32. The only remedies that Article 26 (art. 26) of the Convention requires to be exhausted are those that are available and sufficient and relate to the breaches alleged. It falls to the respondent State to establish that these various conditions are satisfied (see, inter alia, the Ciulla judgment of 22 February 1989, Series A no. 148, p. 15, § 31).
In the circumstances of the case, the Court does not consider that the appeal in question was sufficiently available. At the time, the possibility of bringing such an appeal was not expressly provided for in the legislation, but was based only on judicial interpretation of Articles 500 and 199 of the Code of Criminal Procedure in the version then in force (see paragraph 26 above). In addition, in view of the fact that the judgment of 1 July 1981 was not notified to Mr Brozicek in person,the point of time at which the three-day period for lodging notice of intention to appeal began to run was open to doubt. This was acknowledged to some extent by the Government inasmuch as they stated that it was "probable" that the dies a quo was not 5 May 1984 but a date in July 1984, when the applicant received a copy of the judgment (see paragraph 23 above).
To avoid all risk, the applicant would have had
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to lodge notice of his intention to appeal within the three days following 5 May, which he would have been able to do only if, within this time, he had consulted a lawyer, or some other person, conversant with Italian criminal procedural law. In the Court's view, he could not reasonably have been required to do so, especially since when he learned of his conviction the judgment had been final for a number of years.
33. Nor does the "late appeal" appear capable of remedying in this case the violations alleged.
The appeal court would have had to have declared it admissible before it was competent to review the conviction. To this end, it would have been necessary for the applicant to satisfy the appeal court that the Savona Regional Court had been wrong to conclude that he had not wanted to give an address for service in that town.
Moreover, the case-law cited by the Government does not establish that the remedy in question could have been effective in Mr Brozicek's case. In this respect, the Court refers to its Colozza judgment of 12 February 1985 (Series A no. 81, p. 16, § 31).
2. Application for review of the compatibility of Articles 170 and 177 bis of the Code of Criminal Procedure with Article 24 of the Constitution
34. In the Government's submission, the applicant could at any time have requested a review of the compatibility of Articles 170 and 177 bis of the Code of Criminal Procedure with Article 24 of the Constitution. By so doing he would have "reactivated the proceedings".
The Court would observe that in the Italian legal system an individual is not entitled to apply directly to the Constitutional Court for a review of the constitutionality of a law. Only a court which is hearing the merits of a case has the possibility of making a reference to the Constitutional Court, at the request of a party or of its own motion. Accordingly, such an application cannot be a remedy whose exhaustion is required under Article 26 (art. 26) of the Convention.
Furthermore, the application would in practice have had to be attached to a "late appeal", which the Court has found not to be sufficiently available and effective in this case (see paragraphs 32-33 above).
3. The possibility of pleading the nullity of the judicial notification and other documents relating to the investigation
35. According to the Government, the applicant could have pursued in the domestic courts his complaint concerning the use of Italian in the judicial notification or in the notice prescribed in Article 177 bis of the Code of Criminal Procedure.
The Court has difficulty in seeing how he could have formulated such a complaint in the Savona Regional Court since he maintains that he was not duly informed of the proceedings instituted against him. As regards the possibility of raising the question in connection with a "late appeal", the Court refers to the last sub-paragraph of the preceding paragraph.
4. Conclusion
36. It follows from the foregoing that the preliminary objection is in part out of time and for the rest unfounded.
II. THE ALLEGED VIOLATIONS OF ARTICLE 6 (art. 6)
37. Mr Brozicek alleged the violation of paragraphs 1 and 3 (a) of Article 6 (art. 6-1, art. 6-3-a), which are worded as follows:
"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:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
...."
It is in the Court's view appropriate to examine in the first place the arguments based on paragraph 3 (a) (art. 6-3-a).
A. Paragraph 3 (a) (art. 6-3-a)
38. The applicant claimed that he had not been informed, "in a language which he [understood]", of the institution of criminal proceedings against him. In addition, the judicial notification of 23 February 1976 (see paragraph 16 above) did not in his opinion contain "information in detail" of the "nature and cause of the accusation".
The Court notes that this document constituted an "accusation" within the meaning of Article 6 (art. 6) (see the Corigliano judgment of 10 December 1982, Series A no. 57, p. 14, § 35).
39. After having received the judicial notification of 23 February 1976, the applicant wrote to the Savona Public Prosecutor's Office, telling them that he had difficulty in understanding the contents of this communication for linguistic reasons. He requested it to use his mother tongue or one of the official languages of the United Nations (see paragraph 16 above).
The judicial authorities did not reply to him. They continued to draw up the documents intended for Mr Brozicek only in Italian. They made no reference whatsoever to
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the language problem, except in the judgment of 1 July 1981, in which the Savona Regional Court attributed to the accused a fair knowledge (discreta padronanza) of Italian.
40. According to the Commission, the authorities did not take steps to verify that the applicant understood Italian, but merely presumed that he understood the substance of the judicial notification. The Government disputed this interpretation of the facts. They contended that it was absolutely clear from the documents in the case that Mr Brozicek had had an adequate knowledge of Italian.
41. In the Court's opinion, it is necessary to proceed on the basis of the following facts. The applicant was not of Italian origin and did not reside in Italy. He informed the relevant Italian judicial authorities in an unequivocal manner that because of his lack of knowledge of Italian he had difficulty in understanding the contents of their communication. He asked them to send it to him either in his mother tongue or in one of the official languages of the United Nations.
On receipt of this request, the Italian judicial authorities should have taken steps to comply with it so as to ensure observance of the requirements of Article 6 § 3 (a) (art. 6-3-a), unless they were in a position to establish that the applicant in fact had sufficient knowledge of Italian to understand from the notification the purport of the letter notifying him of the charges brought against him.
No such evidence appears from the documents in the file or the statements of the witnesses heard on 23 April 1989 (see paragraphs 5-7 above). On this point there has therefore been a violation of Article 6 § 3 (a) (art. 6-3-a).
42. On the other hand, the Court considers the allegation that the judicial notification of 23 February 1976 did not identify "in detail... the nature and cause of the accusation" to be unfounded. This communication was intended to inform Mr Brozicek of the institution of proceedings against him; it sufficiently listed the offences of which he was accused, stated the place and the date thereof, referred to the relevant Articles of the Criminal Code and mentioned the name of the victim.
B. Paragraph 1 (art. 6-1)
43. The applicant also relied on paragraph 1 of Article 6 (art. 6-1), claiming that he had not been given the possibility of participating in the trial in order to defend himself against the charges brought against him. He had therefore not received a fair hearing of his case.
44. The Commission shared this view. The Government, however, contested it. They maintained that the applicant had been informed of the existence of criminal proceedings by the notification of 23 February 1976 (see paragraph 16 above) and then by the communication, which he had not accepted, of 17 November 1978 (see paragraph 17 above). Accordingly, in their view, he had deliberately refused to answer for his actions in court and to exercise his rights.
45. The evidence does not establish that Mr Brozicek intended to waive his right to participate in the trial, a right "not expressly mentioned in paragraph 1 of Article 6 (art. 6-1)" but whose existence is shown by the "object and purpose of the Article (art. 6) taken as a whole" (see the Colozza judgment, cited above, Series A no. 89, p. 14, § 27). The present judgment has already found that the judicial notification of 23 February 1976 did not satisfy one of the requirements of Article 6 § 3 (a) (art. 6-3-a) of the Convention. As regards that of 17 November 1978, the Court is not satisfied that that Mr Brozicek was aware of it. It was returned to the secretariat of the Savona Public Prosecutor's Office as unclaimed (see paragraph 17 above), in circumstances which remain uncertain. Furthermore, the expert consulted at the Government's request concluded that the acknowledgment of receipt did not bear the applicant's signature (see paragraphs 5, 8 and 17 above).
Again, the President of the Savona Regional Court did not seek to notify Mr Brozicek in person of the summons to appear before his court. In accordance with Italian law, he ordered that it be lodged with the court registry (see paragraph 19 above), so that Mr Brozicek was deemed to have been informed of each document relating to the proceedings and was judged in absentia.
46. Accordingly, the trial was not fair within the meaning of Article 6 § 1 (art. 6-1).
III. APPLICATION OF ARTICLE 50 (art. 50)
47. Under Article 50 (art. 50),
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if
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necessary, afford just satisfaction to the injured party."
Mr Brozicek first requested the Court to declare the judgment of 1 July 1981 void and to order that it be struck out of his record. However, the Court is not so empowered under the Convention (see, inter alia, the Hauschildt judgment of 24 May 1989, Series A no. 154, p. 23, § 54).
The applicant also sought compensation for damage and the reimbursement of costs and expenses.
A. Damage
48. In the first place, he maintained that he had sustained pecuniary damage which he assessed at 1,300,000 Swiss francs. His claim in this respect is however based on circumstances unrelated to the violations found, and cannot therefore be entertained by the Court.
He also claimed 200,000 Swiss francs for non-pecuniary damage. The Court recognises that the violations found must have caused him some degree of damage of this nature, but the finding of infringements of Article 6 (art. 6) constitutes in this case sufficient just satisfaction in this respect.
B. Costs and expenses
49. Mr Brozicek sought, in addition, the reimbursement of the costs and expenses incurred by him before the Commission and subsequently the Court, in so far as they were not covered by the legal aid accorded to him.
According to the Government, the fact that he had received legal aid meant that this claim had to be dismissed. In any event the applicant had not shown that his defence had necessitated the expenses indicated by him.
50. During the proceedings before the Commission, Mr Brozicek took the initiative of having two examinations carried out by handwriting experts. They cost him 1,027.27 Deutschmarks, which should be reimbursed to him, because in this case they constituted a normal means of obtaining evidence.
The Court also admits the fee - 1,900 Swiss francs - paid to a Swiss lawyer instructed by the applicant, after the case had been referred to the Court, to secure a friendly settlement with the respondent Government.
Finally, Mr Brozicek listed a number of expenses relating to travel, in particular to Strasbourg, photocopies, printing, telephone communications, postal charges, translation and the purchase of material. He calculated such expenses at a total of 5,260 Deutschmarks. In the Court's view, however, certain of these items were not genuinely necessary. Making an equitable assessment in accordance with Article 50 (art. 50), it awards the applicant 3,000 Deutschmarks under this head.
51. It follows from the foregoing that the respondent State is to pay to the applicant a total of 4,027.27 Deutschmarks and 1,900 Swiss francs.
FOR THESE REASONS, THE COURT
1. Dismisses by fifteen votes to five the objection of non-exhaustion of domestic remedies as regards the possibility of a "late appeal";
2. Dismisses unanimously the remainder of the said objection;
3. Holds by fifteen votes to five that there has been a violation of paragraphs 3 (a) and 1 of Article 6 (art. 6-3-a, art. 6-1) of the Convention;
4. Holds unanimously, as regards the non-pecuniary damage sustained by the applicant, that the present judgment constitutes in itself adequate just satisfaction for the purposes of Article 50 (art. 50);
5. Holds unanimously that the respondent State is to pay to the applicant in respect of costs and expenses 4,027.27 Deutschmarks (four thousand and twenty-seven marks and twenty-seven pfennigs) and 1,900 (one thousand nine hundred) Swiss francs;
6. Dismisses unanimously the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 19 December 1989.
Rolv RYSSDAL
President
Marc-André EISSEN
Registrar
In accordance with Article 51 § 2 (art. 51-2) of the Convention and Rule 52 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
- joint dissenting opinion of Mr Thór Vilhjálmsson, Mr Pettiti, Mr Russo, Mr De Meyer and Mr Valticos;
- separate opinion of Mr Martens.
R.R.
M.-A.E.
JOINT DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON, PETTITI, RUSSO, DE MEYER AND VALTICOS
(Translation)
We consider that the domestic remedies were not exhausted in this case.
The applicant could have appealed against the
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judgment convicting him delivered in Savona[1]. He did not do so.
He chose to apply to the Commission as early as 7 May 1984[2], barely two days after having learnt, on 5 May 1984, of the existence of the judgment[3] and more than two months before the earliest point at which the period prescribed for filing an appeal could have begun to run, since he did not in fact receive a copy of the judgment until between 10 and 18 July 1984[4].
If he was able to set in motion the Convention machinery so quickly, he could equally have taken the necessary steps to institute proceedings in the Italian appeal court in good time.
His conduct is all the more difficult to understand because he has himself a certain amount of legal knowledge, since he was, as he has stated, a Doctor of Laws and former lawyer[5]. It was for him to obtain information and advice concerning the remedies available to him and he had ample time to do so. He had known, since 1976, that criminal proceedings had been instituted against him in Italy[6] and did not have to contact the Ministry of Justice[7] to obtain such information and advice. Moreover, it appears clearly from the facts of the case that the applicant never gave an address for service and never had the intention of so doing[8]. Contrary to the view which the majority seems to take in this respect[9], there could therefore be very little doubt as to the admissibility of the appeal.
* * *
As the applicant did not give the respondent State the opportunity to remedy, in its domestic legal system, the violation of his rights, in so far as there was a violation, we consider, for this very reason, that it is not possible to find such a violation.
SEPARATE OPINION OF JUDGE MARTENS
1. The present case is a striking example of the practical consequences of the doctrine which was adopted by the Court in 1971 in its De Wilde, Ooms and Versyp judgment[10].
In that judgment the Court held that it had jurisdiction to examine preliminary objections as to admissibility, such as one based on non-exhaustion of local remedies, in so far as those objections had first been raised before the Commission. This doctrine has since been refined[11] and regularly applied[12].
The present case is rather simple as to its merits, but the preliminary objections which the respondent State reiterated before the Court raised difficult questions, both of interpretation of Article 26 (art. 26) of the Convention and of Italian law, and required, moreover, delicate factual assessments. Consequently the Chamber, after deliberations which occupied eleven judges for at least half a day, relinquished jurisdiction in favour of the plenary Court, whereupon twenty judges had to devote some further five hours to deliberations on these questions. This experience made me ask whether, under present conditions, the Court should abide by its aforementioned doctrine or should overrule its De Wilde, Ooms and Versyp judgment[13].
* * *
2. A court that is considering whether it should overrule its own case-law will have to ponder various aspects of that question. I will mention three. It will, firstly, have to assess whether the arguments invoked for the new ruling are definitely more convincing than those on which its existing case-law was based, for one should overrule only if one is convinced that the new doctrine is clearly the better law. Secondly, there is the policy side of the question to be looked into. Lastly, the court will have to consider how serious a blow overruling would be to legal certainty.
I will make some remarks on each of these aspects.
* * *
3.1 In my opinion the arguments against the Court's aforementioned doctrine are definitely more convincing than those on which that doctrine was based.
3.2 The Court has based its doctrine mainly on the broad wording of Articles 45 and 46 (art. 45, art. 46) of the Convention and has inferred therefrom that "once a case is duly referred to it,... the Court is endowed with full jurisdiction and may thus take cognisance of all questions of fact and of law which may arise in the course of the consideration of the case"[14] (my italics).
The various dissenters in the De Wilde, Ooms and Versyp case have already shown that this interpretation of the term "cases" ("affaires") in Article 45 (art. 45) is hardly compatible with the wording of Articles 31, 32 and 48 (art. 31, art. 32, art. 48) which rather seems to suggest that the term "case" ("affaire") means - as Judge Bilge put it - "the question whether there has or has not been a violation of the Convention"[15]. As those dissenters did not fail to stress, the economy of the Convention supports this construction of the term "case" ("affaire"): the system of the Convention would appear to be
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that it is for the Commission (exercising a judicial function) to make a final decision on admissibility and (exercising an advisory function) to express an opinion "as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention" (Article 31) (art. 31), whereupon the question "whether there has been a violation of the Convention" (Article 32) (art. 32) shall be finally decided either by the Committee of Ministers or by the Court. The Court's later case-law enhances this argument based on the system of the Convention by admitting that it is the Commission's decision on admissibility which "determines the object of the case brought before the Court" and by considerably qualifying its above-quoted ruling on the extent of its jurisdiction by the words "it is only within the framework so traced that the Court... may take cognisance of all questions of fact or of law..."[16] (my italics). But neither this acknowledgement nor the repeated stressing that the "framework" or "compass" of the case is decisively "delimited by the Commission's admissibility decision"[17] has induced the Court to abandon the aforementioned doctrine. Yet it would seem clear that this doctrine is hard to reconcile with the delimitative force of the Commission's decision on admissibility!
3.3 One can look at this argument based on the system of the Convention from yet another angle. The Court is not to act as a court of appeal from the Commission and has not been empowered to quash its decisions. It does not fit in with this system that (as is possible under the Court's doctrine) in one and the same case the Commission should reject the preliminary objection, accept the petition and express the opinion that there has been a violation, while the Court should find that objection well-founded and therefore hold that it is unable to take cognisance of the merits of the case. It is not to be assumed that the Convention makes it possible for a case to end with two contradictory decisions.
3.4 In its De Wilde, Ooms and Versyp judgment the Court also relied especially on the importance of the exhaustion rule which "delimits the area within which the Contracting States have agreed to answer for wrongs alleged against them before the organs of the Convention"[18]. It even went so far as to suggest that the observance of this rule was as important to States as the observance of the rights and freedoms guaranteed in the Convention was to individuals; it implied thereby that just as the question whether the latter rights had been respected is examined by both the Commission and the Court, so too the question whether local remedies have been exhausted should be examined by both Convention organs.
I cannot accept this equation. In my opinion there is a marked difference in kind between the fundamental rights and freedoms of individuals guaranteed in the Convention and the traditional privilege of States of being dispensed "from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system"[19]. The implied argument for a double control is therefore not only totally unconvincing for me, but rather militates against the Court's doctrine: that doctrine is apt to create the wrong impression that the rules of Article 26 (art. 26), rules that are mainly procedural devices for sifting purposes, are equal in status and importance to the rights and freedoms under the Convention.
3.5 There is a further - and in my eyes rather weighty - argument against the aforementioned doctrine of the Court: that doctrine creates a disparity between the parties, because when the Commission accepts a preliminary objection as to admissibility based on non-exhaustion of domestic remedies, the applicant (who, ex hypothesi, is a victim of a violation)[20] cannot attack that decision before the Court, but in the reverse case the supposedly wrong-doing State can. Under a convention which stresses that one of the basic principles of fair trial is equality of arms, that seems at least odd.
3.6 To round off I would draw attention to the fact that the aforementioned doctrine of the Court has also been criticised, sometimes rather severely, by quite a number of learned writers[21]. In my opinion this too is an aspect to be taken into account when considering whether or not the Court should overrule its De Wilde, Ooms and Versyp judgment.
* * *
4.1 Coming now to the policy side of the problem, I propose to consider various practical arguments pro and contra the doctrine under discussion.
4.2 The first practical argument that comes to mind is decidedly contra: it is very undesirable that an applicant, who after some years of battling has won his case before the Commission, should find himself, after a further rather long period of stress, denied a judgment on the merits.
4.3 A second practical argument is pro: it will be clear that the main rationale of Article 26 (art. 26) is to provide means for the
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task of sifting which Article 27 (art. 27) assigns to the Commission; it will also be clear that for the case-load of the Court it is not immaterial how the Commission interprets and applies the rules of Article 26 (art. 26). Therefore, there is a certain interest for the Court in being able to control the Commission in this respect.
It must be noted, however, that this argument is of a purely theoretical character. It is true that in 1971, when the De Wilde, Ooms and Versyp judgment was rendered, the Court may have felt some uncertainty as to whether or not the Commission held the same views as the Court with regard to the interpretation and the application of the principle of prior exhaustion of domestic remedies. But at that time the case-load of the Court was nearly non-existent[22], so that for practical purposes it would have been without any importance if the Commission were to have interpreted and applied Article 26 (art. 26) more leniently than the Court deemed fit. And now, nearly twenty years later - when the proper functioning of the Court would, having regard to its present case-load, be seriously endangered by such interpretation and application -, experience has taught that in this respect there do not exist serious differences of opinion between the Commission and the Court: in all those years the Court has only twice come to a conclusion that differed from that of the Commission[23]!
