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, while in place, will often generate a series of new conflicts between parents and the welfare authorities. In many other cases decided by this Court it was apparent that welfare authorities have a tendency to arrogate to themselves an arbitrary decision-making power far exceeding their judicially granted authority. Undoubtedly, this problem derives from the non-retrospectivity and other idiosyncrasies of child custody and care cases outlined above. However, the fundamental principle of the rule of law requires that the parents' and children's access to court be strictly and continuously maintained.
Too much is at stake here for these grievances to be arbitrarily decided by those authorised only to provide the alternative care. The presumption of their bona fides must remain a rebuttable one, i.e. subject to subsequent legal challenge and uninterrupted access to court. Since this would amount to the so-called khadi-justice, foster parents, social workers, psychologists, psychiatrists, alternative care institutions, etc., cannot be arbiters in situations in which their own decisions are the target of parents' criticism and grievance.
Procedurally, such disputes are prima facie admissible, if the issues they raise transcend the strictures of judicial decisions establishing the alternative care arrangements.
This issue goes to the core of the rule of law. The doors of the family court should remain wide open.
[1]1. Note by the Registry. Protocol No. 11 came into force on 1 November 1998.
[2]1. Note by the Registry. The report is obtainable from the Registry.
[3]1. See the Johansen v. Norway judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III, opinion of the Commission, pp. 1023-24, §§ 106-12.
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FOURTH SECTION
CASE OF KOLANIS v. THE UNITED KINGDOM
(Application no. 517/02)
JUDGMENT
STRASBOURG
21 June 2005
FINAL
21/09/2005
In the case of Kolanis v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
MrJ. Casadevall, President,SirNicolas Bratza,MrM. Pellonpää,MrR. Maruste,MrS. Pavlovschi,MrJ. Borrego Borrego,MrJ. Šikuta, judges,and Mrs F. Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 31 May 2005,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 517/02) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a United Kingdom national, Ms Maria Kolanis (“the applicant”), on 6 December 2001.
2. The applicant was represented by Bishop & Light, solicitors practising in Hove. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton, of the Foreign and Commonwealth Office.
3. The applicant alleged that her continued detention after the Mental Health Review Tribunal had directed her release subject to conditions was no longer justified and was without appropriate procedural safeguards. She relied on Article 5 §§ 1, 4 and 5, and Article 13 of the Convention.
4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
5. By a decision of 4 May 2004, the Chamber declared the application admissible.
6. The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. The applicant was born in 1972 and lives in London.
8. On 2 February 1998 the applicant was convicted of causing grievous bodily harm with intent. She was found to be suffering from a mental illness. She was detained in hospital pursuant to sections 37 and 41 of the Mental Health Act 1983 (“the 1983 Act”). She applied to a Mental Health Review Tribunal (“MHRT”) for her discharge from detention in hospital.
1. The first review by a Mental Health Review Tribunal
9. On 24 May 1999 the MHRT first considered her application. It adjourned in order, inter alia, to obtain a psychiatric report from a Dr Hamilton which was to address the eligibility of the applicant for a conditional discharge from hospital.
10. On 16 August 1999 the MHRT resumed its hearing of the applicant's application. It had before it the report of Dr Hamilton, which expressed the view that the applicant was not ready for discharge. Furthermore, the psychiatrist in charge of the applicant's care, Dr O'Grady, and a social worker gave evidence to the MHRT stating that they were opposed to the applicant's discharge. They proposed that the applicant should instead be transferred to hostel-type accommodation, under the care of a supervising consultant psychiatrist.
11. The MHRT nevertheless concluded that the applicant should be conditionally discharged. The conditions were that the applicant should reside at the home of her parents, that she should cooperate with supervision by a social worker and a forensic consultant psychiatrist, and that she should comply with such treatment as might be prescribed for her.
12. In coming to its decision, the MHRT answered the three questions below as follows:
A. Is the Tribunal satisfied that the patient is not now suffering from mental illness, psychopathic disorder, severe mental impairment, or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment?
YES
B. Is the Tribunal satisfied that it is not necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment?
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YES
C. Is the Tribunal satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment?
NO
The MHRT expressed the following as a part of its reasoning:
“The Tribunal is satisfied... that the patient is now suffering from mental illness, namely schizophrenia, the symptoms of which are being fully controlled by medication and that she needs ongoing treatment and medication in order to control her illness.
The patient... has been symptom-free for at least the last 8 to 12 months.
...
... in view of the possibility of a relapse, she should remain liable to be recalled to hospital for further treatment.”
13. The MHRT deferred the discharge of the applicant until satisfactory arrangements had been made to meet the conditions it had imposed.
2. Attempts to fulfil the conditions imposed by the MHRT
14. On 30 September 1999 the psychiatrist responsible for supervising the applicant in the community, Dr Kennedy, saw her with two members of his team. He concluded that he was not prepared to supervise her if she were at home but only if she were in supported accommodation. He described his consultation with the applicant in a letter to Dr O'Grady, dated 6 October 1999, in which he wrote, inter alia:
“I made it clear that I would not consider it safe to supervise [the applicant] if she were to go straight home to the care of her parents, as there are important areas of her treatment in which she has not yet made sufficient progress for anyone to be confident that she would not relapse and reoffend while there.”
15. Dr Kennedy made clear that he was in no doubt that the next stage in the applicant's treatment, rehabilitation and risk management should take place near her family, but in a medium-security unit or at a registered mental nursing home. Alternatively, he suggested asking one of his colleagues, or one of the general psychiatrists at St Anne's Hospital, whether they would be willing to supervise the applicant on conditional discharge to her parents' home.
16. On 11 October 1999 Dr O'Grady wrote to the MHRT. He stated that the purpose of his letter was to give the MHRT advance notice that his team was unable to meet the conditions set by the tribunal for the conditional discharge of the applicant. He explained that both Dr Hamilton and Dr Kennedy were agreed that it would be difficult to manage her should she be discharged directly to her parents' home. He continued:
“In the circumstances, I believe it is highly unlikely that there will be another forensic psychiatrist willing to provide the supervision that is necessary to meet the conditions of the tribunal... We continue to hold the view that it is not in her best interests to be discharged directly to her family but [that she] should go through a further period of rehabilitation in the community to prepare her fully for community living.”
17. On 19 October 1999 Dr O'Grady again wrote to the MHRT informing it that he would write to the other consultant forensic psychiatrists in the North London Forensic Service (“the NLFS”) to enquire whether they would be prepared to supervise the applicant under the conditions laid down by the tribunal. As it transpired, none of those psychiatrists was prepared to do so.
18. On 15 November 1999 the health authority responsible for the area in which the applicant lived (“the health authority”) requested the director of the NLFS to approach forensic colleagues working in the private sector to establish whether they might be willing to offer supervision.
19. On 2 December 1999 the NLFS informed the health authority that the applicant's new responsible medical officer, Dr Duffield, was not satisfied that the applicant should return home. However, he had agreed to approach all local catchment area forensic consultant psychiatrists to determine whether they would be willing to provide after-care supervision for the applicant were she to be discharged to her parents' home.
20. On 15 December 1999 the NLFS wrote to the health authority to confirm that no consultant forensic psychiatrist from the NLFS was willing to supervise the applicant in the community. Furthermore, it stated that it was not aware of any individual or organisation that would be suitably equipped to undertake such a task in the community. The letter noted that most private independent sector providers concentrated on acute and in-patient care only.
21. On 17 December 1999 Dr Duffield wrote to the MHRT to advise it that its conditions had not been complied with so far, and the reasons therefor.
22. In December 1999 and January 2000 the health authority wrote to the clinical directors of the forensic psychiatry services in London, Hertfordshire and Essex, identifying nine units in addition to the NLFS. They were asked to discuss the case urgently with their consultant colleagues to establish whether any of them was prepared to assess the applicant with a view to becoming her superv
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ising consultant forensic psychiatrist under the terms laid down by the MHRT. None was willing or able to assist.
23. The health authority subsequently wrote to both national and private institutions in Cambridgeshire and Northamptonshire with the same request. Once again, no one was prepared to comply with the conditions set by the MHRT.
24. The health authority concluded that there were no further steps that it could take.
25. On 3 March 2000 Dr Kennedy wrote to the Home Office, advising it of his opinion that the conditions imposed by the MHRT were impossible to meet. He therefore requested the Home Secretary to consider exercising his powers under section 71(1) of the 1983 Act to refer the applicant to an MHRT. The Home Secretary complied with that request on 17 March 2000.
3. The applicant's application to the High Court for judicial review
26. On 3 December 1999 the applicant issued proceedings for judicial review of the decision of the health authority not to provide her with psychiatric supervision in the community in implementation of the conditions imposed by the MHRT, which was preventing her discharge from hospital. She sought, inter alia, the quashing of that decision and/or an order to compel the health authority to provide her with the psychiatric treatment necessary to implement the conditions imposed by the MHRT.
27. On 18 January 2000 the High Court granted the applicant permission to apply for judicial review. The Secretary of State for Health declined to intervene in the proceedings, but made the following observations:
“The Mental Health Act provides an established legislative framework in this and similar cases designed to safeguard the interests of patients. As part of this scheme Responsible Medical Officers are accountable in a way which clearly does not permit them to effectively deny the determinations of properly constituted Mental Health Review Tribunals... It is a matter for the Tribunal whether they decide to order a conditional discharge against the advice of the [Responsible Medical Officer].”
28. On 9 June 2000 the High Court judge (Mr Justice Burton) heard the applicant's substantive application for judicial review. The applicant argued that she was entitled to be discharged from hospital; that the health authority was in breach of its duty under section 117 of the 1983 Act for failing to provide her with the necessary services to comply with the conditions of the MHRT; and that the failure to comply with those conditions within a reasonable period of time was in breach of Article 5 of the Convention.
29. The judge rejected the applicant's application. He held that, under section 117 of the 1983 Act, the health authority was not under an absolute duty to implement the conditions of the MHRT, but only a duty to take all reasonable steps to attempt to satisfy those conditions. The judge further held that, on the facts, the health authority had complied with that duty. He further rejected the applicant's suggestion that any of the psychiatric consultants had “thwarted” the conclusions of the MHRT, holding that doctors were both entitled and obliged to exercise their own professional judgment.
4. The second review by a Mental Health Review Tribunal
30. On 24 August 2000, following the reference by the Home Secretary on 17 March 2000 (see paragraph 25 above), a differently constituted MHRT considered the applicant's case afresh. It concluded that the applicant should be conditionally discharged. The conditions were that the applicant should reside in accommodation approved by her responsible medical officer, that she accept to be supervised and take the medication prescribed by the latter, and that she accept to be supervised by her social supervisor.
31. The MHRT gave the same answers as the first MHRT to the questions set out in paragraph 12 above. It also deferred the discharge of the applicant until satisfactory arrangements had been made to meet the conditions it had imposed. It further expressed the following as part of its reasoning:
“... we consider that it is appropriate that [the applicant] should remain liable to recall to hospital. The critical issue, we feel, is that Miss Kolanis's current good mental health is dependent, in our view, upon her continuing to receive her medication.
Our hope and expectation is that the condition as to residence which we have imposed will be capable of being complied with within a relatively short period. We consider that, bearing in mind that Miss Kolanis had a legitimate expectation a year ago of being released into the community almost at once, her [Responsible Medical Officer] and the other responsible authorities should treat the finding of suitable accommodation for her as urgent. Having seen Miss Kolanis, it is clear to us that she is a very personable woman and we find it difficult to conceive of any responsible body having any legitimate objection to accommodating her.”
32. On 23 December 2000 the applicant was conditionally discharged from hospital to a resettlement project hostel in London.
5. The applicant's appeal
33. Subsequently, the Court of Appeal granted the applicant permission to appeal against the judgment of
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the High Court of 9 June 2000 in her judicial review proceedings. It recognised that, in the light of the applicant's conditional discharge, which had occurred subsequent to the judgment of the High Court, the issues raised on appeal were, in one sense, academic. However, permission to appeal was granted as a result of the importance of the issues raised.
34. On 21 February 2001 the Court of Appeal dismissed the applicant's appeal. It agreed with the interpretation of section 117 of the 1983 Act that had been the basis of the decision of the High Court judge (see paragraph 29 above).
35. In paragraph 16 of his judgment, Lord Phillips set out the effect of an earlier judgment of the House of Lords in R. v. Oxford Regional Mental Health Review Tribunal, ex parte Secretary of State for the Home Department [1987] 3 All England Law Reports 8 (“Oxford”) as follows:
“Should, for any reason, it prove impossible to implement the conditions specified by a Tribunal, that Tribunal could not consider whether to impose alternative conditions or even to direct discharge of the patient without conditions. In such circumstances the patient would remain detained unless and until a fresh reference was made to a Tribunal. The patient was not entitled himself to initiate a reference for twelve months. The Secretary of State was under no similar restriction, but in practice a considerable length of time would be likely to elapse before the matter came back before the Tribunal pursuant to a reference by the Secretary of State. The implications of this state of affairs were considered by the European Court of Human Rights in Johnson v. the United Kingdom...”
At the time at which the facts in the present case arose, no separate relief was available to the applicant under the Human Rights Act 1998 (which incorporated the Convention directly into domestic law). Nevertheless, Lord Phillips proceeded on the basis that, where there was no conflict with precedent, the correct approach had always been to interpret legislation in a manner that was consistent with the Convention. He therefore addressed the human rights issues in the case as follows:
“32. Does the legislative scheme, as interpreted in [Oxford], violate the right to liberty conferred by Article 5 of the [Convention]? In considering this question it is necessary to distinguish between two different situations. The first is a case, such as the present, where the Tribunal concludes that the patient is mentally ill and requires treatment, but that under appropriate conditions such treatment can be provided in the community. The second is where, as in the case of Johnson, the Tribunal finds that the patient is no longer suffering from mental illness, is not in need of treatment but needs to be discharged into a controlled environment in order to reduce the stress involved, to make sure that the patient is indeed free of the illness and to reduce the risk that the illness may recur.
33. Where (i) a patient is suffering from mental illness and (ii) treatment of that illness is necessary in the interests of the patient's own health or for the protection of others and (iii) it proves impossible or impractical to arrange for the patient to receive the necessary treatment in the community, it seems to me that the three criteria identified by the European Court in Winterwerp are made out. Whether or not it is necessary to detain a patient in hospital for treatment may well depend upon the level of facilities available for treatment within the community. Neither Article 5 nor Strasbourg jurisprudence lays down any criteria as to the extent to which member States must provide facilities for the care of those of unsound mind in the community, thereby avoiding the necessity for them to be detained for treatment in hospital.
34. If a health authority is unable, despite the exercise of all reasonable endeavours, to procure for a patient the level of care and treatment in the community that a Tribunal considers to be a prerequisite to the discharge of the patient from hospital, I do not consider that the continued detention of the patient in hospital will violate the right to liberty conferred by Article 5.
35. Very different considerations apply to a factual situation such as that considered by the Strasbourg Court in Johnson. Where a patient has been cured of mental illness, he is no longer of unsound mind and the exception to the right to liberty provided for by Article 5 § 1 (e) does not apply. In Johnson the Court has recognised that, in such circumstances, it may nonetheless be legitimate to make discharge of the patient conditional rather than absolute and to defer, to some extent, the discharge to which the patient is entitled. The deferral must, however, be proportionate to its object and cannot become indefinite. The decision in Johnson suggests that the statutory regime as interpreted in [Oxford], may not be consistent with Article 5. If the Tribunal imposes a condition which proves impossible of performance, too lengthy a period may elapse before the position is reconsidered as a result of a subsequent referral.
36. The solution to the problem is not to interpret section 117 in such a way as to impose
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on health authorities an absolute obligation to satisfy conditions imposed by Tribunals. I do not consider it appropriate in this case to attempt to provide a definitive answer to the problem. I would simply observe that the solution may well involve reconsidering the decision of the House of Lords in [Oxford]....”
36. During the course of his judgment, Lord Justice Buxton opined as follows:
“39. The effect of Article 5 § 4 of the [Convention] is to entitle a person in the situation of [the applicant] to have the lawfulness of her detention decided by a body, within the system of the State that is detaining her, that has appropriate court-like characteristics. In the case of the United Kingdom, that court-like function is performed by the Mental Health Review Tribunal (MHRT). One necessary characteristic of such a body, if it is to meet the requirements of Article 5 § 4, is that its orders should be effective in securing the release of persons whose detention it rules to be unlawful: see... X v. the United Kingdom[judgment of 5 November 1981, Series A no. 46]...
40. In the present case, the MHRT concluded that the detention of [the applicant] would be unlawful once the conditions upon which her release was contingent were put in place. Those conditions, in particular, included cooperation by [the applicant] with supervision by a forensic consultant psychiatrist; and therefore, by necessary implication, provision of such supervision by the appropriate organ of the State. If that order were to be effective, as Article 5 § 4 requires, such supervision had to be provided.
41. Johnson..., paragraphs 66 and 67, seems to me to make clear, in accordance with that requirement of effectiveness, that a breach of Article 5 § 1 is committed by the State if, once the MHRT has determined that a patient should be released, it imposes conditions to facilitate that release that in the event are not fulfilled, at least if the non-fulfilment can be attributed to another organ of the State.
42. In applying that part of the Court's jurisprudence, I would not make the distinction drawn by [Lord Phillips], in paragraph 32 of his judgment, and based on the approach of the Strasbourg Court in Winterwerp, between cases where the MHRT concludes that the patient is mentally ill, but can be treated in the community, and cases (such as Johnson itself) where the MHRT finds that the patient is no longer suffering from mental illness but nonetheless needs to be released into a controlled environment. In the latter case, the justification for the placing of continued restrictions on the subject relates, and can only relate, to the history of mental illness and, as in Johnson, to the prospect of recurrence. In both cases, there is continued detention; the role of the MHRT in both cases is to exercise the court-like functions required by Article 5 § 4, and under the jurisprudence of Article 5 § 4 the national authorities are equally bound to respect and act on the determination of the MHRT in either case.
43. There is also a practical difficulty in applying the Winterwerp criterion of whether the mental disorder is 'of a kind or degree warranting compulsory confinement' to decisions that were not taken with that formulation expressly in mind. In [the applicant's] case, the MHRT answered 'Yes' to the question: 'Is the Tribunal satisfied that the patient is not now suffering from mental illness... of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment?', but in their extended reasoning made it clear that any discharge must be subject to the provision of continuing treatment. That is not a clear-cut decision of the type that Winterwerp seems to assume.
44. However that may be, under the [Convention] jurisprudence... once the MHRT made a decision as to [the applicant's] release that was contingent on the provision of forensic psychiatric supervision, it became the responsibility of the State to provide that supervision. Otherwise, if nothing was done, the situation would arise that was identified in paragraph 67 of the judgment in Johnson, of indefinite deferral of the release that had been ordered by the MHRT. That deferral would arguably entail a breach of the [Convention]. The issue would depend on whether, once the MHRT had determined that her condition could and should be treated in the community, she was, in terms of the analysis in Winterwerp, suffering from a mental disorder of a kind or degree warranting compulsory confinement. I have already indicated the difficulty of this question. We received no submissions upon it, the argument being concentrated in another direction, and I certainly do not decide the issue here.
45. In raising the possibility that [the applicant's] detention became unlawful I have not overlooked [Lord Phillips's] view, set out in paragraph 33 of his judgment
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, that such a conclusion may be controlled or affected by the availability of treatment facilities in the particular community involved; but what matters in [Convention] terms is the ruling of the MHRT, the determining body created by Article 5 § 4. If the ruling of the MHRT is frustrated, in a case where under the [Convention] jurisprudence the subject should no longer be detained, then the subject is deprived of her Article 5 § 4 protection, as (I think it to be clear) the [Court] would have held in Johnson had the issue not been determined already under Article 5 § 1: see paragraphs 69-72 of the judgment.
46. I well accept that this conclusion entails a number of practical difficulties, not least that it might appear to lead to the release of a person who is or has been mentally ill without the support that the MHRT thought necessary for that release. That may appear surprising, not only in common-sense terms, but also in view of the emphasis placed in the jurisprudence of the [Convention] upon the judgment of the national authorities: see for instance the observations of the [Court] in Luberti v. Italy [judgment of 23 February 1984, Series A no. 75] at paragraph 27 as to the relevance in this context of the doctrine of the margin of appreciation; and the observations in paragraph 63 of the judgment in Johnson as to the respect to be paid to the discretionary judgment of those responsible for dealing with the mentally ill. The problem in this case arises, however, from the rigidity of the required procedure of the MHRT that is identified in paragraphs 16 and 36 of [Lord Phillips's] judgment. If the MHRT indeed had the power to review its decisions in the light of practical circumstances, as was envisaged by Woolf J in [Oxford], then difficulties of the present order would not arise; and provided that the national authorities made all reasonable efforts to comply with provisional decisions of the MHRT I very much doubt that any objection to such a procedure would arise under the [Convention]. That, however, is not the present state of domestic law: the decision of the MHRT being once and for all, that is the decision that Article 5 § 4 requires to be respected.
...
48. ... [the applicant] may have a complaint under Article 5 in relation to the whole circumstances that led to her continued detention: including, in particular, that the MHRT having ruled that her continued detention was not justified, the implementation by the State of that order in the event caused her to continue to be detained. The State is responsible for the whole of these circumstances. That, presumably, is why the State was found to be in breach in Johnson from the original date of the MHRT's decision: see the last sentence of paragraph 67 of the judgment. The circumstances of [the applicant's] case might, therefore, by the same token found a successful complaint in Strasbourg.”
37. Lord Justice Sedley, during the course of his judgment, expressed the following view (in paragraphs 55 and 56):
“... more than one legitimate judgment – that of the community psychiatrist as well as of the MHRT – may have to be accommodated for the purposes of Article 5 § 4, at least to the extent that the decision of the MHRT is explicitly dependent on the collaboration of the psychiatrist.
... I am rather less positive than Buxton LJ in looking to Strasbourg to afford [the applicant] a remedy that cannot be afforded here. It seems to me... that the legislative scheme, while not always satisfactory in practice, is Convention-compliant in principle.”
38. On 3 July 2001 the House of Lords refused the applicant's petition of appeal against the judgment of the Court of Appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Mental disorder
39. Section 1(2) of the Mental Health Act 1983 (“the 1983 Act”) defines “mental disorder” as “mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind”.
B. Hospital orders
40. Section 37 of the 1983 Act empowers a court to order a person, on being convicted of a criminal offence punishable with imprisonment, to be admitted to and detained in a specified hospital (“a hospital order”).
41. The court can only make a hospital order if it is satisfied on the written or oral evidence of two registered medical practitioners that the offender is suffering from mental disorder (see paragraph 39 above) and that
“the mental disorder... is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration in his condition” (section 37(2)(a)(
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i))
and
“the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of a [hospital order]” (section 37(2)(b).
42. Under section 37(7), a hospital order must specify the form or forms of mental disorder from which the offender is suffering, as confirmed by the evidence of two practitioners.
C. Restriction orders
43. Under section 41(1) of the 1983 Act, where a hospital order is made by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm to do so, the court may further order that the offender shall be subject to certain specified restrictions, detailed in section 41 of the Act. Such an order is called a “restriction order” and may be made either without limit of time or for the period specified in the order.
D. Applications to a Mental Health Review Tribunal
44. The purpose of an MHRT is to deal with applications and references by and in respect of patients under the provisions of the 1983 Act (section 65(1)).
45. Under section 70 of the 1983 Act, a person who is subject to a hospital order and a restriction order (“a restricted patient”) may apply to an MHRT for a review of his or her detention in hospital:
(i) initially after a period of between six and twelve months' detention;
(ii) thereafter, annually.
46. Under section 71(1) of the 1983 Act, the Secretary of State may at any time refer the case of a restricted patient to an MHRT. This power is discretionary. The Secretary of State therefore cannot be compelled by a patient to exercise it.
E. Absolute discharge
47. Under section 73(1) and (2), read in conjunction with section 72(1), of the 1983 Act (as they were at the time when the facts giving rise to the applicant's case occurred, the sections having subsequently been amended), where an application was made to an MHRT by a restricted patient or where his case was referred to it by the Secretary of State, the MHRT was required to direct the absolute discharge of the patient if it was satisfied:
(a) (i) that the patient was not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which made it appropriate for the patient to be liable to be detained in a hospital for medical treatment; or
(ii) that it was not necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment (section 73(1) of the 1983 Act); and
(b) that it was not appropriate for the patient to remain liable to be recalled to hospital for further treatment (section 73(2) of the 1983 Act).
48. Pursuant to section 73(3), upon an absolute discharge, the patient ceases to be liable to be detained by virtue of the hospital order and the restriction order ceases to have effect.
F. Conditional discharge
49. Under section 73(2) of the 1983 Act, where an MHRT is satisfied as to either of the matters referred to in (a), but not as to the matter referred to in (b) in paragraph 47 above, it is required to direct the conditional discharge of the patient.
50. Lady Justice Butler-Sloss, giving judgment in R. v. Merseyside Mental Health Review Tribunal, ex parte K. [1990] 1 All England Law Reports 699-700, explained the nature of this power as follows:
“Section 73 gives to the tribunal the power to impose a conditional discharge and retain residual control over patients not then suffering from mental disorder or not to a degree requiring continued detention in hospital. This would appear to be a provision designed both for the support of the patient in the community and the protection of the public, and it is an important discretionary power vested in an independent tribunal, one not lightly to be set aside in the absence of clear words.”
51. By virtue of section 73(4) of the 1983 Act, a patient who has been conditionally discharged may be recalled by the Secretary of State. In addition, that patient must comply with the conditions attached to the discharge. In contrast to a patient who has been absolutely discharged, a conditionally discharged patient does not cease to be liable to be detained by virtue of the relevant hospital order.
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52. Under section 73(7) of the 1983 Act, an MHRT can defer a direction for the conditional discharge of a restricted patient until such arrangements as appear to be necessary for the purpose of discharge have been made to its satisfaction.
53. As set out above, in the applicant's domestic case in the Court of Appeal (R. (K.) v. Camden and Islington Health Authority [2001] England and Wales Court of Appeal (Civil Division) 240), Lord Phillips considered the effect of the House of Lords' decision in Oxford. He concluded that if it proved impossible to implement the conditions specified by an MHRT, the patient would remain detained unless and until a fresh reference were made to an MHRT. The original MHRT that imposed the conditions did not have any power to reconsider its decision.
54. A patient's case can therefore only be reconsidered by a differently constituted MHRT. In those circumstances the case must be considered afresh.
55. The Secretary of State may also order a patient's conditional or absolute discharge under section 42 of the 1983 Act.
G. After-care services for patients who are discharged from hospital
56. Section 117(2) of the 1983 Act reads as follows:
“It shall be the duty of the health authority and of the local social services authority to provide, in cooperation with relevant voluntary agencies, after-care services for any person to whom this section applies...”
57. As set out above, the Court of Appeal in the applicant's domestic case (cited above) held that the duty imposed by section 117(2) was not absolute. It was a duty to take all reasonable steps to attempt to satisfy the conditions imposed by the MHRT.
H. Case-law subsequent to the judgment in the applicant's case
58. In R. (I.H.) v. Secretary of State for the Home Department and Another [2002] England and Wales Court of Appeal (Civil Division) 646, decided on 15 May 2002, the Court of Appeal considered the question of whether sections 73(2) and/or 73(7) of the 1983 Act were incompatible with Article 5 §§ 1 (e) and/or 4 of the Convention in that MHRTs lacked the power to guarantee that conditions they might attach to a deferred order for conditional discharge would be implemented within a reasonable period of time. The case, similarly to that of the applicant, involved a patient who was suffering from a mental illness, but one which was in remission. It was decided subsequently to the applicant's domestic case and was brought under the Human Rights Act 1998. It therefore took into account the judgments in the applicant's domestic proceedings, the Convention and Strasbourg jurisprudence.
59. In paragraph 53 of his judgment, Lord Phillips confirmed that the decision of the House of Lords in Oxford made clear that an MHRT was neither obliged nor entitled to reconsider its earlier decision in respect of a conditional discharge in order to accommodate any new facts that might cause it to alter that decision.
Lord Phillips continued, in paragraph 54:
“... the decision in [Oxford] is in potential conflict with the requirements of Article5 § 4. If, having made a decision that a patient is entitled to a conditional discharge, subject to specific conditions which necessitate deferral of the discharge, the Tribunal cannot revisit its decision, the patient is liable to find himself 'in limbo' should it prove impossible to put in place the arrangements necessary to enable him to comply with the proposed conditions. That period 'in limbo' may last too long to be compatible with Article 5 § 4 and may result in the patient being detained in violation of Article 5 § 1.”
Lord Phillips therefore determined that the decision in Oxford needed to be reviewed in the light of the requirements of Article 5 of the Convention. He concluded, in paragraph 71:
“Tribunals should no longer proceed on the basis that they cannot reconsider a decision to direct a conditional discharge on specified conditions where, after deferral and before directing discharge, there is a material change of circumstances.... The original decision should be treated as a provisional decision, and the Tribunal should monitor progress towards implementing it so as to ensure that the patient is not left 'in limbo' for an unreasonable length of time.”
Lord Phillips then gave guidelines to MHRTs considering the discharge of a patient. The guidelines comprised specific steps that could be taken by an MHRT should problems arise with making arrangements to meet the conditions of a conditional discharge. Those steps included the possibility of deferring for a further period, varying the proposed conditions to seek to overcome the difficulties, ordering a conditional discharge without specific conditions or deciding that the patient had to remain detained in hospital for treatment. The Court of Appeal concluded (in paragraphs 96-98) that such a scheme, proposed in the light of its review of the decision of the House of Lords in Oxford, would be compatible with Article 5 § 1 of
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the Convention.
60. Following an appeal to the House of Lords, on 13 November 2003, Lord Bingham, in his judgment with which the other members of the House of Lords agreed, held:
“18. The key to a correct understanding of Johnson is to appreciate the nature of the case with which the Court was dealing. It was that of a patient who, from June 1989 onwards, was found not to be suffering from mental illness and whose condition did not warrant detention in hospital. The Court's reasoning is not applicable to any other case.
...