4.4 A third, and in my view decisive, practical argument is contra. I refer again to the continuing and rather alarming increase in the Court's case-load which, were the Commission to become a semi-permanent body, would only become worse. This increase should, in my opinion, prompt re-thinking of accepted doctrines. Abandonment of the doctrine under discussion would result in a considerable saving of time and energy. This is because preliminary objections are argued before the Court in many cases and quite often raise difficult and therefore time-consuming questions: firstly it may be necessary to go very carefully over the files of the Commission to ascertain whether or not the objection has already been raised - in substance (!) - before the Commission; then, questions may arise as to the interpretation of the many subtly connected rules that we conveniently, but with some over-simplification, designate as the exhaustion rule; and, lastly, it may be necessary to go into intricate questions of domestic law and to make difficult factual assessments. Moreover, most of these questions will already have been answered by the other Convention organ, which has far more practice and therefore experience in this field than the Court. The time and energy spent on these questions could and should be devoted to the Court's specific task of ensuring the observance of the rights and freedoms guaranteed in the Convention.
* * *
5. I then come to legal certainty. Of course it may be said that every overruling affects legal certainty, but there are differences of degree. A court should not overrule an interpretation of a rule of civil law on which society has based its contracts. But it would seem to me that the rules we are concerned with here do not enter into that very special category where overruling is almost unthinkable.
It may be true that without the rule of exhaustion some, or perhaps even many, Contracting States would hardly have been willing to accept the system of "the international machinery of collective enforcement established by the Convention"[24]. But one cannot seriously maintain that they accepted that machinery in the expectation that the observance of that rule would be tested twice. And even if somewhere reliance was placed on such an expectation, it would not seem to deserve protection: at least I cannot see that real State interests which are seriously worthy of protection would be harmed if the Court were to decide that, once the case is brought before it, respondent States would no longer be afforded an opportunity to escape from having to answer as to the merits.
* * *
6. Having considered these various aspects of the question whether, under present conditions, the Court should overrule its De Wilde, Ooms and Versyp judgment of 1971, I have come to the conclusion that it should be answered in the affirmative. For the sake of completeness I would like to add that it should, of course, not be inferred from the above considerations that in those - presumably rare - cases in which the non-exhaustion issue cannot be separated from the merits the Court would lack jurisdiction to take cognisance of that issue as well.
7. For these reasons I have voted in favour of rejecting the Italian Government's objections as to admissibility only under the proviso that in my opinion the Court ought to refuse to take cognisance of them.
[*] Note by the registry. The case is numbered 7/1988/151/205. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases
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referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.
[*] Note by the Registrar. For practical reasons this annex will appear only with the printed version of the judgment (volume 167 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.
[1] Paragraph 26 of the judgment.
[2] Paragraph 1 of the judgment.
[3] Paragraph 21 of the judgment.
[4] Paragraph 23 of the judgment.
[5] See his letter of 8 July 1988, requesting leave to present his own case before the Court.
[6] Paragraph 16 of the judgment.
[7] Paragraph 22 of the judgment.
[8] Paragraphs 17 to 20 of the judgment.
[9] Paragraph 33 of the judgment.
[10] Judgment of 18 June 1971, Series A no. 12, pp. 29-31, §§ 47-55.
[11] See the Artico judgment of 13 May 1980, Series A no. 37, p. 12, § 24, and the Van Oosterwijck judgment of 6 November 1980, Series A no. 40, p. 13, § 25: "insofar as the respondent State may have first raised them before the Commission, in principle at the stage of the initial examination of admissibility, to the extent that their character and the circumstances permitted."
[12] See, for example, the Klass and Others judgment of 6 September 1978, Series A no. 28, p. 17, § 32, and, as the most recent instance, the Bricmont judgment of 7 July 1989, Series A no. 158, p. 27, § 73.
[13] As far as I am aware, there are no examples of explicit overruling in the Court's case-law. That does not mean, of course, that the Court would hold that it lacks power to overrule its own precedents; it did so implicitly in paragraph 78 of its above-mentioned De Wilde, Ooms and Versyp judgment where it in fact retracted what it had said in paragraph 24 of its Neumeister judgment of 27 June 1968 (Series A no. 8, p. 44). (I owe this reference to the kind help of our Registrar.)
[14] See the above-mentioned De Wilde, Ooms and Versyp judgment, p. 29, § 49.
[15] See the above-mentioned De Wilde, Ooms and Versyp judgment, p. 52; see to the same effect Judge Wold at p. 57.
[16] See the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 63, § 157. See also the Winterwerp judgment of 24 October 1979, Series A no. 33, p. 27, § 71.
[17] See the Johnston and Others judgment of 18 December 1986, Series A no. 112, p. 23, § 48.
[18] See p. 29, § 50.
[19] Quotation from the above-mentioned De Wilde, Ooms and Versyp judgment, p. 29, § 50.
[20] I refer to the working hypothesis mentioned in paragraph 27 of the aforementioned Van Oosterwijck judgment (cited in note 2).
[21] See, for example: Jacobs, The European Convention on Human Rights (1975), pp. 263/264; Pelloux, Annuaire français de droit international, 1972, pp. 444-445 (who rightly points out that the most likely interpretation of Article 45 (art. 45) is to assume that it refers to the conditions set out in Articles 46, 47 and 48 art. 46, art. 47, art. 48)); Trechsel, Zeitschrift für Schweizerisches Recht, 1975, pp. 422-423; A.A. Cançado Trindade, Human Rights Journal, 1977, pp. 149 et seq.; G. Cohen Jonathan, Cahiers de droit européen, 1979, p. 480; D. Sulliger, L'épuisement des voies de recours internes en droit international général et dans la Convention européenne des droits de l'homme (1979), pp. 152-154; Van Dijk and Van Hoof, Theory and practice of the European Convention on Human Rights (1984), pp. 123-128; Frowein-Peukert, Europäische Menschenrechtskonvention, p. 448.
[22] Since 1959 only 10 cases had been brought before the Court.
[23] See the Van Oosterwijck judgment, referred to in note 2,
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and the Barberà, Messegué and Jabardo judgment of 6 December 1988, Series A no. 146, pp. 28-29, § 59.
[24] Quotation from the Court's judgment of 23 July 1968 in the case "relating to certain aspects of the laws on the use of languages in education in Belgium", Series A no. 6, p. 35, § 10.
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FIRST SECTION
CASE OF AMIROV v. RUSSIA
(Application no. 51857/13)
JUDGMENT
STRASBOURG
27 November 2014
FINAL
20/04/2015
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Amirov 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,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar,
Having deliberated in private on 4 November 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 51857/13) 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 Said Dzhaparovich Amirov (“the applicant”), on 12 August 2013.
2. The applicant was represented by Mr D. Khoroshilov, a lawyer practising in Moscow. 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 alleged, in particular, that he was not receiving adequate medical assistance while in detention and that he had been remanded in custody without valid reasons.
4. On 16 August 2013 the President of the First Section, acting upon the applicant’s request of 13 August 2013, decided to apply Rules 39 and 41 of the Rules of Court, indicating to the Government that the applicant should be immediately examined by medical experts independent from the prison system with a view to determining (1) whether the treatment he was receiving in the temporary detention facility was adequate for his condition; (2) whether his state of health was compatible with the conditions of his detention; and (3) whether the applicant’s condition required his placement in a hospital.
5. On 29 August 2013, having received the Government’s reply to the Court’s letter of 16 August 2013, the President of the First Section reminded the Government of the interim measure applied under Rule 39 of the Rules of Court. The Government’s attention was also drawn to the fact that the failure of a Contracting State to comply with a measure indicated under Rule 39 could entail a breach of Article 34 of the Convention.
6. On 21 October 2013 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. The applicant was born in 1954 and prior to his arrest lived in the town of Makhachkala, Dagestan Republic. He is currently being detained in a temporary detention facility in Rostov-on-Don.
A. Background. The applicant’s detention
8. In 1993 the applicant, at the material time the deputy Prime Minister of the Dagestan Republic, survived an assassination attempt. However, his spine was badly wounded and he became paralysed. He cannot walk and is confined to a wheelchair. He also lost his ability to urinate or defecate without special medical procedures, such as catheters and enemas.
9. Since 1998 the applicant has been mayor of Makhachkala, the Dagestan Republic.
10. Сriminal proceedings were instituted against the applicant on suspicion of organised aggravated murder and attempted murder of State officials, including several prosecutors, investigators, a member of the town council and the head of the investigative committee in the Dagestan Republic. The investigation was assigned to a group of senior investigators and criminologists from the investigative committees of various regions of the Russian Federation and led by the deputy head of the Russian Federal Investigative Committee, a major-general. The applicant was arrested on 1 June 2013.
11. On the following day the Basmanniy District Court of Moscow ordered the applicant’s detention pending trial, citing the gravity of the charges against him and the risk that he might abscond, interfere with the investigation, in particular influence witnesses, and reoffend. The District Court’s decision was based on the applicant’s official powers and his
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significant contacts with various persons involved in the investigation, as well as his consequent ability to influence the investigation. The court referred to the case-file materials, according to which a number of defendants arrested on suspicion of participating in the murders were also public officials and law-enforcement agents, investigators or police officers. They had identified the applicant as the “master-mind” of the murders, had provided details of the murders and had argued that certain victims had been murdered in retaliation for their failure to obey the applicant’s orders.
12. At the same time, the District Court dismissed the applicant’s arguments pertaining to his poor state of health, his stable family situation, his age and his standing in the community, having considered that they did not outweigh the reasons warranting his detention. The District Court was also not convinced by the description given by the head of the Makhachkala police department portraying the applicant as “an example of compliance with the law and public order”.
13. The decision of 2 June 2013 was upheld on appeal on 3 July 2013 when the Moscow City Court found the District Court’s finding reasonable and convincing. The City Court also noted that no alternative measure, such as house arrest or a written undertaking, could ensure the proper course of the criminal proceedings.
14. On 26 July 2013 the Basmannyy District Court extended the applicant’s detention until 11 November 2013, having again linked the gravity and nature of the charges against him, as well as his standing in society, to the likelihood that he would obstruct the course of justice, reoffend or abscond. The District Court once again relied on the applicant’s connections to support the conclusion that if released he would tamper with the evidence. At the same time, the District Court took into account a medical opinion issued on 17 July 2013 (cited in detail below), according to which the applicant’s state of health did not preclude his detention in the conditions of an ordinary detention facility. It also noted that there was no evidence that the authorities had delayed the pre-trial investigation. The District Court concluded by stressing that the case was particularly complex, involved a large number of defendants and required a series of investigative steps to be taken.
15. On 20 September 2013 new charges were brought against the applicant. He was charged with firearms trafficking and attempting to organise a terrorist attack on a public official, his political rival. According to the investigation, the applicant and his accomplices had intended to shoot down, with a portable anti-aircraft rocket launcher, a civilian aircraft in which the public official was to travel from Makhachkala to Moscow with other passengers.
16. On 7 November 2013 the Basmannyy District Court accepted the investigators’ request to extend the applicant’s detention again until 28 February 2014. The District Court noted the gravity of the charges, including the new ones, and the fact that the applicant was facing a sentence of up to life imprisonment. It once again cited the risks of the applicant absconding, reoffending and obstructing the course of justice, and expressed concern for the safety of the witnesses and victims. The District Court noted that the investigation of certain criminal offences with which the applicant was charged was at an active stage and that the risk of his interfering with the investigation, if he were released, was well-founded. More than eleven defendants had been arrested and certain suspects were yet to be apprehended. The District Court placed particular weight on the complexity of the case and the progress that the investigators were making with it.
17. The District Court also examined in detail the arguments put forward by the defence in favour of the applicant’s release and the application of a more lenient measure of restraint. It concluded that neither his family ties nor his state of health outweighed the reasons for his continued detention. In particular, the District Court relied on the medical opinions of 17 July and 7 August 2013, which had found that the applicant’s illness was not among those listed in Governmental Decree no. 3 of 14 January 2011 preventing the detention of a suspect. It further stressed that on a daily basis at least three medical specialists from municipal and State medical facilities (“generalists, surgeons, neurologists, urologists, endocrinologists, proctologists, an infectious diseases specialist, and a rehabilitation specialist”) had examined the applicant and that he had received the prescribed drug treatment in full. Moreover, he had undergone all the necessary laboratory testing and clinical examinations in certified civilian laboratories in Moscow and on 5 November 2013 he was to undergo yet another expert examination to determine whether he was suffering from any illness warranting his release. Having cited a long list of the applicant’s illnesses, the District Court noted that there was no evidence that his condition had deteriorated or that he required treatment in a specialised medical facility. The District Court dismissed as unreliable various expert opinions and medical records prepared by specialists, including foreign
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ones, in various related fields of medicine and produced by the defence in support of their argument that the applicant’s life was being put at risk by his prolonged detention in the conditions of an ordinary detention facility and in the absence of adequate medical assistance.
18. On 25 February 2014 the Basmannyy District Court extended the applicant’s detention until 1 June 2014. Having again assessed the materials presented to it by the investigation and the defence, the District Court concluded that the risks of the applicant influencing witnesses, reoffending, obstructing the investigation by other means and absconding were still present. In particular, the criminal proceedings against the applicant were at a crucial stage of collecting evidence and there was a risk that, using his connections in the criminal underworld, the applicant might try to influence witnesses and victims who feared him. The District Court also cited the medical reports of 17 July, 7 August and 8 November 2013, which supported its conclusion that the applicant’s state of health did not preclude his further detention.
19. It appears that the applicant’s detention was further extended. However, neither party provided the Court with an update.
20. On 9 July 2014 the North-Caucasian Military Court found the applicant guilty of conspiring to organise a terrorist attack and sentenced him to ten years’ imprisonment. The applicant was stripped of all State awards and commendations. It appears that the criminal proceedings on the remaining charges against the applicant are still pending.
B. The applicant’s medical condition
21. Numerous medical certificates and expert opinions submitted by the parties show that the applicant is suffering from a spinal cord injury, paraplegia, chronic urinary tract infection, chronic pyelonephritis (kidney infection), chronic urinary retention, rectal prolapse (a condition in which the rectum protrudes out of the anus), paraproctitis (an inflammation of the cellular tissues surrounding the rectum), ischemic heart disease, chronic heart failure, hypertension, a thyroid gland disease, hepatitis C and non-insulin-dependent diabetes.
22. At the request of the applicant’s representatives a panel comprising experts in neurology, urology and general medicine examined the applicant’s medical records dating from the period between 2001 and 2008. Their report dated 2 July 2013 found that, due to his inability to satisfy his most basic needs (such as moving, urinating or defecating) without help and to his very serious diseases, the applicant required constant medical supervision, treatment and assistance and that he should therefore be placed in a specialised medical facility. His detention in a temporary detention facility could aggravate his condition and, in the absence of a swift reaction to such an aggravation, could result in his death. The report also found that the applicant was suffering from diseases which, according to Governmental Decree no. 3 of 14 January 2011, were incompatible with detention.
23. On 17 July 2013 a panel of three doctors from State hospital no. 20 in Moscow examined the applicant at the investigator’s request. Having studied the applicant’s medical history, the results of his recent clinical blood and urine analyses, as well as the results of his ultrasound scan and MRT examinations, the doctors confirmed the diagnoses and found that the applicant “was not suffering from any of the serious diseases included in the list of serious illnesses precluding detention of a suspect or an accused”. The report did not indicate the field of medicine in which the doctors specialised.
24. In response to a request by the investigator, on 25 July 2013 the director of the medical unit of temporary detention facility (SIZO-2) in Moscow, where the applicant was detained, prepared a certificate describing the applicant’s state of health. Citing extracts from the medical records, the director reported that the applicant was examined by him almost every day and also by various specialist doctors, including a urologist, a neurologist, a surgeon, a cardiologist and an endocrinologist. Blood and urine tests were regularly performed. He was prescribed and administered various medications. The applicant used disposable catheters to urinate. He performed that procedure himself, as he had done before his arrest, up to ten times a day without the facility administration having the possibility of ensuring the requisite level of asepsis. An enema was carried out by a doctor two or three times a week to make the applicant defecate. The applicant’s condition was stable and no deterioration in his health had been noted, although he had continued to raise various health complaints.
25. At the same time, the director of the medical unit also noted that, because the applicant was confined to a wheelchair, he could not be transported to the medical unit of the detention facility. He was therefore held in an ordinary cell where he was visited by the doctors and where all the necessary medical procedures were performed. In particular, the neighbouring cell which was used to perform the
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enemas was not suitable for that medical procedure as it was difficult to ensure the requisite sterility. The director stressed that lack of sterility could result in a serious complication.
26. The applicant’s lawyers submitted the medical report of 17 July 2013 for assessment by two medical specialists: a deputy president of the Russian Scientific Society of Medical Experts, academician and honorary doctor of the Russian Federation, Mr K.; and a member of the Russian and International Neurosurgeons’ Association, academician and highly respected professor-neurosurgeon, Mr S. On 25 July 2013 the two experts issued their review of the report. Having noticed the lack of information on the medical qualifications and specialisation of the three doctors who had issued the report, the two experts considered that the report contained a number of “significant and important contradictions”. In particular:
- a urologist had not examined the applicant or participated in the preparation of the report of 17 July 2013, even though the applicant was suffering from a serious urological disorder;
- although the three doctors had been provided with a complete set of medical records comprising the applicant’s medical history, including those related to his injuries and complications, the report was only based on “fragments of that information”; major complications arising from the applicant’s condition, such as chronic cystitis and pyelonephritis, remained unassessed;
- Governmental Decree no. 3 of 14 January 2011 listed, among the serious illnesses precluding the detention of a suspect, “serious progressive forms of atrophic and degenerative illnesses of the nervous system accompanied by a stable disorder of the motor, sensory and vegeto-trophic functions”, which fully corresponded to the applicant’s diagnosis. However, that medical condition had not been taken into account by the three doctors who had prepared the report of 17 July 2013;
- the applicant was also suffering from a life-threatening post-traumatic pathology of the kidneys and urinary tracts. However, despite the fact that a similar condition was also listed by the Governmental decree among the illnesses precluding detention, the three doctors had paid no attention to it.
27. The two experts concluded that the report of 17 July 2013 was incomplete and was not objective, as it did not fully reflect the “true picture of [the applicant’s] pathology, which undoubtedly fell within the serious illnesses precluding detention pending trial, as determined by Governmental Decree no. 3 of 14 January 2011”.
28. On 7 August 2013 the three doctors from hospital no. 20 issued another report confirming the findings in their previous report of 17 July 2013. The doctors again concluded that the applicant’s condition did not warrant his release as he was not suffering from any illness listed in Governmental Decree no. 3. The findings of the two reports were similar, the only difference being that part of the second report was based on more recent clinical tests and examinations of the applicant.
C. Rule 39 request
29. On 13 August 2013 the applicant asked the Court to apply Rule 39 of the Rules of Court and to authorise his transfer to a specialised medical facility as an interim measure.
30. The applicant claimed that the medical assistance he was receiving in the temporary detention facility was insufficient in view of his very serious diseases, which required constant medical supervision by specialised medical staff. The facility’s medical staff were not competent to deal with such serious conditions. The treatment he was receiving there did not correspond to the treatment he had received before his arrest. Moreover, he was unable to satisfy his most basic needs without help. In particular, when he wanted to defecate, he had to wait, suffering, until an external specialist was called, as the facility staff were not qualified to carry out an enema. According to the applicant, such inadequate medical assistance could result in a brutal aggravation of his condition and ultimate death.
31. On 16 August 2013 the Court decided to indicate to the Russian Government, under Rule 39 of the Rules of Court, that it was desirable in the interests of the proper conduct of the proceedings that the applicant be immediately examined by medical experts independent from the prison system with a view to determining: (1) whether the treatment he was receiving in the detention facility was adequate for his condition; (2) whether his current state of health was compatible with detention in the conditions of a detention facility; and (3) whether his current condition required his placement in a hospital.
32. On 26 August 2013 the Government responded to the Court’s letter of 16 August 2013, having submitted a handwritten copy of the report prepared when the applicant was examined on admission to the detention facility SIZO-2 in Moscow; documents showing that the detention facility was licensed to provide medical services to inmates; certificates issued jointly by the head of the detention facility and the director of its medical unit describing the
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state of the applicant’s health and listing the medical procedures to which he had been subjected; extracts from the applicant’s medical history dating back to 2007; a certificate issued by the same two officials informing the Court that there was no risk to the applicant’s life and limb and that his condition was considered stable; a handwritten copy of the applicant’s medical record drawn up in the detention facility in which the most recent entry had been made on 21 August 2013 by a prison doctor; a record drawn up during the applicant’s stay in hospital no. 20 in Moscow from 11 to 17 July 2013, noting the applicant’s diagnosis and assessing his condition as moderately serious; a medical record from a psychiatric prison hospital where he had stayed from 12 to 17 June 2013 and where he had been treated for an “adaptation disorder affecting emotions and behaviour”; copies of the two medical reports issued on 17 July and 7 August 2013, respectively, by a medical commission of three doctors from hospital no. 20 who, having cited the applicant’s medical history and the results of his examinations by various specialists and clinical tests performed in the hospital in July 2013 and the beginning of August 2013, concluded that the applicant was “not suffering from an illness included in the list of serious illnesses precluding detention of suspected or accused persons”.