26. I do not accept that, because the tribunal lacked the power to secure compliance with its conditions, it lacked the coercive power which is one of the essential attributes of a court. What Article 5 §§ 1 (e) and 4 require is that a person of unsound mind compulsorily detained in hospital should have access to a court with power to decide whether the detention is lawful and, if not, to order his release. This power the tribunal had. Nothing in Article 5 suggests that discharge subject to conditions is impermissible in principle, and nothing in the Convention jurisprudence suggests that the power to discharge conditionally (whether there are specific conditions or a mere liability to recall), properly used, should be viewed with disfavour. Indeed, the conditional discharge regime, properly used, is of great benefit to patients and the public, and conducive to the Convention object of restricting the curtailment of personal liberty to the maximum, because it enables tribunals to ensure that restricted patients compulsorily detained in hospital represent the hard core of those who suffer from mental illness, are a risk to themselves or others and cannot be effectively treated and supervised other than in hospital. If there is any possibility of treating and supervising a patient in the community, the imposition of conditions permit that possibility to be explored and, it may be, tried.
27. When, following the tribunal's order of 3 February 2000, it proved impossible to secure compliance with the conditions within a matter of a few months, a violation of the appellant's Article 5 § 4 right did occur. It occurred because the tribunal, having made its order, was precluded by the authority of the Oxford case from reconsidering it. The result was to leave the appellant in limbo for a much longer period than was acceptable or compatible with the Convention. I would accordingly endorse the Court of Appeal's decision to set aside the Oxford ruling and I would adopt the ruling it gave in paragraph 71 of its judgment quoted above. Evidence before the House shows that that ruling is already yielding significant practical benefits....
28. There was no time between 3 February 2000 and 25 March 2002 when the appellant was, in my opinion, unlawfully detained, and there was thus no breach of Article 5 § 1 (e). There is a categorical difference, not a difference of degree, between this case and that of Johnson. Mr Johnson was a patient in whose case the Winterwerp criteria were found not to be satisfied from June 1989 onwards. While, therefore, it was reasonable to try and ease the patient's reintegration into the community by the imposition of conditions, the alternative, if those conditions proved impossible to meet, was not continued detention but discharge, either absolutely or subject only to a condition of liability to recall. His detention became unlawful shortly after June 1989 because there were, as all the doctors agreed, no grounds for continuing to detain him. The present case is quite different. There was never a medical consensus, nor did the tribunal find, that the Winterwerp criteria were not satisfied. The tribunal considered that the appellant could be satisfactorily treated and supervised in the community if its conditions were met, as it expected, but the alternative, if these conditions proved impossible to meet, was not discharge, either absolutely or subject only to a condition of recall, but continued detention....
29. The duty of the health authority, whether under section 117 of the 1983 Act or in response to the tribunal's order of 3 February 2000, was to use its best endeavours to procure compliance with the conditions laid down by the tribunal. This it did. It was not subject to an absolute obligation to procure compliance and was not at fault in failing to do so. It had no power to require any psychiatrist to act in a way which conflicted with the conscientious professional judgment of that psychiatrist. Thus the appellant can base no claim on the fact that the tribunal's conditions were not met....
30. I do not consider that the violation of Article 5 § 4 which I have found calls for an award of compensation since (a) the violation has been publicly acknowledged and the appellant's right thereby vindicated, (b) the law has been amended in a way which should prevent similar violations in future, and (c) the appellant has not been the victim of unlawful detention, which Article 5 is intended to avoid.
For these reasons... I would dismiss this appeal.”
THE LAW
I. ALLEG
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ED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
61. Article 5 § 1 of the Convention provides:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(e) the lawful detention... of persons of unsound mind...”
A. The parties' submissions
1. The applicant
62. The applicant considered that she was materially in the same position as in Johnson v. the United Kingdom (judgment of 24 October 1997, Reports of Judgments and Decisions 1997-VII) in that her release had been unjustifiably delayed. She did not accept that there was a distinction between patients who were absolutely entitled to discharge and patients who the MHRT found did not require further detention in hospital for treatment as long as services were provided to them in the community. The second category should not be treated as not enjoying a right to liberty under Article 5 § 1 as they no longer suffered a mental disorder of a kind or degree warranting their compulsory confinement within the meaning of Winterwerp v. the Netherlands (judgment of 24 October 1979, Series A no. 33). The applicant adopted the analysis of Lord Justices Buxton and Sedley in this case in the Court of Appeal.
63. Once the MHRT had held that a patient fulfilled the criteria for discharge, then the Winterwerp criteria for detention were no longer fulfilled and there was a breach of Article 5 § 1 if they were detained longer than reasonably necessary after that finding. The availability of resources to enable such a patient to continue in the community without manifestation of mental disorder requiring detention would be relevant to the period of time for which his discharge might reasonably be delayed but not to the entitlement to discharge itself. Where resources were available but not deployed because of a disagreement with the decision of the tribunal, as in this case, then there would be a breach of the patient's right under Article 5 § 1 as she would be deprived of the benefit of its direction for her discharge. It was impermissible in the applicant's view for a psychiatrist or health body to act so as to undermine the effectiveness of the determination of the MHRT as to the legality of a patient's detention.
64. The applicant disputed that a margin of appreciation applied to the statutory scheme governing the detention of mental health patients, submitting that the right concerned was one of the most fundamental and the modification necessary to remove the breach was not so great as to justify continuing deprivation of liberty of patients who no longer fulfilled the Winterwerp criteria. The margin might apply to the time by which services had to be put in place to enable a discharge to take effect but not to the question whether the patient was discharged at all.
2. The Government
65. The Government submitted that the three criteria set out in Winterwerp for the detention of a person on mental health grounds were met in the applicant's case. She was still suffering from a mental disorder, namely schizophrenia, and needed ongoing treatment and medication to control her illness. It was appropriate for her to be liable to be recalled for further treatment and that certain conditions be attached to any discharge, in particular that she should be subject to supervision by a consultant forensic psychiatrist. The tribunal's decision was that she should only be discharged if those conditions were met. The Government argued that it was wrong to assume that, when a tribunal ordered a conditional discharge, this meant that the nature of the disorder no longer warranted hospital confinement (the second Winterwerp criterion). They distinguished conditions precedent, namely those conditions, such as those relating to psychiatric supervision, where if the conditions were not met the patient's condition warranted continued detention, from other conditions, which although desirable were not essential to the decision to discharge or which only applied after discharge, as in Johnson (cited above).
66. The Government further submitted that there was no requirement in the Convention that authorities had to be able to enforce the terms of a conditional discharge whether by compelling a third party to act or by the provision of a particular level of resources. The way in which the authorities should deal with an “impasse” had now been considered by the Court of Appeal and House of Lords in I.H. (see paragraphs 58-60 above) and they had issued guidelines permitting tribunals to monitor and reconsider decisions. In the Government's view, Contracting States also had a margin of appreciation in deciding what resources to provide in order to meet various social policy objectives. There was no unrestricted obligation to provide any resources which would allow the patient to be discharged. That did not mean that the decision on detention rested solely upon economic grounds but that the provision of resources in the community had to be taken into account in deciding whether the second Winterwerp criterion had been met.
B. The Court's assessment
67. Detention of a person as being of unsound mind depends, in Convention
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terms, on the Winterwerp criteria, namely:
(i) the patient must be reliably shown upon objective medical expertise to be suffering from a true mental disorder;
(ii) the disorder must be of a “kind or degree” warranting compulsory confinement;
(iii) the validity of any continued detention depends upon the persistence of a true mental disorder of a kind or degree warranting compulsory detention, established upon objective medical expertise (see Winterwerp, cited above, pp. 17-18, § 39)
68. The applicant's argument is that the MHRT, in ordering her conditional discharge, found that she was entitled to live and be treated in the community and was therefore no longer suffering from a disorder warranting compulsory confinement. She submits that the reasoning in Johnson (cited above), where continued detention flowing from a delay in achieving the applicant's conditional discharge was not found to be justified under Article 5 § 1 (e), applies to her case and rendered her continued detention arbitrary and contrary to Article 5.
69. The Court observes, however, that in Johnson the MHRT had found that the applicant was no longer suffering from a mental disorder, no longer had the symptoms and did not require any further medication or treatment. In the present case, the domestic courts noted that the applicant was in a different situation – she still continued to suffer from schizophrenia and continued to require treatment (including medication) and medical supervision in order to control her illness.
70. The Court is therefore unable to accept the applicant's contention that the MHRT's decision that she could be discharged subject to conditions was tantamount to a finding that the second Winterwerp criterion was no longer fulfilled, with the result that any subsequent undue delay in release was in breach of Article 5 § 1. The formal questions answered by the MHRT are not framed in terms of the Winterwerp criteria but make findings relevant to the possibility of conditional, as well as absolute, discharge. As the substance of the reasoning from the MHRT showed, the discharge of the applicant was only regarded as appropriate if there was continued treatment or supervision necessary to protect her own health and the safety of the community. In the absence of that treatment, her detention continued to be necessary in line with the purpose of Article 5 § 1 (e).
71. As events in the present case showed, the treatment considered necessary for such conditional discharge may not prove available, in which circumstances there can be no question of interpreting Article 5 § 1 (e) as requiring the applicant's discharge without the conditions necessary for protecting her and the public, or as imposing an absolute obligation on the authorities to ensure that the conditions are fulfilled. Nor is it necessary in the present case to attempt to anticipate what level of obligation could arise by way of provision of treatment in the community to ensure the due effectiveness of MHRT decisions concerning release. In the situation under consideration, a failure by the local authority to use its “best efforts” or any breach of duty by a psychiatrist in refusing care in the community would be amenable to judicial review. The Court is therefore not persuaded that local authorities or doctors could wilfully or arbitrarily block the discharge of patients into the community without proper grounds or excuse, or that this occurred in this case.
72. The Court concludes in the present case that, after the MHRT decision of 16 August 1999, the applicant continued to suffer from an illness which justified compulsory detention and that her detention fell within the exception of Article 5 § 1 (e). Nonetheless, while it is therefore not excluded that the imposition of conditions may justify a deferral of a discharge found to be appropriate or feasible in domestic-law terms, it is of paramount importance that appropriate safeguards are in place so as to ensure that any continued detention is consonant with the purpose of Article 5 § 1. Accordingly, the period of delay during which the applicant's position was “in limbo” raises issues under Article 5 § 4 which are examined below.
73. It follows that there has been no violation of Article 5 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
74. Article 5 § 4 of the Convention provides:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
A. The parties' submissions
1. The applicant
75. The applicant submitted that she had been denied a speedy review of the grounds of her detention as, once it became apparent that the conditions on discharge imposed by the MHRT would not be fulfilled, she had to wait until her next annual application, or, as happened in this case, for the Secretary of State to refer the case back to the MHRT. Her case was therefore not considered until more than one year after she had been
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found entitled to discharge.
76. Further, the defect in the system identified by the domestic courts in I.H. prevented the MHRT from reconsidering its decision in light of the psychiatrists' refusal to provide supervision to fulfil the conditions attached to the discharge. Contrary to the Government's submission, the denial of this remedy did have a practical effect on her position as, if she had been afforded the remedy now held to be open to her, she would have had her case considered by the MHRT as soon as it became apparent, at the end of September 1999 and less than two months after the MHRT's decision, that the psychiatrists responsible for providing services were unwilling to provide them. If the MHRT had had the opportunity of considering her case as soon as it was known that no psychiatric supervision would be provided on the basis of the conditions imposed, it could have varied the conditions, as it eventually did, to address the psychiatrists' reasons for declining to provide supervision much earlier than her eventual discharge date in December 2000.
2. The Government
77. The Government submitted that the scope of the tribunal's powers entirely accorded with this provision in directing that the applicant should be discharged if certain conditions were met. They acknowledged that in certain cases there might be a breach of Article 5 § 4 because the MHRT had no power to review the position of the patient if the conditions could not be met, but that incompatibility had been remedied by the Human Rights Act 1998 and the domestic courts' decisions in I.H.. These developments occurred after the facts in the present case, but they submitted that there was no evidence that the previous incompatibility had had an impact in practice on the applicant's rights. As regards speed, the Secretary of State was able to refer the matter back to a fresh tribunal under section 71 of the 1983 Act, and after the decision in I.H. the tribunal itself could consider the matter further in light of progress or otherwise in meeting the conditions. If the conditions had not been met but it appeared that the authorities had not been using their best endeavours to meet the conditions, it was open to the patient to seek judicial review of the authorities' failure to act, in which review the well-known principles of judicial review such as illegality and irrationality and the requirements of the Human Rights Act 1998 would be taken into account.
B. The Court's assessment
78. The Court observes that the decision for the applicant's conditional discharge was given on 16 August 1999 but that it was not implemented as no psychiatrist would agree to supervise her on the basis of the planned discharge to her parents' home. The matter was eventually referred back to the MHRT by the Secretary of State in the exercise of his discretion and the review of the case took place just over a year after the initial decision, namely on 24 August 2000, when it varied that decision to provide for discharge, under medical supervision, into the more controlled environment of a hostel.
79. The issue to be determined is whether the inability of the MHRT to review of its own motion or on the application of the applicant, and therefore with due speed, the continued detention of the applicant after its decision that she was to be released on conditions complied with the requirement of Article 5 § 4 of the Convention.
80. Article 5 § 4 affords a crucial guarantee against the arbitrariness of detention, providing for detained persons to obtain a review by a court of the lawfulness of their detention not only at the time of the initial deprivation of liberty but also where new issues of lawfulness are capable of arising periodically thereafter (see, inter alia, Kurt v. Turkey, judgment of 25 May 1998, Reports 1998-III, p. 1185, § 123, and Varbanov v. Bulgaria, no. 31365/96, § 58, ECHR 2000-X). Where, as in the present case, the MHRT finds that a patient's detention in hospital is no longer necessary and that she is eligible for release on conditions, the Court considers that new issues of lawfulness may arise where detention nonetheless continues, due, for example, to difficulties in fulfilling the conditions. It follows that such patients are entitled under Article 5 § 4 to have the lawfulness of that continued detention determined by a court with requisite promptness.
81. The Court observes that, since the facts of the present application, the domestic courts have acknowledged in a similar case that there had been a breach of Article 5 § 4 and that they have overruled previous authority which was perceived to conflict with the requirements of Article 5 and given guidance as to the way in which the authorities should give effect to the legislation to avoid breaches in the future, namely by the MHRT issuing provisional decisions, monitoring progress in the implementation of conditions and varying conditions, or modifying its decision, if necessary (see paragraphs 58-60 above).
82. In the present case, however, the Court finds that for over a year the applicant was unable to have the issues
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arising from supervening events, as they affected her continued detention, examined by a court and that the lapse of twelve months before it was reviewed on the Secretary of State's referral cannot be regarded as sufficiently prompt to remedy this defect. There has therefore been a violation of Article 5 § 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION
83. Article 5 § 5 of the Convention provides:
“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
84. The applicant submitted that the domestic courts had held that a patient in her position was not entitled to compensation from the MHRT, the detaining health authority or the authority responsible for providing services necessary for fulfilment of the conditions on the patient's discharge. Nor was the Human Rights Act 1998 in force at the relevant time.
85. The Government submitted that there had been no breach of Article 5 §§ 1 or 4 and that, therefore, no issue arose under Article 5 § 5. If the Court found in favour of the applicant, they accepted that there was no enforceable right to compensation before the entry into force of the Human Rights Act 1998.
86. In the light of its finding above of a breach of Article 5 § 4 of the Convention, and noting the Government's concession, the Court finds that there has been a violation of Article 5 § 5 in the present case.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
87. Article 13 of the Convention provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
88. The Court has found above that there have been violations of Article 5 §§ 4 and 5 of the Convention. These provisions of Article 5 being the lex specialis concerning complaints relating to deprivation of liberty, no separate issues arise under Article 13 in the circumstances of this case (see, for example, Morley v. the United Kingdom (dec.), no. 16084/03, 5 October 2004).
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
89. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
90. The applicant claimed that she had been unlawfully detained for more than sixteen months. With reference to domestic-law awards (for example, 3,000 pounds sterling (GBP) for a period of twenty-four hours), she submitted that she should be awarded a very substantial sum. She claimed GBP 25,000, referring to her anxiety and distress at the confinement, loss of self-respect, general effects of loss of liberty, uncertainty, depression, loneliness, considerable weight gain, close proximity to mental illness and distress caused by other patients and the death of a nephew during this period, when she was unable to be with her relatives.
91. The Government submitted that the Court was not bound by domestic scales of damages and in any event pointed to a precedent in the courts in which sums of only GBP 750 to 4,000 were paid under the Human Rights Act 1998 for delays in mental health reviews (see K.B. and Others v. Mental Health Review Tribunal [2003] England and Wales High Court (Administrative Court) 193). They considered that a finding of a violation would constitute sufficient just satisfaction in this case, but that if the Court concluded otherwise the sum should be line with the awards in K.B.
92. The Court notes that it has found a procedural breach of Article 5 § 4 of the Convention above and that there has been no finding of substantive unlawfulness. It cannot be excluded on the facts of this case, however, that the applicant would have been released earlier if the procedures had conformed with Article 5 § 4 and therefore she may claim to have suffered, in that respect, a real loss of opportunity. Furthermore, it considers that the applicant must have suffered feelings of frustration, uncertainty and anxiety from the situation which cannot be compensated solely by the finding of violation. Having regard to awards made in similar cases, the Court awards, on an equitable basis, 6,000 euros (EUR).
B. Costs and expenses
93. The applicant claimed legal costs and expenses of EUR 5,341, which included EUR 1,020 for solicitors' costs and EUR 4,321 for counsels' fees, inclusive of value-added tax.
94. The Government had no comment on counsels' fees
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but noted that the solicitors' costs appeared to relate to sums paid by way of legal aid from the Council of Europe.
95. Taking into account the sums paid by way of legal aid from the Council of Europe, the Court awards EUR 4,656 for legal costs and expenses.
C. Default interest
96. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been no violation of Article 5 § 1 of the Convention;
2. Holds that there has been a violation of Article 5 § 4 of the Convention;
3. Holds that there has been a violation of Article 5 § 5 of the Convention;
4. Holds that no separate issue arises under Article 13 of the Convention;
5. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the date of settlement:
(i) EUR 6,000 (six thousand euros) in respect of non-pecuniary damage;
(ii) EUR 4,656 (four thousand six hundred and fifty-six euros) in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 21 June 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-PassosJosep CasadevallDeputy RegistrarPresident
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THIRD SECTION
CASE OF MURUZHEVA v. RUSSIA
(Application no. 62526/15)
JUDGMENT
STRASBOURG
15 May 2018
FINAL
15/08/2018
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Muruzheva v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Helena Jäderblom, President,Branko Lubarda,Helen Keller,Dmitry Dedov,Pere Pastor Vilanova,Georgios A. Serghides,Jolien Schukking, judges,and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 10 April 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 62526/15) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Leyla Khamarzovna Muruzheva (“the applicant”), on 11 December 2015.
2. The applicant was represented by Ms V. Kogan and Mr E. Wesselink from the Stichting Russian Justice Initiative, an NGO based in Moscow. The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3. The applicant complained about the authorities’ failure to enforce the judgment of 25 June 2014 granting her a residence order in respect of her children.
4. On 25 April 2016 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1985 and lives in Moscow.
6. In May 2008 she married R.M. The couple settled in Moscow.
7. On 23 July 2008 and 31 May 2012 the applicant gave birth to two children, a son and a daughter respectively.
8. In January 2014 she and R.M. decided to separate.
9. On 14 January 2014 R.M. took the children to the Republic of Ingushetiya without the applicant knowing. He left them with his parents (the paternal grandparents) and went back to Moscow.
10. On 4 March 2014 the marriage between the applicant and R.M. was dissolved.
11. On 11 March 2014 the applicant applied to the Izmaylovskiy District Court of Moscow (“the District Court”) for a residence order in respect of the children. She also applied for child maintenance from R.M.
12. On 25 June 2014 the District Court decided that the children should reside with their mother, the applicant. It further ordered R.M. to return the children to her and pay child maintenance. The judgment became final on 14 October 2014.
13. However, R.M. refused to comply with the judgment.
14. On 10 November 2014 the District Court issued a writ of execution.
15. On 17 November 2014 the Sunzhenskiy District Bailiffs’ Service in the Republic of Ingushetiya refused to institute enforcement proceedings since the debtor, R.M., resided in Moscow.
16. On 24 November 2014 the Izmaylovskiy District Bailiffs’ Service in Moscow opened enforcement proceedings.
17. On 2 February 2015 the enforcement proceedings were transferred to the Sunzhenskiy District Bailiffs’ Service in the Republic of Ingushetiya.
18. On 12 February 2015 the applicant challenged the lawfulness of the above-mentioned decision before the District Court.
19. On 8 April 2015 the District Court found the decision of 2 February 2015 to be unlawful.
20. Meanwhile, on 23 March, 2 April, 14 April and 16 April 2015 a bailiff from the Sunzhenskiy District Bailiffs’ Service tried to enforce the judgment of 25 June 2014 without success: on 23 March and 16 April 2015 due to the emotional state of the children, on 2 April 2015 because the children were outside the territory of the Republic of Ingushetiya, and on 14 April 2015 because the applicant was absent.
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21. On 24 April 2015 the applicant challenged in court the lawfulness of the bailiffs’ actions during the attempt to return the children to her on 16 April 2015, in particular: involvement of the wrong district childcare authority in the enforcement, refusal of a request by her to have the enforcement filmed, refusal to examine an objection by her concerning a psychologist participating in the enforcement, delay in notification of the enforcement, establishment during the enforcement of the applicant’s son’s preferences as to his future living arrangements, as well as the bailiffs’ inaction resulting in the failure to secure enforcement of the judgment of 25 June 2014.
22. On 11 June 2015 the Magasskiy District Court of the Republic of Ingushetiya found the bailiffs’ actions during the attempt to return the children to the applicant on 16 April 2015 to be unlawful.
23. On 17 June 2015 a bailiff from the Sunzhenskiy District Bailiffs’ Service restricted R.M.’s travel within the Russian Federation for six months.
24. Meanwhile, according to the Government, on 16 June, 5 July, an unspecified date in July, 15 July and 17 August 2015 a bailiff from the Sunzhenskiy District Bailiffs’ Service informed the applicant that the enforcement was scheduled for 22 June, 6 July, 13 July, 27 July and 19 August 2015 respectively. On each of the five occasions R.M. took the children to the premises of the Sunzhenskiy District Bailiffs’ Service. However, since neither the applicant nor her representative were present, the enforcement could not take place.
25. According to the applicant, she was never informed of the enforcement dates scheduled for 22 June, 6 July, 13 July, 27 July and 19 August 2015.
26. It appears from the case file that the notification of 16 June 2015 was sent to R.M.’s address. The notifications of 15 July and 17 August 2015 were sent to the applicant’s address, though there is no evidence to suggest that she received them. The case file contains no evidence that she was notified of the other two scheduled dates for carrying out the enforcement measures either.
27. On 17 September 2015 the enforcement file was returned to the Izmaylovskiy District Bailiffs’ Service in Moscow pursuant to the decision of the District Court of 8 April 2015 (see paragraph 19 above).
28. On 6 October and 20 October 2015 a bailiff from the Izmaylovskiy District Bailiffs’ Service in Moscow ordered R.M. to comply with the judgment of 25 June 2014 by 13 October and 23 October 2015 respectively. He further visited R.M. at his place of residence in Moscow. It was established that the children were living with R.M.’s parents in the Republic of Ingushetiya.
29. On 23 October 2015 the deputy chief bailiff of the Izmaylovskiy District Bailiffs’ Service imposed an administrative fine on R.M. of 2,500 Russian roubles (RUB) for failure to comply with the judgment of 25 June 2014.
30. On 3 November 2015 a bailiff from the Izmaylovskiy District Bailiffs’ Service invited R.M. to the bailiffs’ office on 10 November 2015 to provide explanations for his non-compliance with the judgment of 25 June 2014.
31. On 10 November 2015 the bailiff imposed an execution fee on R.M. of RUB 5,000 for failure to comply with the judgment of 25 June 2014. He was ordered to comply by 13 November 2015.
32. On 20 November 2015 the deputy chief bailiff of the Izmaylovskiy District Bailiffs’ Service imposed a further administrative fine on R.M. of RUB 2,500 for failure to comply with the judgment of 25 June 2014.
33. On the same day the chief bailiff of the Izmaylovskiy District Bailiffs’ Service imposed an administrative fine on R.M. of RUB 1,000 for failure to comply with the lawful demands of the bailiffs.
34. On 14 January 2016 the Commission for the Affairs of Minors and the Protection of Their Rights of the Severnoye Izmaylovo District in Moscow imposed an administrative fine on R.M. of RUB 2,000.
35. On the same day the bailiff temporarily restricted R.M.’s travel in view of his failure to comply with the judgment of 25 June 2014, and ordered him to pay the imposed administrative fines. R.M. was invited to the bailiffs’ office on 19 January 2016 to provide explanations for his reluctance to comply with the judgment of 25 June 2014, and was ordered to comply by 20 January 2016.
36. At the applicant
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’s request, on 3 February 2016 the bailiff launched a search for the children and restricted R.M.’s right to drive.
37. On 5 February 2016 the chief bailiff of the Izmaylovskiy District Bailiffs’ Service imposed an administrative fine on R.M. of RUB 1,000 for failure to comply with the lawful demands of the bailiffs.
38. On 13 April 2016 the bailiff telephoned R.M. and asked him to attend the bailiffs’ office to provide explanations for his non-compliance with the judgment of 25 June 2014. He refused to do so.
39. On 14 April 2016 the bailiff suspended the enforcement proceedings.
40. According to the Government, on 5 May 2016 the bailiff informed the applicant that the enforcement was scheduled for 10 a.m. on 19 May 2016 at the children’s place of residence in the Republic of Ingushetiya. However, since she failed to attend, the enforcement could not be carried out.
41. According to the applicant, she was not informed of the enforcement scheduled for 19 May 2016.
42. It appears from the case file that the notification of 5 May 2016 was sent to R.M.’s address.
43. The judgment of 25 June 2014 remains unenforced to date. The children continue to live with their paternal grandparents in the Republic of Ingushetiya.
II. RELEVANT DOMESTIC LAW
44. For the relevant provisions of domestic law, see Pakhomova v. Russia (no. 22935/11, §§ 91-112, 24 October 2013).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
45. The applicant complained that the authorities had failed to enforce the judgment of 25 June 2014 granting her a residence order in respect of her children. She relied on Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
46. The Government asserted that the domestic authorities had taken all the necessary steps that they could reasonably have been expected to take to enforce the judgment of 25 June 2014. However, their efforts had been unsuccessful. They considered that the applicant had prevented the enforcement herself as, despite having been duly notified of the scheduled enforcement dates, she had repeatedly failed to attend. The removal of the children and their transfer could not take place in her absence. The Government concluded that the State had complied with its positive obligation to ensure the applicant’s right to respect for her family life under Article 8 of the Convention and that there had therefore been no violation of that Convention provision.
47. The applicant challenged the Government’s assertion that the domestic authorities had taken all necessary steps to facilitate the reunion between her and the children. She considered that throughout the enforcement proceedings the bailiffs had failed to display due diligence in handling her calls for assistance. They had appeared unprepared to face the task and had had no clear idea or action plan as to what could and should be done. As a result, the children continued to live with their parental grandparents instead of either parent. The applicant submitted that she had been present for all the enforcement attempts of which she had been duly and properly notified, namely 23 March, 2 April and 16 April 2015, except for the enforcement planned for 14 April 2015. She had been absent on that date due to illness. She had not been informed of any other enforcement dates. The case file contains no evidence to the contrary. The applicant further deplored the bailiffs’ conduct during the enforcement proceedings (see paragraph 21 above), the delay in transferring the enforcement file from the Republic of Ingushetiya back to Moscow pursuant to the District Court’s decision of 8 April 2015, and the failure to properly notify her of the enforcement dates, which rendered the enforcement measures completely useless. The total amount of administrative fines imposed on R.M. for his failure to comply with the judgment of 25 June 2014 was too small to be capable of inducing him to comply with the bailiffs’ demands. Besides, none of the fines had actually been recovered from him. Bailiffs from the Izmaylovskiy District Bailiffs’ Service in Moscow should have exercised their right under section 33(10) of the Enforcement Proceedings Act to travel to Ingushetiya to facilitate enforcement of the judgment rather than sending requests for assistance to the Sunzhenskiy District B
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ailiffs’ Service in the Republic of Ingushetiya, which was clearly biased against the applicant and not predisposed to enforcing the judgment in her favour. The latter allegation was supported by references to unlawful actions by the bailiffs of that Bailiffs’ Service, as well as by the existence of a common phenomenon in cases concerning custody decisions from Chechnya and Ingushetiya.
A. Admissibility
48. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. General principles
49. The essential object of Article 8 of the Convention is to protect the individual against arbitrary interference by the public authorities. There may also be positive obligations inherent in an effective “respect” for family life (see Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290). In cases where contact and residence disputes concerning children arise between parents and/or other members of the children’s family (see, for example, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299-A, and Zawadka v. Poland, no. 48542/99, § 55, 23 June 2005), the Court’s case‑law has consistently held that this Convention provision includes, among other things, a right for a parent to have measures taken with a view to his or her being reunited with their child, and an obligation on the national authorities to take such measures.
50. At the same time, the national authorities’ obligation to take measures to facilitate reunion is not absolute, since the reunion of a parent with children who have lived for some time with the other parent may not be able to take place immediately, and may require preparatory measures to be taken. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and cooperation of all concerned are always important ingredients. Whilst the national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited, since the interests as well as the rights and freedoms of all concerned must be taken into account, as should be, more particularly, the best interests of the child and his or her rights under Article 8 of the Convention (see P.P. v. Poland, no. 8677/03, § 82, 8 January 2008; Hokkanen, cited above, § 53; and Ignaccolo-Zenide v. Romania, no. 31679/96, § 96, ECHR 2000‑I). The adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent (see P.P. v. Poland, cited above, § 83). Although coercive measures involving a child are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the child lives (see Ignaccolo‑Zenide, cited above, §§ 105-106).