33. The Government also answered the three questions which, in its letter of 16 August 2013, the Court had asked them to address to independent medical experts. In particular, having provided an answer to the first question related to the adequacy of the applicant’s treatment, the Government stressed that the applicant had been placed under dynamic medical supervision by the medical personnel of the detention facility in relation to illnesses of the musculoskeletal, endocrine, hepatobiliary and urinary systems. They acknowledged that the applicant, as a wheelchair- bound inmate, required systematic care and permanent medical attention, which were being provided to him in a special cell. He was performing the remaining hygiene procedures himself. The Government submitted that the applicant received the necessary medical attention and that no additional medical procedures were required.
34. In their response to the second question about the compatibility of the applicant’s state of health with the conditions of the detention facility, the Government stressed that the applicant was under the medical supervision of the personnel of the detention facility and was also being seen by various civilian medical specialists. The prison doctors were fully complying with the treatment plan developed by the civilian specialists.
35. In replying to the third question as to whether the applicant needed to be transferred to a hospital, the Government relied on the two reports issued by the three doctors from hospital no. 20 on 17 July and 7 August 2013, according to which the applicant was not suffering from any condition included in the list of serious illnesses precluding the detention of suspected and accused persons in detention facilities, as provided for by in Decree no. 3 of the Government of the Russian Federation of 14 January 2011.
36. On 29 August 2013 the Court reminded the Russian Government that on 16 August 2013 an interim measure had been imposed under Rule 39 of the Rules of Court, in accordance with which independent medical experts were to examine the applicant and provide their expert opinion on the three questions, assessing the quality of the applicant’s treatment, the compatibility of his state of health with the conditions of the detention facility and the need to transfer him to a hospital. The Government’s attention was also drawn to the fact that the failure of a Contracting State to comply with a measure indicated under Rule 39 may entail a breach of Article 34 of the Convention.
37. On 13 September 2013 the Government submitted an English translation of their submissions of 26 August 2013.
D. Developments following the application of Rule 39 and communication of the case to the Government
38. The applicant submitted a large number of medical reports and opinions issued by various Russian and foreign experts. In particular, he provided the Court with a copy of an opinion issued by Dr P. of the Nurnberg Centre of Gastroenterology in Germany, where he had undergone treatment on a number of occasions since 2004. The doctor who had attended to the applicant on those occasions stressed that he was in need of permanent medical supervision by qualified specialists. The lack of such assistance, in the doctor’s opinion, was life-threatening. He also noted that the conditions of a detention facility were not suitable for a person in the applicant’s state of health.
39. The applicant also provided the Court with an assessment report issued on 15 August 2013 by a deputy president of the Russian Scientific Society of Medical Experts, academician and honorary doctor of the Russian Federation, Dr K., in response to the medical opinion prepared on 7 August 2013 by the three doctors from hospital no. 20. Dr K. again criticised the opinion for the same defects as those identified in the previous report of 17 July 2013.
40. According to another report prepared
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on 2 August 2013 by Professor B., a surgeon from the Caspari Clinic in Munich, Germany, the applicant required complex daily medical examinations and procedures to control his diabetes, hepatitis C and urological problems. The doctor, who had treated the applicant in December 2012 and January 2013, insisted that the lack of such care would be critically dangerous for the applicant’s life.
41. Another medical expert from Germany, a urologist from a hospital in Dillenburg, in his opinion of 5 August 2013, described the complexity of the applicant’s health condition and listed the treatment which he should receive on a daily basis. He concluded that the applicant’s detention in the absence of such treatment posed a threat to his life.
42. Two more specialist reports were issued in November 2013: the first, by a professor of urology/andrology from Salzburg, Dr J.; and the second by a professor of surgery and intensive surgical medicine from the Paracelsus Private Medical University of Salzburg, Dr W. The reports were based on the applicant’s medical record and answers to their questions prepared by the applicant’s defence team. Having noted the poor sanitary conditions in which the applicant had to undergo necessary procedures and his “reduced immune system”, their prognosis for him was “very bad”, with the likelihood that “over time he would suffer from antibiotic-resistant urinary tract infection that [could] cause urosepsis with a very high risk of [death]”. Dr J. concluded that from the medical evidence before him, the applicant already had a permanent urinary tract infection which would probably soon develop into urosepsis. There was a 60% to 90% chance of developing septic shock and death in such a case, even in optimal clinical conditions. That chance became far more probable in a prison environment. The risk was even higher than for otherwise healthy paraplegic men given that the applicant was suffering from diabetes. Having listed various medical procedures and recommendations for treatment, Dr J. concluded that the applicant’s life “was in acute danger” and that “high-quality medical management of [the applicant’s] problems [was] mandatory”.
Dr W. concluded his analysis of the applicant’s health and the treatment to which he was being subjected with the following assessment:
“In my 40 years of professional experience as a surgeon, I have never encountered such inhuman, demoralizing and humiliating treatment of [a disabled person] bound to a wheelchair. A paraplegic patient has the same life expectancy as a [non-disabled] person, provided the measures described above are followed. Based on the documents presented to me, I have no reason to assume that this is the case.
Given the circumstances described here, one may expect the patient to experience severe and agonizing pain. Due to the non-existent medical care, one may anticipate severe complications or his demise.”
43. On 17 December 2013 Dr W. amended his expert opinion. Having again listed all the illnesses with which the applicant had been diagnosed by the Russian prison authorities, Dr W. stated as follows:
“From the medical view it is absolutely insignificant if one or more of those diseases are not in the list of serious diseases preventing the holding in custody of suspects or accused of the commission of crimes.
On the other hand, it is proved in international medical literature that the combination of all these serious diseases causes an enormous life threatening situation for [the applicant]. The patient is really very critically ill.”.
44. In the meantime, relying on the Court’s letter of 16 August 2013, on 27 September 2013 the applicant’s lawyers asked the investigators in the case to provide the applicant with an opportunity to be examined in person by a number of medical experts from various civilian hospitals, including those who had prepared the reports assessing the doctors’ opinions of 17 July and 7 August 2013. The lawyers insisted that the named specialists had agreed to provide their expert opinion in response to the three questions put by the Court before the Russian Government under Rule 39 of the Rules of Court.
45. On 3 October 2013 the lawyers received a letter from the senior investigator “fully refusing” their request. Having pointed out that the applicant had already been examined twice by doctors from hospital no. 20, a civilian hospital, and that the doctors had concluded that the applicant was not suffering from an illness included in the list of serious illnesses precluding detention pending trial, the senior investigator dismissed the request.
46. The lawyers sent a similar request to the director of the applicant’s detention facility. The director responded that he did not “in principle” object to such an examination by medical experts, but that the decision authorising the examination could only be taken by the investigator.
47. The applicant was again sent for an examination to hospital no. 20
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, where the three doctors confirmed their previous findings of 17 July and 7 August 2013. The new report issued on 5 November 2013 was very similar.
48. The lawyers also submitted to the Court a large number of certificates issued by the administration of the detention facility showing that the applicant’s daily needs in terms of medicines and medical materials, including catheters, were covered by his relatives. The director of the detention facility also confirmed that fact in his letter of 23 October 2013.
49. On 1 April 2014 the applicant was transferred to temporary detention facility no. 4 in Rostov-on-Don. A prison doctor attending on the applicant in that facility issued a record listing a number of visits to the applicant by various medical specialists and registering the applicant’s mounting complaints. In the same record she stated that while the applicant remained under permanent medical supervision and was subjected to regular clinical examinations, with his condition, due to those procedures, being satisfactory, any of his illnesses at any time could lead to a significant deterioration in his health and become acute or chronic, with an unpredictable prognosis for his life expectancy.
II. RELEVANT DOMESTIC LAW
A. Provisions governing the quality of medical care afforded to detainees
50. Russian law gives detailed guidelines for the provision of medical assistance to detained individuals. These guidelines, found in joint Decree no. 640/190 of the Ministry of Health and Social Development and the Ministry of Justice on the Organisation of Medical Assistance to Individuals Serving Sentences or Remanded in Custody (“the Regulation”), enacted on 17 October 2005, are applicable without exception to all detainees. In particular, section III of the Regulation sets out the initial steps to be taken by medical personnel of a detention facility on the admission of a detainee. On arrival at a temporary detention facility, all detainees should be subjected to a preliminary medical examination before they are placed in a cell shared by other inmates. The aim of the examination is to identify individuals suffering from contagious diseases and those in need of urgent medical assistance. Particular attention should be paid to individuals suffering from contagious conditions. No later than three days after the detainee’s arrival at the detention facility he or she should receive an in‑depth medical examination, including an X-ray. During the in-depth examination a prison doctor should register the detainee’s complaints, study his medical and personal history, record any injuries and recent tattoos, and schedule additional medical procedures, if necessary. A prison doctor should also authorise laboratory analyses to identify sexually transmitted diseases, HIV, tuberculosis and other illnesses.
51. Subsequent medical examinations of detainees are performed at least twice a year or following a detainee’s complaints. If a detainee’s state of health has deteriorated, medical examinations and assistance should be provided by the detention facility medical staff. In such cases a medical examination should include a general check-up and additional tests, if necessary, with the participation of the relevant specialists. The results of the examinations should be recorded in the detainee’s medical file. The detainee should be comprehensively informed about the results of the medical examinations.
52. Section III of the Regulation also sets out the procedure to follow in the event that the detainee refuses to undergo a medical examination or treatment. For each refusal, an entry should be made in the detainee’s medical record. A prison doctor should comprehensively explain to the detainee the consequences of his refusal to undergo the medical procedure.
53. Any medicines prescribed to the detainee must be taken in the presence of a doctor. In a limited number of circumstances, the head of the detention facility medical department may authorise his medical personnel to hand over a daily dose of medicines to the detainee to be taken unobserved.
54. The Internal Regulations of Correctional Institutions, in force since 3 November 2005, deal with every aspect of inmates’ lives in correctional institutions. In particular, paragraph 125 of the Regulations provides that inmates who are willing and able to pay for it may receive additional medical assistance. In such a situation, medical specialists from a State or municipal civilian hospital are to be called to the medical unit of the correctional institution where the inmate is being detained.
55. Governmental Decree no. 3 of 14 January 2011 concerning the medical examination of individuals suspected or accused of criminal offences regulates the procedure for authorising and performing a medical examination of a detainee to determine whether he or she is suffering from a serious illness preventing his or her detention. It also contains a list of such serious illnesses. A decision on the medical examination of a detainee is taken by the director of the detention facility following a written request from a detainee or his or her legal representative or a request by the head of the medical unit of that detention facility. The examination is performed by a medical commission of a facility appointed by the health service executive body of the respective region of the Russian Federation. The activities of the medical commission are determined by the Ministry of Health and Social Development of the Russian Federation.
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56. The examination is performed within five days of the medical facility receiving the relevant order. Following the examination, the medical commission issues a report stating whether the detainee is suffering from a serious illness listed in the Decree. If a detainee who was previously examined by the medical commission experiences deterioration in his or her health, a new medical examination can be authorised.
57. The list of serious illnesses preventing the detention of suspected or accused persons comprises diseases affecting various systems of the human body. The sections devoted to illnesses affecting the endocrinal, nervous and urogenital systems read as follows:
“Illnesses affecting the endocrinal system, eating disorders and metabolic disorders
Serious forms of insular diabetes accompanied by complications or stable health impairment leading to a significant reduction in vitality and requiring lengthy treatment in a specialised medical facility.
Serious disorders of the thyroid gland (if their surgical correction is impossible) and of other endocrine glands accompanied by complications or stable health impairment leading to a significant reduction in vitality and requiring lengthy treatment in a specialised medical facility.
Diseases of the nervous system
Inflammatory diseases of the central nervous system of a progressive nature accompanied by an apparent phenomenon of focal brain damage with stable impairment affecting motor, sensory and vegeto-trophic functions, leading to a significant reduction in vitality and requiring lengthy treatment in a specialised medical facility.
Serious forms of atrophic and degenerative diseases of the nervous system of a progressive nature with stable impairment affecting motor, sensory and vegeto-trophic functions, leading to a significant reduction in vitality and requiring lengthy treatment in a specialised medical facility.
Progressive neuromuscular synapsis and muscular diseases with stable impairment affecting motor functions, leading to a significant reduction in vitality and requiring lengthy treatment in a specialised medical facility.
...
Urogenital system disorders
Kidney and urinary tract disorders and complications following other illnesses requiring regular extracorporal detoxification.
Kidney and urinary tract disorders accompanied by complications or stable health impairment leading to a significant reduction in vitality and requiring lengthy treatment in a specialised medical facility.
Injuries, poisoning and other consequences of external factors
Anatomic defects (amputations) arising after an illness, or injuries leading to a significant reduction in vitality [and] requiring permanent medical supervision.”
B. Provisions governing detention
58. The relevant provisions governing detention are described in the judgment of Pyatkov v. Russia (no. 61767/08, §§ 48-66, 13 November 2012).
III. RELEVANT INTERNATIONAL REPORTS AND DOCUMENTS
A. Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, adopted on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies (“the European Prison Rules”)
59. The European Prison Rules provide a framework of guiding principles for health services. The relevant extracts from the Rules read as follows:
“Health care
39. Prison authorities shall safeguard the health of all prisoners in their care.
Organisation of prison health care
40.1 Medical services in prison shall be organised in close relation with the general health administration of the community or nation.
40.2 Health policy in prisons shall be integrated into, and compatible with, national health policy.
40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.
40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.
40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.
Medical and health care personnel
41.1 Every prison shall have the services of at least one qualified general medical practitioner.
41.2 Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency.
...
41.4 Every prison shall have personnel suitably trained in health care.
Duties of the medical practitioner
42.1 The medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission, and shall examine them unless this is obviously unnecessary.
...
42.3 When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to:
..;
b. diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment;
...
43.1 The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially
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directed.
...
Health care provision
46.1 Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals when such treatment is not available in prison.
46.2 Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment.”
B. 3rd General Report of the European Committee for the Prevention of Torture (“the CPT Report”)
60. The complexity and importance of health-care services in detention facilities was discussed by the European Committee for the Prevention of Torture in its 3rd General Report (CPT/Inf (93) 12 - Publication Date: 4 June 1993). The following are extracts from the Report:
“33. When entering prison, all prisoners should without delay be seen by a member of the establishment’s health care service. In its reports to date the CPT has recommended that every newly arrived prisoner be properly interviewed and, if necessary, physically examined by a medical doctor as soon as possible after his admission. It should be added that in some countries, medical screening on arrival is carried out by a fully qualified nurse, who reports to a doctor. This latter approach could be considered as a more efficient use of available resources.
It is also desirable that a leaflet or booklet be handed to prisoners on their arrival, informing them of the existence and operation of the health care service and reminding them of basic measures of hygiene.
34. While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay...
35. A prison’s health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds)... Further, prison doctors should be able to call upon the services of specialists.
As regards emergency treatment, a doctor should always be on call. Further, someone competent to provide first aid should always be present on prison premises, preferably someone with a recognised nursing qualification.
Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.
36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital...
38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.
There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.)....
39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.
Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise.
40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service....”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
61. The applicant complained that the Government’s failure to have his medical examination performed with a view to answering the three questions asked by the Court had been in breach of the interim measure indicated by the Court under Rule 39 and had thus violated his right to individual application. He relied on 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.”
Rule 39 of the Rules of Court provides:
“1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any
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interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it.
2. Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the Committee of Ministers.
3. The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.”
A. Submissions by the parties
62. The Government opened their line of argument with the assertion that the legally binding force of the interim measure issued under Rule 39 of the Rules of Court may not be drawn from Article 34 of the Convention or “from any other source”. They further stressed that the Rules of Court and accordingly the interim measure applied did not have a binding force on the State Party and that, accordingly, their failure to submit answers to the questions raised by the Court in its letter of 16 August 2013 did not entail a violation of Article 34 or any other provision of the Convention.
63. The Government continued by arguing that the applicant’s right to communicate with the Court had in no way been interfered with. The applicant had retained counsel, who had submitted his application to the Court. The applicant and his counsel had continued to communicate freely with the Court and still did so. Lastly, the Government submitted that in response to the questions in the letter of 16 August 2013 they had provided the Court with medical reports prepared by specialists from two civilian hospitals merely days before receiving the Court’s letter indicating an interim measure. The Government considered that therefore there was no need to perform another medical examination of the applicant. They also stressed that in their response of 26 August 2013 they had already answered the three questions put forward.
64. The applicant argued that the evidence submitted by him and by the Government on the state of his health drew two different pictures. While the reports prepared by the respected and highly-qualified medical specialists appointed by him consistently described his condition as life-threatening and unsuitable for detention in an ordinary detention facility, the medical reports commissioned by the investigating authorities and submitted to the Court by the Government refused time after time to admit that the applicant was unfit for continuous detention. In those circumstances, the Court had asked the Government to subject the applicant to an independent medical examination and raised three questions which medical experts had to answer. The Government, however, had refused to organise such an examination. Moreover, the applicant’s efforts to organise such an examination by independent specialists in the detention facility had also been unsuccessful. The applicant insisted that by failing to organise such an examination, the Government had stripped him of an opportunity to effectively argue his case before the Court, particularly so given the diverse nature of the evidence presented to the Court by the parties.
B. The Court’s assessment
1. General principles
65. The Court reiterates that, pursuant to Article 34 of the Convention, Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of the right of individual application, and this has been consistently reaffirmed as a cornerstone of the Convention system (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 102, ECHR 2005‑I). Although the object of Article 34 is essentially that of protecting an individual against any arbitrary interference by the authorities, it does not merely compel States to abstain from such interference. In addition to this primarily negative undertaking, there are positive obligations inherent in Article 34 requiring the authorities to furnish all necessary facilities to make possible the proper and effective examination of applications. Such an obligation will arise in situations where applicants are particularly vulnerable (see Naydyon v. Ukraine, no. 16474/03, § 63, 14 October 2010; Savitskyy v. Ukraine, no. 38773/05, § 156, 26 July 2012; and Iulian Popescu v. Romania, no. 24999/04, § 33, 4 June 2013).
66. According to the Court’s established case-law, a respondent State’s failure to comply with an interim measure entails a violation of the right of individual application (see Mamatkulov and Askarov, cited above, § 125, and Abdulkhakov, cited above, § 222). The Court cannot emphasise enough the special importance attached to interim measures in the Convention system. Their purpose is not only to enable an effective examination of the application to be carried out but also to ensure that the protection afforded to the applicant by the Convention is effective; such measures subsequently allow the Committee of Ministers to supervise the execution of the final judgment. Interim measures thus enable the State concerned to discharge its obligation to comply with the final judgment of the Court, which is legally binding by virtue of Article 46 of the Convention (see Mamatkulov and Askarov, cited above, § 125; Shamayev and Others v. Georgia and
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Russia, no. 36378/02, § 473, ECHR 2005‑III; Aoulmi v. France, no. 50278/99, § 108, ECHR 2006‑I; and Ben Khemais v. Italy, no. 246/07, § 82, 24 February 2009).
67. The crucial significance of interim measures is further highlighted by the fact that the Court issues them, as a matter of principle, only in truly exceptional cases and on the basis of a rigorous examination of all the relevant circumstances. In most of these cases, the applicants face a genuine threat to life and limb, with the ensuing real risk of grave, irreversible harm in breach of the core provisions of the Convention. The vital role played by interim measures in the Convention system not only underpins their binding legal effect on the States concerned, as upheld by the established case-law, but also commands that the utmost importance be attached to the question of the States Parties’ compliance with the Court’s indications in that regard (see, inter alia, the firm position on that point expressed by the States Parties in the Izmir Declaration and by the Committee of Ministers in Interim Resolution CM/ResDH(2010)83 in the above-mentioned case of Ben Khemais). Any laxity on this question would unacceptably weaken the protection of the core rights in the Convention and would not be compatible with its values and spirit (see Soering v. the United Kingdom, 7 July 1989, § 88, Series A no. 161); it would also be inconsistent with the fundamental importance of the right to individual petition and, more generally, undermine the authority and effectiveness of the Convention as a constitutional instrument of European public order (see Mamatkulov and Askarov, cited above, §§ 100 and 125, and, mutatis mutandis, Loizidou v. Turkey (preliminary objections), 23 March 1995, § 75, Series A no. 310).