2. Application in the present case
51. The Court notes that it was not disputed between the parties that the ties between the applicant and her children constituted “family life” for the purposes of Article 8 of the Convention. The Court next notes that the District Court’s judgment of 25 June 2014 ordering that the children, then aged six and two, live with their mother, the applicant, remains unenforced some three and a half years later. Accordingly, it has to be determined whether in the particular circumstances of the case the national authorities took all the necessary steps which they could reasonably have been expected to take to facilitate the enforcement.
52. The Court observes that on 24 November 2014 the Izmaylovskiy District Bailiffs’ Service in Moscow opened enforcement proceedings. It further notes that on 2 February 2015 the enforcement proceedings were transferred to the Sunzhenskiy District Bailiffs’ Service in the Republic of Ingushetiya. On 8 April 2015, however, the District Court found the decision of 2 February 2015 to be unlawful. It appears that it took the domestic authorities four and a half months to determine the bailiffs’ service competent to lead the enforcement proceedings. The Court further notes that, despite the decision of 8 April 2015 finding the transfer of the enforcement proceedings from Moscow to the Republic of Ingushetiya to be unlawful, it was not until over five months later, on 17 September 2015, that the enforcement file was returned to the Izmaylovskiy District Bailiffs’ Service in Moscow (see paragraph 27 above).
53. The Court further observes that following the institution of the enforcement proceedings on 24 November
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2014, it was four months later, on 23 March 2015, when the first enforcement attempt took place (see paragraph 20 above). The Court notes that four attempts were made to return the children between March and April 2015. It appears, however, that no preparatory measures had been undertaken by the bailiffs to make the scheduled enforcement attempts practicable, especially given that the children had been living with their parental grandparents since January 2014. As a result, on two occasions the enforcement could not take place because the children were outside the territory of the Republic of Ingushetiya, and on two occasions due to their emotional state. The Court notes, furthermore, that the bailiffs’ actions during the attempt to return the children on 16 April 2015 were found to be unlawful by the domestic courts (see paragraph 22 above).
54. The Court observes that the subsequent attempts to enforce the judgment of 25 June 2014 took place two months later, in June 2015. The Court notes that in the period between June and August 2015 five enforcement dates were scheduled by the bailiffs, however, none of them could take place because the applicant was absent. The Court notes that the documents contained in the case file explain her absence on those dates. There is no proof that she has been duly notified (see paragraph 26 above). Therefore, the inability of the bailiffs to proceed with the enforcement on those occasions cannot be attributed to the applicant.
55. The Court further notes that between October 2015 and February 2016 several administrative fines were imposed on R.M. for his failure to comply with the lawful demands of the bailiffs and with the judgment of 25 June 2014, as well as an execution fee. The total penalties amounted to RUB 14,000[1] (see paragraphs 29, 31-34 and 37 above). However, nothing in the case file suggests that the penalties in question were actually recovered from R.M.
56. The Court further observes that, having restricted R.M.’s right to travel and drive a vehicle and launched a search for the children in January to February 2016, in May 2016 the bailiffs undertook another attempt to enforce the judgment of 25 June 2014. However, they failed to duly notify the applicant (see paragraph 42 above) and could not, therefore, proceed with the enforcement in her absence.
57. The Court notes that the judgment of 25 June 2014 determining the children’s place of residence with the applicant has remained unenforced for nearly four years now, a major part of the children’s lives, with all the consequences that that might have for their physical and mental well-being. It appears that not once in that period has the applicant been able to communicate with her children.
58. Having regard to the foregoing, and without overlooking the difficulties created by the resistance of R.M., the children’s father, the Court concludes that the Russian authorities failed to take, without undue delay, all the measures that they could reasonably have been expected to take to enforce the judgment concerning the applicant’s custody of her children.
59. There has therefore been a violation of the applicant’s right to respect for her family life, as guaranteed by Article 8 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
60. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
61. The applicant claimed compensation for non‑pecuniary damage sustained as a result of the alleged violation of the Convention in an amount to be determined by the Court.
62. The Government considered that, since the applicant had failed to quantify her claim for non-pecuniary damage, her claim should be rejected.
63. The Court considers that the applicant must have suffered, and continues to suffer, profound distress as a result of her inability to have a relationship with her children. In the light of the circumstances of the case, and making an assessment on an equitable basis as required by Article 41, the Court awards the applicant 12,500 euros (EUR) under this head.
B. Costs and expenses
64. The applicant also claimed EUR 6,136.45 for costs and expenses, including legal fees (EUR 4,875 in the proceedings before the Court and EUR 700 in domestic proceedings), administrative expenses, including telephone, fax, e-mail, copying and paper expenses, secretarial fees (EUR 390.25), and postal expenses (EUR 171). She submitted a legal fee agreement in accordance with which, if she “won” her case and was awarded compensation by the Court, she was to pay her lawyers EUR 150 per hour. She also submitted lawyers’ time
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-sheets and relevant invoices.
65. The Government submitted that contingency fee agreements were not enforceable under Russian law. They further argued that it had not been shown that the expenses incurred in the domestic proceedings had had any relevance to the present case, and that the applicant’s recourse to international courier service for sending her documents to the Court had not been strictly necessary.
66. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 covering costs under all heads, to be paid directly to the bank account of the Stichting Russian Justice Initiative NGO, plus any tax that may be chargeable to the applicant on that amount.
C. Default interest
67. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 8 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid to the bank account of the Stichting Russian Justice Initiative NGO;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 15 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş AracıHelena JäderblomDeputy RegistrarPresident
[1]. Approximately EUR 200 at the current official exchange rate.
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FOURTH SECTION
CASE OF PIELASA v. POLAND
(Application no. 66463/01)
JUDGMENT
STRASBOURG
30 January 2007
FINAL
30/04/2007
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Pielasa v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
SirNicolas Bratza, President,MrG. Bonello,MrK. Traja,MrL. Garlicki,MsL. Mijović,MrJ. Šikuta,MrsP. Hirvelä, judges,and Mr T.L. Early, Section Registrar,
Having deliberated in private on 9 January 2007,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 66463/01) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Ms Irena Pielasa (“the applicant”), on 22 April 1999.
2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3. On 19 December 2005 the Court decided to give notice of the application to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1956 and lives in Mińsk Mazowiecki, Poland.
5. The investigation against the applicant started on 30 December 1992.
6. On 31 August 1993 the Mińsk Mazowiecki District Prosecutor (Prokurator Rejonowy) lodged a bill of indictment against the applicant and another person with the Mińsk Mazowiecki District Court (Sąd Rejonowy). She was indicted on a charge of fraud.
7. The first hearing was scheduled for 18 May 1994. Subsequently the court held 5 hearings at intervals ranging from 1 to 9 months. They were adjourned due to the absence of the co-accused or her counsel.
8. At a hearing on 14 January 1997 the court returned the case to the prosecutor for further investigation.
9. On 27 June 1997 the prosecutor lodged a new bill of indictment with the District Court.
10. The court held hearings on 25 March, 21 May, 19 June and 8 September 1998.
11. On 11 September 1998 the court acquitted the applicant.
12. On 12 November 1998 the Mińsk Mazowiecki District Prosecutor appealed against the first-instance judgment.
13. At a hearing on 29 January 1999 before the Siedlce Regional Court (Sąd Okręgowy) the prosecutor withdrew his appeal. In consequence, the court decided not to examine it.
II. RELEVANT DOMESTIC LAW AND PRACTICE
14. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
15. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of... any criminal charge against him, everyone is entitled to a... hearing within a reasonable time by [a]... tribunal...”
16. The Government contested that argument.
17. The period to be taken into consideration began on 31 August 1993 and ended on 29 January 1999. It thus lasted 5 years and 5 months, for two levels of jurisdiction.
A. Admissibility
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18. The Government raised a preliminary objection that the applicant had not exhausted domestic remedies available to him under Polish law, as required by Article 35 § 1 of the Convention. They maintained that from 17 September 2004, the date of entry into force of the 2004 Act, the applicant had a possibility of seeking compensation for the damage resulting from the excessive length of proceedings before Polish courts, under section 16 of the 2004 Act read in conjunction with Article 417 of the Civil Code.
19. However, the Court has already held that the civil action relied on by the Government cannot be regarded as an effective remedy with a sufficient degree of certainty in cases where the three-year limitation period for the State’s liability in tort expired before the entry into force of the 2004 Act on 17 September 2004 (see Ratajczyk v. Poland; (dec), 11215/02, 31 May 2005, Barszcz v. Poland, no. 71152/01, § 45, 30 May 2006). The present case belongs to this group of applications as the proceedings at issue ended on 29 January 1999, which is more than three years before the 2004 Act had come into force. It follows that the Government’s plea of inadmissibility on the ground of non‑exhaustion of domestic remedies must be dismissed.
20. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
21. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II)
22. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Pélissier and Sassi, cited above).
23. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
24. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
25. The applicant claimed 50,000 Polish zlotys (PLN) in respect of pecuniary and non-pecuniary damage.
26. The Government did not express an opinion on the matter.
27. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court considers that the applicant has suffered non-pecuniary damage – such as distress resulting from the protracted length of the proceedings – which is not sufficiently compensated by the finding of a violation of the Convention. Considering the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant EUR 3,500 under that head.
B. Costs and expenses
28. The applicant also claimed PLN 3,000 for the costs and expenses incurred before the domestic courts without providing any substantiation.
29. The Government did not express an opinion on the matter.
30. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II). In the present case, the Court notes that she has not produced any evidence supporting his claim as required by Rule 60 § 2 of the Rules of Court. Accordingly, it makes no award under this head.
C. Default interest
31. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.
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Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,500 (three thousand five hundred euros) in respect of non-pecuniary damage to be converted into the national currency at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 30 January 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. EarlyNicolas BratzaRegistrarPresident
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FOURTH SECTION
CASE OF OSVÁTHOVÁ v. SLOVAKIA
(Application no. 15684/05)
JUDGMENT
STRASBOURG
21 December 2010
FINAL
21/03/2011
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Osváthová v. Slovakia,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,Lech Garlicki,Ljiljana Mijović,David Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä,Mihai Poalelungi, judges,and Lawrence Early, Section Registrar,
Having deliberated in private on 30 November 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 15684/05) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovak national, Ms Klára Osváthová (“the applicant”), on 19 April 2005.
2. The applicant was represented by Mr R. Toman, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
3. The applicant alleged that her arrest and detention pending trial had been unlawful, that she had not been informed promptly of the reasons for her arrest and of the charge against her, that following her arrest she had not been brought promptly before a judge, that the proceedings against her had fallen short of the applicable requirements and that she had no enforceable right to compensation and no effective remedy.
4. On 8 March 2010 the President of the Fourth Section decided to give notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1949 and lives in Bratislava.
A. Factual background and criminal proceedings
6. On 17 September 2001 the applicant as seller entered into a contract with A. as buyer concerning some real property essentially comprising arable land.
7. On an unspecified date A. lodged a criminal complaint against the applicant accusing her of having received the purchase price of some 8,600 euros (EUR) only to renege on the contract without returning the price.
8. On 27 May 2005 the applicant was charged with fraud on the basis of A.'s criminal complaint. The decision containing the charge was not served on the applicant until 3 February 2006, when she was questioned by a judge following her arrest (see below).
9. On 19 and 29 September 2005, respectively, a national search for the applicant was launched and the Dunajská Streda District Public Prosecutor's Office (Okresná prokuratúra) asked the Dunajská Streda District Court (Okresný súd) for a warrant for the applicant's arrest.
It was argued that it was proving impossible to summon the applicant for questioning because she was not responding to summonses, was not living at her registered address (trvalé bydlisko) and her whereabouts were unknown.
10. On 3 December 2005 the District Court issued the arrest warrant. It indicated as the underlying reason for the warrant that “[the applicant] [was] not living at her registered address; her whereabouts [were] unknown”.
11. From 2 February to 14 March 2006 the applicant was held in pre‑trial detention (see below).
12. On 14 and 21 March 2006 the applicant challenged the charge by way of an interlocutory appeal (sťažnosť).
13. On 24 March and 12 April 2006, respectively, the investigator interviewed a notary who had drawn up the contract and, following her release from detention, also the applicant.
14. On 25 April 2006 the District Public Prosecutor's Office granted the applicant's interlocutory appeal and dismissed the charge against her on the grounds that the matter was of a civil-law nature and the applicant's actions did not constitute a criminal offence.
B. Arrest and detention
15. At 2 p.m. on 2 February 2006, on the
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basis of the warrant of 3 December 2005, the applicant was arrested by the police and taken into police custody.
16. At 10.30 a.m. on 3 February 2006 the applicant was brought before a single judge of the District Court for questioning.
17. A record of the questioning was made on a pre-printed form. In so far as the pre-printed section of the record was filled out, it indicates that the applicant was questioned as a person charged (obvinený) / suspect (podozrivý), that she was informed of the rights that pertain to a person in that procedural position and that she had been handed (doručené) / read out (prečítané) the decision containing the charge of fraud.
18. The verbatim section which follows the pre-printed section of the record indicates that the applicant acknowledged that she had neither a permanent nor a temporary registered place of residence (trvalé/prechodné bydlisko) and that she mainly stayed in monasteries and pastors' offices. She admitted having received and not returned the purchase price and expressed readiness to return it. She explained that she had health problems and that on 13 January 2006 she had fainted in the street.
19. The verbatim section of the record also indicates that, thereafter, the applicant was handed the decision containing the charge of 27 May 2005.
According to the applicant, the decision containing the charges had been handed to her at around 11 a.m.
20. The verbatim section of the record further indicates that the District Court then immediately ordered the applicant to be detained under Article 71 § 1 (a) of the Code of Criminal Procedure (“the CCP” – Law no. 301/2005 Coll., as applicable at the relevant time).
That provision allows for the detention of a person if his or her behaviour or other concrete facts give rise to a well-founded concern that he or she would flee or go into hiding in order to avoid prosecution, in particular when the person's identity cannot be immediately established, when the person does not have a fixed abode (stále bydlisko) or if the person faces the risk of a heavy penalty.
21. Immediately after she had been remanded in custody, the applicant orally lodged an interlocutory appeal (sťažnosť) and asked for her lawyer to be informed of her detention. The interview ended at 11.15 a.m.
22. In a two-page written version of the detention order of 3 February 2006 the District Court established, “on the basis of the case file and the applicant's interview”, that there were reasons for detaining her under Article 71 § 1 (a) of the CCP because, “if left at liberty, [the applicant] would seek to frustrate the prosecution by going into hiding”. This was so because the applicant “did not live at her registered permanent address, had no registered temporary address and it was not known where she was currently living”.
23. On 23 February 2006 the applicant submitted her written grounds of appeal.
24. On 7 March 2006 the District Court sent the case file to the Trnava Regional Court (Krajský súd) for determination of the appeal. It arrived there on 9 March 2006.
25. Meanwhile, on 8 March 2006, the investigator attempted to interview the applicant who, however, exercised her right to remain silent.
26. On 9 March 2006 the applicant appointed a new lawyer who inspected the case file on the following day.
27. On 13 March 2006 the applicant's new lawyer submitted in writing further grounds of appeal. He relied on Article 5 of the Convention and advanced four main arguments.
First, before the questioning on 3 February 2006, the applicant had not been informed of her rights as a person facing charges.
Second, the applicant was deprived of her right to oppose her detention effectively because she was informed of the charge against her only after the questioning of 3 February 2006.
Third, the detention order was arbitrary and not susceptible of review owing to the absence of adequate reasoning.
Fourth, the District Court had failed to examine whether there was any “reasonable” suspicion against the applicant which would justify her detention.
28. On 14 March 2006 the Regional Court, sitting in private (neverejné zasadnutie), quashed the detention order and ordered the applicant's immediate release.
It found that the matter was of a contractual nature and that the applicant's actions could not be qualified as a criminal offence.
Moreover, the applicant could not have been in hiding because she had no knowledge that she had been wanted on a criminal charge.
The Regional Court concluded that there was no reason for detaining the applicant.
29. Following the
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decision of 14 March 2006, on the same day, the applicant was released.
30. A written version of the decision of the Regional Court was sent to the applicant's address but returned as she could not be found. It was then sent to her lawyer, who received it on 3 May 2006.
C. Related constitutional complaint
31. On 3 May 2006 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd).
32. Relying on Article 5 §§ 1 (c), 2, 3 and 4 of the Convention and on their constitutional counterparts, the applicant made four main complaints.
First, after her arrest, the applicant had not been informed promptly of the reasons for it and of the charge against her.
Second, in violation of the applicable procedural rules, the applicant had not been informed of her procedural rights as a person charged.
Third, the decision of the Regional Court of 14 March 2006 lacked adequate reasoning, in particular, because it only dealt with two of the four arguments that she had put forward.
Fourth, a decision regarding the lawfulness of the applicant's detention had not been reached speedily, which was imputable mainly to the District Court.
Invoking Article 5 § 5 and Article 13 of the Convention, the applicant claimed the equivalent of some EUR 3,200 in just satisfaction for non‑pecuniary damage and the reimbursement of her legal costs.
33. On 13 September 2006 a three-judge bench of the Constitutional Court declared the complaint inadmissible.
It found that the Constitutional Court had been prevented from examining the first two arguments by the principle of subsidiarity.
As to the third argument, the Constitutional Court acknowledged that the Regional Court had limited its review to two of the applicant's arguments. However, this did not constitute an infringement of the applicant's fundamental rights.
34. As to the remaining complaint, concerning the length of the proceedings to review the lawfulness of the applicant's detention, the Constitutional Court established that it had in total taken thirty-four days (from the detention order of 3 February to 9 March 2006) for the District Court to transmit the case file to the Regional Court for determination of the applicant's appeal.
However, it should be taken into account that the applicant had submitted the grounds of her appeal in writing only on 23 February 2006. After that date, the District Court had transmitted the case file to the Regional Court within fourteen days (on 9 March 2006). Although the conduct of the District Court could not be described as “expeditious” (urýchlené), it did not amount to a violation of the applicant's rights under Article 5 § 4 of the Convention. It was true that, after the Regional Court's decision of 14 March 2006, it was not until 3 May 2006 that the written version of the decision was served on the applicant. Nevertheless, this was of no practical consequence because the applicant must have learned of the decision on 14 March 2006, when she was released, and the decision was subject to no further appeal. The bench concluded that, in those circumstances, the remaining complaint was manifestly ill-founded.
35. The presiding judge, however, did not share the majority view and gave a dissenting opinion. According to him, it was “highly debatable” whether the complaint concerning the lack of speediness in the proceedings regarding the applicant's appeal against her detention was manifestly ill‑founded. The presiding judge pointed out that it had taken thirty-four days for the District Court to transmit the case file to the Court of Appeal. Referring to previous practice and, in particular, to a decision in case file number III. ÚS 126/05, he concluded that the complaint should have been declared admissible.
36. The decision of the Constitutional Court was served on the applicant on 10 November 2006.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. State Liability Act 2003 (Law no. 514/2003 Coll., as amended)
37. Under the Act the State bears liability for damage caused by public authorities inter alia by unlawful arrest, detention (zadržanie) or other deprivation of personal liberty (section 3(1)(b)), decisions concerning detention on remand (väzba) (section 3(1)(c)) and wrongful official actions (section 3(1)(d)).
38. The right to compensation for damage caused by a decision on arrest, by detention (zadržanie) or by other deprivation of personal liberty is vested in the person who was subjected to it, provided that the decision was quashed as being unlawful or a wrongful official action had taken place in connection with it (section 7).
39. The right to compensation for damage caused by a decision concerning detention on remand (väzba) is vested in the person who was
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detained on remand, provided that the criminal proceedings against him or her have been dropped (section 8(5)(a)) or he or she has been acquitted (section 8(5)(b)) or the matter has been referred to another authority (section 8(5)(c)).
40. However, no such right arises when the person concerned himself or herself gave cause for the detention on remand (section 8(6)(a)).
41. The State is also liable for damage caused by wrongful official action, which comprises, inter alia, a public authority's failure to take an action within the time-limit set, inactivity or any other unlawful interference with the rights and legally recognised interests of individuals and legal entities (section 9(1)).
42. The right to compensation for damage caused by wrongful official action is vested in the person who suffered the damage (section 9(2)).
43. Under section 17 the compensation is to cover pecuniary damage, including loss of profit, and, where appropriate and necessary, non‑pecuniary damage.
B. Judicial practice in respect of the State Liability Act 2003
44. In a judgment of 16 March 2007 (in case no. 4C 258/2006) the Brezno District Court granted an action for damages by two individuals against the State under the State Liability Act 2003 and ordered the defendant to pay the costs of their defence in a criminal trial that had ended with their acquittal.
On 22 November 2007 the Banská Bystrica Regional Court upheld the judgment following the defendant's appeal.
45. On 14 October 2009 the Bratislava Regional Court granted an appeal (case no. 2Co 238/2008) in an action by an individual against the State under the State Liability Act 2003 for damages and awarded him an amount of money in compensation for non-pecuniary damage caused by detention on remand in the context of a criminal trial that had ended with his acquittal.
46. In a judgment of 17 August 2009 (case no. 19C 47/2006) the Bratislava District Court granted an action for damages by an individual against the State under the State Liability Act 2003 and awarded the claimant an amount of money in compensation for non-pecuniary damage caused by wrongful official action in connection with his detention pending a criminal trial.
The impugned wrongful official action concerned extension of the claimant's detention pending trial.
The action was preceded by a judgment of the Constitutional Court of 19 October 2005 (case no. I. ÚS 65/05) in which the Constitutional Court found a violation of the claimant's rights under Article 5 §§ 3 and 4 in connection with the same facts.
However, the Constitutional Court was unable to award the claimant damages as he had made no claim for damages.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION IN CONNECTION WITH THE LENGTH OF THE PROCEEDINGS CONCERNING THE LAWFULNESS OF THE APPLICANT'S DETENTION
47. The applicant complained that the lawfulness of her detention had not been decided speedily as provided for in Article 5 § 4 of the Convention, which reads as follows:
“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
A. Admissibility
48. The Government relied on the Court's judgment in N.C. v. Italy ([GC], no. 24952/94, ECHR 2002‑X) and argued that the applicant had failed to comply with the requirement under Article 35 § 1 of the Convention to exhaust domestic remedies.
In particular, the Government argued that the applicant had failed to claim compensation from the State under the State Liability Act 2003 in respect of both “wrongful official action” and “detention on remand in proceedings that were dropped”.
49. The Government referred to the relevant domestic practice and asserted that, under both headings, the applicant could have obtained compensation in respect of both pecuniary and non-pecuniary damage.
50. The Government also submitted that it was not a pre-requisite for a claim for damages in respect of wrongful official conduct to have a previous finding by the Constitutional Court of a violation of the claimant's fundamental rights.
51. The Government finally claimed that, as the case against the applicant had been dropped, she could by law have claimed damages in respect of detention on remand in a trial that was discontinued, without having to establish any actual unlawfulness or arbitrariness.
52. The applicant, in reply, considered that none of the existing domestic judicial decisions concerned a case comparable to hers. According to her, it was not
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fair to make her bear the consequences of an absence of domestic practice to support the Government's claim, which she considered to be speculative.
53. More specifically, the applicant argued that it was impossible for her to seek damages “in respect of detention on remand in proceedings that were dropped” under section 8(6)(a) of the State Liability Act 2003, which excluded claims for damages when the person concerned himself or herself had given cause for the detention. Formally speaking, the applicant had been remanded under Article 71 § 1 (a) of the CCP to prevent her from absconding or going into hiding.
54. In sum, the applicant considered that the remedies advanced by the Government were not available in practice at the relevant time.
55. As to the exhaustion of domestic remedies in the particular circumstances of the present case, the Court distinguishes two different positions in particular – on the one hand, the position in respect of the applicant's complaint concerning the alleged lack of “speediness” in the proceedings by which the lawfulness of her detention was decided and, on the other hand, the applicant's complaints under Article 5 §§ 1 (c), 2 and 3 (see paragraphs 85 to 95 below).
The Court will first examine the exhaustion of domestic remedies in respect of the former complaint.
56. The Court reiterates that where there is a choice of remedies, the exhaustion requirement must be applied to reflect the practical realities of the applicant's position, so as to ensure the effective protection of the rights and freedoms guaranteed by the Convention. Moreover, an applicant who has used a remedy which is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see Adamski v. Poland (dec.), no. 6973/04, 27 January 2009, with further references).
57. In the present case, in respect of her complaint that the proceedings for review of the lawfulness of her detention had not been “speedy”, the applicant had sought protection of her fundamental rights before the Constitutional Court under Article 127 of the Constitution.
58. The Constitutional Court, as the supreme authority for the protection of human rights and fundamental freedoms in Slovakia, had jurisdiction to examine the applicant's complaint and to afford her redress if appropriate (see, mutatis mutandis, Lawyer Partners A.S. v. Slovakia, nos. 54252/07, 3274/08, 3377/08, 3505/08, 3526/08, 3741/08, 3786/08, 3807/08, 3824/08, 15055/08, 29548/08, 29551/08, 29552/08, 29555/08 and 29557/08, § 45, ECHR 2009-..., with further references).
59. The Court further notes that the course of action chosen by the applicant is normally considered to be effective for the purposes of the domestic-remedies rule under Article 35 § 1 of the Convention. Moreover, the Constitutional Court entertained the applicant's complaint without requiring her first to exhaust the remedy now relied on by the Government. In these circumstances, the Court cannot but find that the applicant's course of action as to the remedies used was reasonable and appropriate.
60. Moreover, the Court notes that, in its decision of 13 September 2006, the Constitutional Court found the applicant's complaint about the alleged lack of “speediness” of the proceedings in issue manifestly ill-founded (see paragraph 34 above).
61. The Court considers that the dismissal of the applicants' complaint by the Constitutional Court distinguishes the present case from the above‑mentioned case (see paragraph 46 above) where, after having obtained from the Constitutional Court a finding of a violation of his rights under Article 5 §§ 3 and 4 of the Convention, the victim of such violation was successful in claiming damages under the State Liability Act 2003.
Moreover, and in any event, the Court finds that any persuasive value of that judgment is relative in view of the fact that it appears to be a one-off finding, originating from a lower court, and there is no indication whether it has been tested on appeal, and if so with what result.
62. Furthermore, if it had jurisdiction in the present case under the State Liability Act 2003 in respect of alleged wrongful official action, in relation to the applicant's complaint that the proceedings in question were not “speedy” an ordinary court would have been confronted with the same question as the Constitutional Court when it ruled on the applicant's constitutional complaint (by way of contrast and comparison, see paragraph 92 below).
The Court has not found any reason to conclude that there was any realistic prospect that an ordinary court would have arrived at conclusions contrary to those of the Constitutional Court.
63. Accordingly, the applicant was not required to have recourse to the remedy referred to by the Government. The Government's objections
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to the admissibility of the present complaint must therefore be rejected.
64. Observing, inter alia, the opinion expressed by the dissenting Constitutional Court judge (see paragraph 35), the Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits.
The Court concludes therefore that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.
B. Merits
65. The Government argued that the period between 3 February 2006, when the applicant lodged her oral interlocutory appeal, and 23 February 2006, when she filed the grounds of her appeal in writing, was imputable to the applicant.
66. The fact that the District Court had waited for the applicant to submit the grounds of her appeal before transmitting the appeal to the Regional Court for determination was logical and beneficial for the applicant because it had allowed her to substantiate her appeal and thus to increase its chances of success.
67. The Government emphasised that the applicant had learned of the outcome of the proceedings by implication on the day when her appeal had been determined, because it was on that very day that she had been released.
Any possible postponements in the subsequent period were due to the fact that it had proved impossible to reach the applicant and serve her with the written version of the decision at her address, and the decision had had to be served through the intermediary of her lawyer.
68. The applicant, in reply, reiterated her complaint and submitted that there had been no legitimate reason for the District Court to wait until 9 March 2006 and the transmission of the file to the Regional Court for a review of the lawfulness of her detention further to her oral interlocutory appeal of 4 February 2006. She emphasised that the length of the proceedings in question was to be viewed with reference to her personal situation and the fact that a right as important as that to liberty was at stake.
69. The Court reiterates that Article 5 § 4, in guaranteeing to detained persons a right to institute proceedings to challenge the lawfulness of their deprivation of liberty, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of the detention and ordering its termination if it proves unlawful. In order to determine whether the requirement that a decision be given “speedily” has been complied with, it is necessary to effect an overall assessment where the proceedings were conducted at more than one level of jurisdiction. The question whether the right to a speedy decision has been respected must – as is the case for the “reasonable time” stipulation in Articles 5 § 3 and 6 § 1 of the Convention – be determined in the light of the circumstances of each case, including the complexity of the proceedings, the conduct of the domestic authorities, the conduct of the applicant and what was at stake for the latter (for recapitulation of the applicable principles, see Mooren v. Germany [GC], no. 11364/03, § 106, ECHR 2009‑...).
70. In the present case the applicant lodged her interlocutory appeal orally immediately after the detention order had been pronounced on 3 February 2006 and submitted the grounds of her appeal in writing on 23 February 2006.
After the District Court had transmitted the case file to the Regional Court for determination of the appeal on 9 March 2006, the applicant submitted further written grounds of her appeal on 13 March 2006.
The appeal was eventually granted on 14 March 2006 and the applicant was released on that very day. Following an unsuccessful attempt at serving the written version of the decision on the applicant directly, it was eventually served on her through her lawyer on 3 May 2006.
71. The Court reiterates that according to its case-law the period under consideration under Article 5 § 4 of the Convention begins with the lodging of the application with the domestic authorities and, in the absence of a public pronouncement of the decision, ends on the day the decision is communicated to the applicant or to his representative (see, mutatis mutandis Koendjbiharie v. the Netherlands, judgment of 25 October 1990, Series A no. 185-B, § 28; Singh v. the Czech Republic, no. 60538/00, § 74, 25 January 2005; and Cabala v. Slovakia, no. 8607/02, § 68, 6 September 2007).
72. The applicant requested that the lawfulness of her detention be decided by lodging her interlocutory appeal on 3 February 2006 and the decision to release her was taken after thirty-eight days, on 14 March 2006.
73. The Court observes that the decision of 14 March 2006 was not pronounced publicly and that it was served on the applicant at a later point. It recognises that
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a detained person has a legitimate interest in learning the detailed reasons for the termination of his or her detention.
However, in circumstances such as those obtaining in the present case, the Court finds it more appropriate to examine specific delays imputable to those involved rather than making an abstract finding as to when the period under consideration ended.
The proceedings under examination thus lasted at least thirty-eight days, in which period the applicant's appeal was judicially examined by a single court.
74. The Court has found nothing to justify a conclusion that the applicant's detention case was of any particular complexity.
In view of the clear conclusions of the Regional Court and the District Public Prosecutor's Office to the effect that the case was essentially civil‑law in nature and that there were no reasons for detaining the applicant (see paragraphs 14 and 28 above), the truth of the matter appears to be quite the contrary.
75. As to the conduct of the applicant, it is true that twenty days passed between the date when she lodged her interlocutory appeal orally and the date when she submitted the grounds of her appeal in writing. Furthermore, the Court accepts that the period necessary for serving the written version of the Regional Court's decision may have been somewhat affected by difficulties in reaching the applicant which are imputable to her.
76. As to the conduct of the authorities, however, the Court notes that it took fourteen days from 23 February 2006 to transmit the applicant's appeal to the Regional Court for determination on 9 March 2006, and that it took these fourteen days after twenty days had already passed since the applicant was remanded in custody. It then took the Regional Court an additional five days to make a rather straightforward decision.
The Court finally observes that the period of forty-nine days between the taking of the decision of 14 March 2006 and having it served on the applicant cannot be entirely explained by reasons imputable to the applicant.
The Court finds that the seriousness of these delays, totalling at least nineteen days, is aggravated by the fact that, as established by the Regional Court, the applicant's detention was wholly unjustified.
77. Regard being had to the Court's case-law on the subject (see, for example, Sanchez-Reisse v. Switzerland, 21 October 1986, §§ 59-60, Series A no. 107; M.B. v. Switzerland, no. 28256/95, § 31, 30 November 2000; G.B. v. Switzerland, no. 27426/95, § 27, 30 November 2000; Rehbock v. Slovenia, no. 29462/95, § 85, ECHR 2000-XII; Sarban v. Moldova, no. 3456/05, § 120, 4 October 2005; Kadem v. Malta, no. 55263/00, §§ 44-45, 9 January 2003; Sakık and Others v. Turkey, 26 November 1997, § 51, Reports 1997-VII; and De Jong, Baljet and Van den Brink v. the Netherlands, 22 May 1984, §§ 57-58, Series A no. 77), the foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 5 § 4 of the Convention on account of the lack of a speedy determination of the lawfulness of the applicant's remand in custody.
II. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION IN CONNECTION WITH THE LENGTH OF THE PROCEEDINGS CONCERNING THE LAWFULNESS OF THE APPLICANT'S DETENTION
78. The applicant complained that she did not have an enforceable right to compensation for the violation of her right to have the lawfulness of her detention decided speedily. She relied on Article 5 § 5 of the Convention, which provides as follows:
“5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
A. Admissibility
79. The parties advanced essentially the same arguments as mentioned above in paragraphs 48 to 54.
80. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
81. The Court reiterates that Article 5 § 5 of the Convention is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4. The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the other paragraphs has been established, either by a domestic authority or by the Convention institutions (see N.C. v. Italy, cited above, § 49, and also Pavletić v. Slovakia, no. 39359
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/98, § 95, 22 June 2004).
82. In the present case the Court has found a violation of Article 5 § 4 of the Convention (see paragraph 77 above).
It must therefore establish whether or not the applicant had or now has an enforceable right to compensation for the breach of Article 5 § 4 of the Convention.
83. The Court observes first of all that the applicant's complaint under Article 127 of the Constitution in that regard was unsuccessful on the merits (see paragraph 34 above) (see Boris Popov v. Russia, no. 23284/04, § 84, 28 October 2010) and that the applicant was not required, for the purposes of Article 35 § 1, to test the other remedy advanced by the Government because of the lack of realistic prospects of success (see paragraph 62 above) (see Sakık and Others v. Turkey, cited above, § 59). At the same time, there is no support in the text of either of these pieces of legislation and no domestic jurisprudence has been shown to exist to the effect that a compensation claim can be made in a domestic court based on the findings made by the European Court.
84. The foregoing considerations are sufficient to enable the Court to conclude that neither before nor after the findings made by the European Court has the applicant had an enforceable right to compensation for the violation of her rights under Article 5 § 4 of the Convention (see paragraph 77) (see Brogan and Others v. the United Kingdom, 29 November 1988, § 67, Series A no. 145‑B).
There has accordingly also been a violation of Article 5 § 5 of the Convention.
III. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 1 (c), 2 AND 3 OF THE CONVENTION AND A RELATED ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION
85. The applicant complained that her detention on remand had been unlawful; that she had not been informed promptly of the reasons for her arrest, of the charge against her and of her procedural rights; that she had been denied the right to oppose her detention effectively, because she had been informed of the charge against her only after being questioned on 3 February 2006; and that she did not have an enforceable right to compensation in that respect. She relied on Article 5 §§ 1 (c), 2, 3 and 5 of the Convention.
86. The Government and the applicant, in reply, raised essentially the same arguments as mentioned in paragraphs 48 to 54 above.
87. The Court reiterates that under Article 35 § 1 of the Convention it may only deal with a matter after all domestic remedies have been exhausted.
88. The Court further reiterates that, according to its established case‑law, the purpose of the domestic remedies rule in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. However, the only remedies to be exhausted are those which are effective. It is incumbent on the Government claiming non‑exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time (see Aliev v. Ukraine, no. 41220/98, § 105, 29 April 2003).
89. The Court also reiterates that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism. The Court has recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case. This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see İlhan v. Turkey [GC], no. 22277/93, §§ 58-59, ECHR 2000-VII).
90. As has already been reiterated in paragraph 56 above, where there is a choice of remedies the exhaustion requirement must be applied to reflect the practical realities of the applicant's position, so as to ensure the effective protection of the rights and freedoms guaranteed by the Convention. Moreover, an applicant who has used a remedy which is apparently effective and sufficient cannot be required also to have tried others that were also available but probably no more likely to be successful (see Adamski v. Poland, cited above).
91. In the instant case the criminal charge against the applicant was dropped with final effect as the matter was not criminal but civil in nature (see paragraph 14 above).
The Court observes that this situation falls precisely within the ambit of sections 8(5)(a) and 17 of the
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State Liability Act 2003, which provides for compensation of both pecuniary and non-pecuniary damage to any person who was subjected to detention pending trial if the criminal proceedings against him or her were dropped.
92. The Court observes that the subject matter of the proceedings in an action for damages under sections 8(5)(a) and 17 of the State Liability Act 2003 would have been different from that in the proceedings in the applicant's constitutional complaint. Therefore, unlike in the complaint concerning the length of the proceedings to review the lawfulness of the applicant's detention, the general court examining the action for damages in respect of “detention on remand in proceedings that were dropped” would not have been faced with a contrary conclusion by the Constitutional Court (by way of contrast and comparison, see paragraph 62 above).
93. In particular, the Court observes that in an action for damages under sections 8(5)(a) and 17 of the State Liability Act 2003 in respect of “detention on remand in proceedings that were dropped”, the applicant would not have had to prove that his detention was contrary to substantive or procedural law or arbitrary.
Although the matters to be established in such an action are different from those to be examined under Article 5 §§ 1, 2 and 3 of the Convention, this of itself is not decisive because the compensation due to the applicant by way of such an action would in principle be linked to the fact, scope and mode of deprivation of the applicant's liberty (see, mutatis mutandis, N.C. v. Italy, cited above, §§ 55-57).
94. The Court concludes that in the circumstances of the present case the remedy advanced by the Government in respect of the applicant's complaints under Article 5 §§ 1 (c), 2 and 3 of the Convention, which was designed specifically for situations such as that of the applicant, was available to the applicant both in theory and in practice with reasonable prospects of success and was accordingly one to be used for the purposes of Article 35 § 1 of the Convention. In arriving at this conclusion the Court has taken account of the applicant's individual circumstances, including the fact that following her arrest she was legally represented before the ordinary courts, the Constitutional Court as well as the Court.
95. It follows that the applicant's complaints under Article 5 §§ 1 (c), 2 and 3 of the Convention must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies and that the related complaint under Article 5 § 5 of the Convention is manifestly ill-founded and must be rejected in accordance with its Article 35 §§ 3 and 4.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION IN CONNECTION WITH THE REASONING OF THE DECISION OF 14 MARCH 2006
96. Relying on Article 5 § 4 of the Convention, the applicant complained that the Regional Court had examined only some but not all of her arguments.
97. The Court observes that the purpose of the applicant's appeal against detention was to have the lawfulness of her detention decided as envisaged under Article 5 § 4 of the Convention. The Regional Court held in its impugned decision that the applicant's actions could not be qualified as a criminal offence and that there was no reason for detaining her. It consequently ordered the applicant's release.
98. The court finds that, in view of its content and effect, the purpose of the applicant's appeal against her detention was served by the Regional Court's decision of 14 March 2006 and that, in so far as substantiated, the applicant can accordingly not claim to be a victim of a violation of her rights protected under Article 5 § 4 of the Convention other than the right to have the lawfulness of her detention decided “speedily”.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
99. Lastly, the applicant complained that she did not have an effective remedy at her disposal in respect of the above-mentioned violations. She relied on Article 13 of the Convention.
100. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the applicant's rights under that provision.
It follows that the remainder of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
101. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contract
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ing Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
102. The applicant claimed 6,000 euros (EUR) in respect of non‑pecuniary damage.
103. The Government considered the claim excessive.
104. The Court considers that the applicant must have sustained non‑pecuniary damage. Ruling on an equitable basis, it awards her EUR 1,200 under that head.
B. Costs and expenses
105. The applicant also claimed EUR 2,500.79 for legal assistance, submitting itemised invoices from her lawyer, and EUR 50 for administrative expenses plus EUR 30 for postal expenses incurred both at the national level and before the Court.
106. Relying on the Court's judgment of 18 October 1982 in the case of Young, James and Webster v. the United Kingdom ((former Article 50) Series A no. 55, § 15), the Government considered that the claim in respect of legal fees was excessive. They objected that the claims concerning administrative and postal expenses were not supported by evidence.
107. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.
In the present case, regard being had to the violations found (see paragraphs 77 and 88 above), the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 700 to cover legal representation both at the national level and before the Court.
C. Default interest
108. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares admissible the complaints under Article 5 §§ 4 and 5 of the Convention in respect of the alleged lack of a speedy determination of the lawfulness of the applicant's remand in custody and the alleged lack of an enforceable right to compensation in that respect;
2. Declares inadmissible the remainder of the application;
3. Holds that there has been a violation of Article 5 § 4 of the Convention;
4. Holds that there has been a violation of Article 5 § 5 of the Convention;
5. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, and EUR 700 (seven hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 21 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence EarlyNicolas BratzaRegistrarPresident
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FIRST SECTION
CASE OF BELENKO v. RUSSIA
(Application no. 25435/06)
JUDGMENT
STRASBOURG
18 December 2014
FINAL
18/03/2015
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Belenko v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Isabelle Berro-Lefèvre, President,Elisabeth Steiner,Paulo Pinto de Albuquerque,Linos-Alexandre Sicilianos,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar,
Having deliberated in private on 25 November 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 25435/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Tatyana Aleksandrovna Belenko (“the applicant”), on 20 May 2006.
2. The applicant was represented by Mr S. Vlasov, a lawyer practising in Novosibirsk. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant, whose daughter Oksana Belenko died in a hospital, alleged that the State failed to protect the right to life of her daughter, protect her against ill‑treatment and ensure an effective investigation into the circumstances of her death.
4. On 10 February 2011 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1959 and lives in the town of Krasnoobsk, the Novosibirsk Region. She had a daughter, Oksana Vladimirovna Belenko, born in 1983 but now deceased.
A. Illness and death of the applicant’s daughter
6. On 14 August 2003 Oksana Belenko complained of feeling ill. She was trembling, felt pain in her limbs, was having delusions and was behaving strangely. That evening her parents called an ambulance. The doctor of the ambulance team, having decided that she was suffering from hysterical neurosis, gave her some sedatives and painkillers. Her condition became worse, so the next morning she was taken to the town hospital, accompanied by her parents. In the town hospital she was examined by the chief psychiatrist, Rz., and a neuropathologist, Pn. The applicant’s daughter was behaving hysterically: she was laughing, shouting, trying to run around and threw a trolley over. As she was showing signs of a serious psychiatric disorder, later that day she was transferred to a psychiatric clinic.
7. It appears from her medical records that on admission to the clinic, the daughter did not react when spoken to, refused to submit to examination, and was moving her hands and legs around chaotically. The doctors at the clinic examined her and concluded that she was suffering from schizophrenia. No signs of any other illness or injury were evident at that time. Oksana Belenko was already in such a state that the clinical director decided to ask the District Court for authorisation for her continued confinement in the clinic. Her parents (her father and the applicant) did not object to the confinement.
8. According to the applicant, during the first few days in the psychiatric clinic her daughter was still able to recognise her relatives and had some understanding of the people and things around her. According to the official records, her condition was very serious and continued to deteriorate, and her understanding of the situation was seriously impaired.
9. On 16 and 17 August 2003 she was examined by the clinic’s doctors on duty, Kr. and Vas. She was administered Sibazon and Haloperidol injections.
10. On 18 August 2003 the applicant’s daughter was examined first by a psychiatrist on duty and then by a team of three doctors, including the acting chief doctor, Yar., and two other doctors, Lkh. and Olkh. She did not react to their questions, her eyes were motionless, she shouted out sporadically, and dropped herself onto the bed. The expert team considered that she needed
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further inpatient treatment.
11. On the same day the applicant asked the clinical director to release her daughter for further treatment at home. However, it was refused, the chief psychiatrist instead asking the court to issue a confinement order in respect of her.
12. On 20 August 2003 the Zheleznodorozhniy District Court of Novosibirsk examined the clinical director’s request for Oksana Belenko’s further confinement to the psychiatric clinic. Neither the applicant nor her daughter participated in those proceedings. According to the applicant, she was not informed about the date or place of the hearing. The District Court authorised the further confinement.
13. The applicant continued to visit her daughter in the clinic almost every day. According to her, on one occasion her daughter was taken by the clinic staff to a meeting with her directly from the shower; her head was wet and, as a result, she caught a cold. The clinic staff also allegedly prevented her from visiting her daughter.
14. Oksana Belenko received treatment in the psychiatric clinic until 31 August 2003. It appears that her medical condition was very serious. Several examinations conducted within that period showed that she was suffering from a very rare disease, known as febrile expressionless schizophrenia of a pernicious nature. The illness is potentially fatal and has various symptoms, such as high fever, catalepsy (being stuck in rigid postures for hours), delusions, muteness, and excessive motor activity (constant movement). She was spending hours in her bed in a “foetal position”, with her hands and legs bent and pressed against her body. Treatment with psychotropic drugs only had a limited effect on her. In addition, because of her immobility and cataleptic postures she started developing decubitus ulcers (bedsores). According to the Government, between 18 and 31 August 2003 she was examined by doctors three times.
15. On 26 August 2003 the applicant wrote a letter to the psychiatric clinic asking for her daughter to be released, insisting that she would be better treated at home by a visiting doctor. However, given the daughter’s state of health and mind, the request was refused.
16. According to the applicant, during that period her daughter was being tied to her bed by the clinic staff. She and some of her relatives and friends saw ligature marks on her daughter’s hands and legs when they visited her in the clinic. The clinic staff, namely doctor L. and nurse B., denied tying her up.
17. On 31 August 2003 the applicant’s daughter had a high fever. She was examined by a doctor, who concluded that she had developed pneumonia, aggravated by a cardiac valve defect. The applicant informed the hospital that her daughter had congenital heart disease and that her skin had developed a bluish color, so the doctors of the psychiatric clinic called a cardiologist from the town hospital. After examining her, the cardiologist recommended her immediate transfer there, which was implemented the same day.
18. On 1 September 2003 the applicant’s daughter became worse and was transferred to the town hospital’s emergency unit. Doctor Pn. who examined her there discovered ligature marks on her body. On the same day the head of the hospital’s psychiatric department, Ls., made an entry in the daughter’s medical record which read “evidence of tying up on the shins and arms” (later reproduced in the expert report of 17 May 2005, see paragraph 32 below).
19. It appears that in so far as pneumonia was concerned, her treatment with antibacterial drugs had some positive effects. An X-ray examination was carried out on 15 September 2003 but did not reveal any characteristic signs of pneumonia in her lungs.
20. On 9 October 2003 the applicant’s daughter was transferred to the psychiatric department of the town hospital. It appears that as a result of the catalepsy, she had developed large purulent ulcers in the groin area. Two weeks later she was admitted to the surgical ward of the town hospital in connection with the ulcers and necrotic abscess.
21. At some point, the relatives lost confidence in the doctors’ ability to treat her properly. They thought that she was being neglected and even ill‑treated in the various hospitals, starting to suspect that she might also have been sexually abused there. The applicant made several written complaints to the regional authorities.
22. On an unspecified date the applicant’s daughter had a new episode of pneumonia, which the doctors related to the sepsis (inflammation) she had developed as a result of the purulent ulcers. She also developed tetraparesis (muscular weakness of all four limbs).
23. On 27 October 2003 a special panel was set up by the regional administration, which examined Oksana Belenko�
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�s case. It concluded that the doctors’ actions had been adequate, that the worsening of her condition was due to external factors, and that the actions of the doctors did not present any danger to her life.
24. On 30 October 2003 the applicant’s daughter was admitted to the regional hospital. Her physical and mental health continued to deteriorate. According to the Government, while in the hospital she had continued to receive adequate medical care, such as treatment with fourth generation antibiotics.
25. On 4 November 2003 the applicant lodged a written criminal complaint regarding the allegedly inadequate treatment of her daughter. On 14 November 2003 the investigator refused to open an investigation in this connection.
26. On 7 December 2003 Oksana Belenko died.
27. On 8 December 2003 doctors examined her body. The doctors who carried out the post-mortem (вскрытие) concluded that she had died as a result of cerebral oedema, related to her psychiatric condition and aggravated by the pneumonia. The examination did not reveal any ligature marks. At the same time the doctors discovered that her left hip was dislocated, and that she had purulent necrotic wounds in the groin area and on her shins.
B. Criminal investigation into the death of the applicant’s daughter
28. A few days after Oksana Belenko’s death, the applicant lodged a criminal complaint to have the doctors who had treated her daughter prosecuted. The inquiry was reopened.
29. On 31 December 2003 investigator O., following an additional inquiry, decided not to open a criminal investigation into her death.
30. On 4 February 2004 the Deputy Regional Prosecutor overruled the above decision and decided to open a criminal investigation, to be treated as a medical negligence case. The case was entrusted to investigator O.
31. On 20 May 2004 the Presidium of the Novosibirsk Regional Court, by way of supervisory review, quashed the Zheleznodorozhniy District Court’s decision of 20 August 2003 (see paragraph 12 above). The Presidium held that Oksana Belenko’s relatives had not been duly informed of the hearing, and furthermore, that the District Court had not verified whether her condition had warranted her confinement. Since she had died by that time, it was decided that the proceedings should be discontinued.
32. On 17 May 2004 a group of doctors from the No. 6 Regional Psychiatric Hospital examined her case and concluded that it was impossible to discern a direct link between her mental condition and her death. In their report, they concluded that the death had actually been caused by a brain oedema and pulmonary valve insufficiency caused by pneumonia. The experts approved the diagnosis of the psychiatric clinic and hospitals and confirmed that the methods and medication used to treat her had been appropriate.
33. On 22 June 2004 the applicant was given victim status in the case (see paragraph 30 above).
34. On 11 October 2004 the Serbskiy Institute of Psychiatry conducted a second psychiatric expert examination of Oksana Belenko’s case. It concluded that the doctors had made the correct assessment of her condition, and had prescribed and administered her adequate treatment in a timely manner.
35. On 12 January 2005 a new forensic examination of the case concluded that she had died primarily as a result of the brain oedema caused by her psychiatric disorder. The expert team had at its disposal samples of tissue taken from her body during the post‑mortem examination and her medical records. The experts confirmed that the earlier diagnosis had been correct and that the treatment she had received had been adequate, excluding any possibility that she had died as result of inappropriate treatment. The report, in summarising the doctors’ earlier observations, noted that the examination of 1 September 2003 had revealed ligature marks on her shins and later mentioned marks on her arms.
36. Between 14 and 28 January 2005 a new forensic examination was carried out of the tissue taken from various parts of Oksana Belenko’s body. In addition, the investigator held a face-to-face confrontation between the applicant and doctors L., P., and Zh. Several of the psychiatric clinic staff were questioned, as were staff of the town and regional hospitals.
37. On 4 February 2005 the criminal investigation was closed, the investigator concluding that the applicant’s daughter had died of natural causes.
38. On 5 May 2005 the Deputy Prosecutor of the Novosibirsk Region ordered that the case be reopened and informed the investigator of the additional steps to be taken.
39. On 19 May 2005 the applicant requested the investigator in charge of the case to conduct an additional expert examination to establish the cause of her daughter’s death. In particular, the applicant alleged that her daughter had developed pneumonia because of the poor sanitary and hygienic conditions in the psychiatric clinic and the town hospital.
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In her opinion, her daughter had contracted the infection through her ulcers. In addition, the experts had failed to establish why her daughter had had ligature marks on her body. In the applicant’s opinion, the purulent wounds discovered on her daughter’s lower legs were not the “decubitus ulcers” caused by her immobility but rather a result of her being tied up in the psychiatric clinic. In addition, the expert reports did not establish the cause of her dislocated hip. The applicant invited the investigator to commission a new expert examination and put relevant questions to the experts.
40. On 12 June 2005 the investigator decided to close the case again. According to the report of that date, the ligature marks discovered on Oksana Belenko’s body during her examination on 1 September 2003 had been located around her shins.
41. On 11 July 2005 the case was reopened but then closed again on 14 July 2005.
42. On 25 January 2006 the case was reopened by the supervising prosecutor but then closed again on 26 February 2006.
43. The applicant contested the closure of the case in court.
44. On 20 March 2006 the supervising prosecutor ordered the case to be reopened and the investigator to carry out additional investigative measures, such as identifying and questioning other patients of the psychiatric clinic and establishing the cause of the ligature marks discovered on her body during the examination of 1 September 2003.
45. On 19 January 2007 the Zheleznodorozhniy District Court noted that the case file contained conflicting expert opinions on the cause of Oksana Belenko’s death. Furthermore, the cause of the second episode of pneumonia and the purulent wounds on the lower legs had not been established. The court instructed the investigator to commission a new comprehensive forensic examination (комплексная судебно-медицинская экспертиза) to establish the cause of her death, and to carry out other investigative measures if necessary.
46. On 9 February 2007 the investigator commissioned the new comprehensive forensic examination, ordered by the court, into the cause of the death of the applicant’s daughter. He entrusted it to the No. 6 Regional Psychiatric Hospital. However, in 12 February 2007 the hospital refused to carry out the examination on the grounds that it had already prepared a similar report on the matter at an earlier date.
47. On 9 March 2007 the investigator closed the case again.
48. The applicant challenged that decision in court. On 26 June 2007 the Zheleznodorozhniy District Court ordered the investigation to be continued. The court held, in particular, that the refusal of the No. 6 Regional Psychiatric Hospital to conduct a new expert examination did not prevent the investigator from seeking an expert opinion from another competent institution elsewhere.
49. On 13 August 2007 the court’s decision was upheld by the Novosibirsk Regional Court on appeal.
50. The criminal investigation was reopened but closed again on 5 September 2007.
51. In 2008 the applicant challenged the discontinuation of the criminal proceedings in court again. On 18 September of that year the Zheleznodorozhniy District Court examined the applicant’s complaint against the investigator’s decision of 5 September 2007 and ordered the case to be reopened. However, it appears from the documents submitted by the Government that this decision was not enforced and the case not reopened until 15 April 2011, as confirmed in a letter by the Zheleznodorozhniy District Prosecutor dated 19 April 2011.
52. On 15 April 2011 the District Prosecutor quashed the decision of 5 September 2007 and ordered the case to be reopened again.
53. On 20 April 2011 the investigator ordered another forensic examination of Oksana Belenko’s body to be commissioned and entrusted this task to the Krasnoyarsk Region Forensic Centre. However, on 22 April 2011 it refused to conduct the examination on the grounds that the investigator had failed to produce her medical records and the “tissue archive” (гистологический архив).
54. On 20 May 2011 the investigator decided to close the case again. The investigator reiterated the findings of the earlier expert examinations of the case and in particular the report of 12 January 2005 (see paragraph 35 above). Among other things, the investigator acknowledged that it proved impossible to find the medical records of the applicant’s daughter and the “tissue archive” and that, as a result, the experts were not in a position to conduct an additional forensic examination into the cause of her death. He further noted that:
“... during the preliminary investigation
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it was established that... [Oksana Belenko] had suffered from psychiatric disease in the form of schizophrenia, the febrile catatonic form. The reason for [her] death was [this disease]. From the medical examination report dated 12 January 2005 it follows that [her] death resulted from cerebral oedema, which itself had resulted from [the above-mentioned disease]...
It was noted on 1 September 2003 that on a few occasions [she] had been seen as carrying [marks on her arms], but from the statements of the questioned persons, it was impossible to establish with certainty any facts of the use of violence (tying up) in respect of [her]...
At the present time in this criminal case all of the indications of the Prosecutor’s office of the Novosibirsk Region were executed. The results of the conducted preliminary investigation demonstrated that no crime set out in Article 109 § 2 of the Criminal Code had taken place because [Oksana Belenko’s] death resulted from the cerebral oedema resulting from the psychiatric disease, that is from the natural factor, [her] treatment having been conducted in accordance with modern methods of treatment. It follows that the death of [Oxana Belenko] did not result from anyone’s unlawful actions.”
55. It does not appear that there have been any developments in the applicant’s case since the decision of 20 May 2011.
II. RELEVANT DOMESTIC LAW
A. The Criminal Code of the Russian Federation
56. Article 109 § 2 of the Criminal Code (“CC”) provides that negligent infliction of death due to improper execution of professional duties shall be punishable by compulsory works for a period of up to three years and/or the stripping of the right to occupy certain posts or to work in certain spheres for a period of up to three years.
B. The Code of Criminal Procedure of the Russian Federation
57. Article 144 of the Code of Criminal Procedure (“CCrP”) provides that prosecutors, investigators and inquiry bodies must consider applications and information about any crime committed or being prepared, and take a decision on that information within three days. In exceptional cases, that time-limit can be extended to ten days. The decision should be one of the following: (a) to institute criminal proceedings; (b) to refuse to institute criminal proceedings; or (c) to transmit the information to another competent authority (Article 145 of the CCrP).
58. Article 125 of the CCrP states that the decision of an investigator or a prosecutor to dispense with or terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a District Court, which is empowered to check the lawfulness and grounds of the impugned decisions.
59. Article 213 of the CCrP provides that, in order to terminate the proceedings, the investigator should adopt a reasoned decision with a statement of the substance of the case and the reasons for its termination. A copy of the decision to terminate the proceedings should be forwarded by the investigator to the prosecutor’s office. The investigator should also notify the victim and the complainant in writing of the termination of the proceedings.
60. Under Article 221 of the CCrP, the prosecutor’s office is responsible for general supervision of the investigation. In particular, the prosecutor’s office may order that specific investigative measures be carried out, transfer the case from one investigator to another, or reverse unlawful and unsubstantiated decisions taken by investigators and inquiry bodies.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
61. The applicant complained under Article 2 of the Convention that her daughter had died as a result of the negligence of the doctors. Article 2 of the Convention, insofar as relevant, reads as follows:
“1. Everyone’s right to life shall be protected by law...”
A. The parties’ submissions
1. The Government
62. The Government argued that the applicant’s daughter had received timely and adequate treatment, and that the quick worsening of her state of health and ultimately her death had been as a result of natural causes. She had developed ulcers, not as a result of “being tied” but due to the stiffness of her posture for weeks on end, and high muscular tension in her arms and legs. The ligature marks had not been in the same place where the ulcers had developed. Even if the applicant’s daughter had been tied to her bed once, it had been a necessary measure: it appears from the testimony of the psychiatric clinic staff that she had tried to run away and had scratched one of the paramedics. She
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had been making impulsive and irrational brisk movements; she had been potentially a danger to herself and others, so tying her up had been inevitable.
63. As to the procedural aspect, the Government described the inquiries and investigations that had taken place in the case. The Government argued that the decisions to close the case had been quashed by the supervising prosecutors owing to the incompleteness of the investigation. Even if there had been delays in the investigation of the case, these had been related to the need to conduct additional medical examinations and had been justified given the complexity of the case.
2. The applicant
64. The applicant argued that her daughter had not received timely and adequate medical treatment. Thus, the ambulance doctor who had examined her daughter on the evening of 14 August 2003 had underestimated the seriousness of her condition. She had not been hospitalised until the second day, on 15 August 2003. Her confinement to the psychiatric clinic had been unlawful.
65. According to the applicant, because of the negligence of the medical staff at the psychiatric clinic her daughter had caught a cold; as a result, she had contracted pneumonia. Furthermore, a lack of due care in the clinic had resulted in her developing a septic infection and several ulcers. Her daughter had been tied to her bed, which had been noticed by the doctor on her transfer to the town hospital (see paragraph 18 above). The applicant classed the tying up of her daughter as ill‑treatment. In addition, her left hip had been dislocated; that injury remained unexplained by the investigator. The applicant believed that the hip dislocation had been caused by her daughter being tied up in the psychiatric clinic. The applicant indicated that during the last investigation the experts had been unable to conduct an additional forensic examination because her daughter’s medical records and tissue samples (“archive”) had been lost, and that this had made any further examination into the circumstances of her death impossible.
B. Admissibility
66. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
C. Merits
67. The Court observes that the applicant’s daughter died as a result of a sudden and serious illness. In such circumstances, the first issue that it needs to address is whether the authorities were under an obligation to take “appropriate steps to safeguard” Oksana Belenko’s life and, if so, whether they have complied with it (see, inter alia, L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III, and Keenan v. the United Kingdom, no. 27229/95, § 89, ECHR 2001-III).