68. Article 34 will be breached if the authorities of a Contracting State fail to take all steps which could reasonably be taken in order to comply with the interim measure indicated by the Court (see Paladi v. Moldova [GC], no. 39806/05, § 88, 10 March 2009). It is for the respondent Government to demonstrate to the Court that the interim measure was complied with or, in an exceptional case, that there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and to keep the Court informed about the situation (see Paladi, cited above, §§ 92-106; and Aleksanyan v Russia, no. 46468/06, §§ 228-232, 22 December 2008, in which the Court concluded that the Russian Government had failed to honour their commitments under Article 34 of the Convention as a result of their failure to promptly transfer a seriously ill applicant to a specialised hospital and to subject him to an examination by a mixed medical commission including doctors of his choice, in disregard of an interim measure imposed by the Court under Rule 39 of the Rules of Court).
2. Application to the present case
69. Turning to the circumstances of the present case, the Court notes that on 16 August 2013 it indicated to the Russian Government, under Rule 39 of the Rules of Court, in the interests of the parties and the proper conduct of the proceedings before the Court, that the applicant should be immediately examined by medical experts independent from the penal system with a view to determining three issues: (1) whether the treatment he was receiving in the temporary detention facility was adequate for his condition; (2) whether his state of health was compatible with the conditions of his detention; and (3) whether the applicant’s condition required his placement in a hospital. The Government responded by submitting the two medical reports of 17 July and 7 August 2013, each prepared by three doctors from Moscow hospital no. 20. The Government themselves also answered the three questions put forward by the Court (see paragraph 32-35 above). On 29 August 2013 the Court reminded the Government of the interim measure applied under Rule 39 of the Rules of Court, in accordance with which independent medical experts were to examine the applicant and to answer the three questions.
70. Following the communication of the case, the Government insisted that they had entirely complied with the interim measure by submitting the two expert reports drawn up by civilian doctors and by providing detailed answers to the Court’s questions in their letter of 26 August 2013. The Court is not convinced by the Government’s argument. It reiterates that the aim of the interim measure in the present case, as formulated in the Court’s decision of 16 August 2013, was to obtain an independent medical expert assessment of the state of the applicant’s health, the quality of the treatment he was receiving and the adequacy of the conditions of his detention for his medical needs. That expert evidence was necessary to decide whether, as the applicant
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argued, his life and limb were at real risk as a result of the conditions of his detention, including the alleged lack of requisite medical care. In addition, the Court was concerned with the contradictory nature of the medical reports prepared by the applicant’s experts and those commissioned by the investigators, which the applicant submitted with his application and his request for an interim measure. The interim measure in the present case was therefore also meant to ensure that the applicant could effectively pursue his case before the Court (see, mutatis mutandis, Shtukaturov v. Russia, no. 44009/05, § 141, ECHR 2008).
71. Whilst the formulation of an interim measure is one of the elements to be taken into account in the Court’s analysis of whether a State has complied with its obligations under Article 34, the Court must have regard not only to the letter but also to the spirit of the interim measure indicated (see Paladi, cited above, § 91) and, indeed, to its very purpose. The main purpose of the interim measure, as indicated by the Court in the present case – and the Government did not pretend to be unaware of it – was to prevent the applicant’s exposure to inhuman and degrading suffering in view of his poor health and his remaining in the conditions of an ordinary detention facility that was unable to ensure that he received, as he argued, adequate medical assistance. There could have remained no doubt about either the purpose or the rationale of that interim measure after the Court, having received the Government’s response to its decision of 16 August 2013, reminded them of the interim measure.
72. While not doubting the professional expertise and qualifications of the doctors who prepared the medical reports of 17 July and 7 August 2013, as well as their independence from the penal system, their opinion reflected in the two reports did not provide any answers to the three questions put forward by the Court. Although the Court is mindful of the particularly harsh criticism to which the two reports were subjected by the experts appointed by the applicant, to the point of being described as incomplete, subjective and failing to reflect the “true picture of [the applicant’s] pathology” (see paragraphs 26 and 39 above), it finds it more important that the aim of the two medical examinations, the results of which were set out in the reports submitted by the Government, was to compare the applicant’s medical condition with the exhaustive list of illnesses provided for by the Governmental Decree, which could have warranted his release (see paragraphs 23 and 28 above). At no point during the examinations did the doctors from hospital no. 20 assess the applicant’s state of health independently from that list or evaluate whether his illnesses, separately or in combination, given their current manifestation, nature and duration, required his transfer to a hospital. Nor did they pay any attention to the quality of the medical care he had been receiving while in detention, or the conditions in which he was being detained. The reports therefore have little relevance to the implementation of the interim measure indicated by the Court to the Russian Government in the present case.
73. The Government further argued that they themselves had responded to the three questions put forward by the Court in its decision of 16 August 2013. The Court notes in this respect that in view of the vital role played by interim measures in the Convention system, they must be strictly complied with by the State concerned. The Court cannot conceive, therefore, of allowing the authorities to circumvent an interim measure such as the one indicated in the present case by replacing the medical expert opinion with their own assessment of the applicant’s situation. Yet, that is exactly what the Government have done in the present case (see paragraphs 32-35 above). In so doing, the State has frustrated the purpose of the interim measure, which sought to enable the Court, on the basis of a relevant independent medical opinion, to effectively respond to and, if need be, prevent the possible continuous exposure of the applicant to physical and mental suffering in violation of the guarantees of Article 3 of the Convention (see Salakhov and Islyamova v. Ukraine, no. 28005/08, § 222, 14 March 2013.
74. The Government did not demonstrate any objective impediment preventing compliance with the interim measure (see Paladi, cited above, § 92). Nor did they explain the authorities’ refusal to allow a medical expert examination of the applicant organised by his defence team with a view to providing answers to the Court’s three questions (see paragraphs 44-47. above). The Court finds the authorities’ denial of access to the applicant by those experts striking, particularly given that the issue at hand – the health of an inmate – was of such urgency and importance.
75. Consequently, the Court concludes that the State has failed to comply with the interim measure indicated by it in the present case under Rule 39 of the Rules of Court, in breach of its obligation under Article 34 of the Convention.
II
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. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
76. The applicant complained that he was unable to obtain effective medical care while in detention, which had led to a serious deterioration in his condition, put him in a life-threatening situation and subjected him to severe physical and mental suffering, in violation of the guarantees of 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. Submissions by the parties
77. Having referred to the general principles laid down by the Court in a number of judgments concerning the standards of medical care of detainees (Aleksanyan v. Russia, no. 46468/06, 22 December 2008; Mirilashvili v. Russia, no. 6293/04, 11 December 2008; Gelfmann v. France, no. 25875/03, 14 December 2004; Kalashnikov v. Russia, no. 47095/99, ECHR 2002‑VI, and Mouisel v. France, no. 67263/01, ECHR 2002‑IX), the Government stressed that the applicant had received and was continuing to receive comprehensive medical care in detention. They relied on evidence enclosed with their reply of 26 August 2013. The Government further challenged the reliability of the medical reports commissioned by the applicant from Russian and foreign doctors. In particular, they argued that the biggest flaw of those examinations, in comparison with those provided to the Court by the Government, was that neither of the applicant’s experts had examined him in person. They also stressed that although the applicant had provided the experts with various medical documents describing his health, those documents were not “official” records “reflecting the essence of the medical treatment provided to [him]”. The Government therefore proposed that the Court dismiss the expert reports as inadmissible and declare the applicant’s complaint as manifestly ill-founded.
78. The applicant argued that following his arrest the medical care he had received in detention had been extremely scarce and ineffective and had led to a steady deterioration in his health. The applicant stressed that he was seriously ill and unable to care for himself. He required permanent assistance even with his most basic needs. The medical specialists who had treated him prior to his arrest had always acknowledged the necessity of various medical procedures, including simple ones such as physiotherapy, as he was unable to move on his own. The administration of the detention facility was unable to provide that level of care. They merely continued to register the increasing number of the applicant’s complaints, including those of serious pain in the back, atrophy of the limbs, headaches, pain in the legs, dizziness, insomnia, spasms, and so on. He was unable to urinate and defecate and had to undergo medical procedures to relieve himself, which he had to do in extremely degrading and unsanitary conditions that posed a constant risk to his life. While the authorities, in their replies to the applicant’s complaints, had acknowledged that the conditions in the detention facility did not satisfy the simple requirements of hygiene and sterility, they had taken no steps to change that situation. The medical recommendations issued by specialists prior to his arrest were costly and complex, as could be seen from various medical reports submitted by him to the Court, and could not be complied with by the untrained and poorly qualified medical personnel of the detention facility. The applicant insisted that the Russian authorities had violated his rights guaranteed by Article 3 of the Convention as they were unable to provide him with the requisite level of medical services and were subjecting him to severe suffering and a significant risk of a fatal outcome.
B. The Court’s assessment
1. Admissibility
79. 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
(i) As to the Court’s evaluation of the facts and burden of proof
80. 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
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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 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).
81. 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. 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, Orhan v. Turkey, no. 25656/94, § 274, 18 June 2002, and Buntov v. Russia, no. 27026/10, § 161, 5 June 2012).
(ii) As to the application of Article 3 and standards of medical care for detainees
82. 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. 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, Verbinţ v. Romania, no. 7842/04, § 63, 3 April 2012, with further references).
83. 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).
84. 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 persons who were ill, the Court has examined whether or not the applicant received adequate medical assistance in prison. The Court reiterates in this regard that even though Article 3 does not entitle a detainee to be released “on compassionate grounds”, it has always interpreted the requirement to secure the health and well-being of detainees, among
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other things, as an obligation on the State to provide detainees with the requisite medical assistance (see Kudła, cited above, § 94; Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI; and Khudobin v. Russia, no. 59696/00, § 96, ECHR 2006-XII (extracts)).
85. The “adequacy” of medical assistance remains the most difficult element to determine. The Court insists that, in particular, authorities must ensure that diagnosis and care are prompt and accurate (see Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 115, 29 November 2007; Yevgeniy Alekseyenko v. Russia, no. 41833/04, § 100, 27 January 2011; Gladkiy v. Russia, no. 3242/03, § 84, 21 December 2010; Khatayev v. Russia, no. 56994/09, § 85, 11 October 2011; 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 adequately treating the detainee’s health problems or preventing their aggravation (see Hummatov, cited above, §§ 109 and 114; Sarban v. Moldova, no. 3456/05, § 79, 4 October 2005; and Popov, cited above, § 211).
86. On the whole, the Court reserves sufficient 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).
(b) Application of the above principles to the present case
87. Turning to the circumstances of the present case, the Court observes that the applicant is a paraplegic wheelchair-bound inmate suffering from a long list of illnesses, affecting his nervous, urinary, muscular and endocrine systems (see paragraph 21 above). Relying on a large number of expert opinions issued by Russian and foreign medical specialists, the applicant argued that his condition was extremely serious, or even life-threatening, particularly given that he had not received adequate medical care in detention (see paragraphs 22, 26, 38-43 above). He submitted that neither the quality nor the quantity of the medical services he was being provided with corresponded to his needs. In addition, he was being left in unsanitary conditions in which any medical procedure administered to him on a daily basis could be fatal.
88. The Government disagreed. They drew the Court’s attention to the reports prepared by doctors from hospital no. 20, as well as the medical certificates issued by the Russian prison authorities. They insisted that the applicant was not suffering from a serious illness listed in the Governmental decree, that his condition did not therefore call for his release and that the quality of the medical services afforded to him was beyond reproach (see paragraphs 23, 28, and 32-35 above).
89. The Court has already stressed its difficult task of evaluating the contradictory and even mutually exclusive evidence submitted by the parties in the present case (see paragraph 70 above). Its task has been further complicated by the need to assess evidence calling for expert knowledge in various medical fields. In this connection it emphasises that it 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 McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Article 3 of the Convention the Court must apply a “particularly thorough scrutiny” (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336, and Georgiy Bykov v. Russia, no. 24271/03, § 51, 14 October 2010).
90. The Court has examined a large number of cases against Russia raising complaints of inadequate medical services afforded to inmates (see, among the most recent ones, Koryak v. Russia, no. 24677/10, 13 November 2012; Dirdizov v. Russia, no. 41461/10, 27 November 2012; Reshetnyak v. Russia, no. 56027/10, 8 January 2013; Mkhitaryan v. Russia, no. 46108/11, 5 February 2013; Gurenko v. Russia, no. 418
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28/10, 5 February 2013; Bubnov v. Russia, no. 76317/11, 5 February 2013; Budanov v. Russia, no. 66583/11, 9 January 2014, and Gorelov v. Russia, no. 49072/11, 9 January 2014). In the absence of an effective remedy in Russia to air those complaints, the Court has been obliged to perform the first-hand evaluation of evidence before it to determine whether the guarantees of Articles 2 or 3 of the Convention had been respected. In that role, paying particular attention to the vulnerability of applicants in view of their detention, the Court has called on the Government to provide credible and convincing evidence showing that the applicant concerned had received comprehensive and adequate medical care in detention.
91. Coming back to the medical reports and opinions submitted by the applicant in the present case, the Court is satisfied that there is prima facie evidence in favour of his submissions and that the burden of proof should shift to the respondent Government. The Court finds some merit in the Government’s argument that the expert evidence produced by the applicant has the major defect of having been drawn up without the experts having examined the applicant in person. However, in the particular circumstances of the present case, it does not consider that argument valid given that the Government failed to organise a medical expert examination of the applicant in disregard of the interim measure indicated by the Court (see paragraph 75 above) and given that the Russian authorities denied the applicant access to medical experts of his choice (see paragraph 74 above).
92. Having regard to its findings under Article 34 of the Convention, the Court considers that it can draw inferences from the Government’s conduct and is ready to apply a particularly thorough scrutiny to the evidence submitted by them in support of their position. It therefore finds that the Government have failed to demonstrate conclusively that the applicant was receiving effective medical treatment for his illnesses while in detention. The evidence submitted by the Government is unconvincing and insufficient to rebut the applicant’s account of the treatment to which he was being subjected in detention.
93. The Court thus finds that the applicant was being left without the medical assistance vital for his illnesses. The treatment he was receiving was incomplete and the medical supervision afforded to him was insufficient to maintain his health. There had been no thorough evaluation of his condition or adequate diagnosis in response to the increasing number of his health-related complaints. The medical personnel of the detention facilities were taking no steps to address his concerns or to apply the recommendation of the experts commissioned by the applicant. The poor quality of the medical services was accentuated by the fact that the applicant was being kept in unsterile and unsanitary detention conditions posing a serious danger to him, given that his immune system was already compromised. The Court is also concerned that the information provided by the prison doctor from the detention facility in Rostov-on-Don in respect of the quality of the medical care currently afforded to the applicant does not lead it to conclude that the medical care he is continuing to receive in detention is such as to be capable of securing his health and well-being and preventing further aggravation of his condition (see paragraph 49 above). The Court believes that, as a result of the lack of comprehensive and adequate medical treatment, the applicant is being exposed to prolonged mental and physical suffering that is diminishing his human dignity. The authorities’ failure to provide the applicant with the medical care he needs amounts to inhuman and degrading treatment within the meaning of Article 3 of the Convention.
94. Accordingly, there has been a violation of Article 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
95. The applicant complained of a violation of his right to trial within a reasonable time and alleged that the orders for his detention had not been based on sufficient reasons. He relied on Article 5 § 3 of the Convention, 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. Submissions by the parties
96. The Government argued that the Russian courts had authorised the applicant’s arrest because they had sufficient reasons to believe that he had organised a number of very serious criminal offences. When authorising or extending the applicant’s detention, the Russian courts had taken into account the gravity of the charges, the nature of the criminal offences in question, and the applicant’s social and political standing, which provided him with significant possibilities to influence witnesses, threaten victims, obstruct the investigation by other means, as well as abscond or reoffend. The courts had examined the possibility of applying other, less strict measures of restraint, such as bail or house arrest, but had found them insufficient to counter-balance the above-mentioned risks. Similarly,
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the courts had paid attention to the defence’s arguments concerning the state of the applicant’s health, but given the medical evidence before them, had considered that his condition did not preclude his detention pending trial.
97. The applicant argued that the authorities had known of his serious illness, and that his state of health had warranted his release. His diagnosis had diminished the risk of his absconding or reoffending. However, the courts had continued to extend his detention on obviously far-fetched grounds. The investigator’s assumptions that he was liable to abscond or obstruct the course of justice had not been supported by any evidence. The detention orders had been issued as a mere formality.
B. The Court’s assessment
1. Admissibility
98. 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. The complaint must therefore be declared admissible.
2. Merits
(a) General principles
99. The Court reiterates that the persistence of reasonable suspicion that the person arrested has committed an offence is a sine qua non for the lawfulness of his or her 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 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 (see Labita v. Italy [GC], no. 26772/95, §§ 152 and 153, ECHR 2000-IV and Suslov v. Russia, no. 2366/07, §§ 93-97, 29 May 2012).
100. The presumption is in favour of release. As the Court has consistently held, the second limb of Article 5 § 3 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 justifying 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-...; 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).
101. 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
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102. The applicant was arrested on 1 June 2013 and was convicted on 9 July 2014 of conspiring to organise a terrorist attack. The period to be taken into consideration has therefore lasted for slightly more than a year. The fact that criminal proceedings against the applicant on other charges are currently pending does not alter this conclusion.
103. Turning to the circumstances of the present case and assessing the grounds for the applicant’s detention, the Court notes that the competent judicial authorities advanced three principal reasons for not granting the applicant’s release, namely that there remained a strong suspicion that he had committed the crimes of which he was accused; the serious nature of the offences in question; and the fact that if released, he was likely to abscond and pervert the course of justice, given the sentence he faced if found guilty as charged, his personality, his connections and powers stemming from his position as mayor of Makhachkala and his political and social stance, and the likelihood that he would influence witnesses.
104. The Court accepts the existence of the reasonable suspicion, based on cogent evidence, that the applicant committed the offences with which he was charged. It also acknowledges the particularly serious nature of the alleged offences.
105. As regards the danger of the applicant’s absconding, the Court notes that the judicial authorities relied on the likelihood that a severe sentence would be imposed on the applicant, given the serious nature of the offences at issue. In this connection, the Court reiterates that the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or reoffending. It acknowledges that in view of the seriousness of the accusations against the applicant, the authorities could justifiably have considered that such an initial risk was established (see Ilijkov v. Bulgaria, no. 33977/96, §§ 80-81, 26 July 2001). However, the Court reiterates that the possibility of a severe sentence alone is not sufficient, after a certain lapse of time, to justify continued detention based on the danger of flight (see Wemhoff v. Germany, 27 June 1968, § 14, Series A no. 7, and B. v. Austria, 28 March 1990, § 44, Series A no. 175).
106. In this context the Court observes that the danger of absconding must be assessed with reference to a number of other relevant factors. In particular, regard must be had to the character of the person involved, his morals and his assets (see W. v. Switzerland, 26 January 1993, § 33, Series A no. 254 A). Having said that, the Court would emphasise that there is a general rule that the domestic courts, in particular the trial court, are better placed to examine all the circumstances of the case and take all the necessary decisions, including those in respect of pre-trial detention. The Court may intervene only in situations where the rights and liberties guaranteed under the Convention have been infringed (see Bąk v. Poland, no. 7870/04, § 59, ECHR 2007 II (extracts)). The applicant in the present case is undoubtedly a person with significant financial resources and powerful connections, including in political and law-enforcement circles. The medical evidence that he presented to the national courts showed that he had frequently travelled abroad to consult foreign medical specialists and to undergo treatment. There was no evidence in the file that he had surrendered his passport. While the Court doubts whether those circumstances, taken on their own, could have justified the domestic courts’ finding that it was necessary to continue the applicant’s detention, it is satisfied that the totality of those factors combined with other relevant grounds could have provided the domestic courts with an understanding of the pattern of the applicant’s behaviour and the persistence of a risk of his absconding (see, for similar reasoning, Sopin v. Russia, no. 57319/10, § 42, 18 December 2012, and Mkhitaryan v. Russia, no. 46108/11, § 93, 5 February 2013).