68. The Court will then examine whether the subsequent investigation into the events leading to the applicant’s daughter’s death was compatible with the requirements of the procedural aspect of Article 2 of the Convention (see Kudra v. Croatia, no. 13904/07, §§ 100 and 101, 18 December 2012).
1. Substantive aspect
69. The Court reiterates that Article 2 does not solely concern deaths resulting from the use of unjustified force by agents of the State but also, in the first sentence of its first paragraph, lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction (see, for example, L.C.B., cited above, § 36, and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 54, ECHR 2002‑II).
70. Those principles apply in the public-health sphere too. The aforementioned positive obligations therefore require States to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients’ lives (see, for instance, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002‑I; Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000‑V; and Oyal v. Turkey, no. 4864/05, §§ 53-54, 23 March 2010).
71. Turning to the circumstances of the present case, the Court observes that despite having been subjected to an involuntary confinement (see paragraphs 6 and 12 above), the applicant’s daughter was not a detainee. It was not in dispute between the parties that her condition was extremely serious (see paragraphs 6-8 above) and her parents put her in the clinic on their own initiative; it had been done for their daughter’s own good and with the aim of her being treated in the clinic (see paragraph 7 above).
72. The
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Court next notes that according to the expert reports obtained by the investigators (see paragraphs 32 et seq. above) the doctors who treated her respected the applicable regulations and procedures, used scientifically tested treatment methods, and employed approved medical substances and equipment.
73. Where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, the Court cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life (see Byrzykowski v. Poland, no. 11562/05, § 104, 27 June 2006).
74. Having examined the materials at its disposal, the Court cannot detect such flaws in the case at hand and concludes that the State complied with its substantive positive obligation to safeguard the applicant’s daughter’s right to life. There has therefore been no violation of Article 2 of the Convention on this account.
2. Procedural aspect
75. The Court will now turn to the issue of the State’s compliance with its procedural obligations under Article 2 of the Convention.
76. The Court reiterates that Article 2 of the Convention requires an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see, among other authorities, Calvelli and Ciglio, cited above, § 49). Where the infringement of the right to life or physical integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal‑law remedy in every case. In the sphere of medical negligence, the obligation may, for instance, also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged (ibid., § 51; Lazzarini and Ghiacci v. Italy (dec.), no. 53749/00, 7 November 2002; and Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002-VIII).
77. What is important is that the domestic legal system as a whole and the particular proceedings that the applicant engaged in the specific circumstances of the case satisfied all of the guarantees required by the Convention (see Dodov v. Bulgaria, no. 59548/00, §§ 87-98, 17 January 2008; Bajić v. Croatia, no. 41108/10, § 93, 13 November 2012; and, in the context of Russia, Korogodina v. Russia, no. 33512/04, § 53, 30 September 2010).
78. Turning to the present case, the Court notes that Oksana Belenko’s death gave rise to two sets of preliminary inquiries and seven rounds of investigation. The criminal investigation into her death was closed seven times: on 4 February 2005, 12 June 2005, 14 July 2005, 26 February 2006, 9 March 2007, 5 September 2007, and 20 May 2011 (see paragraphs 37, 40‑42, 47, 50 and 54 above). On each of these occasions the supervising prosecutors and courts pointed out various defects in the quality of the investigation, refused to confirm the conclusions of the investigation and instructed the investigators to pursue the investigation and carry out new investigative measures.
79. The Court recalls its findings in Korogodina, cited above, § 58:
“... [F]ollowing the opening of the criminal case, the prosecuting authorities discontinued the investigation on six occasions. Each time, the applicant appealed and the supervising prosecutor quashed the relevant decision and reopened the investigation noting the investigator’s or the subordinate prosecutor’s failure to fully determine the circumstances of the case. The Court considers that such remittals of the case for re-examination disclose a serious deficiency of the criminal investigation which irreparably protracted the proceedings....”
80. In the present case, the investigation into the circumstances of Oksana Belenko’s death lasted with interruptions from 2003 to 2011. Although a reopening of a criminal investigation is not in itself ultimate proof of its “deficiency” in terms of the Court’s case-law, the sheer number of the reopenings shows that no genuine attempt to establish the truth was made. In particular, the Court is struck by the fact that although on 18 September 2008 the Zheleznodorozhn
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iy District Court ordered the case to be reopened, that was not done until 15 April 2011 (see paragraph 51 above). This means that for over two and a half years, the decision of the court to continue the investigation was simply disregarded.
81. Furthermore, during the last round of the proceedings the investigator held that it had been impossible to obtain an additional expert examination into the circumstances of Oksana Belenko’s death because the “tissue archive” of the deceased (the samples of her tissue) and her medical records had been lost (see paragraphs 53 and 54 above). The Court considers unexplained loss of a central piece of evidence sufficient in itself to compromise the findings of an investigation (see, mutatis mutandis, Maslova and Nalbandov v. Russia, no. 839/02, § 94, 24 January 2008). It also notes with regret that the mentioned deficiencies resulted in the investigation’s inability to shed any light on the origin of suspect ligature marks on her body (see paragraphs 16, 18 and 27 above). This information could constitute an important element in the analysis of the cause of her death as well as clarify the circumstances surrounding the events.
82. The Court is not called upon to determine or to identify what sort of steps the domestic authorities should have taken in the case at hand. Therefore, it confines itself to noting that the investigation in this case was protracted, inefficient and failed to determine with sufficient clarity the cause of death of the patient in the care of the medical profession, so as to make those responsible for it accountable, if anyone (see Bajić, cited above, §§ 91-108).
83. The Court would next recall that any deficiency in the criminal proceedings is not sufficient in itself to find a procedural violation of Article 2 (see, for example, Šilih v. Slovenia [GC], no. 71463/01, §§ 202‑211, 9 April 2009, and Dodov, cited above, §§ 91-98), unless the deficiencies in the criminal-law remedy affect the effectiveness of the other remedies available (see, for example, Byrzykowski, cited above, § 116). In the present case, the Court finds that the availability of the “tissue archive” of the deceased as well as her medical records was so important for a proper resolution of the applicant’s claims that their loss critically undermined the applicant’s prospects of success in any other types of domestic proceedings that she could have brought in respect of these events. In this context, the Court also recalls the conflicting medical reports on the cause of Oksana Belenko’s death (see paragraph 45 above).
84. Against the above background, the Court finds that the Government failed to demonstrate that the domestic system as a whole, faced with a case of an allegation of medical negligence resulting in death of the applicant’s daughter, provided an adequate and timely response consonant with the State’s procedural obligations under Article 2 of the Convention.
85. It follows that in the present case, there has been a violation of Article 2 of the Convention under its procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
86. The applicant complained that her daughter, while in the psychiatric clinic and the hospital, had been neglected and ill-treated. She referred to Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
87. The parties’ submissions under Article 3 of the Convention are virtually identical to their observations under Article 2. The Court decides that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other grounds. It must therefore be declared admissible. However, in view of its findings under Article 2, the Court considers that the applicant’s complaint under Article 3 does not require separate examination.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
88. The applicant also complained under Article 5 of the Convention that Oksana Belenko’s detention had been unlawful. The Court notes that the latest decision in connection with this complaint was taken on 20 May 2004, whereas the application was lodged on 20 May 2006, which is more than six months later. It follows that this complaint was introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
89. To the extent that the applicant referred to Articles 6 and 13 in connection with the refusal of the authorities to prosecute the doctors, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be
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declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
90. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
91. The applicant claimed 100,000,000 Russian Roubles (RUB) in respect of non-pecuniary damage.
92. The Government considered that amount to be excessive.
93. The Court observes that the prolonged failure of the authorities to give satisfactory answers to questions which Oksana’s death raised, must have caused the applicant, her mother, acute mental suffering. At the same time, the Court findings under Article 2 in the present case are of a procedural nature. In the light of all materials in its possession, on an equitable basis the Court awards the applicant EUR 15,000 on account of non‑pecuniary damage, plus any tax that may be charged on this amount.
B. Costs and expenses
94. The applicant did not claim anything under the head of costs and expenses, so the Court does not make any award in this respect.
C. Default interest
95. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaints under Articles 2 and 3 admissible, and the remainder of the application inadmissible;
2. Holds that there has been no violation of Article 2 of the Convention under its substantive limb;
3. Holds that there has been a violation of Article 2 of the Convention under its procedural limb;
4. Holds that there is no need to examine this complaint separately under Article 3 of the Convention;
5. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent state, at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 18 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren NielsenIsabelle Berro-LefèvreRegistrarPresident
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FIFTH SECTION
CASE OF CHERNYSHEVA v. UKRAINE
(Application no. 22591/04)
JUDGMENT
STRASBOURG
10 August 2006
FINAL
10/11/2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Chernysheva v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
MrP. Lorenzen, President,MrsS. Botoucharova,MrK. Jungwiert,MrV. Butkevych,MrsM. Tsatsa-Nikolovska,MrR. Maruste,MrJ. Borrego Borrego, judges,and Mrs C. Westerdiek, Section Registrar,
Having deliberated in private on 10 July 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 22591/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mrs Natalya Nikolayevna Chernysheva (“the applicant”), on 7 June 2004.
2. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V.Lutkovska and Mr Y.Zaytsev.
3. On 15 March 2005 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.
4. On 1 April 2006 this case was assigned to the newly constituted Fifth Section (Rule 25 § 5 and Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1953 and resides in the town of Novogrodovka, Donetsk region, Ukraine.
6. The applicant instituted proceedings in the Novogrodovskiy Town Court of the Donetsk Region against the Novogrodovskaya Mining Company No. 1/3 - a State-owned enterprise - to recover salary arrears and other payments due to her late husband.
7. On 7 October 2003 the Novogrodovskiy Town Court found in favour of the applicant (Решение Новогродовского городского суда Донецкой области) and awarded her UAH 10,317.71[1]. On 17 November 2003 the Novogrodovskiy Town Bailiffs’ Service (Отдел Государственной исполнительной службы Новогродовского городского управления юстиции) refused to initiate the enforcement proceedings because the debtor was located in a different district.
8. The applicant instituted proceedings in the Novogrodovskiy Town Court of the Donetsk Region against the Novogrodovskiy Town Bailiffs’ Service for failure to institute enforcement proceedings. On 13 February 2004 the Town Court rejected the applicant’s claim, finding that no fault had been committed by the Bailiffs’ Service. On 22 April 2004 the Court of Appeal of the Donetsk Region upheld this decision. The applicant appealed in cassation to the Supreme Court of Ukraine. The proceedings are still pending.
9. On 25 February 2004 the Selidovskiy Town Bailiffs’ Service (Отдел Государственной исполнительной службы Селидовского городского управления юстиции) initiated the enforcement proceedings.
10
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. In August-October 2004 the applicant has received UAH 8,281.50[2], the rest of the debt awarded remains unpaid.
11. The applicant instituted proceedings in the Selidovskiy Town Court against the Selidovskiy Town Bailiffs’ Service claiming compensation for material and moral damage caused by a lengthy non-enforcement of the judgment in her favour. On 12 October 2004 the court found against the applicant. On 17 January 2005 the Court of Appeal of the Donetsk Region upheld this judgment. On 22 March 2005 the Selidovskiy Town Court returned the applicant’s appeal in cassation as submitted too late. The applicant appealed against this decision. Proceedings are still pending.
II. RELEVANT DOMESTIC LAW
12. The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
THE LAW
I. SCOPE OF THE CASE
13. The Court notes that, after the communication of the case to the respondent Government, the applicant introduced new complaints, alleging violation of Articles 2 and 13 of the Convention on account of the non-enforcement of judgment in her favour.
14. In the Court’s view, the new complaints are not an elaboration of the applicant’s original complaints, lodged with the Court approximately one year earlier, on which the parties have commented. The Court considers, therefore, that it is not appropriate now to take these matters up separately (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).
II. ADMISSIBILITY
15. The applicant complained about the length of the non-enforcement of the judgment in her favour. She invoked Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. These Articles provide, insofar as relevant, as follows:
Article 6 § 1
“In the determination of his civil rights and obligations... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law....”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest....”
16. The Government raised objections regarding the exhaustion of domestic remedies similar to those which the Court has already dismissed in the case of Romashov v. Ukraine (no. 67534/01, §§ 28-32, 27 July 2004). The Court considers that the present objections must be rejected for the same reasons.
17. The Court concludes that the applicant’s complaint under Article 6 § 1 of the Convention about the delay in the enforcement of the judgment of the Novogrodovskiy Town Court is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. For the same reasons, the applicant’s complaint under Article 1 of Protocol No. 1 cannot be declared inadmissible.
III. MERITS
18. The Government maintained that the responsibility of the State in this situation was limited to the organisation and proper conduct of enforcement proceedings and that the length of the enforcement proceedings had been caused by the critical financial situation of the debtor company and the energy sector of the Ukrainian economy in general. The Government contended that the Bailiffs’ Service performed all necessary actions and cannot be blamed for the delay. The regularity of the enforcement proceedings in the present case was confirmed by the domestic courts. The Government finally argued that the State could not be considered responsible for the debts of its enterprises.
19. The applicant disagreed.
20. The Court notes that the judgment in the applicant’s favour has not been fully enforced for more than two years and eight months.
21. The Court recalls that it has already found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases like the present application (see, Sokur v. Ukraine, cited above, §§ 30-37; Shmalko v. Ukraine, no. 60750/00, §§ 55-57, 20 July 2004).
22. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.
23. There has, accordingly, been a violation of Article 6 § 1 of the Convention and
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of Article 1 of Protocol No. 1.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
24. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
25. The applicant claimed EUR 9,903 in respect of pecuniary and non-pecuniary damage.
26. The Government maintained that the applicant has not substantiated her claims.
27. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.
28. However, in so far as the judgment in the applicant’s favour has not been enforced in full (paragraph 10 above), the Court considers that, if the Government were to pay the remaining judgment debt owed to the applicant, it would constitute full and final settlement of her claim for pecuniary damage.
29. The Court further considers that the applicant must have sustained non-pecuniary damage, and awards her EUR 600 in this respect.
B. Costs and expenses
30. The applicant claimed EUR 100 in costs and expenses.
31. The Court considers that the applicant has not provided any substantiation of her costs and expenses claimed; however, it is obvious that she has had postal expenses in relation to filing her application with the Court. The Court, therefore, awards the applicant EUR 30 in this respect.
C. Default interest
32. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds that there has been a violation of Article 1 of Protocol No. 1 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the judgment debt still owed to her, as well as EUR 630 (six hundred thirty euros) in respect of non-pecuniary damage and postal expenses;
(b) that the above amount shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 10 August 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia WesterdiekPeer LorenzenRegistrarPresident
[1]. At the material time around 1,700.86 euros (EUR).
[2]. Around EUR 1,433.71.
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FIFTH SECTION
CASE OF YEROKHIN AND OTHERS v. UKRAINE
(Application no. 4043/08 and 3 others -
see appended list)
JUDGMENT
STRASBOURG
30 November 2017
This judgment is final but it may be subject to editorial revision.
In the case of Yerokhin and Others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
André Potocki, President,Síofra O’Leary,Mārtiņš Mits, judges,and Liv Tigerstedt, Acting Deputy Section Registrar,
Having deliberated in private on 9 November 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.
2. The applications were communicated to the Ukrainian Government (“the Government”).
THE FACTS
3. The list of applicants and the relevant details of the applications are set out in the appended table.
4. The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law.
THE LAW
I. JOINDER OF THE APPLICATIONS
5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION
6. The applicants complained that the length of the civil proceedings in question had been incompatible with the “reasonable time” requirement and that they had no effective remedy in this connection. They relied on Article 6 § 1 and Article 13 of the Convention, which read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations... everyone is entitled to a... hearing within a reasonable time by [a]... tribunal...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
7. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
8. In the leading case of Krasnoshapka v. Ukraine, (no. 23786/02, 30 November 2006), the Court already found a violation in respect of issues similar to those in the present case.
9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
10. The Court further notes that the applicants did not have at their disposal an effective remedy in respect of these complaints.
11. These complaints are therefore admissible and disclose a breach of Article 6 § 1 and of Article 13 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
12. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
13. Regard being had to the documents in its possession and to its case‑law (see, in particular, Krasnoshapka v. Ukraine, no. 23786/02, §§ 61 and 66, 30 November 2006), the Court considers it reasonable to award the sums indicated in the appended table.
14. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS,
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THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that these applications disclose a breach of Article 6 § 1 and Article 13 of the Convention concerning the excessive length of civil proceedings;
4. Holds
(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 30 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv TigerstedtAndré Potocki Acting Deputy RegistrarPresident
APPENDIX
List of applications raising complaints under Article 6 § 1 and Article 13 of the Convention
(excessive length of civil proceedings and lack of any effective remedy in domestic law)
No.
Application no.
Date of introduction
Applicant name
Date of birth
Representative name and location
Start of proceedings
End of proceedings
Total length Levels of jurisdiction
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (en euros)[1]
4043/08
28/12/2007
Sergey Ivanovich Yerokhin
01/04/1962
09/06/1998
29/03/2000
17/12/1999
28/11/2007
1 year, 6 months and 9 days
3 levels of jurisdiction
7 years and 8 months
3 levels of jurisdiction
2,300
65291/14
16/09/2014
Oksana Anatoliyivna Shtokalo
04/01/1957
06/10/2003
10/02/2014
10 years, 4 months and 5 days
3 levels of jurisdiction
3,100
62164/16
18/10/2016
Volodymyr Vasylyovych Chaykin
19/10/1946
Denys Sergiyovych Kucherenko
Zaporizhzhya
23/12/2005
pending
More than 11 years and 10 months
3 levels of jurisdiction
3,600
2635/17
21/12/2016
Volodymyr Mykolayovych Pasichnyk
25/12/1966
Yevgen Oleksiyovych Grishyn
Zhytomyr
25/02/2009
13/04/2016
7 years, 1 month and 20 days
3 levels of jurisdiction
600
[1] Plus any tax that may be chargeable to the applicants.
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FIRST SECTION
CASE OF PANASENKO v. RUSSIA
(Application no. 9549/05)
JUDGMENT
STRASBOURG
1 April 2010
FINAL
01/07/2010
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Panasenko v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Giorgio Malinverni,George Nicolaou, judges,and André Wampach, Deputy Section Registrar,
Having deliberated in private on 11 March 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 9549/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Grigoriy Fedorovich Panasenko (“the applicant”), on 7 February 2005.
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
3. On 15 May 2008 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1949 and lives in Shakhty, the Rostov Region.
5. In the 1990s the applicant subscribed to a State savings scheme which would entitle him to receive a passenger car in 1993. He paid the car's full value but never received the car.
6. On 17 July 2002 the applicant received 31,375.48 Russian roubles (RUB) of compensation in accordance with the State Programme for the redemption of the State internal debt (see paragraphs 20-22 below). This amount equalled to 33.41% of the car value.
7. The applicant brought the court action against the authorities, claiming the full monetary value of the promissory notes for purchasing of a car.
8. On 1 April 2003 the Ust-Yanskiy District Court of the Sakha Republic (Yakutiya) allowed the applicant's action, having found that the State had failed in its obligation to grant the applicant a car and had only provided a partial compensation instead. The court further held that a unilateral change of the conditions of the redemption of the commodity bonds by the State in accordance with the Federal Law of 2 June 2000 and the respective State Programme (see below) did not “comply with the constitutional principles and principles of the civil law”, because a partial payment of a car's value did not constitute a sufficient remedy of the damage caused to the bond holders. The court awarded the applicant RUB 66,693.35, that is the full car price less the amount already paid to him in July 2002, to be paid at the expense of the Federal Treasury.
9. On 30 April 2003 the Supreme Court of the Sakha (Yakutiya) Republic upheld the judgment and it became final. The award remained unenforced.
10. In June 2004 the respondent authority lodged a request for supervisory review of the case with the Presidium of the Supreme Court of the Sakha (Yakutiya) Republic.
11. On 14 October 2004 the Presidium reviewed the lower courts' judgments by way of the supervisory review proceedings and established, in particular, that the lower courts had failed to take into account the provisions of the amended State Commodity Bonds' Act and the Government's Resolution no. 1006. The Presidium ruled as follows:
“Having regard to the substantive violation of the material law, the judicial decisions taken in the case under consideration cannot be held lawful and well-founded and should be quashed [...].”
12. The Presidium annulled the judgment of 1 April 2003 and the appeal decision of 30 April 2003 and delivered a new judgment in which it dismissed the applicant's claim in full.
II. RELEVANT DOMESTIC LAW
A. Review of the compliance of the federal laws with the Constitution
13. According to
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Article 15 § 1 of the Constitution of the Russian Federation, the Constitution has the supreme juridical force, direct action and shall be used on the whole territory of the Russian Federation. Laws and other legal acts adopted in the Russian Federation shall not contradict the Constitution.
14. In accordance with Article 125 § 4 of the Constitution, the Constitutional Court of the Russian Federation reviews constitutionality of the law applied or due to be applied in a specific case in accordance with procedures established by federal law, upon requests of the courts.
15. By the Ruling no. 19-П of 17 June 1998 the Constitutional Court of the Russian Federation held that it had exclusive competence to decide whether federal or regional laws violated the Constitution of the Russian Federation. Ordinary courts were not entitled to rule on the constitutionality of federal laws. In case of doubt as to whether a law complied with the Constitution, they should direct an inquiry to the Constitutional Court.
B. Redemption of the State commodity bonds
16. The State Commodity Bonds Act (federal law no. 86-FZ of 1 June 1995) provided that the State commodity bonds, including special-purpose settlement orders, were to be recognised as the State internal debt (section 1). They were to be enforced in accordance with the general principles of the Civil Code (section 2). The relevant parts of section 3 read as follows:
“The Government of the Russian Federation shall draft the State Programme for the redemption of the State internal debt... The Programme shall provide for the terms of redemption of State commodity bonds that would be convenient for citizens, including, of their choice: provision of goods indicated in... special-purpose bonds for the purchase of passenger cars...; redemption of State commodity bonds at consumer prices prevailing at the moment of the redemption...”
17. On 2 June 2000, section 3 of the Act was amended to read, in the relevant parts, as follows:
“To establish that the repayment of the State internal debt of the Russian Federation under State commodity bonds... is carried out in 2001-2004 in accordance with the State Programme...
To set, in the above-mentioned Programme, the following sequence and terms of redemption of State commodity bonds:
- [...] in respect of bearers of special-purpose settlement orders that gave the right to purchase passenger cars in 1993-1995 – payment of monetary compensation equal to a part of the value of the car described in the order, as determined on account of the percentage of the part of the full value of car paid by the owner by 1 January 1992 (in accordance with the price scales in force until 1 January 1992), as well as the price of the cars determined in co-ordination with car manufacturers at the moment of redemption”
18. On 27 December 2000 the Government approved, by Resolution no. 1006, the State Programme for the redemption of the State internal debt of the Russian Federation arising from State commodity bonds in the period of 2001-2004. Paragraph 2 of the Programme set out that the State commodity bonds were to be redeemed by way of payment of pecuniary compensation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
19. The applicant complained under Article 1 of Protocol No. 1 to the Convention about the quashing of the judgments of 1 and 30 April 2003 in his favour on supervisory review. This Article, in so far as relevant, reads as follows:
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
20. The Government argued that the supervisory review had not breached the Convention. It had been initiated by a party to the proceedings within less than one year from the judgments' entry into force. The supervisory review had aimed at remedying a fundamental defect of the first instance and appeal proceedings. The lower courts were not competent to rule on compliance of the provisions of the Federal Law of 2 June 2000 with the Constitution of the Russian Federation. Instead, they should have introduced a request for review of the constitutionality of the Federal Law in question with the Constitutional Court and suspend the proceedings pending delivery of the relevant ruling. However, they failed to make such request, and no suspension of the proceedings took place. Therefore, the examination of the applicants' cases before the lower courts was tarnished by a fundamental defect, namely abuse of power by the courts and jurisdictional error. In these circumstances, the quashing was the only available way to rectify the fundamental defect and to restore legal certainty in the present cases. The Government further reiterated that in July 2002 the applicant received compensation from the Ministry of Finance in the amount established by the domestic law. In their view, his subsequent claim in respect of the full monetary value of
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the car had been unfounded and therefore he had not had a “possession” within the meaning of Article 1 of Protocol No. 1.
21. The applicant maintained his claim arguing that he had been entitled to obtain the full monetary value of the car, but had never received that sum.
A. Admissibility
22. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
23. The Court reiterates that the existence of a debt confirmed by a binding and enforceable judgment constitutes the beneficiary's “possession” within the meaning of Article 1 of Protocol No. 1. Quashing of such a judgment amounts to an interference with his or her right to peaceful enjoyment of possessions (see, among other authorities, Brumărescu v. Romania [GC], no. 28342/95, § 74, ECHR 1999-VII, and Androsov v. Russia, no. 63973/00, § 69, 6 October 2005).
24. At the outset the Court notes that in the Government's view the annulment of the judgments on supervisory review was required by the need to rectify a fundamental defect in the initial domestic proceedings. The Court reiterates its constant approach that a jurisdictional error, a serious breach of court procedure or abuses of power may, in principle, be regarded as a fundamental defect and therefore justify the quashing (see, mutatis mutandis, Luchkina v. Russia, no. 3548/04, § 21, 10 April 2008). However, nothing in the text of the Presidium's ruling of 14 October 2004 enables the Court to conclude that the lower courts' judgments were indeed quashed because these courts had ruled on the constitutionality of the federal law in excess of their jurisdiction. Neither the alleged jurisdictional error nor abuse of competence was cited by the Presidium as a ground for the annulment of the judgments of 1 and 30 April 2003. On the contrary, it clearly follows from the wording of the supervisory instance ruling that the sole ground for the quashing was the misinterpretation and incorrect application of the provisions of the State Commodity Bonds Act by the courts. Furthermore, it was not claimed before the supervisory-review instance by the respondent authority that the previous proceedings had been tarnished by a fundamental defect, such as, in particular, a jurisdictional error, serious breaches of court procedure or abuses of power (see Luchkina, cited above). Such argument was only advanced in the Government's observations. In the absence of any reference to the ground for quashing cited by the Government in the texts of the supervisory-instance ruling of 14 October 2004, the Court is unable to conclude that the quashing was caused, and even less justified by the substantive jurisdictional error by the lower courts. It therefore rejects the Government's argument.
25. The Court further observes that the applicant obtained a binding and enforceable judgment in his favour, by the terms of which the State was to pay him a substantial amount of money at the expense of the Federal Treasury. The Court further reiterates that the existence of a debt confirmed by a binding and enforceable judgment constitutes the beneficiary's “possession” within the meaning of Article 1 of Protocol No. 1 (see, among other authorities, Androsov, cited above, § 69). However, he was prevented from receiving the award through no fault of his own. The quashing of the enforceable judgment frustrated the applicant's reliance on a binding judicial decision and deprived him of an opportunity to receive the money he had legitimately expected to receive. In these circumstances, even assuming that the interference was lawful and pursued a legitimate aim, the Court considers that the quashing of the enforceable judgment in the applicant's favour by way of supervisory review placed an excessive burden on the applicant and was incompatible with Article 1 of the Protocol No. 1.
26. There has therefore been a violation of that Article.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
27. The applicant complained under Article 13 of the Convention that he had no effective remedy against the quashing of his final judgment on supervisory review and under Article 1 of Protocol No. 1 about the State's failure to comply with its obligation to provide a car.
28. The Court has examined these complaints as submitted by the applicant. However, having regard to all the material in its possession, it finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
III.
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APPLICATION OF ARTICLE 41 OF THE CONVENTION
29. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
30. The applicant claimed 100,000 United States dollars (USD) in respect of non-pecuniary damage.
31. The Government challenged the claim as unsubstantiated and manifestly excessive.
32. Having regard to the nature of the breach in this case, making its assessment on an equitable basis, the Court awards the applicant 3,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable, and dismisses the remainder of his claims for just satisfaction.
B. Costs and expenses
33. The applicant did not claim costs or expenses and there is accordingly no call to make an award under this head.
C. Default interest
34. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint under Article 1 of Protocol No. 1 concerning the quashing of the final judgment in the applicant's favour admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 1 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André WampachChristos RozakisDeputy RegistrarPresident
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SECOND SECTION
CASE OF KURSHATSOVA v. UKRAINE
(Application no. 41030/02)
JUDGMENT
STRASBOURG
29 November 2005
FINAL
29/02/2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Kurshatsova v. Ukraine,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
MrJ.-P. Costa, President,MrI. Cabral Barreto,MrV. Butkevych,MrsA. Mularoni,MrsE. Fura-Sandström,MsD. Jočienė,MrD. Popović, judges,and Mr S. Naismith, Deputy Section Registrar,
Having deliberated in private on 8 November 2005,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 41030/02) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Olga Rudolfovna Kurshatsova (“the applicant”), on 15 October 2002.
2. The Ukrainian Government (“the Government”) were represented by their Agent, Mrs V. Lutkovska.
3. On 21 January 2005 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1954 and lives in the town of Svitlovodsk, Kirovograd region, Ukraine.
5. In 1999 the applicant instituted proceedings in the Svitlovodskiy Town Court against her former employer, the State-owned “VAT Chysti Metaly” company, to recover salary arrears.
6. On 2 November 1999 the court awarded the applicant UAH 970.37[1] in salary arrears. On 18 November 1999 the Bailiffs’ Service initiated enforcement proceedings.
7. In February 2001, upon the applicant’s request, UAH 150 from the above judgment debt were transferred to the Municipal Heating Service to cover the applicant’s debt to the Service.
8. On 25 April 2002 the same court awarded the applicant UAH 1,333.37[2] in compensation for the delay in enforcement of the judgment of 2 November 1999. On 20 June 2002 the Bailiffs’ Service initiated enforcement proceedings.
9. By letter of 16 October 2002, the local Bailiffs’ Service informed the applicant that the judgments in her favour could not be enforced due to the debtor’s lack of funds, and that the procedure for the forced sale of assets belonging to the debtor was blocked by the Law on the Introduction of a Moratorium on the Forced Sale of Property of 26 November 2001.
10. On 12 May 2003 the enforcement proceedings against the debtor were suspended due to the bankruptcy proceedings initiated against it. On 10 June 2004 the Dnipropetrovs’k Regional Commercial Court approved the recovery plan for the debtor.