107. The Court further observes that one of the main grounds relied on by the domestic courts in their justification for the applicant’s detention was the likelihood of his tampering with evidence and influencing witnesses. The Court reiterates that, as regards the risk of pressure being brought to bear on witnesses, the judicial authorities considered that the applicant’s substantial influence, including through his holding office in Makhachkala and his links with the law-enforcement bodies, as well as with the criminal underworld, could give him an opportunity to influence witnesses and to destroy evidence if released. In these circumstances the Court is prepared to accept that the courts could have validly presumed that a risk existed that, if released, the applicant might abscond, reoffend or interfere with the proceedings, given the nature of his alleged criminal activities (see, for similar reasoning, Bąk v. Poland, cited above
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, § 62).
108. It remains to be ascertained whether the risks of the applicant absconding or perverting the course of justice persisted throughout the entire period of his detention. The Court reiterates the applicant’s arguments that the fact that he is seriously ill and confined to a wheelchair, with his state of health continuously deteriorating and the need to remain under constant medical supervision, considerably reduces the risk of his absconding. While not being convinced that the applicant’s medical condition entirely mitigated the risk of his absconding so that it was no longer sufficient to outweigh his right to a trial within a reasonable time or release pending trial, the Court is of the opinion that the risk of collusion is such that it cannot be negated by the changes in the applicant’s state of health to the extent that his detention is no longer warranted.
109. In the decisions extending the detention it was emphasised that the fears of collusion were founded on the specific, fear-spreading and order-challenging nature of the crimes and the circumstances surrounding the criminal offences with which the applicant was charged. Those included the organisation of a terrorist attack on a civilian aircraft and the commissioning of murders of various public officials, including representatives of the law-enforcement bodies who had investigated criminal activities in Makhachkala. The national courts stressed the organised nature of the crimes, involving eleven apprehended defendants and a number of suspects still on the run. Moreover, they could not disregard the fact that the criminal group itself was comprised of public officials and law-enforcement officers. The authorities considered the risk of pressure being brought to bear on the parties to the proceedings to be real, and in such circumstances insisted on the necessity to keep the applicant detained in order to prevent him from disrupting the criminal proceedings. The Court reiterates that the fear of reprisal, justifiable in the present case, can often be enough for intimidated witnesses to withdraw from the criminal justice process altogether. The Court observes that the domestic courts carefully balanced the safety of the witnesses and victims who had already given statements against the applicant, together with the prospect of other witnesses’ willingness to testify, against the applicant’s right to liberty (see Sopin, cited above, § 44).
110. Having regard to the above, the Court considers that the present case is different from many previous Russian cases where a violation of Article 5 § 3 was found because the domestic courts in those cases had extended the applicant’s detention by relying essentially on the gravity of the charges, without addressing specific facts or considering alternative preventive measures (see, among many others, Belevitskiy v. Russia, no. 72967/01, §§ 99 et seq., 1 March 2007; Khudobin v. Russia, no. 59696/00, §§ 103 et seq., ECHR 2006-... (extracts); and Mamedova v. Russia, no. 7064/05, §§ 72 et seq., 1 June 2006). In the present case, the domestic courts cited specific facts in support of their conclusion that the applicant might interfere with the proceedings, having assessed the evolving circumstances and the changes that affected the applicant’s situation in the course of his detention. They also considered the possibility of applying alternative measures, but found them to be inadequate (see, for similar reasoning, Buldashev v. Russia, no. 46793/06, § 99, 18 October 2011 and Bordikov v. Russia, no. 921/03, § 92, 8 October 2009.
111. The Court believes that the authorities were faced with the difficult task of determining the facts and the degree of responsibility of each of the defendants who had been charged with taking part in the organised criminal acts. In these circumstances, the Court also accepts that the need to obtain voluminous evidence from many sources, coupled with the existence of a general risk flowing from the organised nature of the applicant’s alleged criminal activities, constituted relevant and sufficient grounds for extending the applicant’s detention for the time necessary to complete the investigation, draw up a bill of indictment and hear evidence from the accused and witnesses in court. The Court does not underestimate the need for the domestic authorities to take statements from witnesses in a manner that excludes any doubt as to their veracity. The Court thus concludes that, in the circumstances of this case, the risk of the applicant interfering with the course of justice actually did exist, and it justified holding him in custody (see, for similar reasoning, Celejewski v. Poland, no. 17584/04, 4 May 2006, and Łaszkiewicz v. Poland, no. 28481/03, §§ 59-60, 15 January 2008). The Court concludes that the circumstances of the case as described in the decisions of the domestic courts, including the applicant’s personality and the nature of the crimes with which he was charged, reveal that his detention was based on “relevant” and “
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sufficient” grounds.
112. The Court lastly observes that the proceedings were of considerable complexity, given the extensive evidentiary proceedings and the implementation of the special measures required in cases concerning organised crime. The time that elapsed between the commission of the crimes and the institution of the criminal proceedings was another factor that complicated the investigators’ task. The Court is mindful of the fact that the authorities needed to balance the necessity to proceed with the investigation against an obligation to ensure that the applicant was fully fit to take part in it. The national authorities displayed diligence in the conduct of the proceedings. They completed the investigation, held the trial hearings and issued the judgment against the applicant within thirteen months. The applicant did not argue that the authorities had, in any way, delayed that procedural action. In these circumstances, the Court reiterates that while an accused person in detention is entitled to have his case given priority and conducted with particular expedition, this must not stand in the way of the authorities’ efforts to clarify fully the facts at issue, to provide the defence with all the necessary facilities for putting forward their evidence and stating their case, and to give judgment only after careful reflection on whether the offences were in fact committed and on the sentence to be imposed (see, for similar reasoning, Bąk, cited above, § 64).
113. To sum up, having established that the authorities put forward relevant and sufficient reasons to justify the applicant’s detention and that they did not display a lack of special diligence in handling the applicant’s case, the Court considers that there has been no violation of Article 5 § 3 of the Convention.
IV. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION
A. Article 46 of the Convention
114. The relevant parts of Article 46 of the Convention read as follows:
“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.”
115. The Court reiterates that by Article 46 of the Convention the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or the Protocols thereto 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 as far as possible the effects (see Menteş and Others v. Turkey (Article 50), 24 July 1998, § 24, Reports 1998-IV; Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; and Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004-I). It is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order to discharge its obligation under Article 46 of the Convention (see Scozzari and Giunta, cited above; Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I; and Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005-IV).
116. However, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V, and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 148, 17 September 2009).
117. In the instant case the Court considers that it is necessary, in view of its finding of a violation of Article 3 of the Convention, to indicate individual measures for the execution of this judgment. It has found a violation of that Article on account of the failure of the Russian authorities to provide the applicant, a seriously ill-person whose life is at risk, with the requisite level of medical care.
118. The Court considers that in order to redress the effects of the breach of the applicant’s rights, the authorities should admit him to a specialised medical facility where he would remain under constant medical supervision and would be provided with adequate medical
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services corresponding to his needs. Nothing in this judgment should be seen as an obstacle to his placement in a specialised prison medical facility if it is established that the facility can guarantee the requisite level of medical supervision and care. The authorities should regularly re-examine the applicant’s situation, including with the involvement of independent medical experts.
B. Article 41 of the Convention
119. 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
120. The applicant claimed 300,000 euros (EUR) in respect of non‑pecuniary damage.
121. The Government submitted that the sum claimed was excessive.
122. The Court observes that it has found violations of Articles 3 and 34 of the Convention in the present case. It considers that the applicant must have endured suffering as a result of his inability to receive comprehensive medical services in detention. His suffering cannot be compensated for by a mere finding of a violation. Having regard to all the above factors, and making its assessment on an equitable basis, the Court considers it reasonable to award the applicant EUR 15,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
2. Costs and expenses
123. The applicant also claimed EUR 3,000 for the costs and expenses incurred before the Court. He asked that the sum be paid into his lawyer’s bank account.
124. The Government stressed that the applicant had not provided the Court with a contract or any documents supporting his claim for the reimbursement of costs and expenses, or, in fact, showing that those expenses had been incurred at all.
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 are reasonable as to quantum. The Court observes that the applicant did not submit any documents to confirm the legal fees paid to his representative in the proceedings before the Court. However, it cannot overlook the number of submissions made by the applicant’s lawyer to the Court. In the absence of any documents showing the actual sums incurred by the applicant for his representation before the Court, it therefore considers it reasonable to award under this head the usual amount of legal aid granted to applicants in the proceedings, that is, the sum of EUR 850, plus any tax that may be chargeable to the applicant. The sum is to be paid into the bank account of the applicant’s representative.
3. Default interest
126. 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 the respondent State has failed to comply with the interim measure indicated by the Court under Rule 39 of the Rules of Court, in violation of its obligation under Article 34 of the Convention;
3. Holds that there has been a violation of Article 3 of the Convention;
4. Holds that there has been no violation of Article 5 § 3 of the Convention;
5. 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 amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:
(i) EUR 15,000 (fifteen thousand euros), in respect of non‑pecuniary damage, plus any tax that may be chargeable;
(ii) EUR 850 (eight hundred and fifty euros), in respect of costs and expenses incurred before the Court, plus any tax that may be chargeable to the applicant, to be paid to the bank account of the applicant’s representative;
(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 27 November 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren NielsenIsabelle Berro-LefèvreRegistrarPresident
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FIRST SECTION
CASE OF NAMAT ALIYEV v. AZERBAIJAN
(Application no. 18705/06)
JUDGMENT
STRASBOURG
8 April 2010
FINAL
08/07/2010
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Namat Aliyev v. Azerbaijan,
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 Søren Nielsen, Section Registrar,
Having deliberated in private on 18 March 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 18705/06) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Namat Faiz oglu Aliyev (Namət Faiz oğlu Əliyev – “the applicant”), on 20 April 2006.
2. The applicant was represented by Mr I. Aliyev, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.
3. The applicant alleged, in particular, that the election in his electoral constituency had not been free and fair and that his right to stand for election, as guaranteed by Article 3 of Protocol No. 1 to the Convention, had been infringed due to the relevant authorities' failure to effectively address his complaints concerning election irregularities.
4. On 7 November 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
5. The applicant was born in 1966 and lives in Baku.
6. The applicant stood for the elections to the Milli Majlis (Parliament) of 6 November 2005 as a candidate of the opposition bloc Azadliq, a coalition formed for electoral purposes by the Popular Front Party of Azerbaijan, with which the applicant was affiliated, together with a number of other opposition parties. He was registered as a candidate by the Constituency Electoral Commission (“the ConEC”) for the single-mandate Barda City Electoral Constituency no. 93.
7. The constituency was divided into forty-two electoral precincts, with one polling station in each precinct. There were a total of eighteen candidates running for election in this constituency. The applicant was the only candidate nominated by Azadliq in that constituency.
8. According to the ConEC protocol drawn up after election day, one of the applicant's opponents, Z.O., a member of the Motherland Party, obtained the highest number of votes cast in the constituency. Specifically, according to the ConEC protocol, Z.O. received 5,816 votes (41.25%), the applicant received 2,001 votes (14.19%), and a third candidate received 1,821 votes (12.92%). The total number of votes cast for each of the remaining candidates was substantially lower.
A. The applicant's claims concerning alleged irregularities on election day
9. On 7 and 8 November 2005 the applicant submitted identical complaints to the ConEC and the Central Electoral Commission (“the CEC”), in which he claimed, inter alia, that:
(i) the local executive and municipal authorities, as well as heads of state‑funded institutions and organisations, interfered in the election process in favour of Z.O. prior to and during election day (in the form of openly campaigning in his favour and coercing voters to vote for him);
(ii) Z.O.'s supporters (mostly State officials of various sorts) intimidated voters and otherwise attempted to influence voter choice in polling stations;
(iii) in several polling stations, observers were harassed or excluded from the voting area by the police;
(iv) some citizens residing in relevant election precincts were unable to exercise their right to vote due to the authorities' failure to
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include them in relevant voters lists; and
(v) there were instances of multiple voting and ballot-box stuffing in different polling stations.
10. In support of his claims, the applicant submitted to the CEC originals of more than 30 affidavits (akt) of election observers, audio tapes and other evidence documenting specific instances of irregularities complained of. Some examples of the evidence presented are summarised below.
11. The ten-minute audio recording contained interviews with a number of unidentified voters, who stated, inter alia, that prior to election day directors of governmental institutions and public organisations (such as public schools and libraries) located on the territory of the constituency had held staff meetings with the specific purpose of instructing their staff to vote for Z.O., threatening them with salary cuts if Z.O. did not win the election.
12. In an affidavit signed by them, seven observers in Polling Station no. 1 stated, inter alia, that twenty-five voters had voted twice, however the chairman of the Precinct Electoral Commission (“the PEC”) for this polling station had taken no action when this matter was brought to his attention.
13. Seven observers in Polling Station no. 11 noted, inter alia, that the director of a public school where the polling station was located had openly intervened in the election process and interfered with the functions of the PEC without any objection by PEC members. Also, the same school director instructed a police officer to forcibly exclude one of the observers from the polling station.
14. Three observers in Polling Station no. 14 noted, inter alia, that a certain named State official had actively interfered in the election process by openly campaigning in favour of Z.O. on the premises of the polling station, asked voters to vote for him and brought groups of unregistered voters to the polling station to vote for Z.O.
15. Eight observers in Polling Station no. 16 witnessed one incident of ballot-box stuffing by a PEC member.
16. An affidavit signed by six observers and candidates' representatives in Polling Station no. 31 stated that, at 7 p.m., when the vote-counting began, all of the observers had been forced out of the polling station premises by the police on the instruction of the PEC chairman. In the absence of the observers, a few hundred false ballots were illegally added into Z.O.'s total vote count in the polling station. According to a separate affidavit signed by observers from the same polling station, the PEC chairman and representatives of the executive and municipal authorities interfered in the election process and instructed voters to vote for Z.O. According to another affidavit, there were also several irregularities in the voter lists in this polling station.
17. Three observers in Polling Station no. 41 noted, inter alia, that commission members had illegally added several additional ballots during the vote-counting.
18. In their affidavits, observers from Polling Stations nos. 7, 12, 13, 15, 29, 30 and 37 documented similar incidents of alleged illegal campaigning in favour of Z.O., ballot-box stuffing and other forms of tampering with ballots, and irregularities with voter lists. A number of observers also noted that voting booths in some polling stations were of inadequate standard.
B. Reaction of the electoral commissions
19. According to the applicant, neither the ConEC nor the CEC replied to his complaints.
20. According to the Government, the applicant's complaint was examined by the ConEC. As it appears from the documents submitted by the Government, following receipt of the applicant's complaint, the ConEC demanded explanations from the chairmen and members of the relevant PECs in connection with the applicant's allegations. In reply, about twenty PEC chairmen and members submitted brief handwritten statements (some of them as short as one or two sentences), or “explanatory notes” (“izahat”), all signed on 21 November 2005. All these notes stated in general terms that the election process in their respective polling stations had gone smoothly and without any irregularities, undue pressure on voters or any other breaches of the electoral law, and that any allegations by the applicant to the contrary were false.
21. On 23 November 2005 the ConEC rejected the applicant's complaint. Without any elaboration on details of the applicant's specific allegations, it decided that they were unsubstantiated. At the same time, however, the ConEC confirmed that the condition of the voting booths in Polling Station no. 37 and “some other” (unidentified) polling stations had been poor. This finding did not entail any consequences for the official election results in those polling stations or in the constituency as a whole.
22. On the same day, 23 November 2005, the CEC issued its final protocol approving the overall election results in the country (with the exception
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of a few electoral constituencies) and submitted it, together with relevant documents, to the Constitutional Court for review and approval of the election results. The election results for Barda City Electoral Constituency no. 93 were among those approved by the CEC, confirming Z.O. as the winner in this constituency.
23. According to the country-wide results, the ruling Yeni Azerbaijan Party again won the majority of seats in the Milli Majlis.
C. Court proceedings
24. On 25 November 2005 the applicant lodged an action with the Court of Appeal, asking the court to invalidate the CEC's final protocol in the part relating to the election results in Barda City Electoral Constituency no. 93. In addition to restating all of his complaints made previously to the electoral commissions, he also complained of specific instances of discrepancies and inconsistencies in the PEC protocols which served as a basis for compiling the election results in the constituency as a whole. In particular, he noted a significant discrepancy in the PEC protocol for Polling Station no. 11, in which certain numbers did not add up correctly. As a result, more than 700 blank ballots out of more than 1,000 blank ballots originally issued to the PEC appeared to be “missing” (the protocol indicated that 313 persons had voted in that polling station, but only eleven of the remaining blank ballots were indicated as “unused” and formally “cancelled”, with no explanation as to what happened to the remaining more than 700 blank ballots). The same was the case with the PEC protocol for Polling Station no. 13, where more than 600 blank ballots were unaccounted for. Similar discrepancies were also allegedly found in PEC protocols for five other polling stations. The applicant claimed that these “missing” blank ballots had been sneaked out and illegally used for ballot-box stuffing in favour of Z.O. in various other polling stations.
25. The applicant argued that, due to all these irregularities, it was not possible to determine the true opinion of the voters in his constituency. He also complained that the CEC had failed to examine his complaint of 7 November 2005. In support of his claims, the applicant submitted copies of the same evidence previously submitted to the CEC, including photocopies of the observers' affidavits and copies of audio material.
26. On 28 November 2005 the Court of Appeal dismissed the applicant's claims as unsubstantiated. The court did not consider the photocopies of the affidavits as admissible evidence, noting that in accordance with the Code of Civil Procedure (“the CCP”) either the originals or notarised copies of those affidavits should have been submitted. Specifically, most of the reasoning contained in the Court of Appeal's judgment was limited to the following:
“According to Article 14.2 of the CCP..., the court shall examine and rely on only the evidence submitted by the parties.
According to Article 77.1 of the same Code, each party must prove any allegations which it makes in support of its claims and objections.
Based on the material in the case file and the parties' submissions, [the applicant's] claim against [the CEC]... cannot be upheld. The alleged incidents concerning Barda City Electoral Constituency no. 93, as described in the claim, did not take place. Documents attached to the claim are photocopies and no originals or notarised copies of documents have been submitted. [As such,] affidavits attached to the claim cannot be admitted as evidence. On the other hand, the alleged omission of a significant number of voters from voting lists has not been proved by the material in the case file.
In such circumstances, the court considers that [the applicant's] claim against [the CEC]... must be dismissed.”
27. On 30 November 2005 the applicant lodged a further appeal with the Supreme Court, reiterating his claims. He also noted that he had submitted the originals of the documentary evidence to the CEC on 7 November 2005 and argued that the Court of Appeal had failed to take this fact into account.
28. On 1 December 2005 the Supreme Court dismissed the applicant's appeal on the same grounds as the Court of Appeal's judgment of 28 November 2005. As to the originals of the documentary evidence allegedly submitted to the CEC, the Supreme Court noted that the applicant had failed to submit any evidence proving that he had ever applied to the CEC with a complaint. The reasoning in the Supreme Court's decision was as follows:
“According to Article 77.1 of the CCP..., each party must prove any allegations which it makes in support of its claims and objections.
[The applicant] has not presented any convincing evidence capable of proving the allegations forming the basis of his claim. The photocopies of affidavits attached to his claim were not admitted as convincing evidence by the Court of Appeal in a lawful and justified
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manner, as they had not been notarised.
Moreover, the case materials contain no documents confirming that the applicant had applied to the electoral commissions under the procedure specified in Article 112 of the Electoral Code.
Although at the oral hearing the applicant claimed that he had submitted the originals of the affidavits to the CEC, he has not submitted to the court any evidence showing that he had [actually] applied to the CEC.
However, according to Articles 89 and 90 of the CCP..., originals or duly certified copies of evidence should be submitted to courts. The applicant has not complied with this rule.
According to Article 416 of the CCP..., the court of cassation instance verifies whether the court of appellate instance has correctly applied substantive and procedural law.
The court considers that the Court of Appeal has correctly applied the relevant law and correctly reached the conclusion that the claim was unsubstantiated. There is no ground for quashing the [Court of Appeal's] judgment.”