11. On 11 March 2005 the debtor made a postal money order in favour of the applicant for the outstanding debts under the judgments of 2 November 1999 and 25 April 2002. The applicant refused to receive the money, and 10 days later it was transferred to the account of the Bailiffs’ Service.
12. On 31 March 2005 the Bailiffs’ Service informed the applicant that she should provide them with details of her bank account, to which the money could be transferred.
II. RELEVANT DOMESTIC LAW
13. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
THE LAW
14. The applicant complained of an alleged failure by the State authorities to execute the judgments of 2 November 1999 and 25 April 2002 given in her favour. She invoked Article 6 § 1 of the Convention, and Article 1 of Protocol No. 1, which provide, insofar as relevant, as follows:
Article 6 § 1
“In the determination of his civil rights and obligations... everyone is entitled to
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a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law....”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
I. ADMISSIBILITY
A. The Government’s preliminary objections
1. The applicant’s victim status
15. The Government considered that the applicant could no longer claim to be a victim of a violation of the Convention as the full amount of the judgment debts had been transferred to her, and the question of when to receive the money was entirely within her discretion.
16. The applicant explained that she had refused to receive the money because she had not been offered any compensation for the delay in its payment.
17. The Court notes that the enforcement proceedings have not yet been formally completed, although the money was made available to the applicant on 11 March 2005. In the Court’s view, the Government can no longer be held responsible for the non-enforcement of the judgment after that date, since the applicant deliberately refused to receive the money. The Court therefore concludes that the applicant can no longer claim to be a victim in relation to the non-enforcement as such.
18. However, this belated transfer of the judgment debts to the applicant does not meet the applicant’s complaint concerning the undue length of the procedure, for which no acknowledgment or reparation were offered by the authorities. The Court considers therefore that the applicant may still claim to be a victim of an alleged violation of the rights guaranteed by Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in relation to the period during which the necessary funds were not made available to her (see Voytenko v. Ukraine, no. 18966/02, § 35, 29 June 2004).
2. Non-exhaustion of domestic remedies
19. The Government contended that the applicant had not exhausted domestic remedies regarding the Bailiffs’ Service and the expedition of proceedings. They submitted examples of domestic case law in which people had successfully obtained compensation from the Bailiffs for delays in enforcement proceedings.
20. The applicant disagreed.
21. The Court notes that a similar point has already been dismissed in a number of Court judgments (see Romashov v. Ukraine, no. 67534/01, § 31‑33, 27 July 2004). In such cases the Court has found that applicants were absolved from pursuing the remedies invoked by the Government. The domestic case law presented by the Government does not demonstrate such sufficient consistency as might enable the Court to reach a different conclusion as to the effectiveness of the domestic remedies in cases of the non-enforcement of judgments.
3. Conclusion
22. In these circumstances, the Court dismisses the Government’s preliminary objections.
B. The applicant’s complaints
23. In the light of the parties’ submissions, the Court concludes that the applicant’s complaint under Article 6 § 1 of the Convention raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It finds no ground for declaring this part of the application inadmissible. For the same reasons, the applicant’s complaint under Article 1 of Protocol No. 1 cannot be declared inadmissible.
II. MERITS
A. The applicant’s complaints under Article 6 § 1 of the Convention
24. The Government maintained that the delay in the enforcement of judgments had been caused by the difficult financial situation of the debtor and by the bankruptcy proceedings against it. They maintained that the Bailiffs performed all necessary actions to enforce the judgments and could not be held liable for the delays. They contended that there was no infringement of Article 6 § 1 of the Convention as the awarded sums were made available to the applicant.
25. The applicant did not submit any additional arguments to her original complaint.
26. The Court notes that the decisions of 2 November 1999 and 25 April 2002 remained unenforced respectively for five years and four months (November 1999 – March 2005) and two years and nine months (June 2002 – March 2005). It further notes that the full amount of the judgment debts was made available to the applicant after the communication of the application to the respondent Government.
27. The Court considers that by delaying for periods of more than two to five years the enforcement of the judgments in the applicant’s case, the authorities deprived the provisions of Article 6 §
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1 of the Convention of much of their useful effect. The Court finds that the Government have not advanced any convincing justification for this delay (see Shmalko v. Ukraine, no. 60750/00, judgment of 20 July 2004, § 45).
28. There has, accordingly, been a violation of Article 6 § 1 of the Convention.
B. The applicant’s complaints under Article 1 of Protocol No. 1
29. The Government in their submissions confirmed that the amount awarded to the applicant by the domestic courts constituted a possession within the meaning of Article 1 of Protocol No. 1. Nevertheless, the Government maintained that the provision had not been violated since the applicant’s entitlement to the award was not disputed and she was not deprived of her property. The Government noted that the delay in payment was due to the difficult economic situation of the coal industry and its restructuring. Therefore, in the Government’s opinion, the delay in enforcement was justified by the public interest of overcoming the economic crisis.
30. The applicant did not make any further comments in addition to her original complaint.
31. The Court recalls its case law that the impossibility for an applicant to obtain the execution of a judgment in his or her favour constitutes an interference with the right to the peaceful enjoyment of possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see, among other authorities, Burdov v. Russia, no. 59498/00, § 40, ECHR 2002‑III; Jasiūnienė v. Lithuania, no. 41510/98, § 45, 6 March 2003).
32. In the instant case the Court is therefore of the opinion that the impossibility for the applicant to obtain the execution of her judgments for such a long time constituted an interference with her right to the peaceful enjoyment of her possessions, within the meaning of the first paragraph of Article 1 of Protocol No. 1.
33. By failing to comply with the judgments of the Svitlovodsky Town Court, the national authorities prevented the applicant, for a considerable period of time, from receiving in full the money to which she was entitled. The Government have not advanced any convincing justification for this interference, and the Court considers that economic difficulties cannot justify such an omission. Accordingly there has also been a violation of Article 1 of Protocol No. 1.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
34. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
1. Pecuniary damage
35. The applicant claimed in respect of pecuniary damage the judgment debts due to her, plus compensation for inflation losses, without specifying an amount.
36. The Government maintained that the judgment debts were available to the applicant and that she could not claim this amount twice. As to the claim for compensation for inflation, the Government maintained that the applicant could claim such compensation at the domestic level.
37. The Court notes that the money from the judgments has been available to the applicant since April 2005 and, therefore, it rejects this part of the claim. As to the applicant’s claim for compensation for inflation losses, the Court notes that it is unspecified and not supported by any documents which would enable the Court to determine the amount. Consequently, the Court also rejects this part of the claim.
2. Non-pecuniary damage
38. The applicant further claimed USD 10,000[3] in respect of non-pecuniary damage.
39. The Government maintained that this claim is exorbitant and unsubstantiated.
40. The Court takes the view that the applicant has suffered some non-pecuniary damage as a result of the violations found which cannot be made good by the Court’s mere findings. Nevertheless, the amount claimed is excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 2,600 in respect of non-pecuniary damage.
B. Costs and expenses
41. The applicant did not submit any claim under this head. The Court therefore makes no award.
C. Default interest
42. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
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3. Holds that there has been a violation of Article 1 of Protocol No. 1;
4. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,600 (two thousand six hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable;
(b) that the above amount shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement;
(c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 29 November 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. NaismithJ.-P. Costa Deputy RegistrarPresident
[1] Around 160 euros (EUR)
[2] Around EUR 220
[3] EUR 8,123.81
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FOURTH SECTION
CASE OF SZYDŁOWSKI v. POLAND
(Application no. 1326/04)
JUDGMENT
STRASBOURG
16 October 2007
FINAL
16/01/2008
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Szydłowski v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
SirNicolas Bratza, President,MrJ. Casadevall,MrG. Bonello,MrL. Garlicki,MsL. Mijović,MrJ. Šikuta,MrsP. Hirvelä, judges,and Mr T.L. Early, Section Registrar,
Having deliberated in private on 25 September 2007,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 1326/04) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Jan Szydłowski (“the applicant”), on 30 December 2003.
2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3. On 14 March 2006 the Court declared the application partly inadmissible and decided to communicate complaints concerning the length of the applicant's detention and the length of the criminal proceedings to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1970 and lives in Gdynia. The application was lodged on his behalf by his wife, Mrs Beata Szydłowska, who submitted a duly signed written authorisation from the applicant.
A. The criminal proceedings against the applicant
5. On 17 March 2000 the Gdańsk District Court remanded the applicant in custody on suspicion of attempted armed robbery. It held that there was a reasonable risk that he would tamper with evidence. It also relied on the severity of the anticipated penalty. At the same time the applicant was detained on remand in respect of another, separate set of criminal proceedings (no. IV K 174/98).
6. On 6 June 2000 the Gdańsk Regional Court prolonged the applicant's detention until 17 September 2000. On 12 September 2000 the Regional Court extended that period until 15 December 2000. It relied on the complexity of the investigation, the need to obtain expert evidence and the severity of the anticipated penalty. It further found that detention on remand was the only measure which could secure the proper conduct of the proceedings and prevent the applicant from interfering with witnesses. On 5 December 2000 the Regional Court prolonged the applicant's detention until 17 March 2001, invoking the nature of the charges.
7. The applicant was detained in connection with an investigation conducted by the Department of Organised Crime of the Gdańsk Regional Prosecutor's Office, in which several other persons had already been detained and charged.
8. On 7 March 2001 the Gdańsk Court of Appeal prolonged the applicant's detention until 31 May 2001. It relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged and the severity of the anticipated penalty. The Court of Appeal further held that detention on remand was the only measure which could secure the proper conduct of the proceedings, given the nature of the charges and the relations between the suspects who had acted in an organised group. It also considered that the prolongation of detention was justified by the need to obtain DNA evidence in order to corroborate evidence previously obtained.
9. On 15 May 2001 the prosecution filed a bill of indictment with the Gdańsk Regional Court. The applicant was charged with robbery and armed robbery which had been committed in an organised armed criminal group. The bill of indictment listed 118 charges brought against 19 defendants, who were all detained on remand. The case file comprised 114 volumes. The prosecution asked the court to hear evidence from 366 witnesses.
10. On 17 May 2001 the Gdańsk Regional Court ordered that the applicant be remanded in custody until 31 October 2001, finding that it was necessary in order to prevent him and his co-defendants from evading justice or tampering with
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evidence. It also referred to the complexity of the case stemming from the number of defendants and witnesses to be heard.
11. On 13 September 2001 the Gdańsk Regional Court refused the request of the applicant and two other defendants (J.N. and R.O.) to grant a severance order with a view to hearing their cases separately, and thus expediting the proceedings. Similar requests were refused on 23 January 2003 and 15 April 2003.
12. On 16 October 2001 the Regional Court prolonged the applicant's detention until 17 March 2002, finding that the grounds previously given for remanding him in custody were still valid.
13. The trial began on 28 December 2001. However, as of April 2002 the reading out of the bill of indictment by the prosecution had still not been concluded. Initially, the trial court held three hearings per month. As from June 2002 it decided to hold five hearings per month.
14. During the hearing held on 30 January 2002 the trial court ordered the removal of the applicant and some other defendants from the court room because of their disruptive behaviour.
15. On 25 February 2002 the applicant attempted to commit suicide by hanging himself. He was hospitalised in the detention centre hospital from 25 February to 4 March 2002 and treated for a head injury.
16. During the hearing held on 27 February 2002 the applicant stated that he had a severe headache and was unable to participate in the hearing. The trial court ordered him to be examined by a doctor who found that the applicant could participate in the hearing.
17. On 13 March 2002 the Court of Appeal ordered that the applicant be remanded in custody until 30 September 2002. In addition to the grounds previously invoked, it found that the prolongation of detention was justified under Article 263 § 4 of the Code of Criminal Procedure by the particular complexity of the case. It further observed that the delays in the trial were partly attributable to some of the defendants who had attempted to disrupt the proceedings and, consequently, had had to be removed from the court room. Furthermore, the Court of Appeal held that no other preventive measure could secure the proper conduct of the trial. In that respect, the Court of Appeal observed that there was a reasonable risk that the applicant and other defendants would interfere with the proceedings, given the nature of the charges, the severity of the anticipated penalty and the fact that some of them had attempted to interfere with the proceedings in the course of the investigation.
18. On 11 September 2002 the Court of Appeal prolonged the applicant's detention until 31 December 2002. In addition to the grounds previously relied on, it held that the applicant's detention was justified under Article 258 § 2 of the Code of Criminal Procedure since that provision established a presumption to the effect that the likelihood of a severe penalty being imposed on the applicant might induce him to obstruct the proceedings[1]. It also noted that the prolongation of detention was justified by the volume of evidence to be heard during the trial.
19. On 18 December 2002 the Gdańsk Court of Appeal ordered that the applicant be held in custody until 30 June 2003. On 25 June 2003 the Court of Appeal extended the applicant's detention until 31 December 2003, relying on the same grounds as previously. In addition, it observed that the trial could not be terminated earlier due to obstructiveness on the part of the defendants who had filed numerous requests challenging the trial court. It also noted that the trial court had taken various procedural steps in order to accelerate the proceedings.
20. On 11 December 2003 the Regional Court made an application under Article 263 § 4 of the Code of Criminal Procedure to the Gdańsk Court of Appeal, asking that the applicant's detention be prolonged beyond the statutory time-limit of 2 years – until 30 June 2004. On 17 December 2003 the Court of Appeal granted that application. The applicant appealed against that decision.
21. On 29 January 2004 a different panel of the Court of Appeal amended the decision of 17 December 2003, holding that the Court of Appeal could not rule on the Regional Court's application of 11 December 2003, as that application had been premature. The Court of Appeal found that since in the other set of criminal proceedings (no. IV K 174/98) the applicant had been remanded in custody from 29 October 1997 to 3 October 2002, and subsequently had begun to serve his sentence, the period of the applicant's detention in the present case has not yet reached the statutory time-limit of two years. Consequently, a decision on the prolongation of the applicant's detention should be taken by the Regional Court.
22. On 10 February 2004 the Regional Court ordered that the applicant be remanded in custody until 30 June 2004. It invoked the complexity of the case, the volume of evidence and the severity of the anticipated penalty. Having regard to the latter, it considered that the applicant might attempt to obstruct the proceedings. In addition, the Regional Court observed that up to April 2003, when the court commenced to hear evidence, the defendants had
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frequently attempted to obstruct the proceedings by filing numerous requests challenging the trial court.
23. On 17 February 2004 the Regional Court informed the applicant that it was not feasible to schedule more than 5 hearings per month.
24. Subsequently, the Regional Court prolonged the applicant's detention on 29 June 2004 (until 31 December 2004), 27 December 2004 (until 30 June 2005) and 23 June 2005 (until 30 October 2005). In addition to the reasons invoked in its decision of 10 February 2004, the Regional Court relied on the exceptional nature of the case owing to the number of charges and defendants.
25. During the trial the applicant filed numerous but unsuccessful applications for release and appealed, likewise unsuccessfully, against the decisions prolonging his detention. He maintained that the length of his detention was excessive and that the charges against him lacked a sufficiently strong basis. In a number of decisions refusing his applications for release (of 20 May 2003 and 20 January 2004), the Regional Court relied on the severity of the anticipated penalty. That factor, in the court's view, justified the conclusion that the applicant might attempt to obstruct the proceedings by absconding or interfering with witnesses. On that basis the Regional Court considered that other preventive measures would not be sufficient to secure the proper conduct of the proceedings.
26. On 21 March 2005 the trial court made a severance order with a view to expediting the proceedings, and thereafter four defendants (J.N., G.P., Z.S. and Z.C.), who in the meantime had been released from detention, were to be tried separately.
27. By June 2005 the trial court had held over 150 hearings and heard more than 400 witnesses.
28. After 20 June 2005 no hearing was held due to the serious illness of the judge rapporteur. On 21 September 2005 the President of the Criminal Section IV of the Gdańsk Regional Court assigned a new judge rapporteur. Consequently, the trial had to commence de novo.
29. On 20 October 2005 the Regional Court ordered the applicant's release under police supervision. It found that continued application of the most severe preventive measure was no longer justified since the trial had to commence de novo.
30. On 24 November 2005 the trial court made a further severance order and split the case into eleven separate cases.
31. On 19 September 2006 the Gdańsk Regional Court held that it had no jurisdiction to hear the case of the applicant and some other defendants and referred it to the Poznań Regional Court. On 29 January 2007 the latter court objected to the Gdańsk Regional Court's decision and referred the jurisdiction dispute to the Poznań Court of Appeal. On 13 February 2007 the Court of Appeal ruled that the applicant's case was to be heard by the Gdańsk Regional Court. It held that the referral of the case to the Poznań Regional Court at this stage of the proceedings would lead to unacceptable delays. It further noted that the case had lain dormant before the Gdańsk Regional Court from 24 November 2005 to 19 September 2006.
32. It appears that the proceedings against the applicant are still pending before the first-instance court.
B. The applicant's complaint against the unreasonable length of proceedings
33. On 3 November 2004 the applicant filed with the Gdańsk Court of Appeal a complaint about a breach of his right to a trial within a reasonable time and asked for compensation. He relied on section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”).
34. The applicant submitted that the hearings in the case had been short and that a significant number of them had been cancelled. He further referred to numerous absences of witnesses and the fact that the trial court had failed to enforce discipline against those witnesses who had failed to appear. Lastly, he submitted that the trial court had refused his request for a severance order in respect of the charges against him.
35. On 28 December 2004 the Court of Appeal dismissed his complaint as unfounded, having regard to the criteria set out in section 2 § 2 of the 2004 Act, namely the conduct of the court and of the parties, the nature of the case, its factual and legal complexity and what was at stake in the proceedings for the complainant.
36. It admitted that some hearings had been short, but that had been due to the witnesses' absence or the need to take into account the defendants' health problems. However, there had been a number of hearings in the course of 2004 which had lasted until the late afternoon. Overall, the Court of Appeal considered that the isolated cases of hearings which had not been well prepared in advance could not undermine the substantial efforts of the trial court in handling the case. Furthermore, it considered that it could not be said that the exceptional cancellation of some hearings pointed to inactivity on the part
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of the trial court.
37. The Court of Appeal also found that the absences of certain witnesses referred to by the applicant had been justified; in other cases the trial court had taken steps to discipline unjustified absenteeism. It further considered that the joint examination of the charges against the defendants who had collectively committed a crime was justified under domestic law.
38. In conclusion, the Court of Appeal found that given the nature of the case, its complexity and the attitude of the defendants who, by filing numerous unsubstantiated procedural applications, had contributed to the delays in the trial, there was no ground to hold that the proceedings had been unreasonably long.
II. RELEVANT DOMESTIC LAW AND PRACTICE
39. The relevant domestic law and practice regarding the imposition of detention on remand (tymczasowe aresztowanie), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) at the material time are stated in the Court's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
40. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12‑23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005‑VIII, and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
41. The applicant complained that the length of his detention on remand had been excessive. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
42. The Government contested that argument.
A. Admissibility
43. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. Period to be taken into consideration
44. The applicant's detention started on 17 March 2000, when he was detained on remand on suspicion of attempted armed robbery. It continued until 20 October 2005 when the applicant was released. Thus, the total period of his pre-trial detention in the present case comes to 5 years, 7 months and 5 days.
45. However, between 3 October 2002 and 29 April 2004 the applicant served a prison sentence which had been imposed on him in other criminal proceedings. This term, being covered by Article 5 § 1 (a), must therefore be subtracted from the period of the applicant's pre-trial detention for the purposes of Article 5 § 3.
46. Accordingly, the period to be taken into consideration under Article 5 § 3 amounts to 4 years and 9 days.
2. The parties' submissions
(a) The applicant
47. The applicant argued that the length of his pre-trial detention had been unreasonable. In particular, he maintained that the court's decision to examine jointly all the charges against the very many defendants in one set of proceedings had resulted in the protracted examination of the case. In this respect he submitted that he had been charged with the commission of two offences with two defendants (A.Ł. and J.K.) and that he had had no links with other defendants. The applicant also maintained that his attempted suicide had been caused by the manner in which he had been treated by the trial court.
(b) The Government
48. The Government argued that the period of the applicant's detention had not been excessive. Thy submitted that his pre-trial detention had been justified by the genuine risk that he would obstruct the proceedings, the gravity of the charges and the severity of the anticipated penalty. The necessity of the applicant's continued detention had been thoroughly examined by the courts which on each occasion had given sufficient reasons for their decisions. The applicant's case had been extremely complex on account of the number of charges and defendants and the volume of evidence.
49. Furthermore, the Government maintained that the defendants, including the
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applicant, had borne the main responsibility for the length of the trial by lodging numerous ill-founded applications and appeals. Lastly, they maintained that the authorities had displayed the requisite diligence in dealing with the applicant's case.
3. The Court's assessment
(a) General principles
50. The Court recalls that the general principles regarding the right “to trial within a reasonable time or to release pending trial”, as guaranteed by Article 5 § 3 of the Convention were stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110 et seq, ECHR 2000‑XI; and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further references).
(b) Application of the above principles in the present case
51. In their detention decisions, the authorities, in addition to the reasonable suspicion against the applicant, relied principally on four grounds, namely (1) the serious nature of the charges against him, (2) the severity of the penalty to which he was liable and the consequential risk that he might obstruct the trial, (3) the risk that the applicant might abscond or interfere with witnesses, given the fact that he had been a member of a criminal gang and (4) the complexity of the case related to the number of defendants and volume of evidence to be heard. The domestic courts also referred to the obstructive behaviour of the defendants aimed at delaying the trial.
52. The applicant was charged with robbery and armed robbery committed in an organised and armed criminal group (see paragraph 9 above). In the Court's view, the fact that the case concerned a member of such a criminal group should be taken into account in assessing compliance with Article 5 § 3 (see Bąk v. Poland, no. 7870/04, § 57, ECHR 2007‑... (extracts)).
53. The Court accepts that the reasonable suspicion against the applicant of having committed the serious offences could initially warrant his detention. In addition, it notes that the authorities were faced with the difficult task of determining the facts and the degree of alleged responsibility of each of the defendants. In these circumstances, the Court also accepts that the need to obtain voluminous evidence from many sources, coupled with the fact that in the course of the investigation new suspects had been identified, constituted relevant and sufficient grounds for the applicant's initial detention.
54. However, with the passage of time, those grounds became less and less relevant. The Court must then establish whether the other grounds adduced by the courts were “relevant” and “sufficient” (see, Kudła cited above, § 111).
55. According to the authorities, the likelihood of a severe sentence being imposed on the applicant created a presumption that the applicant would obstruct the proceedings. They relied in this respect on the Supreme Court's resolution and its construction of Article 258 § 2 of the Code of Criminal Procedure (see paragraph 18 above). However, the Court would reiterate that, while the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending, the gravity of the charges cannot by itself justify long periods of detention on remand (see, for instance, Ilijkov v. Bulgaria, no. 33977/96, §§ 80-81, 26 July 2001). Having regard to the above, the Court cannot accept the position adopted by the judicial authorities in the present case, namely that the presumption referred to above would alone, after a certain lapse of time, justify the applicant's continued detention, without the need to indicate any concrete facts supporting the risk of obstruction of the proceedings.
56. Furthermore, the judicial authorities relied on the fact that the applicant had been charged with being a member of an organised criminal gang. In this regard, the Court reiterates that the existence of a general risk flowing from the organised nature of the alleged criminal activities of the applicant may be accepted as the basis for his detention at the initial stages of the proceedings (see, Górski v. Poland, no. 28904/02, § 58, 4 October 2005) and in some circumstances also for subsequent prolongations of the detention (see, Celejewski, cited above, § 37). It is also accepted that in such cases, involving numerous accused, the process of gathering and hearing evidence is often a difficult task. Moreover, the Court considers that in cases such as the present concerning organised criminal gangs, the risk that a detainee, if released, might bring pressure to bear on witnesses or other co-accused, or might otherwise obstruct the proceedings, is by the nature of things often particularly high. The Court notes that certain delays during the trial were caused by the defendants' obstructiveness (see paragraphs 14, 19 and 22 above).
57.
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While all those above factors could justify even a relatively long period of detention, they did not give the domestic courts an unlimited power to prolong this measure. Even if the particular circumstances of the case required detention on remand to be extended beyond the period generally accepted under the Court's case-law, particularly strong reasons would be needed to justify this (Wolf v. Poland, nos. 15667/03 and 2929/04, § 90, 16 January 2007). In this respect, the Court observes that the applicant was held in custody for 4 years and 9 days.
58. Having regard to the foregoing, even taking into account the fact that the courts were faced with the particularly difficult task of trying a case involving members of an organised criminal group, the Court concludes that the grounds given by the domestic authorities could not justify the overall period of the applicant's detention. In these circumstances it is not necessary to examine whether the proceedings were conducted with special diligence.
59. There has accordingly been a violation of Article 5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
60. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of... any criminal charge against him, everyone is entitled to a... hearing within a reasonable time by [a]... tribunal...”
61. The Government contested that argument.
62. The period to be taken into consideration began on 17 March 2000 when the applicant was charged with attempted armed robbery. The proceedings are pending before the trial court. They have thus lasted 7 years, 6 months and 10 days for one level of jurisdiction.
A. Admissibility
63. The Government submitted that since the applicant's complaint lodged under the 2004 Act had been dismissed on 28 December 2004, the applicant had a possibility to lodge another complaint about the length of the proceedings after a lapse of 12 months, according to section 14 of that Act. In a new complaint the applicant could have raised his arguments concerning the conduct of the courts after 28 December 2004. Therefore, in the Government's view, the subsequent period should not be taken into account by the Court in the assessment of the overall length of the proceedings.
64. The Court recalls that it has already established that the remedies provided by the 2004 Act were effective in respect of excessive length of criminal proceedings (see Charzyński v. Poland, cited above). However, the Court observes that the applicant's complaint was dismissed when the proceedings in his case had already been pending for 4 years and over 9 months. The Court does not consider it necessary for the applicant, in order to comply with the requirements of Article 35 § 1 of the Convention, to lodge a new complaint every 12 months (see Wolf v. Poland, cited above, § 62).
65. For this reason, the Government's plea of inadmissibility on the ground of non-exhaustion of domestic remedies with regard to the period after 28 December 2004 must be dismissed.
66. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
(a) The applicant
67. The applicant submitted that the authorities had been responsible for the delays in the proceedings. He criticised the trial court for having joined all the charges against numerous defendants in one set of proceedings and submitted that he had requested to have his case examined separately but to no avail.
(b) The Government
68. The Government underlined that the case had been extremely complex. It had concerned an organised criminal group and 118 charges brought against 19 defendants. The trial court has heard so far about 400 witnesses. As of April 2006 the case file comprised more than 200 volumes. The Government relied on the volume of evidence obtained by the prosecuting authorities and on the difficulties in conducting the investigation, given the considerable number of defendants and victims, as well as the serious nature of the offences committed by the criminal gang.
69. As regards the conduct of the authorities, the Government maintained that they had shown special diligence required in cases of detained persons, both at the investigative and the judicial phase of the proceedings. The trial court had held hearings at regular intervals, initially three, and subsequently five per month. Some of the hearings had to be adjourned due to the absence of witnesses and defence counsel, but the trial court had taken all available measures to ensure their presence at the hearings. Consequently, the Government maintained that there had been no delays in the proceedings for which the authorities could be held responsible.
70. As to the applicant's conduct, the Government emphasised that
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the defendants had borne the main responsibility for the length of the proceedings. The conduct of the proceedings was hindered by the excessive exercise of procedural rights by the defendants and their defence counsel. They had lodged hundreds of applications and appealed against every decision, even when they had been informed that the appeal had been inadmissible. The trial court had been required to examine all those applications and the prolongation of the proceedings had thus been inevitable. Due to the defendants' attitude the hearing of evidence could only begin in April 2003. The Government referred in that respect to the Court of Appeal's decisions which had observed that the main reason for the delays in the proceedings until April 2003 had been the defendants' obstructiveness. In order to remedy that situation of intentional prolongation of the proceedings the trial court had decided to limit the time assigned for submission of procedural motions during every hearing. In the Government's view, the defendants' behaviour justified the conclusion that they had resorted to delaying tactics.
71. As regards the applicant, he had contributed significantly to the length of the proceedings by lodging numerous ill-founded applications and appeals. On many occasions he had challenged the trial court, made applications for a severance order or requested that a different legal-aid counsel be appointed for him.
2. The Court's assessment
72. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).
73. The Court accepts the Government's argument that the case before the domestic authorities was undoubtedly complex. This is clearly shown, inter alia, by the number of defendants and volume of evidence obtained during the proceedings. During the investigation the prosecuting authorities gathered extensive documentary evidence. Numerous witnesses had to be interviewed. Even before the trial had commenced, the case file numbered 114 volumes, and the number reached 204 volumes by April 2006.
74. As regards the applicant's conduct, the Court observes that he lodged several requests for release and appealed against the court decisions prolonging his detention. It further notes that the defendants in the present case, including the applicant, certainly contributed to the length of the proceedings by having made frequent applications on procedural matters which, inevitably, led to delays in the examination of the case. The defendants' obstructiveness was referred to expressly on a few occasions by the domestic courts (see paragraphs 14, 19 and 22 above). While the applicant's conduct must have generated delays at the trial and cast doubt on his intention to have the proceedings concluded speedily, the Court cannot subscribe to the view that this factor could justify the entire length of the proceedings.
75. As to the conduct of the authorities, the Court notes that the trial court initially held three hearings per month. On 13 March 2002 the Court of Appeal directed the trial court to increase that number to five per month. The Court notes that otherwise hearings were held regularly and when they were adjourned it was normally for reasons not attributable to the court. Furthermore, the trial court took measures to ensure the presence of defence counsel and witnesses at the hearings. On the other hand, the Court cannot but note that following the judge rapporteur's illness and the subsequent change in the composition of the trial court some time after 21 September 2005 the trial had to commence de novo.
76. The Court further observes that on 28 December 2004 the Gdańsk Court of Appeal dismissed as unfounded the applicant's complaint about the breach of his right to a trial within a reasonable time. The Court of Appeal concluded that there had been no delays caused by the trial court's inactivity. The Court considers that the Court of Appeal in examining the applicant's complaint generally applied standards which were in conformity with the principles embodied in the Court's case-law. The Court discerns only one shortcoming in the review carried out by the Court of Appeal, namely that the latter did not regard the fact of the applicant's detention as a relevant factor for directing the trial court to conduct the proceedings with particular diligence.