29. On the same day, 1 December 2005, the Constitutional Court confirmed the election results in the majority of the electoral constituencies, including Barda City Electoral Constituency no. 93.
II. RELEVANT DOMESTIC LAW
A. Electoral Code
30. The following are the relevant provisions of the Electoral Code as effective at the material time.
1. Electoral commissions: system, composition and decision-making procedure
31. Elections and referenda are organised and carried out by electoral commissions, which are competent to deal with a wide range of issues relating to the electoral process (Article 17). There are three levels of electoral commissions: (a) the Central Electoral Commission (“the CEC”); (b) constituency electoral commissions (“the ConEC”); and (c) precinct (polling station) electoral commissions (“the PEC”) (Article 18.1).
32. Each electoral commission at every level has a chairperson and two secretaries who are elected by open voting by members of the relevant electoral commission. The chairperson of each electoral commission at every level must be a representative of the political party holding the majority of parliamentary seats in the Milli Majlis. One of the secretaries must be a representative of the political parties holding the minority of parliamentary seats, and the other one a representative of “independent” members of parliament who are not formally affiliated with any political party (hereafter also referred to as “the non-partisan members of parliament”) (Article 19.3).
33. Meetings of electoral commissions at every level are convened either by the chairperson or by at least one third of the relevant commission's members (Article 19.5). A quorum for meetings of any electoral commission is at least two-thirds of its members (Article 19.10). The qualified majority vote of two-thirds of the members who are in attendance is required for adoption of decisions of any commission at any level (Articles 28.2, 34.3 and 39.3).
34. The CEC consists of eighteen members who are elected by the Milli Majlis. Six members of the CEC are directly nominated by and represent the political party holding a majority of seats in the Milli Majlis, six members are nominated by and represent the non-partisan members of parliament, and six members are nominated by and represent all the political parties holding a minority of parliamentary seats. Out of the six nominees representing the non-partisan members of parliament, two candidates are nominated “in agreement” with the “interested parties”: one of the nominees is agreed by the representatives of the majority party and the other is agreed by the representatives of the minority parties (Article 24).
35. Each ConEC consists of nine members who are appointed by the CEC. Three members of the ConEC are nominated by the CEC members representing the parliamentary majority party, three members are nominated by the CEC members representing the parliamentary minority parties, and three members are nominated by the CEC members representing the non‑partisan members of parliament. Local branches of the relevant political parties may suggest candidates to ConEC membership for nomination by the CEC members representing the relevant parties. Out of the three candidates nominated by the CEC members representing the non-partisan members of parliament, two candidates are nominated “in agreement” with the “interested parties”: one of the nominees is agreed with the CEC members representing the parliamentary majority party and the other is agreed with the CEC members representing the parliamentary minority parties (Article 30).
36. Each PEC consists of six members appointed by the relevant ConEC. Two members of the PEC are nominated by the ConEC members representing the parliamentary majority party, two members are nominated by the ConEC members representing the parliamentary minority parties, and two members are nominated by the ConEC members representing the non‑partisan members of parliament. Local branches of the relevant political
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parties may suggest candidates for PEC membership for nomination by the ConEC members representing the relevant parties. As to candidates for PEC membership nominated by the ConEC members representing the non‑partisan members of parliament, these candidates may also be suggested to the relevant ConEC members by voters or voters' initiative groups. These candidates must be citizens of the Republic of Azerbaijan who permanently reside within the territory of the relevant electoral constituency (Article 36).
2. Examination of electoral disputes
37. Candidates and other affected persons may complain about decisions or actions (or omissions to act) violating electoral rights of candidates or other affected persons, within three days after publication or receipt of such decisions or occurrence of such actions (or omissions) or within three days after an affected person has become aware of such decisions or actions (or omissions) (Article 112.1).
38. Such complaints can be submitted directly to a higher electoral commission (Article 112.2). If a complaint is first decided by a lower electoral commission, a higher electoral commission may quash its decision or adopt a new decision on the merits of the complaint or remit the complaint for a new examination (Article 112.9). Decisions or actions (or omissions to act) of a ConEC may be appealed to the CEC, and decisions or actions (or omissions to act) of the CEC may be appealed to the appellate court (Article 112.3).
39. If the examination of the complaint reveals a suspicion that a criminal offence has been committed, the relevant prosecuting authority can be informed thereof. The CEC must adopt a reasoned decision in this regard. The relevant prosecution authority must examine this information within a three-day period (Article 112.4).
40. In cases stipulated in the Electoral Code, the courts are empowered to quash decisions of the relevant electoral commissions, including decisions concerning voting results and election results (Article 112.5).
41. While examining requests to invalidate the election of a specific candidate, the relevant electoral commission has a right to hear submissions of citizens and officials as well as obtain required documents and materials (Article 112.8).
42. The relevant electoral commission shall adopt a decision on any complaint submitted during the election period and deliver it to the complainant within three days of receipt of the complaint, except for complaints submitted on election day or the day after election day, which shall be examined immediately (Article 112.10).
43. Complaints concerning decisions of electoral commissions shall be examined by courts within three days (unless the Electoral Code provides for a shorter period). The period for lodging an appeal against a court decision is also three days (Article 112.11).
44. Persons illegally interfering with the election process and otherwise violating electoral rights of voters and candidates may bear criminal, civil or administrative responsibility under the Criminal Code, the Civil Code or the Code of Administrative Offences (Article 115).
3. Vote-counting, tabulation and approval of election results
45. After the count of votes in a polling station at the end of the election day, the PEC draws up an election protocol (in three original copies) documenting the results of the voting in the polling station (Articles 106.1‑106.6). One copy of the PEC protocol, together with other relevant documents, is then submitted to the relevant ConEC within twenty‑four hours (Article 106.7). The ConEC verifies whether each PEC protocol and documents attached to it comply with the law and whether there are any inconsistencies (Article 107.1). After submission of all PEC protocols, the ConEC tabulates, within two days of election day, the results from different polling stations and draws up a protocol (in three original copies) reflecting the aggregate results of the vote in the constituency (Articles 107.2 -107.7). One copy of the ConEC protocol, together with other relevant documents, is then submitted to the CEC within two days of election day (Article 107.4). The CEC verifies whether the ConEC protocols comply with the law and whether they contain any inconsistencies (Article 108.1) and draws up its own final protocol reflecting the results of the elections in all constituencies (Article 108.2).
46. The Constitutional Court reviews and approves the results of the elections (Article 171.1). For this purpose, the CEC reviews the ConEC protocols, together with other relevant documents, during a period of no more than twenty days after election day, and then submits them to the Constitutional Court within forty-eight hours (Article 171.2).
47. Within ten days of receipt of the above documents, the Constitutional Court reviews, with the assistance of experts, whether they are in accordance with the requirements of the Electoral Code. If necessary, this ten-day period may be extended (Article 171.3).
B. Code of Civil Procedure
1. Written evidence
48.
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A civil court examines and relies only on evidence submitted by the parties (Article 14.2).
49. Each party to the civil proceedings must submit evidence proving the facts forming the basis of their claims and objections (Article 77.1). In disputes concerning invalidation of acts of the State, administrative and other authorities, the burden of proving the facts forming the basis of such acts falls upon the relevant authority (Article 77.2). In the event that the examination of the case on the basis of the evidence available in the case file is impossible, the court may request the parties to submit additional evidence (Article 77.3).
50. Written evidence must be submitted to courts either in original or in duly certified copies. If only a part of a document is relevant to the case under examination, a certified extract must be submitted (Article 89.3).
2. Proceedings concerning electoral disputes
51. Chapter 25 of the CCP sets out rules for examination of applications concerning the protection of electoral rights (or a right to participate in a referendum). According to Article 290, such applications shall be submitted directly to the appellate courts in accordance with the procedure established by the Electoral Code.
52. Applications concerning the protection of electoral (referendum) rights shall be examined within three days of receipt of the application, except for applications submitted on election day or the day after election day, which shall be examined immediately (Article 291.1). The court shall hear the case in the presence of the applicant, a representative of the relevant electoral commission and any other interested parties. Failure by any of these parties to attend the hearing after due notification shall not preclude the court from examining and deciding the case (Article 291.2).
53. The appellate court's decision can be appealed to the higher court (the court of cassation) within three days. This appeal shall be examined within three days, or immediately if submitted on election day or the next day. The decision of the court of cassation is final (Article 292).
III. RELEVANT INTERNATIONAL DOCUMENTS
A. Code of Good Practice in Electoral Matters
54. The relevant excerpts from the Code of Good Practice in Electoral Matters (Guidelines and Explanatory Report) (CDL-AD (2002) 23 rev), adopted by the European Commission for Democracy Through Law (“the Venice Commission”) at its 51st and 52nd sessions (5-6 July and 18‑19 October 2002), read as follows:
“GUIDELINES ON ELECTIONS
...
3. Procedural guarantees
3.1. Organisation of elections by an impartial body
a. An impartial body must be in charge of applying electoral law.
b. Where there is no longstanding tradition of administrative authorities' independence from those holding political power, independent, impartial electoral commissions must be set up at all levels, from the national level to polling station level.
c. The central electoral commission must be permanent in nature.
d. It should include:
i. at least one member of the judiciary;
ii. representatives of parties already in parliament or having scored at least a given percentage of the vote; these persons must be qualified in electoral matters.
It may include:
iii. a representative of the Ministry of the Interior;
iv. representatives of national minorities.
e. Political parties must be equally represented on electoral commissions or must be able to observe the work of the impartial body. Equality may be construed strictly or on a proportional basis...
...
h. It is desirable that electoral commissions take decisions by a qualified majority or by consensus.
...
3.3. An effective system of appeal
a. The appeal body in electoral matters should be either an electoral commission or a court. For elections to Parliament, an appeal to Parliament may be provided for in first instance. In any case, final appeal to a court must be possible.
b. The procedure must be simple and devoid of formalism, in particular concerning the admissibility of appeals.
...
d. The appeal body must have authority in particular over such matters as the right to vote – including electoral registers – and eligibility, the validity of candidatures, proper observance of election campaign rules and the outcome of the elections.
e. The appeal body must have authority to annul elections where irregularities may have affected the outcome. It must be possible to annul the entire election or merely the results for one constituency or one polling station. In the event of annulment, a new election must be called in the area concerned.
f. All candidates and all voters registered in the constituency concerned must be entitled to appeal....
g. Time-limits for lodging and deciding appeals must be short (three to five days for each at first instance).
h. The applicant's right to a hearing involving both parties must be protected.
i. Where the appeal body is a higher electoral commission, it must be able ex officio
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to rectify or set aside decisions taken by lower electoral commissions.
...
EXPLANATORY REPORT
...
3.1. Organisation of elections by an impartial body
68. Only transparency, impartiality and independence from politically motivated manipulation will ensure proper administration of the election process, from the pre-election period to the end of the processing of results.
69. In states where the administrative authorities have a long-standing tradition of independence from the political authorities, the civil service applies electoral law without being subjected to political pressures. It is therefore both normal and acceptable for elections to be organised by administrative authorities, and supervised by the Ministry of the Interior.
70. However, in states with little experience of organising pluralist elections, there is too great a risk of government's pushing the administrative authorities to do what it wants. This applies both to central and local government - even when the latter is controlled by the national opposition.
71. This is why independent, impartial electoral commissions must be set up from the national level to polling station level to ensure that elections are properly conducted, or at least remove serious suspicions of irregularity.
...
3.3. An effective system of appeal
92. If the electoral law provisions are to be more than just words on a page, failure to comply with the electoral law must be open to challenge before an appeal body. This applies in particular to the election results: individual citizens may challenge them on the grounds of irregularities in the voting procedures. It also applies to decisions taken before the elections, especially in connection with the right to vote, electoral registers and standing for election, the validity of candidatures, compliance with the rules governing the electoral campaign and access to the media or to party funding.
93. There are two possible solutions:
- appeals may be heard by the ordinary courts, a special court or the constitutional court;
- appeals may be heard by an electoral commission. There is much to be said for this latter system in that the commissions are highly specialised whereas the courts tend to be less experienced with regard to electoral issues. As a precautionary measure, however, it is desirable that there should be some form of judicial supervision in place, making the higher commission the first appeal level and the competent court the second.
...
95. Appeal proceedings should be as brief as possible, in any case concerning decisions to be taken before the election. On this point, two pitfalls must be avoided: first, that appeal proceedings retard the electoral process, and second, that, due to their lack of suspensive effect, decisions on appeals which could have been taken before, are taken after the elections. In addition, decisions on the results of elections must also not take too long, especially where the political climate is tense. This means both that the time limits for appeals must be very short and that the appeal body must make its ruling as quickly as possible. Time limits must, however, be long enough to make an appeal possible, to guarantee the exercise of rights of defence and a reflected decision. A time limit of three to five days at first instance (both for lodging appeals and making rulings) seems reasonable for decisions to be taken before the elections. It is, however, permissible to grant a little more time to Supreme and Constitutional Courts for their rulings.
96. The procedure must also be simple, and providing voters with special appeal forms helps to make it so. It is necessary to eliminate formalism, and so avoid decisions of inadmissibility, especially in politically sensitive cases.
...
99. Standing in such appeals must be granted as widely as possible. It must be open to every elector in the constituency and to every candidate standing for election there to lodge an appeal. A reasonable quorum may, however, be imposed for appeals by voters on the results of elections.
100. The appeal procedure should be of a judicial nature, in the sense that the right of the appellants to proceedings in which both parties are heard should be safeguarded.
101. The powers of appeal bodies are important too. They should have authority to annul elections, if irregularities may have influenced the outcome, i.e. affected the distribution of seats. This is the general principle, but it should be open to adjustment, i.e. annulment should not necessarily affect the whole country or constituency – indeed, it should be possible to annul the results of just one polling station. This makes it possible to avoid the two extremes – annulling an entire election, although irregularities affect a small area only, and refusing to annul, because the area affected is too small. In zones where the results have been annulled, the elections must be repeated.
102. Where higher-level commissions are appeal bodies, they should be able to rectify or annul ex officio the decisions of lower electoral commissions.”
B. The Organisation for Security and Cooperation in Europe, Office for Democratic Institutions and Human
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Rights (OSCE/ODIHR) Election Observation Mission Final Report on the Parliamentary Elections of 6 November 2005
55. The following are the relevant excerpts from this report, published in Warsaw, Poland on 1 February 2006:
“III. POLITICAL BACKGROUND
...
The 6 November 2005 elections to the Milli Majlis of Azerbaijan were the third parliamentary elections held in Azerbaijan since independence in 1991, but the first conducted after the adoption of the 2002 constitutional amendments, which eliminated the proportional list component of parliamentary elections. All 125 members of Parliament are now elected in single seat constituencies, in a single round of voting.
The CEC registered 48 political parties and blocs for the 6 November elections. The New Azerbaijan Party (YAP), currently chaired by President Ilham Aliyev, has held a dominant position in government since 1993. On the opposition side there were two main blocs: 'New Politics' (YeS), formed by the Movement for National Unity, the National Independence Party of Azerbaijan, the Civil Forum for the Sake of Azerbaijan, the Azerbaijan Social Democratic Party as well as other political parties and NGOs, and 'Azadliq' ('Freedom'), which was formed by the parties Musavat, the Popular Front of Azerbaijan (APFP) and the Azerbaijan Democratic Party (ADP). Another party, which fielded candidates in over 60 constituencies, was the opposition Liberal Party of Azerbaijan.
...
V. ELECTION ADMINISTRATION
The election was administered by a three-tiered system of election commissions... There are 125 constituency election commissions and 5,137 polling station election commissions. All election commissions have a 2/3 requirement for quorum and for adopting decisions.
The transitional method of composition of election commissions continued to be problematic, as it favored the incumbent authorities and undermined confidence in the independence of the election administration. Election commissions are formed according to a complex formula, and in essence, pro-government parties have a majority in all election commissions sufficient to make all decisions. Moreover, the chairpersons of all election commissions were nominated by the parliamentary majority.
The CEC held regular meetings open to media and observers, and most decisions were published and available on its website. The CEC met most deadlines of the Election Code regarding technical preparations for the elections. An extensive voter education effort was conducted through the media.
A number of aspects of the CEC's performance were problematic, however, including processing of complaints and appeals, ensuring the uniform implementation of the Election Code by ConECs and PECs, and organization of military voting. Observers reported uncertainty and confusion on the interpretation and application of some legal and procedural issues by ConECs and PECs.
A number of election commissions operated in a transparent and collegial manner, and a few issued warnings to candidates or officials for violating the law. However, during the pre-election period, commission members nominated by opposition parties in some constituencies claimed that they were in a number of instances not informed of ConEC meetings, denied access to key documents and had little influence on the decision-making process. The OSCE/ODIHR EOM [Election Observation Mission] was able to verify some of these claims.
...
VII. CAMPAIGN
...
The general campaign environment was characterized by the fact that the ruling YAP party dominated government and most district administrations, including the election commissions.
...
The campaign was undermined by numerous cases of interference of local executive authorities in the election process, with widespread evidence that such interference either favored candidates associated with the incumbents or disadvantaged opposition candidates.... [M]any candidates and campaign staff were harassed during the course of their campaign activities, for example, while meeting with voters, displaying posters or distributing leaflets.
...
The EOM received a number of reports from citizens, particularly from the regions, regarding heads of schools, hospitals and State-owned companies who collected signatures that allegedly obliged staff to vote for selected candidates. The OSCE/ODIHR EOM also received reports of intimidation and coercion of school staff, students and parents to attend campaign events, predominantly in favor of YAP candidates.
The 11 May and 25 October presidential decrees acknowledged many such issues and provided instructions to state and local executive bodies, with a view to ensuring that the parliamentary elections be conducted in full compliance with the Election Code. While the decrees addressed some of the shortcomings observed by the OSCE/ODIHR EOM, the overall lack of meaningful implementation undermined their objectives.
...
IX. COMPLAINTS AND APPEALS PRIOR TO ELECTION DAY
In its 2003 Final Report, OSCE/ODIHR recommended that the CEC enact clear regulations governing the consideration of complaints and appeals. Similarly, it was recommended that safeguards be instituted to ensure that local executive authorities do not interfere in the electoral process or direct the work of the election commissions. These recommendations were not implemented and this had a significant and detrimental effect on the election complaints process.
The
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Election Code envisages most complaints being filed with election commissions, but the law also allows complaints to be lodged with the superior election commission, with decisions in all cases to be made within a three-day deadline. In a large number of cases, candidates lodged complaints directly with the CEC, by-passing the respective ConEC even where the ConEC had not yet brought a decision on the respective complaint. This indicated a lack of confidence in the neutrality of the constituency commissions. The CEC formally registered all such complaints, but in the vast majority of cases merely returned them to the relevant ConEC for its decision, even where the ConEC had already made a prior decision.
In many cases, ConECs did not decide complaints within the three-day deadline or issue an interim decision. Although some ConECs did try to adjudicate complaints in a transparent way, a number of ConECs addressed complaints belatedly and superficially. There were cases in which ConECs claimed not to have received complaints, when it was clear they had done so, did not sanction PEC officials who had discriminated against candidates, failed to notify candidates or observers when complaints were discussed or simply ignored complaints.... In numerous cases, commission chairpersons were clearly biased in favor of YAP or pro-government candidates, and complaints from opposition or independent candidates in these constituencies did not receive impartial adjudication.
Overall, the failure of election commissions, and subsequently in some instances the prosecutors, to address or rectify serious violations by local executive authorities and candidates had a marked and negative impact on the election process. Although some ConECs did issue written warnings to candidates and local executive officials, most violations during the campaign were allowed to take place without effective sanction. This further reduced confidence of candidates in the fairness of the process.
...
XIII. ELECTION DAY
A. Voting
For the election on 6 November, 5,053 polling stations were established to serve voters across Azerbaijan. IEOM observers visited over 2,600 polling stations throughout the country. Voter turnout as reported by the CEC was 42.2 per cent, which is significantly lower than in previous general elections. Most IEOM observer teams reported that polling stations generally opened without delay. However, serious deviations from correct opening procedures, including failure to establish and announce the total amount of ballots and invalidate de-registration cards, took place in a number of polling stations. The opening was assessed as 'bad' or'very bad' in 14 per cent of polling stations visited.
Overall, IEOM observers assessed voting positively in 87 per cent of polling stations visited, while voting was assessed negatively in a considerable 13 per cent of polling stations visited, indicating systemic problems and/or irregularities. Voting was conducted in a generally calm atmosphere, although tension was reported at 14 per cent of polling stations visited. Serious violations of procedures included the presence of unauthorized persons, mainly representatives of local executive authorities, in 9 per cent of polling stations visited. Some of these persons were observed interfering in the work of the election commission or attempting to influence voter choice. The IEOM observed intimidation and attempts to influence voter choices in 6 per cent of polling stations visited. Other serious problems included cases of ballot box stuffing and inconsistent application of voter card rules, which was observed in one third of polling stations visited. Group or family voting remained an issue, as it was observed in 19 per cent of visits. Although relatively few people voted by mobile voting procedures, IEOM observers noted some cases in which more votes were cast than there were applications for ballots.
Inking procedures, in particular the checking of voters' fingers for ink, were not properly followed in 11 per cent of polling stations visited, with several PECs not applying the inking procedure at all....
Candidate representatives and non-partisan domestic observers were present in nearly all polling stations visited (97 per cent). However, there were observations of candidate representatives and PEC members being expelled or dismissed from polling stations in some cases. The IEOM observed local executive officials and observers of YAP candidates interfering in or directing the process, or otherwise attempting to influence voters.
...
B. Counting
IEOM observer teams were present at the count in 231 polling stations. The conduct of the election day process deteriorated sharply during the count. IEOM observers assessed the ballot counting process as bad or very bad in 41 per cent of counts observed.
IEOM observers noted a wide range of serious violations during the count, including tampering with results protocols (12 per cent), result protocols not completed with ink (14 per cent), intimidation of observers (16 per cent) and unauthorized persons directing the process (14 per cent). Key procedures were not followed by more than one third of PECs. In some polling stations, the IEOM observed attempts by PEC members to inflate the vote for a selected candidate by swapping ballot papers from one stack to another. Candidate representatives or opposition-nominated PEC members were expelled from the count in a number of cases. In
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some cases, the count was interrupted and the process significantly delayed, in breach of the law. In several cases, protocols were not completed in the presence of observers, were left blank, or were not taken directly to the ConEC. The results protocols were not posted as required by law in 55 per cent of the counts observed. Observers reported that entitled persons received the signed and stamped copies of the protocol in only 83 per cent of the polling stations observed.
C. Tabulation of Results
The tabulation of results at constituency level was, overall, assessed as bad or very bad in 34 per cent of the 90 ConECs visited. Tabulation procedures were not followed consistently, and the organization of the work was assessed as poor or very poor in 21 per cent of cases observed. Several ConECs accepted empty or only partly completed protocols (including protocols completed with pencil) and did not take action against PEC chairs or members completing or changing protocols at the ConEC....
XV. COMPLAINTS AND APPEALS AFTER ELECTION DAY
A. Adjudication of Complaints by the CEC
On and after election day, the CEC received and registered more than 1,000 complaints but did not address most of these complaints. Complaints that did receive attention were not considered transparently or in accordance with the law.
Although the law requires the CEC to decide on all complaints, the CEC failed to fully meet this legal obligation....
The CEC did not inform complainants on consideration of their complaints at the CEC session, and complainants were not granted the right to give explanations or present new evidence. Moreover, the CEC did not conduct a formal investigation or review of complaints at its sessions. Instead an individual commission member, as a rule a member representing the voting majority, investigated the complaint and reported on his or her findings. These reports did not give other CEC members complete information on the complaint. Notwithstanding the large number of complaints, the CEC met infrequently and completed its final protocol without considering all pending complaints....
...
B. Adjudication of Appeals by the Court of Appeal and the Supreme Court
The adjudication of post-election disputes in the courts largely disregarded the legal framework, and fell short of internationally accepted norms. In total, the Court of Appeal received 71 appeals and complaints in the post-election period. The Supreme Court received nine appeals during the post-election period until 23 November. The OSCE/ODIHR EOM observed eight hearings in the Court of Appeal and seven hearings in the Supreme Court. In most cases, complaints and appeals were either dismissed without consideration of the merits or rejected as groundless by both the Court of Appeal and the Supreme Court....”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1 TO THE CONVENTION
56. Relying on Article 3 of Protocol No. 1 to the Convention and Article 13 of the Convention, the applicant complained that, in the electoral constituency where he stood as a candidate in the parliamentary elections, there had been a number of serious irregularities and breaches of electoral law which had made it impossible to determine the true opinion of voters and thus had infringed his right to stand as a candidate in free elections. The domestic authorities, including the electoral commissions and courts, had failed to duly examine his complaints and to investigate his allegations concerning the mentioned irregularities and breaches of electoral law. He also argued that one of the reasons for this failure was the method of composition of electoral commissions at all levels, which allegedly placed the majority of votes within each commission under the control of the ruling political forces and made the commissions prone to take politically‑motivated decisions disadvantaging opposition candidates.
57. Having regard to the special features of the present case, the Court considers that this complaint falls to be examined only under Article 3 of Protocol No. 1 to the Convention and that no separate examination is necessary under Article 13. Article 3 of Protocol No. 1 reads as follows:
“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
A. Admissibility
58. The Government argued that the applicant had not exhausted domestic remedies in respect of the part of the complaint relating to the method of composition of the electoral commissions. They argued that the applicant could have raised this issue before the domestic courts, but he had failed to do so.
59. The applicant argued that the remedy suggested was ineffective.
60. The Court reiterates that Article 35 § 1 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
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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, and Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V). The Court further emphasises that the domestic remedies must be “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred (see Kudła v. Poland [GC], no. 30210/96, § 158, ECHR 2000-XI). The Court is not persuaded by the Government's arguments. The Government failed to provide explanation as to how a complaint to the domestic courts concerning the method of composition of electoral commissions, made during the electoral process, could provide the applicant with adequate and timely redress. Within the framework of the appeal system for election-related complaints, the Court of Appeal and the Supreme Court were competent (at least theoretically under the domestic law) to hear appeals against decisions of electoral commissions concerning a wide variety of electoral matters. However, it appears that the relevant courts had no competence to alter the method of composition of electoral commissions, which was prescribed in detail by the Electoral Code, and especially so in the midst of the electoral process. The Government have not suggested any other form of redress that could have possibly been provided by the domestic courts and that could be considered adequate. For these reasons, the Government's objection must be dismissed.
61. Furthermore, the Court considers that the complaint, as a whole, is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
62. The Government submitted that the elections at Barda City Electoral Constituency no. 93 had been conducted in accordance with the requirements of the Electoral Code. The Government argued that the documents submitted by the applicant (mainly observers' affidavits), allegedly proving the irregularities in the constituency, had been in fact compiled only by the applicant's supporters and representatives in various polling stations. In any event, the allegations made by the applicant in reliance on those affidavits contained either “general expressions” or referred to types of alleged infringements which could not seriously affect the election results. They were frequently of speculative nature rather than referring to specific facts. The alleged breaches of electoral law were insignificant and concerned minor local incidents and, thus, did not have a substantial impact on the conduct of the election in the constituency as a whole. The Government argued that, in any event, the difference between the official total numbers of votes received by the winning candidate and the applicant (5,816 votes against 2,001) had been so significant that, even if the applicant could prove that the irregularities alleged by him had indeed taken place, they could not have affected the ultimate result of the election.
63. Further, relying on Babenko v. Ukraine ((dec.), no. 43476/98, 4 May 1999), the Government argued that, taking into account the existence of the domestic authorities' decisions concerning the essence of the applicant's claims, the Court should limit itself to examining only whether those decisions were arbitrary.
64. In this respect, the Government maintained that there were effective remedies available at the domestic level which were capable of providing redress for the kind of election-related matters the applicant complained of. The relevant domestic authorities and courts had duly examined the applicant's complaints and found them unsubstantiated. Contrary to the applicant's claim that the electoral commissions had ignored his complaints, the ConEC actually examined them and even demanded explanations from the relevant PECs. Although the ConEC found that the conditions of some voting areas in some polling stations had indeed been poor, all the applicant's remaining allegations were found to be groundless and untrue. The applicant's subsequent appeals to the domestic courts were not supported by admissible or sufficient evidence and therefore the courts had correctly dismissed his complaints as unsubstantiated.
65. As to the method of composition of electoral commissions, the Government argued that the commissions were composed on a parity basis that did not allow any political force to obtain control over the decision‑making process within any commission at any level. They noted that the parliamentary majority party could only directly nominate one-third of the members of each commission, while the majority of at least two‑thirds of commission members' votes was required by law for adoption of any commission decisions. Although by law every chairperson of every commission was elected from among the representatives of the ruling party, this did not affect the decision-making process within the commission as the chairperson did not possess a decisive or tie-breaking vote. The Government concluded that electoral commissions were generally independent and impartial and that
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, in any event, there could have been no lack of impartiality in the present case, as the applicant's opponent, Z.O., was not even a member of the ruling party.
66. The applicant submitted that he had been unable to benefit from an environment in which elections were free and fair and that the relevant State authorities had not duly reacted to the existence of numerous infringements of the electoral law in his constituency. He reiterated his allegations concerning specific instances of alleged irregularities that had taken place in his constituency and maintained that the sheer scale of these irregularities undermined the free expression of the opinion of the people voting in the constituency. In support of his arguments, the applicant also relied heavily on a number of reports by international organisations and mass media sources which contained general criticism of the various aspects of the parliamentary elections of 6 November 2005 in Azerbaijan.
67. The applicant further maintained that those irregularities prejudiced the outcome of the election. Had all his allegations been examined and assessed fairly, his corrected official vote total would have actually been higher than that of Z.O. and he would have won the election.
68. The applicant argued that he had been unable to obtain an effective examination of his election-related complaints. Again, relying heavily on excerpts from various reports and recommendations concerning the elections of 6 November 2005 prepared by various observation missions, he argued that, in general, there had been many shortcomings in how the existing mechanism for addressing election-related complaints functioned in practice. As to his specific case, he argued that he had presented sufficient evidence to the domestic electoral commissions and courts in support of his claims, but the latter had used formal grounds in order to avoid examining the essence of his complaints and had not given him an opportunity to submit duly certified copies of the relevant evidence, if this was deemed absolutely necessary.
69. Lastly, the applicant claimed that in reality the majority of members of every electoral commission at every level were either the direct nominees of the ruling party or “persons supporting the ruling party”. The applicant appeared to imply (without clearly stating it) that commission members formally nominated by non-partisan members of parliament were usually, in practice, pro-ruling-party persons, albeit not formally affiliated with the ruling party. The applicant also claimed that, although Z.O. was a member of the Motherland Party, this party was politically very close to the ruling Yeni Azerbaijan Party. That is why, in his opinion, the ruling party was in favour of him winning the election against the opposition candidates.
2. The Court's assessment
70. Article 3 of Protocol No. 1 appears at first sight to differ from the other rights guaranteed in the Convention and Protocols, as it is phrased in terms of the obligation of the High Contracting Party to hold elections which ensure the free expression of the opinion of the people rather than in terms of a particular right or freedom. However, the Court has established that it guarantees individual rights, including the right to vote and to stand for election (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, §§ 46-51, Series A no. 113). The Court has consistently highlighted the importance of democratic principles underlying the interpretation and application of the Convention and emphasised that the rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law (ibid., § 47; see also Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 58, ECHR 2005‑IX).
71. The rights bestowed by Article 3 of Protocol No. 1 are not absolute. There is room for “implied limitations” and Contracting States have a wide margin of appreciation in the sphere of elections (see Mathieu-Mohin and Clerfayt, cited above, § 52; Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999-I; and Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV). It is, however, for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with. In particular, it has to satisfy itself, among other things, that the conditions in which individual rights are exercised in the course of the electoral process do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness (see Mathieu-Mohin and Clerfayt, cited above, § 52, and Gitonas and Others v. Greece, 1 July 1997, § 39, Reports of Judgments and Decisions 1997-IV). Such conditions must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain
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the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage (see Hirst (no. 2), cited above, § 62).
72. Furthermore, the object and purpose of the Convention, which is an instrument for the protection of human rights, requires its provisions to be interpreted and applied in such a way as to make their stipulations not theoretical or illusory but practical and effective (see, among many other authorities, United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 33, Reports 1998‑I; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 100, ECHR 1999‑III; and Lykourezos v. Greece, no. 33554/03, § 56, ECHR 2006‑VIII). In the case of Podkolzina v. Latvia, the Court stated that the right to stand as a candidate in an election, which is guaranteed by Article 3 of Protocol No. 1 and is inherent in the concept of a truly democratic regime, would only be illusory if one could be arbitrarily deprived of it at any moment. Consequently, while it is true that States have a wide margin of appreciation when establishing eligibility conditions in the abstract, the principle that rights must be effective requires that the eligibility procedure contain sufficient safeguards to prevent arbitrary decisions (see Podkolzina v. Latvia, no. 46726/99, § 35, ECHR 2002-II). Although originally stated in connection with the conditions on eligibility to stand for election, the principle requiring prevention of arbitrariness is equally relevant in other situations where the effectiveness of individual electoral rights is at stake (see, mutatis mutandis, Kovach v. Ukraine, no. 39424/02, § 55, ECHR 2008‑...).
73. Lastly, the Court has also had an occasion to emphasise that it is important for the authorities in charge of electoral administration to function in a transparent manner and to maintain impartiality and independence from political manipulation (see The Georgian Labour Party v. Georgia, no. 9103/04, § 101, 8 July 2008).
74. In the present case, the Court will first have regard to the Government's argument that the difference in the official vote totals received by Z.O. and the applicant was so significant that, even if the applicant's allegations concerning some election irregularities in various polling stations were true, it would not affect the ultimate result of the election. The Court cannot accept this argument. In order to arrive at the conclusion proposed by the Government, it is first necessary to separately assess the seriousness and magnitude of the alleged election irregularity prior to determining its effect on the overall outcome of the election. However, in the present case, the question whether this has been done in a diligent manner is a major point of contention between the parties in the context of the present complaint and, therefore, cannot escape the Court's review.
75. Moreover, in any event, what is at stake in the present case is not the applicant's right to win the election in his constituency, but his right to stand freely and effectively for it (compare The Georgian Labour Party, cited above, § 121). The applicant was entitled under Article 3 of Protocol No. 1 to stand for election in fair and democratic conditions, regardless of whether ultimately he won or lost. In the present case, Article 3 of Protocol No. 1 requires the Court not to ascertain merely that the election outcome as such was not prejudiced, but to verify that the applicant's individual right to stand for election was not deprived of its effectiveness and that its essence had not been impaired. For these reasons, the Government's above argument must be dismissed.
76. Turning to the assessment of the substance of the applicant's complaint under the Convention, the Court notes that the applicant complained of numerous instances of irregularities and breaches of electoral law which had allegedly taken place prior to and during election day in numerous polling stations in his electoral constituency. In doing so, he essentially reiterated the detailed claims he had made before the domestic authorities (see paragraphs 9-18 and 24 above). He maintained that due to these irregularities in themselves, as well as the domestic authorities' failure to duly address them, the election in his constituency had not been free and democratic and the official election results had not reflected the real opinion of voters.
77. As for the applicant's claims concerning the specific instances of alleged irregularities, the Court notes that, although the evidence presented by the applicant in support of his claims can be considered strong (see paragraphs 78-79 below), in the circumstances of the present case it is not in a position to assume a fact-finding role by attempting to determine whether all or part of these alleged facts had taken place and, if so, whether they had amounted to irregularities capable of thwarting the free expression of the opinion of the people. Owing to
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the subsidiary nature of its role, the Court must be cautious in taking on the function of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Moreover, the Court is not required under the Convention to verify whether any alleged irregularity had amounted to a breach of Azerbaijani electoral law (see I.Z. v. Greece, no. 18997/91, Commission decision of 28 February 1994, Decisions and Reports 76-B, p. 65, at p. 68). Again, the Court reiterates that its task under Article 3 of Protocol No. 1 is rather to satisfy itself, from a more general standpoint, that the respondent State has complied with its obligation to hold elections under free and fair conditions and ensured that individual electoral rights were exercised effectively.
78. That being said, the Court cannot but acknowledge the seriousness of the claims made by the applicant before the domestic authorities. In particular, he complained of unlawful interference in the election process by local executive authorities, undue influence on voter choice, several instances of ballot-box stuffing, harassment of observers, irregularities in electoral rolls and obvious discrepancies in PEC protocols showing a possible failure to account for as many as thousands of “unused” blank ballots. The Court considers that these types of irregularities, if duly confirmed to have taken place, were indeed potentially capable of thwarting the democratic nature of the elections. The Court further notes that the applicant's allegations were based on the relevant evidence, which consisted mainly of affidavits signed by official observers, who gave fact-specific accounts of the alleged irregularities witnessed by them. The Court also has regard to the Final Report of the OSCE/ODIHR Election Observation Mission concerning the elections of 6 November 2005 (see paragraph 55 above), which indirectly corroborates the applicant's claims. While this report did not contain any information relating exclusively to the applicant's constituency, it gave a general account of the most frequent problems identified during the election process. The problems identified were similar to almost all of the applicant's specific allegations and, while not observed in most of the constituencies, appeared nonetheless to have been quite common.
79. In the light of the above considerations, and having regard to the material in the case file, the Court considers that the applicant has put forward a very serious and arguable claim disclosing an appearance of a failure to hold free and fair elections in his constituency.
80. The Court reiterates the approach taken by it in the Babenko case (cited above) where, having satisfied itself that there had been no arbitrariness in the conclusions reached by a domestic court which had examined the applicant's specific claims concerning breaches of electoral law and established that they had not prejudiced the elections, the Court accepted and relied on the domestic court's conclusions in its analysis of the applicant's complaint under Article 3 of Protocol No. 1. It was emphasised in that case that, where complaints of election irregularities had been addressed at the domestic level, the Court's examination should be limited to verifying whether any arbitrariness could be detected in the domestic court procedure and decisions.
81. In this connection, having regard to the principles developed by its case-law on Article 3 of Protocol No. 1 (see paragraphs 70-73 above), the Court considers that the existence of a domestic system for effective examination of individual complaints and appeals in matters concerning electoral rights is one of the essential guarantees of free and fair elections. Such a system ensures an effective exercise of individual rights to vote and to stand for election, maintains general confidence in the State's administration of the electoral process and constitutes an important device at the State's disposal in achieving the fulfilment of its positive duty under Article 3 of Protocol No. 1 to hold democratic elections. Indeed, the State's solemn undertaking under Article 3 of Protocol No. 1 and the individual rights guaranteed by that provision would be illusory if, throughout the electoral process, specific instances indicative of failure to ensure democratic elections are not open to challenge by individuals before a competent domestic body capable of effectively dealing with the matter.
82. The Azerbaijani law provided for a system of examination of individual election-related complaints and appeals, consisting of electoral commissions of different levels, whose decisions could be appealed subsequently to the Court of Appeal and further to the Supreme Court. The applicant made use of this system. It remains to be seen whether the examination of the applicant's claims by the electoral commissions and courts was effective and devoid of arbitrariness.
83. According to the applicant, the electoral commissions did not even reply to his complaints. The Government, however, presented proof that his complaint had been examined by the ConEC. However, having regard to the documents submitted by the Government, the Court notes that, while the ConEC took as long as sixteen days to deliver its decision (which was considerably longer than the three-day time-limit provided by the Electoral Code), it did nothing more than request written explanations from the relevant PEC chairmen and members
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. Given that the confirmation of these allegations could potentially entail responsibility on the part of these PEC officials for the election irregularities, it is not surprising that all of them simply denied any wrongdoing using the most general wording. For this reason, and having regard to their content, the Court is not convinced that these statements were particularly helpful in determining the factual accuracy of the applicant's claims. Nevertheless, the ConEC appeared to have relied exclusively on the statements of PEC officials in deciding to dismiss the applicant's complaint, without explaining why these statements were considered to be more reliable than the much more detailed and fact‑specific evidence presented by the applicant. In fact, no reason was offered by the ConEC in support of its finding that the applicant's claims were “unsubstantiated”. There is no indication that any detailed assessment of the substance of the applicant's allegations was attempted or that any genuine effort was made to determine the validity of his claims (contrast Babenko, cited above, where a domestic court examined each specific allegation of election irregularity in detail and assessed its effect on the election).