77. In this connection, it recalls that persons kept in detention pending trial are entitled to “special diligence” on the part of the authorities. Consequently, in cases where a person is detained pending the determination of a criminal charge against him, the fact of his detention is itself a factor to be considered in assessing whether the requirement of a decision on the merits within a reasonable time has been met (see, for example, Abdoella v. the Netherlands, judgment of 25 November 1992, Series A no. 248-A, p. 17, § 24; Jabłoński v. Poland, no. 33492/96, § 102, 21 December 2000; Mõtsnik v. Estonia, no. 505
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33/99, § 40, 29 April 2003; Bąk v. Poland, cited above, § 81).
78. In this respect, the Court would point out that the duty to administer justice expeditiously was incumbent in the first place on the domestic authorities, especially given that during a substantial part of his trial (4 years and 9 days) the applicant remained in custody. Notwithstanding the significant difficulties which they faced in the present case, the domestic authorities were required to organise the trial efficiently and ensure that the Convention guarantees were fully respected in the proceedings. However, the Court notes that the trial, which has already lasted 6 years and over 4 months, appears to be still pending before the first-instance court.
79. Having regard to all the circumstances of the case and the overall length of the proceedings, the Court considers that the reasonable time requirement of Article 6 § 1 of the Convention has not been respected. Consequently, there has been a violation of this provision.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
80. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
81. The applicant claimed 30,000 euros (EUR) in respect of pecuniary and non-pecuniary damage for both alleged violations. He referred to the deterioration of his health which had resulted from the excessive length of pre-trial detention and the maintenance arrears which had accrued during that time.
82. The Government submitted that the applicant's claims were exorbitant and speculative and should be rejected. In respect of the complaint under Article 5 § 3, they argued that a finding of a violation constituted in itself sufficient just satisfaction. Alternatively, should the Court find a violation of Article 5 § 3 and a violation of Article 6 § 1, they invited the Court to assess the amount of just satisfaction on the basis of its case-law in similar cases and having regard to national economic circumstances.
83. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. In respect of the non-pecuniary damage, the Court notes that it has found a violation of Article 5 § 3 on account of the excessive length of pre-trial detention and a violation of Article 6 § 1 on account of the unreasonable length of the proceedings. The applicant's claims were submitted in respect of both those violations. The Court considers that the applicant has suffered some non-pecuniary damage which is not sufficiently compensated by the finding of the above violations of the Convention. Considering the circumstances of the case, in particular that the facts which gave rise to both violations overlap to a certain extent and making its assessment on an equitable basis, the Court awards the applicant EUR 3,000 under this head.
B. Costs and expenses
84. The applicant also claimed EUR 250 for the costs of photocopying documents and postage incurred in the proceedings before the Court.
85. The Government submitted that the applicant had not produced any documents to confirm his claim.
86. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant, who was not represented by a lawyer, the sum of EUR 100 under this head.
C. Default interest
87. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the remainder of the application admissible;
2. Holds that there has been a violation of Article 5 § 3 of the Convention;
3. Holds that there has been a violation of Article 6 § 1 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros) in respect of non-pecuniary damage and EUR 100 (one hundred euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three
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months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 16 October 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. EarlyNicolas BratzaRegistrarPresident
[1]. The Court of Appeal relied on the decision of the Supreme Court of 19 November 1996, no. IV KZ 119/96, published in OSP 1997 no. 4, item 74.
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SECOND SECTION
CASE OF JÁVOR AND OTHERS v. HUNGARY
(Application no. 11440/02)
JUDGMENT
STRASBOURG
23 May 2006
FINAL
23/10/2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Jávor and Others v. Hungary,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
MrJ.-P. Costa, President,MrA.B. Baka,MrI. Cabral Barreto,MrsA. Mularoni,MrsE. Fura-Sandström,MsD. Jočienė,MrD. Popović, judges,MrS. Naismith, Deputy Section Registrar
Having deliberated in private on 2 May 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 11440/02) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Hungarian nationals, Mr István Jávor, Mrs Istvánné Jávor, Mr Csongor Jávor and Ms Diana Jávor (“the applicants”), on 23 October 2001.
2. The Hungarian Government (“the Government”) were represented by their Agent, Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.
3. On 25 August 2005 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the proceedings. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.
THE FACTS
4. The applicants were born in 1954, 1955, 1986 and 1990, respectively, and live in Budapest.
5. The applicants are husband and wife and their son and daughter. In December 1987 the parents travelled to Cuba on a trip organised by a travel agency. On 13 December 1987 the tourist group had dinner at a restaurant where they were served poisonous sea food. As a consequence, the muscles and the nervous systems of the first and the second applicant were seriously damaged which caused 67% disability.
6. In 1988 the first applicant brought an action against the travel agency in the Budapest II/III District Court claiming damages. The case was then transferred to the competent Pest Central District Court.
7. In an interim judgment (közbenső ítélet), on 23 March 1990 the District Court established the travel agency’s responsibility. After a hearing on 11 June 1993, in a partial judgment (részítélet) of 15 June 1993, it ordered the defendant to pay 600,000 Hungarian forints plus interest to the first applicant, but dismissed his claims for non-pecuniary damage.
8. In the continued proceedings, the District Court held hearings on 16 February, 11 May, 23 September and 9 December 1994, 7 July and 6 October 1995, 17 May 1996, and 9 May and 16 July 1997. The Government stated that further hearings took place on 16 January and 17 April 1998.
9. On 24 April 1998 the court delivered a decision ordering the defendant to pay damages and an allowance to the first applicant.
10. On appeal, on 10 December 1998 the Budapest Regional Court confirmed the first-instance decision. The applicant filed a petition for review on 27 January 1999.
11. On 30 March 2001 the Supreme Court dismissed the petition. This decision was served on 18 June 2001.
12. Meanwhile, on 14 January 1998 all four applicants brought an action in the Pest Central District Court against the travel agency claiming further damages. Subsequently, the case was transferred to the Budapest II/III District Court. On 15 November 1998 the applicants requested in vain that their case be retransferred to the Pest Central District Court in order to facilitate the proceedings.
13. The Budapest II/III District Court held hearings on 27 May 1999 and 19 May 2000. On 27 June 2000 it decided to transfer the case to the Buda Central District Court. However, the file was transferred to the Pest Central District Court by mistake. It therefore only reached the Buda Central District Court on 27 September 2000.
14. On 28 March 2001 the Buda Central District Court declared its lack of competence and transferred the case to the Budapest
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Regional Court.
15. On 29 June 2001 the Regional Court declared its lack of competence and transferred the file to the Supreme Court for the appropriate delegation.
16. On 17 February 2002 the Supreme Court appointed the Buda Central District Court to hear the case.
17. On 22 April 2002 the District Court established that the proceedings had been stayed since 28 March 2002 because the summonses could not be served on the plaintiffs.
18. On 18 October 2002 the court observed that the case had ceased to exist on 28 September 2002, ipso iure, after a stay of six months. This decision became final on 2 January 2003.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
19. The applicants complained that the length of both proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations..., everyone is entitled to a... hearing within a reasonable time by [a]... tribunal...”
20. The Government contested that argument.
21. In the first case (see paragraphs 6 to 11 above), the period to be taken into consideration only began on 5 November 1992, when the recognition by Hungary of the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The Court observes that the case had already been pending for about four years on that date.
The period in question ended on 18 June 2001. It thus lasted more than eight years and seven months for three levels of jurisdiction.
22. In the second case (see paragraphs 12 to 18 above), the period to be taken into consideration began on 14 January 1998 and ended on 2 January 2003. It thus lasted almost five years for three levels of jurisdiction.
A. Admissibility
23. The Court notes that the complaint concerning the respective lengths of these proceedings is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
24. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
25. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).
26. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present case. In respect of the second case, the Court notes in particular that, although the overall length of the proceedings was not especially excessive, it took the domestic authorities more than four years to determine the court competent to hear the case. Furthermore, particular importance should be attached to the fact that the subject matter of the cases was compensation for a disabling illness.
Having regard to its case-law on the subject, the Court considers that in the instant case the length of both proceedings was excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
27. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
28. Concerning the first case, the first applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage. Concerning the second case, the first and the second applicant claimed EUR 5,000 each; moreover, the third and the fourth applicant each claimed altogether EUR 25,000 plus accrued interest, in respect of non-pecuniary damage.
29. The Government contested these claims.
30. The Court considers that the applicants must have sustained some non-pecuniary damage. Ruling on an equitable basis, it awards EUR 7,000 to the first applicant and EUR 2,000 to each of the second, third and fourth applicants under that head.
B. Costs and expenses
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31. The first applicant also claimed EUR 200 for the costs and expenses incurred before the Court.
32. The Government did not express an opinion on the matter.
33. The Court considers that the sum claimed is reasonable and should be awarded in full.
C. Default interest
34. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the remainder of the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds
(a) that the respondent State is to pay within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention,
(i) the first applicant, EUR 7,000 (seven thousand euros) in respect of non-pecuniary damage and EUR 200 (two hundred euros) in respect of costs and expenses;
(ii) the second, third and fourth applicants EUR 2,000 (two thousand euros) each in respect of non-pecuniary damage;
(iii) plus any tax that may be chargeable on these sums; and
(iv) which amounts are to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 23 May 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. NaismithJ.-P. CostaDeputy RegistrarPresident
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THIRD SECTION
CASE OF SADRETDINOV v. RUSSIA
(Application no. 17564/06)
JUDGMENT
STRASBOURG
24 May 2016
FINAL
24/08/2016
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Sadretdinov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis López Guerra, President,Helena Jäderblom,Helen Keller,Johannes Silvis,Dmitry Dedov,Branko Lubarda,Pere Pastor Vilanova, judges,and Stephen Phillips, Section Registrar,
Having deliberated in private on 3 May 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 17564/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Fail Khusyainovich Sadretdinov (“the applicant”), on 20 April 2006.
2. The applicant was represented by Mr I. Yavorskiy and Ms E. Liptser, lawyers practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged, in particular, that the conditions of his detention had been appalling, that he had not received adequate medical care in detention, that his lengthy detention on remand had lacked justification, and that two of his appeals against detention orders had not been examined.
4. On 30 April 2010 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1969 and lived until his arrest in Moscow, having worked as a notary.
A. Murder case
6. On 22 November 2003 the Khamovnicheskiy district prosecutor in Moscow opened a criminal investigation into the attempted murder of a certain Mr P. Police officers questioned the applicant. Two months later the case was closed in view of the finding that there was no actus reus.
7. On 15 April 2005 the criminal case was reopened and joined to the criminal proceedings instituted in respect of the killings of Mr Paul Khlebnikov, the founding editor of the Russian edition of Forbes magazine, and Mr Yan Sergunin, a former Deputy Prime Minister of Chechnya. Only two weeks separated the two murders, which were believed to have been connected in light of the fact that Mr Khlebnikov had been in contact with Mr Sergunin not long before his death.
1. Arrest and detention
8. On 24 May 2005 the applicant was arrested on suspicion of having organised the murders. Two days later the Basmannyy District Court, Moscow, (“the District Court”) authorised his detention during the investigation, having assessed the gravity of the charges and the risk of the applicant absconding, reoffending and interference with witness.
9. On 21 July 2005 the District Court extended the applicant’s detention until 9 October 2005, citing the gravity of the charges and the particular complexity of the case, and having looked into the state of the applicant’s health and not considering it to be serious enough to justify his release. The District Court found that other measures of restraint could not be applied because the circumstances which had prompted the applicant’s arrest had not changed.
10. The pre-trial investigation was completed on 31 August 2005, and a week later the applicant and his lawyers commenced reading the thirty‑seven-volume case file.
11. In September 2005 an investigator lodged an application with the District Court, seeking a further extension of the applicant’s detention, in particular because the defence had not yet completed its study of the case file.
12. On 27 September 2005 the court extended the applicant’s detention until 9 December 2005, having noted, inter alia, that the applicant had only read three, and his lawyer nine, volumes and that they therefore needed additional time. The court also reiterated its previous reasoning invoking the gravity of the charges against the applicant and his ability to hamper the proceedings if released. In addition it noted that the applicant’s personal
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and family situation, as well as his state of health, did not outweigh the reasons for his continued detention.
13. Having finished studying the file, on 22 November 2005 the applicant was committed to stand trial before the Moscow City Court (“the City Court”).
14. On 1 December 2005 the City Court scheduled a preliminary hearing and collectively extended the applicant’s and his co-defendants’ detention for an unspecified period. In so doing, the court merely referred to the absence of any change in the circumstances which had initially prompted the accuseds’ detention.
15. After the preliminary hearing the City Court authorised a trial by jury, fixed the first trial hearing for 29 December 2005 and once more collectively extended the detention of the defendants, including the applicant, for an unspecified period of time, again citing exclusively the gravity of the charges.
16. During a hearing of 15 February 2006 the applicant’s lawyer asked the City Court to release the applicant, arguing that his detention pending trial was not based on sufficient and valid reasons and was therefore in breach of Article 5 § 3 of the Convention. The court refused to release the applicant because the grounds which had been cited in the previous orders extending his detention had not ceased to exist.
17. The applicant appealed against the decision of 15 February 2006. His statement of appeal bears the stamp of the City Court and indicates that it was lodged on 21 February 2006. Seventeen days later his lawyer received a letter from the presiding judge, stating that the appeal could not be accepted because Russian procedural law did not provide for the possibility to appeal against intermediate decisions issued by a trial court.
18. In a hearing on 4 April 2006 the applicant’s lawyers again asked the City Court to release him, stating that his health had seriously deteriorated. The court refused the request, using wording identical to that of its decision of 15 February 2006.
19. The applicant’s lawyers appealed. A stamp on the appeal statement indicates that it reached the City Court on 12 April 2006. Five days later the court returned the statement to the lawyers, noting that the decision of 4 April 2006 was not amenable to appeal.
20. A similar request for release was lodged by the applicant’s lawyers on 19 April 2006. That request was also refused by the City Court, which ruled that the detention had been lawfully authorised on 6 December 2005 and that there were no grounds for changing the measure of restraint.
21. On 6 May 2006 the City Court acquitted the applicant and his co‑defendants of all charges and ordered their immediate release.
2. Conditions of detention and transport
22. After the arrest the applicant was placed in remand prison no. IZ‑77/5 in Moscow (“the remand prison”). He argued that the conditions of his detention between 31 January and 7 February 2006 had been appalling. The facility had been overcrowded and his cell had been dirty and in a deplorable state.
23. The applicant also complained about the conditions surrounding his transport to and from the courthouse. According to a certificate issued by the detention authorities on 30 July 2010, as well as the daily transport schedule submitted by the Government, on court hearing dates the applicant had risen at 6 a.m. At around 8 a.m. he had been put in a prison van and had been taken to the court house. He had come back to the remand prison at 10 p.m. Given his late return to the remand prison and subsequent body search, the applicant had allegedly only been able to go to bed at around midnight.
24. On 21 March 2006 the lawyer complained to the escorting service about the late return of the applicant to the remand prison. The complaint was left unanswered. Six days later the lawyer requested the District Court not to hold hearings on Wednesdays in order to provide the applicant with the possibility to rest. The court agreed that at least one working day per week should be left free for the applicant to recover and prepare for forthcoming hearings.
25. Between 15 February and 6 May 2006 the applicant took part in thirty-six hearings, with the hearings taking place on no more than four days per week.
3. Medical treatment
26. In 1998 the applicant suffered a craniocerebral injury; in 1999 he was treated in the S.P. Botkin Clinical Hospital in Moscow, where he was diagnosed with post-traumatic encephalopathy accompanied by hypertension-hydrocephalus syndrome, disorder of cerebrospinal fluid dynamics, vestibular coordination disorders, and symptomatic epilepsy characterised by frequent systemic convulsive attacks. The following year he was certified as having a second-degree disability.
27. The parties provided differing descriptions of the applicant’s health problems and his treatment in the remand prison.
(a) The Government’s version
28. According to the Government, the
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applicant had not had any particular health problems in detention, save for his having lost consciousness once while being transported in a prison van. He had also attempted to commit suicide. The Government stressed that he had not suffered any epileptic fits and had been regularly seen by prison doctors.
29. The medical file submitted by the Government shows that on admission to the remand prison on 8 June 2005 the applicant had undergone a basic medical check-up comprising blood tests, a chest X-ray and a consultation with a prison paramedic. Having interviewed the applicant, the paramedic had noted that he had a second-degree disability. According to the medical entry, the applicant had denied having epileptic seizures. A recommendation to request the applicant’s full medical history had been made.
30. In February 2006 the applicant had attempted to commit suicide by cutting his wrist. The prison paramedic had treated the cut.
31. A prison paramedic had visited the applicant several times, mostly before and after his transport to the courthouse, each time noting that he was healthy.
32. Once, on 12 April 2006, the applicant had been seen by a prison doctor after he had lost consciousness in a prison van. The doctor had diagnosed him with neurocirculatory dystonia and given him Corvalol.
33. During the second set of the criminal proceedings (see paragraph 43 below) the applicant had been placed in remand prison no. 77/1 in Moscow, where his epilepsy had received medical attention.
(b) The applicant’s version
34. According to the applicant, the medical records had not reflected his actual state of health in detention. His frequent epilepsy seizures had been disregarded by the authorities.
35. On 30 October 2005 nine of the applicant’s cellmates had lodged a complaint with the detention authorities, noting the applicant’s poor health and their (that is to say, the cellmates’) inability to cope with the applicant’s health problems. According to the detainees, the applicant had had frequent epileptic seizures. Once he had fallen from the upper tier of his bunk, injuring himself and a cellmate. As a result of another seizure, he had inadvertently poured hot water over himself. The inmates had also submitted that he often talked to himself or with an imaginary interlocutor. Fearing that they might be held responsible for the applicant’s injuries sustained during the seizures, his cellmates had asked the authorities to provide him with adequate medical care and, if necessary, to admit him to a medical institution.
36. Medical certificates issued by emergency medical teams called to see the applicant on 14 October 2005 and 30 March 2006 on account of his epileptic seizures had indicated that the applicant had been found by the paramedics in a post-seizure condition and provided with medication.
37. The applicant had further alleged that the authorities had not provided him with the required medical attention or drugs necessary to treat his epilepsy or at least to decrease the frequency of seizures, of which they had been fully aware. Certain drugs had been sent to him by his family or friends.
38. The applicant’s lawyer had interviewed three inmates who had shared a cell with the applicant between June 2005 and May 2006. They had consistently stated that the applicant’s epilepsy had been known to the detention authorities, including the resident doctor. The applicant had been initially assigned the upper-tier bunk, but on the doctor’s recommendation, he had been allowed to move to the lower tier to reduce the risk of injuries during seizures. The inmates testified to either having seen the applicant suffering a seizure or having heard about them. They also confirmed that the applicant’s family had sent him parcels with medication, which he had taken under the supervision of the resident doctor.
(c) Requests for medical examination
39. On 12 October 2005 the applicant’s lawyer sent a letter to the Prosecutor General’s office asking it to authorise a complex psychological and psychiatric examination of the applicant. The lawyer insisted that the applicant’s health had seriously deteriorated during his detention, that his convulsive episodes had become too frequent, that the applicant had started suffering from occasional visual and auditory hallucinations, that he had difficulty concentrating and had experienced memory loss, and so on. Two days later the request was refused as unsubstantiated. The applicant appealed. On 4 April 2006 the District Court rejected that appeal on the merits.
40. In the meantime, on 24 October 2005, in view of the deterioration of the applicant’s health, his lawyer requested the head of the remand prison and the Prosecutor General’s office to authorise a complex medical examination of the applicant by doctors from the S.P. Botkin Clinical Hospital and experts from the Main State Centre of Forensic Medical and Criminological Examinations. The head of the remand prison replied that the applicant was under the supervision of a prison doctor and
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that he was afforded any necessary out-patient treatment. His state of health was stable and did not require admission to a hospital. In addition, it was noted that a request for a medical examination of an inmate by civil medical specialists could only be authorised by the investigating authorities. According to the response of the Prosecutor General’s office there was no necessity to authorise a medical examination as there was no evidence that the applicant’s health had deteriorated.
41. On 31 March 2006 the applicant’s lawyer unsuccessfully asked the City Court to authorise a complex medical examination of the applicant.
B. Fraud case
42. On 6 May 2006 an investigator from the Moscow City prosecutor’s office instituted criminal proceedings against the applicant. The investigating authorities alleged that between June 2002 and February 2003 the applicant, acting in his official capacity as a notary, together with two other individuals, had forged a will and had fraudulently acquired a flat belonging to the deceased.
43. On 11 May 2006 the applicant was arrested and on the following day the Zamoskvoretskiy District Court authorised his detention on remand, which was further extended on a number of occasions.
44. On 31 January 2007 the Preobrazhenksiy District Court found the applicant guilty of aggravated fraud, abuse of position and property laundering and sentenced him to nine years’ imprisonment. On 12 November 2007 the City Court upheld the judgment on appeal, amending the legal classification of the offences and reducing the sentence to eight years’ imprisonment.
II. RELEVANT DOMESTIC LAW
A. Health care of detainees
45. The relevant provisions of the domestic and international law on general health care of detainees are set out in the following judgments: Vasyukov v. Russia (no. 2974/05, §§ 36-50, 5 April 2011), and Khudobin v. Russia (no. 59696/00, § 56, 26 October 2006, ECHR 2006‑XII (extracts)).
B. Extension of detention
46. The Russian legal regulations in respect of detention during judicial proceedings are explained in the judgments of Pyatkov v. Russia (no. 61767/08, § 59, 13 November 2012), and Isayev v. Russia (no. 20756/04, §§ 67-80, 22 October 2009).
C. Proceedings on the lawfulness of detention
47. The Russian legal regulations regarding proceedings on the lawfulness of the detention are laid down in the judgment of Chuprikov v. Russia (no. 17504/07, §§ 42-45, 12 June 2014).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF DETENTION AND ARTICLE 5 § 3 OF THE CONVENTION ON ACCOUNT OF THE DETENTION BETWEEN 11 MAY 2006 AND 31 JANUARY 2007
48. By a letter on 30 September 2015, the Government submitted a unilateral declaration with a view to resolving issues raised under Article 3 and Article 5 § 3 of the Convention. The declaration read as follows:
“I,..., the Representative of the Russian Federation at the European Court of Human Rights, hereby declare that the Russian Government acknowledge that [the applicant] between 31 January and 7 February 2006 was detained in the IZ-77/5 facility in Moscow in conditions which did not comply with the requirements of Article 3 of the Convention,... without well-founded justification, in violation of Article 5 § 3 of the Convention; between 11 May 2006 and 31 January 2007 he was detained, in violation of Article 5 § 3 of the Convention.
The Government are ready to pay the applicant the sum of EUR 4,400 by way of just satisfaction.
The Government therefore invite the Court to strike the present case out of the list of cases. They suggest that the present declaration might be accepted by the Court as [falling under] “any other reason” justifying striking the case out of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention
The sum referred to above, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months of the date of notification of the decision taken by the Court, pursuant to Article 37 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and shall be converted into Russian roubles at the rate applicable as at the date of payment.
In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period,
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plus three percentage points.
This payment will constitute the final resolution of the case.”
49. The applicant did not respond to the Government’s offer.
50. The Court reiterates that Article 37 § 1 (c) of the Convention enables it to strike a case out of its list if:
“... for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
51. It also points out that, in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
52. To this end, the Court will examine the declaration carefully in the light of the principles established in its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007; and WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007).
53. The Court is satisfied that the Government did not dispute this part of the allegations made by the applicant and explicitly acknowledged the breaches of Articles 3 in respect of the conditions of his detention and of Article 5 § 3 of the Convention in respect of the detention on remand during the second set of criminal proceedings against him.
54. As to the intended redress to be provided to the applicant, the Government have undertaken to pay 4,400 euros (EUR) by way of just satisfaction. The Court notes that the proposed sum is not unreasonable in comparison with similar cases (see Cocchiarella v. Italy [GC], no. 64886/01, § 105, ECHR 2006‑V). The Government have committed themselves to effecting payment of that sum within three months of the Court’s decision, with default interest to be payable in the event of a delay in settlement.
55. The Court has repeatedly found violations of Articles 3 and 5 § 3 of the Convention on account of inadequate conditions of detention in Russian custodial facilities (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012) and the excessively long pre-trial detention of applicants without relevant and sufficient reasons (see, among many other authorities, Kalashnikov v. Russia, no. 47095/99, §§ 104-21, ECHR 2002‑VI). It follows that the complaints raised in the present application are based on the clear and extensive case-law of the Court.
56. The Court further notes that the Committee of Ministers remains competent to supervise, in accordance with Article 46 § 2 of the Convention, the implementation of the judgments concerning the same issues. Therefore, the Court is satisfied that respect for human rights, as defined in the Convention (Article 37 § 1 in fine), does not require it to continue the examination of this part of the application. In any event, the Court’s decision is without prejudice to any decision it might take to restore, pursuant to Article 37 § 2 of the Convention, this part of the application to its list of cases should the Government fail to comply with the terms of their unilateral declaration (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008, and Aleksentseva and 28 Others v. Russia (dec.), nos. 75025/01 et al., 23 March 2006). The Court thus considers that it is no longer justified to continue the examination of the case in this part.
57. In view of the above, it is appropriate to strike out of the list the part of the application concerning the inhuman and degrading conditions of the applicant’s detention in the remand prison between 31 January and 7 February 2006 and the lack of relevant and sufficient reasons for his detention on remand in the period between 11 May 2006 and 31 January 2007.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE ADEQUANCY OF MEDICAL CARE
58. The applicant complained that he had not been afforded adequate medical treatment in detention. He relied on Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties’ submissions
59. The Government argued that the administrative authorities of the remand prison had not been aware of the applicant’s epilepsy and had not recorded any episodes of epileptic seizures. They argued that the applicant had been subjected to regular medical examinations in detention and had been provided with the required medical care.
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60. The applicant argued that the authorities had not ensured his thorough medical examination by competent doctors, that his epileptic seizures had not been recorded and that he had not received any treatment in that respect. He supported his arguments with written statements by inmates, as well as the medical records made by the ambulance teams (see paragraphs 35, 36 and 38 above).
B. The Court’s assessment
1. Admissibility
61. The Court further notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
2. Merits
(a) General principles in respect of the Court’s evaluation of the facts and the burden of proof
62. In cases in which there are conflicting accounts of events, the Court is inevitably confronted, when establishing the facts, with the same difficulties as those faced by any first-instance court. It reiterates that, in assessing evidence, it has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is to rule not on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention ‑ conditions its approach to the issues of evidence and proof. In proceedings before the Court there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. In accordance with its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012, and the cases cited therein).
63. Furthermore, it should be pointed out that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio (that is to say, the principle that the burden of proof lies on the person making the allegation in question). The Court reiterates its case-law under Articles 2 and 3 of the Convention to the effect that – where the events at issue lie within the exclusive knowledge of the authorities, as in the case of persons under their control in custody – strong presumptions of fact will arise in respect of injuries, damage and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII; and Oleg Nikitin v. Russia, no. 36410/02, § 45, 9 October 2008). In the absence of such an explanation the Court can draw inferences which may be unfavourable for the respondent Government (see, for instance, Buntov v. Russia, no. 27026/10, § 161, 5 June 2012, and Orhan v. Turkey, no. 25656/94, § 274, 18 June 2002).
(b) General principles as regards the standards of medical care for detainees
64. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill‑treatment must, however, attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom
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, 18 January 1978, § 162, Series A no. 25).
65. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 of the Convention (see Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002-III, with further references).
66. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure of deprivation of liberty do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000‑XI, and Popov v. Russia, no. 26853/04, § 208, 13 July 2006). In most cases concerning the detention of sick people, the Court has examined whether or not the applicant received adequate medical care in prison. The Court reiterates in this regard that even though Article 3 of the Convention does not entitle a detainee to be released “on compassionate grounds”, it has always interpreted the requirement to ensure that the health and well-being of detainees are adequately secured as an obligation on the part of the State to provide detainees with the requisite medical assistance (see Kudła, cited above, § 94; Khudobin, cited above, § 96; and Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI).
67. The “adequacy” of medical assistance remains the most difficult element to determine. The Court insists, in particular, that authorities must ensure that diagnosis and care are prompt and accurate (see Khatayev v. Russia, no. 56994/09, § 85, 11 October 2011; Yevgeniy Alekseyenko v. Russia, no. 41833/04, § 100, 27 January 2011; Gladkiy v. Russia, no. 3242/03, § 84, 21 December 2010; Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 115, 29 November 2007; Melnik v. Ukraine, no. 72286/01, §§ 104-06, 28 March 2006; and, mutatis mutandis, Holomiov v. Moldova, no. 30649/05, § 121, 7 November 2006) and that – where necessitated by the nature of a medical condition ‑ supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at successfully treating the detainee’s health problems or preventing their aggravation (see Hummatov, cited above, §§ 109 and 114, and Sarban v. Moldova, no. 3456/05, § 79, 4 October 2005). The Court reiterates that medical treatment within prison facilities must be appropriate and comparable to the quality of treatment which the State authorities have committed themselves to providing for the entirety of the population. Nevertheless, this does not mean that each detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see Blokhin v. Russia [GC], no. 47152/06, § 137, 23 March 2016, and Cara‑Damiani v. Italy, no. 2447/05, § 66, 7 February 2012).
68. On the whole, the Court reserves a fair degree of flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008).
(c) Application of the above principles to the present case
69. Turning to the circumstances of the present case, the Court observes that the parties submitted conflicting descriptions of the applicant’s state of health and the treatment afforded to him. The applicant stated that he had suffered from epileptic seizures and that the authorities, while aware of his condition, had remained idle. The Government argued that the applicant had not informed the authorities of his epilepsy and that he had not had any seizures in detention.
70. The Government based their arguments on the applicant’s medical records, drawn up by a prison paramedic, which
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did not contain any entries related to the applicant’s epilepsy (see paragraphs 29-32 above).