84. As for the complaint lodged directly with the CEC, the Court notes that the applicant has submitted documentary evidence proving that his complaint was received by the CEC on 8 November 2005. However, it appears that the CEC indeed ignored the applicant's complaint and left it unexamined. This is despite Article 112.2 of the Electoral Code, which provided an opportunity to lodge any election-related complaints directly with a “superior electoral commission”, which term appeared to include the CEC. The Court again refers to the OSCE/ODIHR report, which noted that “in the vast majority of cases” the CEC merely transmitted individual complaints to the relevant ConECs without examining them, and that it “did not address most of [the] complaints” it received on and after election day. In the instant case, no explanation has been forthcoming from the Government as to the reasons for the CEC's failure to deal with the applicant's complaint despite the requirements of the Electoral Code.
85. The applicant's subsequent appeals lodged with the Court of Appeal and the Supreme Court were not addressed adequately either. In particular, both courts relied on extremely formalistic reasons to avoid examining the substance of the applicant's complaints, finding that he had not submitted duly certified copies of the relevant observers' affidavits and that he had not attached to his cassation appeal documentary proof that he had indeed applied to the CEC. It is not the Court's task to assess whether, from the standpoint of the domestic law, the domestic courts were correct to apply so strictly the civil procedure rules on admissibility of written evidence to a case giving rise to election-related issues which normally fall within the realm of public law. In the circumstances of the present case, however, the Court finds that such a rigid and overly formalistic approach was not justified under the Convention.
86. In this respect, the Court recalls the Venice Commission's Code of Good Practices in Electoral Matters, which cautions against excessive formalism in examination of election-related appeals, in particular where the admissibility of appeals is concerned (see paragraph 54 above).
87. As mentioned above, the Court considers that the applicant was able to put forward an arguable claim disclosing an appearance of a potentially serious violation of electoral rights and this claim was supported by relevant argumentation and evidence. This evidence included copies of observers' affidavits which appeared to be prima facie authentic. Although the applicant did not submit to the courts notarised copies of those affidavits, he claimed at the oral hearing in the Supreme Court that he had submitted the originals to the CEC. In such circumstances, the Court finds it puzzling that the domestic courts did not attempt to request the CEC to confirm whether it was in possession of those originals or to otherwise establish the authenticity of those affidavits. At the very least, the courts should have allowed the applicant an opportunity to supplement his written submissions with any additional evidence deemed necessary (such as documentary proof that he had indeed applied to the CEC).
88. The Court considers that, in order to ensure the State's compliance with its positive obligation under Article 3 of Protocol No. 1 to hold free elections, the domestic courts dealing with the present case, having been called upon to decide on an arguable claim concerning election irregularities, should have reacted by taking reasonable steps to investigate the alleged irregularities without imposing unreasonable and excessively strict procedural barriers on the individual complainant. What was at stake in those proceedings was not only the alleged infringement of the applicant's individual rights but also, on a more general level, the State's compliance with its positive duty to hold free and fair elections. Therefore, even assuming that the courts in the present case might have been unable to decide the case solely on the basis of the evidence submitted by the applicant, the material put before them was nevertheless strong enough to require them to take additional steps to obtain more
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information and verify the accuracy of the applicant's allegations which cast doubt on the free and fair character of the elections in his constituency.
89. Moreover, in any event, not all of the applicant's allegations were based on those observers' affidavits. His complaint also mentioned other alleged serious irregularities, including apparent inconsistencies in several PEC protocols disclosing potential large-scale tampering with ballots on the PEC level. In terms of initial evidence necessary for examination of this specific issue, the courts had to do nothing more than request the electoral commissions to submit those protocols to them for an independent examination. If such examination indeed revealed inconsistencies, a more thorough assessment of their impact on the election results would be necessary. However, the relevant court decisions were silent in respect of this part of the applicant's complaint.
90. The Court acknowledges that, owing to the complexity of the electoral process and associated time-restraints necessitating streamlining of various election-related procedures, the relevant domestic authorities may be required to examine election-related appeals within comparatively short time-limits in order to avoid retarding the electoral process. For the same practical reasons, the States may find it inexpedient to require these authorities to abide by a set of very strict procedural safeguards or to deliver very detailed decisions. Nevertheless, these considerations may not serve to undermine the effectiveness of the appeal procedure, and it must be ensured that a genuine effort is made to address the substance of arguable individual complaints concerning electoral irregularities and that the relevant decisions are sufficiently reasoned. In the present case, however, the conduct of the electoral commissions and courts and their respective decisions revealed an appearance of lack of any genuine concern for the protection of the applicant's right to stand for election.
91. The foregoing considerations are sufficient to enable the Court to conclude that the applicant's complaints concerning election irregularities were not effectively addressed at the domestic level and were dismissed in an arbitrary manner.
92. In view of the conclusion reached in the above paragraph, the Court finds that it is not necessary for the purposes of the present case to further examine the applicant's arguments concerning the method of composition of the electoral commissions.
93. There has accordingly been a violation of Article 3 of Protocol No. 1 to the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Article 14 of the Convention
94. In conjunction with the above complaint, the applicant complained that during the entire election process he, as an opposition candidate, had been discriminated against due to his political affiliation and had not been allowed to run for election under equal conditions with the candidates affiliated with the incumbent party. He relied on Article 14, which provides as follows:
“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.”
95. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.
96. However, having regard to its above finding in relation to Article 3 of Protocol No. 1, the Court considers that it is not necessary to examine whether in this case there has been a violation of Article 14.
B. Article 6 of the Convention
97. The applicant complained under Article 6 of the Convention that the domestic judicial proceedings had been unfair and arbitrary. Article 6 of the Convention provides, in its relevant part, as follows:
“In the determination of his civil rights and obligations... everyone is entitled to a fair... hearing... by [a]... tribunal...”
98. The Court notes that the proceedings in question involved the determination of the applicant's right to stand as a candidate in the parliamentary elections. The dispute in issue therefore concerned the applicant's political rights and did not have any bearing on his “civil rights and obligations” within the meaning of Article 6 § 1 of the Convention (see Pierre-Bloch v. France, 21 October 1997, § 50, Reports 1997-VI; Cherepkov v. Russia (dec.), no. 51501/99, ECHR 2000-I; Ždanoka v. Latvia (dec.), no. 58278/00, 6 March 2003; and Mutalibov v. Azerbaijan (dec.), no. 31799/03, 19 February 2004). Accordingly, this Convention provision does not apply to the proceedings complained of.
99. 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.
III. 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,
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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
101. The applicant claimed 22,500 new Azerbaijani manats (AZN) in respect of various expenses related to his electoral campaign, such as expenses for publication of his campaign advertisement, salaries paid to his campaign staff, renting office space for his election headquarters, etc.
102. The Government noted that the applicant failed to support this claim with any documentary evidence. They further argued that campaign expenses could not be claimed as pecuniary damage and that, in any event, part of each candidate's campaign expenses were borne by the State in accordance with the domestic law.
103. The Court notes that the present application was about the applicant's right to stand for election. It cannot be assumed that, had the applicant's right not been infringed, he would necessarily have won the election in his constituency and become a member of parliament. Therefore, it cannot be speculated that the expenditure on his electoral campaign was a pecuniary loss (compare The Georgian Labour Party, cited above, § 150). As no causal link has been established between the alleged pecuniary loss and the violation found, the Court dismisses the applicant's claim under this head.
2. Non-pecuniary damage
104. The applicant claimed AZN 200,000 in respect of non-pecuniary damage caused by the infringement of his electoral rights.
105. The Government argued that the amount claimed was excessive and considered that finding of a violation of the Convention would constitute sufficient just satisfaction in itself.
106. The Court considers that the applicant suffered non-pecuniary damage which cannot be compensated solely by the finding of the violation of Article 3 of Protocol No. 1. Ruling on an equitable basis, the Court awards him the sum of 7,500 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
107. The applicant claimed AZN 2,000 for legal fees incurred in the proceedings before the Court, AZN 1,500 for translation expenses and AZN 1,000 for postal expenses. In support of his claims, he submitted a contract for legal services rendered in the proceedings before the Court and a contract for translation services. Both contracts stipulated that the amounts due were to be paid in the event that the Court found a violation of the applicant's rights.
108. The Government argued that the costs and expenses related to the legal and translation services had not actually been incurred, because the amounts claimed had not been paid by the applicant. They further argued that, in any event, the contract for legal services provided for excessive legal fees and included certain types of services which were not needed or expected in this case. As for the postal expenses, the Government noted that this part of the claim was unsupported by any evidence.
109. 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 notes that, although the applicant has not yet actually paid the legal fees and translation costs, he was bound to pay them pursuant to a contractual obligation. Accordingly, in so far as the lawyer and translator are entitled to seek payment of their fees under the contract, those fees were “actually incurred”. However, taking into account the amount of legal work done in the present case and the total amount of material actually translated, the Court considers that the claims in respect of both the legal fees and translation expenses are excessive and therefore can be satisfied only partially. Furthermore, the Court notes that the applicant failed to support his claim for postal expenses with any documentary evidence and therefore no sum can be awarded in respect of those expenses.
110. Regard being had to the above, the Court considers it reasonable to award the sum of EUR 1,600 covering costs under all heads, plus any tax that may be chargeable to the applicant on that sum.
C. Default interest
111. 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 3 of Protocol No. 1 to the Convention and Article 14 of the Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 3 of Protocol No. 1 to the Convention;
3. Holds that there is no need to examine separately the complaint under Article 14 of the Convention;
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4. 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 amounts to be converted into new Azerbaijani manats at the rate applicable on the date of settlement:
(i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; and
(ii) EUR 1,600 (one thousand six 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 the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 8 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren NielsenChristos RozakisRegistrarPresident
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SECOND SECTION
CASE OF KLIKOVAC AND OTHERS v. SERBIA
(Application no. 24291/08)
JUDGMENT
STRASBOURG
5 March 2013
This judgment is final but it may be subject to editorial revision.
In the case of Klikovac and Others v. Serbia,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Paulo Pinto de Albuquerque, President,Dragoljub Popović,Helen Keller, judges,and Françoise Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 12 February 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 24291/08) 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 three Serbian nationals, Mr Branko Klikovac, Mr Milovan Bačanac and Mr Radovan Vasić (“the applicants”), on 3 May 2008.
2. All the applicants were initially represented by Mr S. Krstić, a lawyer practising in Kraljevo. On 27 September 2011 he informed the Court that he was no longer representing Mr Branko Klikovac and Mr Milovan Bačanac. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić.
3. On 29 June 2010 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).
4. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1942, 1953 and 1949 respectively and live in Kraljevo.
6. On 10 November 2004 the Kraljevo District Court (“the District Court”) ordered “MAGNOHROM d.o.o.” (“the debtor”), a company from Kraljevo, to pay the applicants in solidum 1,504,924 Serbian dinars (“RSD”) together with statutory interest and legal costs. This judgment became final on 6 July 2006.
A. The enforcement proceedings
7. On 2 February 2007 the applicants filed a request for the enforcement of the above judgment proposing that it be carried out through the auctioning of the debtor’s specified immovable assets.
8. On 6 February 2007 the Kraljevo Municipal Court (“the Municipal Court”) issued a writ of execution (rešenje o izvršenju). The debtor appealed against that decision arguing that it was going through the process of restructuring as well as that the value of the impugned immovable assets exceeded the value of the applicants’ claims. On 9 March 2007 the District Court dismissed the appeal.
9. On an unspecified date 60 other enforcement claims submitted against the same debtor were joined to the applicants’ case.
10. After several hearings and few unsuccessful public auctions, on 30 April 2010 the impugned assets were sold to a company from Bačka Palanka for RSD 151,663.077.
11. The final decision on division of the proceeds and the order of settlement of creditors was issued by the Municipal Court on 5 July 2011. The court ordered the partial settlement of all creditors in proportion to their claims and the amount obtained through the sale.
12. Shortly thereafter the applicants’ claims were partially settled.
B. The status of the debtor
13. The debtor was privatised on 21 July 2006.
14. The sales contract was annulled on 28 December 2007 due to a buyer’s failure to fulfil the contractual obligations.
15. As of January 2008, the debtor still consisted of predominantly socially/State-owned capital.
16. On 28 May 2010 the Privatisation Agency ordered the restructuring of the debtor, which is still ongoing. Nevertheless, the enforcement proceedings under consideration in the present case have never been suspended or terminated on these grounds.
II. RELEVANT DOMESTIC LAW
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17. The relevant domestic law concerning the status of the socially-owned companies and the relevant provisions concerning the enforcement proceedings were outlined in the case of R. Kačapor and Others v. Serbia, nos. 2269/06 et al., 15 January 2008, §§ 57-64 and §§ 71-76. Furthermore, the relevant provisions concerning the privatisation of socially-owned companies were outlined in the case of Crnišanin and Others v. Serbia, nos. 35835/05 et al., §§ 100-104, 13 January 2009.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
18. The applicants complained about the respondent State’s failure to enforce the final judgment of 10 November 2004. They relied on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.
Article 6, in so far as relevant, provides:
“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 to the Convention 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
19. 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
20. The Court notes that the domestic judgment in the applicants’ favour was given on 10 November 2004 and it became final on 6 July 2006. The applicants sought enforcement on 2 February 2007. However, it has not been fully enforced until the present day. The Government did not advance any argument to justify this.
21. The Court has already found a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention in similar circumstances (see R. Kačapor and Others, cited above, §§ 115-116; Crnišanin and Others, cited above, § 123; and Rašković and Milunović v. Serbia, nos. 1789/07 and 28058/07, § 79, 31 May 2011). It finds no reason to depart from that jurisprudence in the present.
Accordinlgy, there has been a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
22. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
23. The applicants sought the payment of the outstanding judgment debt in respect of pecuniary damage and EUR 100,000 each in respect of non-pecuniary damage. The Government considered the claims excessive and unjustified.
24. Having regard to the violations found in the present case and its own jurisprudence (see R. Kačapor and Others, cited above, §§ 123-126, and Crnišanin and Others, cited above, § 139), the Court considers that the applicants’ claim for pecuniary damage must be accepted. The Government shall, therefore, pay in respect of each applicant the outstanding debt from the final judgment of 10 November 2004.
25. As regards non-pecuniary damage, the Court considers that the applicants sustained some non-pecuniary loss arising from the breaches of the Convention found in this case. The particular amount claimed, however, is excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards each applicant EUR 4,700 under this head.
B. Costs and expenses
26. The applicants also claimed RSD 300,000 for the costs and expenses incurred before the domestic courts and approximately EUR 2,480 for those incurred before the Court. The Government considered the amounts excessive.
27. In accordance with the Court’s case-law, an applicant is entitled to
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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). Regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicants EUR 450 under this head.
28. As regards the costs and expenses incurred domestically, the Court notes that they are an integral part of the applicants’ pecuniary claims which have already been dealt with above.
C. Default interest
29. 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 of the Convention and of Article 1 of Protocol No. 1 to the Convention;
3. Holds
(a) that the respondent State shall, from its own funds and within three months, pay the outstanding debt owed to the applicants under the final judgment of 10 November 2004;
(b) that the respondent State is to pay the applicants, within the same period, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 4,700 (four thousand seven hundred euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage; and
(ii) EUR 450 (four hundred fifty euros) together, plus any tax that may be chargeable to the applicant, in respect of cots and expenses;
(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;
4. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 5 March 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-PassosPaulo Pinto de AlbuquerqueDeputy RegistrarPresident
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FIFTH SECTION
CASE OF STADNYUK v. UKRAINE
(Application no. 30922/05)
JUDGMENT
STRASBOURG
27 November 2008
FINAL
27/02/2009
This judgment may be subject to editorial revision.
In the case of Stadnyuk v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Rait Maruste, President,Karel Jungwiert,Volodymyr Butkevych,Renate Jaeger,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva, judges,and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 4 November 2008,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 30922/05) 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, Ms Olena Yakivna Stadnyuk (“the applicant”), on 9 August 2005.
2. The applicant was represented by Mr M. Stadnyuk, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
3. On 11 October 2007 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 1931 and lives in Andrushivka, Zhytomyr region, Ukraine.
5. By its judgment of 8 December 2000, the Andrushivka District Court awarded the applicant 700 Ukrainian hryvnyas (UAH) in compensation for pecuniary and non-pecuniary damage caused to her by Mr Y. It appears that this judgment became final and the enforcement proceedings were initiated. No further information about enforcement of this judgment is available.
6. In February 2002 the applicant lodged a claim with the Bogunsky District Court of Zhytomyr against the Bogunsky District Bailiffs’ Service of Zhytomyr (відділ державної виконавчої служби Богунського районного управління юстиції м. Житомира), alleging the latter’s inactivity in respect of the enforcement of the judgment of 8 December 2000 and claiming compensation for pecuniary and non-pecuniary damage she had sustained as a result.
7. On 17 April 2003 the court found in part for the applicant and ordered the defendant to pay her a total of UAH 450.39[1]. The applicant did not appeal against this judgment.
8. On 21 November 2003 the Bogunsky District Bailiffs’ Service of Zhytomyr instituted enforcement proceedings. Subsequently, the latter transferred the enforcement writ to the Zhytomyr Regional Bailiffs’ Service (відділ примусового виконання рішень державної виконавчої служби Житомирської області) for enforcement.
9. In the course of these enforcement proceedings the Zhytomyr Regional Bailiffs’ Service requested the Bogunsky District Court of Zhytomyr to replace the Bogunsky District Bailiffs’ Service of Zhytomyr with the local department of the State Treasury of Ukraine, as the debtor under the judgment of 17 April 2003. On 28 October 2004 the court rejected this request. The applicant did not attend this hearing
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.
10. On 21 May 2004 the State Treasury of Ukraine replied, upon the applicant’s request, that the 2004 State Budget of Ukraine did not provide funds for payment of compensation for damage caused by officials of the State Bailiffs’ Service.
11. Between July 2004 and April 2006 the Zhytomyr Regional Bailiffs’ Service several times terminated and resumed the enforcement proceedings in respect of the judgment of 17 April 2003. By the decision of 18 April 2006, the Zhytomyr Regional Bailiffs’ Service terminated the enforcement proceedings of the judgment of 17 April 2003 on the ground that the debtor had been liquidated. Apparently the applicant did not appeal against this decision.
12. The judgment of 17 April 2003 remains unenforced.
II. RELEVANT DOMESTIC LAW
13. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
14. Referring to Article 6 § 1 of the Convention, the applicant submitted that the length of the court proceedings against the bailiffs’ service was excessive. She also complained under this provision and Article 1 of Protocol No. 1 about the lengthy non-enforcement the judgment of 17 April 2003. The above provisions provide, in so far 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...”
A. Admissibility
15. The Government contended that the applicant had not exhausted domestic remedies as she had not challenged the decision of the Zhytomyr Regional Bailiffs’ Service of 18 April 2006. They also maintained that the applicant had failed to show due diligence in the proceedings before the Bogunsky District Court of Zhytomyr aimed to replace the Bogunsky District Bailiffs’ Service of Zhytomyr with the local department of the State Treasury of Ukraine (see paragraph 9 above). They asserted in this regard that the applicant was no longer interested in the enforcement of the judgment in question.
16. The applicant disagreed.
17. The Court notes that in the instant case the applicant has obtained a judgment against the State which became final and enforceable. The Court reiterates that it is inappropriate to require an individual who has obtained judgment against the State at the end of legal proceedings to then bring enforcement proceedings to obtain satisfaction (see Lizanets v. Ukraine, no. 6725/03, § 43, 31 May 2007 and the case-law referred therein). Nor should the applicant have been required to take any actions - for instance, those aimed at replacing one debtor State entity with another - in the course of the already instituted enforcement proceedings (see, mutatis mutandis, Vasylyev v. Ukraine, no. 10232/02, §§ 24-31, 21 June 2007). Therefore, it is not for the applicant to retune the enforcement proceedings, if they have already been instituted, to the changing structure of the State apparatus. Furthermore the applicant is not called on to reinstitute the terminated enforcement proceedings nor to challenge the decision to terminate them. Neither of these actions relieves the State of its obligation to enforce a final judgment against it.
18. The Court concludes that the applicant’s complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 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
19. In their observations, the Government contended that there had been no violation of the provisions of the Convention in the applicant’s respect. They further maintained that the State authorities took all necessary measures to enforce the judgment in question.
20. The applicant disagreed.
21. The Court reiterates that the court proceedings and the enforcement proceedings are stages one and two in the total course of proceedings (see, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 197). Therefore, the
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