71. The applicant challenged the completeness and validity of the records, relying on the written complaint to the detention authorities by the nine inmates (see paragraph 35 above) and the records of the interviews with the three detainees (see paragraph 38 above). The statements described the applicant’s grave health condition and several instances of an epileptic seizure. Two of the episodes of epileptic seizures had occurred during the court hearings and were recorded by the emergency teams in attendance at the time (see paragraph 36 above).
72. The above facts accord with the applicant’s previous medical history of epilepsy. Taken together, it refutes the Government’s allegations that the authorities had been unaware of the applicant’s medical condition, and in particular his epilepsy (and the fact that he experienced occasional epileptic seizures) and accordingly his need for anti-epilepsy treatment. The Court therefore accepts that the medical records of the applicant drawn up by the prison paramedic were incomplete and did not reflect his actual state of health. It will accordingly draw inferences from the authorities’ failure to keep proper medical records in the applicant’s case.
73. The Court further observes that upon his admission to the remand prison the applicant informed the medical authorities of his disability (see paragraph 29 above). However, this did not prompt the prison authorities to look into the nature of that disability; nor did it prompt them to try to obtain the applicant’s previous medical history, despite the fact that it had been explicitly recommended that this be requested (see paragraph 29 above). The applicant was placed in a regular prison facility. For months after his arrest his health was monitored, mostly by a prison paramedic, who, for unknown reasons, completely disregarded the applicant’s condition and did not record the epileptic seizures which occurred, according to the evidence before the Court, on several occasions – both in the remand prison and in the court house. In this respect, the Court would note that although the emergency teams’ records were attached to the applicant’s medical file, the prison medical authorities took no account of the contents of those records.
74. Moreover, as can be seen from the inmates’ statements, the applicant demonstrated other disturbing tendencies in his behaviour, which were most probably linked to the state of his health and which could not have remained unnoticed by the authorities, particularly in view of the fact that they had received the inmates’ complaint to that effect. It appears that the authorities did not give any weight to the seriousness of the applicant’s seizures and the accompanying risks, ranging from trauma to the detrimental effect of repeated seizures on the brain and even sudden, disease-related death. In these circumstances, the Court also finds that the lack of any information in the prison record about the applicant’s medical treatment in detention leads to the conclusion that he was not subjected to any medical examination and that he did not receive the treatment required for his epilepsy. The situation was further aggravated by the authorities’ persistent refusals to authorise an in-depth medical examination of the applicant to assess the state of his illness and to formulate the appropriate anti-epilepsy therapy (see paragraphs 39-41 above).
75. Accordingly, the Court notes a grave failure on the part of the Russian authorities to acknowledge the applicant’s medical needs and afford him the appropriate level of the medical care in detention. As a result of the authorities’ failure to provide the applicant with the medical care he needed he was exposed to prolonged mental and physical suffering, diminishing his human dignity. The authorities’ failure amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention.
76. Accordingly, there has been a violation of Article 3 of the Convention on that account.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION ON ACCOUNT OF THE DETENTION BETWEEN 24 MAY 2005 AND 6 MAY 2006
77. The applicant complained that his pre-trial detention had been counter to the “reasonable time” requirement set out in Article 5 § 3 of the Convention, which reads, in so far as relevant, as follows:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
A. The parties’ submissions
78. The Government submitted that the applicant’s pre-trial detention had been based on relevant grounds. The domestic courts had taken into account the fact that he had been charged with a serious crime, and that there would have been a risk of his absconding or hampering the investigation if he had been release. Having duly assessed the applicant’s personal situation, the state of
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his health and the diligence of the investigative authorities, the domestic courts had complied with the requirements of the Convention.
79. The applicant maintained his complaint. He considered that his pre‑trial detention had not been based on relevant and sufficient reasons. He claimed that the detention orders had lacked any sound ground and had been issued without an in-depth assessment of the circumstances of his case.
B. The Court’s assessment
1. Admissibility
80. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
2. Merits
(a) General principles
81. The persistence of reasonable suspicion that the person arrested has committed an offence is a conditio sine qua non for the lawfulness of his or her continued detention, whatever other grounds may exist. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds are found to have been “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings. The presumption is in favour of release. As the Court has consistently held, the second limb of Article 5 § 3 of the Convention does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continued detention ceases to be reasonable. A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify his or her continued detention (see, among other authorities, Castravet v. Moldova, no. 23393/05, §§ 30 and 32, 13 March 2007; McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006-X; Jabłoński v. Poland, no. 33492/96, § 83, 21 December 2000; and Neumeister v. Austria, 27 June 1968, § 4, Series A no. 8). Article 5 § 3 of the Convention cannot be seen as unconditionally authorising detention provided that it lasts no longer than a certain period. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003‑I (extracts)).
82. It is incumbent on the domestic authorities to establish the existence of specific facts relevant to the grounds for continued detention. Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see Rokhlina v. Russia, no. 54071/00, § 67, 7 April 2005, and Ilijkov v. Bulgaria, no. 33977/96, §§ 84-85, 26 July 2001). The national judicial authorities must examine all the facts arguing for or against the existence of a genuine public interest requirement justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty, and must set them out in their decisions dismissing the applications for release. It is not the Court’s task to establish such facts and take the place of the national authorities which ruled on the applicant’s detention. It is essentially on the basis of the reasons given in the domestic courts’ decisions and of the established facts mentioned by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Korchuganova v. Russia, no. 75039/01, § 72, 8 June 2006; Ilijkov, cited above, § 86; and Labita, cited above, § 152).
(b) Application to the present case
83. The applicant was arrested on 24 May 2005 and was released on 6 May 2006. The period to be taken into consideration therefore lasted for more than eleven months.
84. The Court has already, on a large number of occasions, examined applications against Russia raising similar complaints under Article 5 § 3 of the Convention in respect of the Russian courts’ failure to provide sufficient and relevant grounds for applicants’ detention (see, among many others, Dirdizov v. Russia, no. 41461/10, §§ 108-11, 27 November 2012; Valer
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iy Samoylov v. Russia, no. 57541/09, 24 January 2012; Romanova v. Russia, no. 23215/02, 11 October 2011; Khodorkovskiy v. Russia, no. 5829/04, 31 May 2011; Sutyagin v. Russia, no. 30024/02, 3 May 2011; Logvinenko v. Russia, no. 44511/04, 17 June 2010; Goroshchenya v. Russia, no. 38711/03, 22 April 2010; Gultyayeva v. Russia, no. 67413/01, 1 April 2010; Makarenko v. Russia, no. 5962/03, 22 December 2009; Lamazhyk v. Russia, no. 20571/04, 30 July 2009; Avdeyev and Veryayev v. Russia, no. 2737/04, 9 July 2009; Aleksandr Makarov v. Russia, no. 15217/07, 12 March 2009; Matyush v. Russia, no. 14850/03, 9 December 2008; Belov v. Russia, no. 22053/02, 3 July 2008; Shukhardin v. Russia, no. 65734/01, 28 June 2007; Mishketkul and Others v. Russia, no. 36911/02, 24 May 2007; Ignatov v. Russia, no. 27193/02, 24 May 2007; Solovyev v. Russia, no. 2708/02, 24 May 2007; Pshevecherskiy v. Russia, no. 28957/02, 24 May 2007; Mamedova v. Russia, no. 7064/05, 1 June 2006; Rokhlina v. Russia, no. 54071/00, 7 April 2005; Panchenko v. Russia, no. 45100/98, 8 February 2005; and Khudoyorov v. Russia, no. 6847/02, ECHR 2005-X (extracts)). Each time, having found a violation of Article 5 § 3 of the Convention, the Court noted the fragility of the reasoning employed by the Russian courts to authorise an applicant’s remaining in custody. From case to case it pointed out the following major defects in the courts’ argumentation: reliance on the gravity of the charges as the primary source to justify the risk of the applicant’s absconding; a suspicion, in the absence of any evidentiary basis, that the applicant would tamper with witnesses or use his connections in state bodies to obstruct justice; a failure to thoroughly examine the possibility of applying another, less rigid, measure of restraint, such as bail; and the collective extension of the applicant’s and his co-defendants’ detention without due regard to the individual circumstances of each of the accused.
85. The Court observes that the Russian courts did not avoid that pattern of reasoning in the present case. They consistently relied on the gravity of the charges and the possibility of the applicant absconding and obstructing justice, having based their fear on the same set of assumptions as in the cases cited above. The Court notes that, while accepting the investigators’ allegations that the applicant was likely to avoid or pervert the course of justice, the courts gave no heed to important and relevant facts that supported the applicant’s pleas for liberty and reduced the risks of absconding or collusion. Those the Court can identify include the applicant’s fragile health, his strong community ties, and the lack of any evidence that he had ever attempted to contact the victims or witnesses in the course of the criminal proceedings. In these circumstances, the Court concludes that the domestic courts failed to analyse the applicant’s personal situation and to give detailed and specific reasons, supported by evidentiary findings, for holding him in custody.
86. Having regard to the above, the Court considers that by failing to refer to specific relevant facts or to properly consider alternative “preventive measures”, the authorities extended the applicant’s detention on grounds which cannot be regarded as “sufficient”. They thus failed to justify the applicant’s continued deprivation of liberty for a period of almost a year. It is hence not necessary to examine whether the proceedings against the applicant were conducted with due diligence during that period, as such a lengthy period cannot in the circumstances be regarded as “reasonable” within the meaning of Article 5 § 3 of the Convention (see Pekov v. Bulgaria, no. 50358/99, § 85, 30 March 2006).
87. There has therefore been a violation of Article 5 § 3 of the Convention on account of the applicant’s detention between 24 May 2005 and 6 May 2006.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
88. The applicant complained that he
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had been denied the right to an effective judicial review of the court decisions of 15 February and 4 April 2006 rejecting his application for release. He relied on Article 5 § 4 of the Convention, which provides as follows:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
A. The parties’ submissions
89. The Government submitted that the applicant’s case file did not contain any information supporting the applicant’s submission that he had appealed against the decision of 15 February 2006. They further submitted that Russian law did not provide the applicant with an avenue for appealing the decisions in question, as they were intermediate court decisions rendered in the course of the trial. They alleged that there had been no violation of the applicant’s rights under Article 5 § 4 of the Convention.
90. The applicant maintained his complaints.
B. The Court’s assessment
1. Admissibility
91. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
2. Merits
(a) General principles
92. The Court reiterates that Article 5 § 4 of the Convention entitles arrested or detained persons to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty. This means that the competent court has to examine not only compliance with the procedural requirements of domestic law but also the reasonableness of the suspicion underpinning the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention (see Grauslys v. Lithuania, no. 36743/97, § 53, 10 October 2000). In order to satisfy the requirements of Article 5 § 4 of the Convention, a “review of the lawfulness of the applicant’s detention” must comply with both the substantive and the procedural rules of the national legislation and moreover be conducted in conformity with the aim of Article 5 of the Convention, namely to protect the individual against arbitrariness (see Keus v. the Netherlands, 25 October 1990, § 24, Series A no. 185-C).
(b) Application of those principles in the present case
93. Turning to the circumstances of the present case the Court firstly observes, as regards the Government’s argument that the applicant did not appeal against the decision of 15 February 2006, that he provided the Court with a copy of the appeal statement bearing the stamp of the Moscow City Court. He also submitted the City Court’s letter informing him of the refusal to grant leave to appeal. Therefore the Court has no doubt that the impugned appeal statement was in fact lodged.
94. The Court further observes that the City Court refused to examine the appeal against the decisions of 15 February and 4 April 2006, having concluded that they were not amenable to appeal as they had been issued in the course of the trial (see paragraphs 17 and 19 above).
95. The Court has already examined a similar issue in the cases of Makarenko (cited above, §§ 121-25) and Chuprikov (cited above, §§ 83-87). In these cases it considered that, in violation of Article 5 § 4 of the Convention, the applicants’ appeals had not received an adequate judicial response. The Court sees no reason to reach a different conclusion in the present case. It follows that there has been a violation of Article 5 § 4 of the Convention on account of the failure to examine the applicant’s appeals against the decisions of 15 February and 4 April 2004 refusing the requests for his release from detention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
96. The applicant complained under Article 3 of the Convention of the authorities’ failure to ensure that he enjoyed eight hours’ sleep on court hearing days. The Court has already examined a similar issue in the case of Bagel v. Russia (no. 37810/03, § 70, 15 November 2007), concluding that the six hours’ sleep afforded to the applicant in that case on the days of his participation in court hearings did not reach the threshold proscribed by Article 3 of the Convention. Turning to the circumstances of the present case, the Court sees no reason to reach a different conclusion. The applicant had no less than six hours of sleep per night. Moreover, the authorities took steps to ensure that he had enough sleep during at least three nights per week (when he did not take part in court hearings). The Court also does not lose sight of the fact that Wednesdays were chosen as days to
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allow the applicant to recover from participating in court proceedings and any possible shortage of sleep suffered during the week. Lastly, the situation only continued for a short period of time during the trial. Accordingly, this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
97. The Court has also examined other complaints submitted by the applicant. However, having regard to all the material in its possession, and in so far as those complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be also rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
98. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
99. The applicant did not claim compensation for pecuniary or non‑pecuniary damage.
100. Accordingly, the Court considers that there is no call to award him any sum on that account.
B. Costs and expenses
101. The applicant claimed 3,150 euros (EUR) for legal services.
102. The Government argued that the claim was ill-founded.
103. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Given that Mr Yavorskiy and Ms Liptser represented the applicant throughout the proceedings before the national authorities and before the Court, having prepared a number of submissions in the applicant’s defence, the Court considers it reasonable to award the sum claimed in full, plus any tax that may be chargeable to the applicant on that amount.
C. Default interest
104. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides, having regard to the terms of the Government’s declaration, and the modalities for ensuring compliance with the undertakings referred to therein, to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it concerns the complaints under Articles 3 and 5 § 3 of the Convention about the inhuman and degrading conditions of the applicant’s detention in remand prison no. IZ-77/5 in Moscow between 31 January and 7 February 2006 and the lack of relevant and sufficient reasons for his detention on remand between 11 May 2006 and 31 January 2007;
2. Declares the complaint under Article 3 of the Convention concerning the lack of adequate medical assistance in detention, the complaint under Article 5 § 3 of the Convention in respect of the period of the applicant’s detention from 24 May 2005 to 6 May 2006, and the complaint under Article 5 § 4 of the Convention admissible, and the remainder of the application inadmissible;
3. Holds that there has been a violation of Article 3 of the Convention on account of the lack of adequate medical assistance in detention;
4. Holds that there has been a violation of Article 5 § 3 of the Convention on account of the applicant’s detention between 24 May 2005 and 6 May 2006;
5. Holds that there has been a violation of Article 5 § 4 of the Convention;
6. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention EUR 3,150 (three thousand one hundred and fifty euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant on that amount. This amount is to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points.
Done in English, and notified in writing on 24 May 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
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Stephen PhillipsLuis López GuerraRegistrarPresident
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FIFTH SECTION
CASE OF KUTSENKO v. UKRAINE (No. 2)
(Application no. 2414/06)
JUDGMENT
STRASBOURG
3 February 2011
This judgment is final but it may be subject to editorial revision.
In the case of Kutsenko v. Ukraine (no. 2),
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mark Villiger, President,Karel Jungwiert,Isabelle Berro-Lefèvre, judges,and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 11 January 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 2414/06) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mrs Tamara Ananyevna Kutsenko (“the applicant”), on 21 September 2004.
2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
3. On 10 February 2010 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1960. She died in June 2008. Her widower, Mr Kutsenko Oleh Mykolayovych, submitted that he wished to pursue the application.
5. On 14 June 2000 the applicant lodged a claim with the Bahliyskyy District Court of Dniprodzerzhynsk (“the Bahliyskyy Court”) against the State Bailiffs’ Service. She sought compensation for pecuniary and non‑pecuniary damage allegedly caused by lengthy non-enforcement of two judgments given in her favour against a State enterprise. The debtor State enterprise participated in the proceedings as a third party.
6. On 10 July 2001 the Bahliyskyy Court found no fault on the part of the Bailiffs and rejected the applicant’s claims.
7. On 26 November 2001 the Dnipropetrovsk Regional Court of Appeal quashed the judgment of 10 July 2001 because of the failure of the first‑instance court to assess all the circumstances of the case and to give reasons for its decision and remitted the case for fresh examination.
8. On 25 September 2003 the Bahliyskyy Court rejected the applicant’s claims. It noted that the judgments of 15 March 2000 and 25 February 2001 had been enforced in full on 6 July 2000 and 5 April 2002, respectively, and found no fault on the part of the Bailiffs for the alleged lengthy enforcement of the judgments.
9. On 30 June 2004 the Dnipropetrovsk Regional Court of Appeal rejected the applicant’s appeal which she had to re-submit on two occasions in order to comply with procedural requirements and upheld the judgment of 25 September 2003.
10. On 26 July 2004 the applicant appealed in cassation.
11. On 29 May 2007 the Crimea Court of Appeal, acting as a court of cassation, found no grounds to review the applicant’s case in cassation.
12. In the course of the proceedings before the first-instance court the applicant supplemented her claims on four occasions. Six times the proceedings were adjourned on the applicant’s request or because of her or her representative’s failure to appear which in total caused a delay of about six months. Sixteen times the proceedings were adjourned because of other participants’ (respondent, third party, experts) failure to appear or on their requests and on two occasions because of the absence of the judge which in total caused a delay of one year and five months.
THE LAW
I. AS TO THE LOCUS STANDI OF MR KUTSENKO
13. The applicant’s widower, Mr Kutsenko, expressed the wish to pursue the application following the applicant’s death. He submitted that he was the applicant’s heir.
14. The Government submitted that Mr Kutsenko did not present any documents to prove that he was the applicant’s heir. Mr Kutsenko maintained that he was the applicant
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’s heir.
15. The Court recalls that in a number of cases in which applicants died in the course of the proceedings, the Court has taken into account the statements of their heirs or of close family members expressing the wish to pursue the proceedings before the Court. This is particularly the case concerning applications which were introduced by applicants themselves and only continued by their widows after the applicants’ death (see, for example, Stojkovic v. “the former Yugoslav Republic of Macedonia”, no. 14818/02, §§25-26, 8 November 2007; and Ivanovski and Others v. “the former Yugoslav Republic of Macedonia”, no. 34188/03, §§ 15 and 18, 26 November 2009).
16. The Court therefore finds that the applicant’s widower has standing to pursue the application. It will therefore continue dealing with the case at request of Mr Kutsenko. However, reference will still be made to the applicant throughout the ensuing text.
II. THE COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS
17. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations... everyone is entitled to a... hearing within a reasonable time by [a]... tribunal...”
18. The Government contested that argument.
19. The period to be taken into consideration began on 14 June 2000 and ended on 29 May 2007. It thus lasted six years, eleven months and fifteen days for three levels of jurisdiction.
A. Admissibility
20. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
21. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
22. Turning to the facts of the present case, the Court notes that the case was not that complex to justify the overall length of the proceedings of about six years and eleven months. While it is true that the applicant caused some delays in the proceedings, substantial delays were caused by other participants in the proceedings all of which represented the State or the State-owned entity (see paragraphs 6 and 13 above). In this connection the Court notes that no appropriate steps were taken by the domestic authorities to ensure their compliance with the procedural obligation of attending the court hearings (see Golovko v. Ukraine, no. 39161/02, § 62, 1 February 2007). The Court further observes that the applicant’s appeal in cassation was pending examination for two years and ten months without any acceptable justification for this (see paragraphs 11 and 12 above). The Court therefore concludes that the State authorities bear the primary responsibility for the excessive length of the proceedings in the present case.
23. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above; Voishchev v. Ukraine, no. 21263/04, §§ 25-37, 19 February 2009; and Buryak v. Ukraine, no. 1866/04, §§ 21-22, 19 February 2009).
24. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
III. OTHER COMPLAINTS
25. The applicant also complained under Articles 1, 6, 13 and 34 of the Convention and Article 1 of Protocol No. 1 about the outcome of the proceedings and that the Bailiffs had failed to enforce in due time the judgments against the State enterprise. The applicant further complained of unfairness of the cassation proceedings and alleged lack of access to a court on account of the ruling given on 29 May 2007.
26. In the light of the materials in its possession, the Court finds that the applicant’s complaints do not disclose any appearance of a violation of the rights and freedoms set out in
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the Convention or its Protocols.
27. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
28. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
29. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.
30. The Government contested the claim.
31. The Court considers that the applicant must have sustained non‑pecuniary damage on account of the excessive length of the civil proceedings in her case. Ruling on an equitable basis, it awards EUR 1,200 under this head to Mr Kutsenko.
B. Costs en expenses
32. The applicant did not submit any claim for costs and expenses. Accordingly, the Court makes no award under this head.
C. Default interest
33. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint under Article 6 § 1 of the Convention concerning the length of the proceedings admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds
(a) that the respondent State is to pay Mr Kutsenko, within three months, EUR 1,200 (one thousand two hundred euros) in respect of non‑pecuniary damage, plus any tax that may be chargeable, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 3 February 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen PhillipsMark VilligerDeputy Registrar President
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FIRST SECTION
CASE OF JARMUŻ v. POLAND
(Application no. 63696/12)
JUDGMENT
STRASBOURG
13 June 2019
This judgment is final but it may be subject to editorial revision.
In the case of Jarmuż v. Poland,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Pere Pastor Vilanova, President,Krzysztof Wojtyczek,Pauliine Koskelo, judges,and Renata Degener, Deputy Section Registrar,
Having deliberated in private on 21 May 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 63696/12) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Michał Jarmuż (“the applicant”), on 19 September 2012.
2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.
3. On 7 July 2015 notice of the application was given to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1966 and is detained in Włocławek.
A. First set of proceedings
5. Criminal proceedings against the applicant concerning charges of leading an organised criminal gang, assault and extortion have been pending since 29 September 2005 (case no. IV K 59/09, Łódź Regional Court).
B. Second set of proceedings
1. The criminal proceedings
6. On 1 October 2009 the applicant was arrested and detained on remand.
7. On 2 March 2010 the applicant was indicted before the Łódź Regional Court. The bill of indictment was directed against the applicant and twenty‑two co-accused charged with over 900 offences in total. The applicant was charged on thirty-eight counts with respect to various offences related to stealing cars, dealing in drugs, assaults and burglaries, in the context of an organised criminal gang.
8. At a session on 23 November 2010 the trial court decided to sever the remainder of the case from the proceedings against the applicant, which would be dealt with at a separate trial and joined with other charges brought against him. In consequence, the proceedings against the applicant were to be transferred to another division of the Łódź Regional Court. The decision pertaining to the competence of the court was quashed on 14 December 2010. On 28 December 2010 the trial court extended the applicant’s detention on remand. On 4 February 2011 the proceedings were stayed pending the outcome of another trial, but that decision was quashed upon appeal on 16 March 2011. The case was transferred to the relevant division of the court in March 2011, and thereafter the presiding judge scheduled the beginning of the trial for 14 September 2011 and undertook other preparative actions (such as tracing the addresses of some twelve witnesses).
During the proceedings the applicant lodged multiple procedural requests which were examined by the trial court. In particular, he asked for adjournments of hearings, asked for new evidence to be admitted, and challenged a judge and a prosecutor.
9. The Łódź Regional Court held about twenty-four hearings in total and on 13 May 2013 convicted the applicant and sentenced him to nine years’ imprisonment.
10. The applicant appealed against the judgment.
11. A hearing of the appellate court scheduled for 15 April 2014 was cancelled due to the absence of the applicant’s lawyer.
12. On 12 June 2014 the Łódź Court of Appeal allowed the applicant’s appeal in part and reduced his sentence to eight years’ imprisonment. The applicant lodged a cassation appeal.
13. On 17 December 2014 the Supreme Court dismissed the cassation appeal.
2. Proceedings under the 2004 Act
14. The applicant lodged two complaints under the Law of 17 June 2004 on complaints of breaches of the right to have a case examined in an investigation conducted or supervised by a prosecutor, and in judicial proceedings, without undue delay (ustawa o skardze na naruszenie prawa strony do rozpozn
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ania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki - “the 2004 Act”).
15. On 7 September 2011 the Łódź Court of Appeal dismissed the first complaint. The court, relying on the Convention principles, ruled that, taking into account the complexity of the case, the length of the proceedings had not been excessive. During the period under consideration the trial court had prepared diligently for trial by, for instance, securing the presence of a large number of witnesses who had been summoned from various detention facilities.
16. On 28 November 2012 the Łódź Court of Appeal dismissed the applicant’s second complaint. The court examined the course of the proceedings and ruled that there had been no delays on the part of the courts. It noted that the trial court had taken many procedural decisions requested by the parties, including the applicant.
II. RELEVANT DOMESTIC LAW AND PRACTICE
17. A detailed description of the relevant domestic law and practice concerning remedies for excessive length of judicial proceedings – in particular, the applicable provisions of the 2004 Act – is set out in the Court’s decisions in the cases of Charzyński v. Poland ((dec.), no. 15212/03, §§ 12-23, ECHR 2005-V) and Ratajczyk v. Poland ((dec.), no. 11215/02, ECHR 2005-VIII), and in its judgments in the cases of Krasuski v. Poland (no. 61444/00, §§ 34-46, ECHR 2005-V (extracts)) and Rutkowski and Others v. Poland (nos. 72287/10 and 2 others, §§ 75-107, 7 July 2015).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION
18. The applicant complained of the excessive length of the proceedings in his cases and, under Article 13 of the Convention, of lack of effective remedy for the excessive length of proceedings. He relied on Article 6 § 1 and Article 13 of the Convention, which, in so far as relevant, provide:
Article 6
“In the determination of... any criminal charge against him, everyone is entitled to a... hearing within a reasonable time by [a]... tribunal...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. First set of proceedings
19. By a letter dated 13 July 2017 the Government informed the Court that they proposed to make a unilateral declaration with a view to partly resolving the issues raised by the application. The Government acknowledged a violation of Article 6 § 1 on account of the excessive length of the first set of criminal proceedings against the applicant and a violation of Article 13 on account of the lack of an effective remedy securing sufficient redress for a violation of Article 6 § 1. They offered payment to the applicant in the sum of 9,180 Polish złotys. The Government further undertook to adopt a range of general measures in respect of other persons who were victims of similar violations or might be affected by similar violations in the future. The sum referred to above is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, and is to be paid free of any taxes that may be applicable. It would be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of failure to pay this sum within the said three-month period, the Government undertook to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. In addition, the Government made a declaration as to general measures to be adopted in the implementation of the Rutkowski and Others v. Poland pilot judgment (no. 72287/10 and 2 others, 7 July 2015 – see Załuska and Rogalska v. Poland (dec.), nos. 53491/10 and 72286/10, §§ 23-25, 20 June 2017). They further requested the Court to strike out this part of the application in accordance with Article 37 of the Convention.
20. On 27 February 2018 the applicant indicated that he was not satisfied with the terms of the unilateral declaration.
21. The Court reiterates that Article 37 of the Convention provides that it may at any stage
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of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under Article 37 § 1 (a), (b) or (c). In particular, Article 37 § 1 (c) enables the Court to strike a case out of its list if
“for any other reason established by the Court, it is no longer justified to continue the examination of the application.”
22. It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the case to be continued.
23. To this end, the Court has examined the declarations in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
24. The conclusions reached by the Court on the admissions and undertakings contained in the Government’s declarations in the first group of 400 cases submitted in the pilot-judgment procedure also apply to the present case (see Załuska and Rogalska, cited above, §§ 51-53).
25. Having regard to the nature of the admissions contained in the Government’s declarations, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the complaint relating to the first set of proceedings (Article 37 § 1 (c)).
26. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of that complaint (Article 37 § 1).
27. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the complaint can be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
28. In view of the above, it is appropriate to strike this part of the application out of the list.
B. Second set of proceedings
1. Article 6 § 1 of the Convention
(a) Admissibility
29. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(b) Merits
30. The applicant complained in general that the length of the second set of criminal proceedings had been unreasonable. He argued that he had not contributed to the length of the proceedings as he had had the right to make use of his procedural rights.
31. The Government contested the allegation and considered that there had been no violation of the Convention. The Government submitted that the proceedings had been particularly complex as they had concerned twenty-three defendants charged with some 900 offences in total. Although later on the trial court had severed the case against the applicant from the rest in order to facilitate the proceedings, it had nevertheless remained complex owing to the large number of charges that had been brought against the applicant. The courts dealing with the case had been diligent and there had been no significant periods of inactivity attributable to the domestic authorities. At the initial stage, the domestic court took many procedural steps in particular in 2010 decided that another court should be competent to deal with the case and in 2011 stayed the proceedings. Moreover, although the Government acknowledged that the applicant had not substantially contributed to the total length of the proceedings, he had nevertheless lodged multiple unsubstantiated procedural requests. A few hearings had been adjourned due to either his or his lawyer’s absence.
32. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the conduct of the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II, and Kuśmierek v. Poland, no. 10675/02, § 62, 21 September 2004).
33. The Court firstly notes that the period
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to be taken into consideration began on 1 October 2009 and ended on 17 December 2014. The proceedings thus lasted five years and two months at three levels of jurisdiction.
34. Considering the nature of the case, the Court accepts the Government’s arguments that it was complex and that the domestic courts dealt with a vast amount of evidence (see paragraph 31 above). The allegations against the applicant were very serious and included charges of acting within an organised criminal gang (see paragraph 6 above).
35. As regards the conduct of the applicant, the Court notes that the Government agreed that the applicant had not substantially contributed to the prolongation of the proceedings (see paragraph 31 above).
36. As to the conduct of the authorities, the Court first observes that the bill of indictment was submitted to the Regional Court on 2 March 2010 and that the first hearing on the merits was held on 14 September 2011. The Court notes that this period amounted to eighteen months, which contributed significantly to the overall length of the proceedings. As regards the diligence of the authorities during the above period, the Court is not persuaded by the Government’s arguments that it had been necessary to transfer the case to another court or to stay the proceedings. Those decisions of the domestic authorities were flawed and were quashed upon appeal (see paragraph 8 above). The Court considers that for a period of over eighteen months the domestic authorities concentrated on technical and administrative measures and not on the examination of the merits of the criminal case against the applicant. The necessity of those measures, which delayed the examination of the case, was not sufficiently justified by the Government.
37. The Court takes note of the subsequent efforts of the trial and appellate courts to finish the trial against the applicant (see paragraphs 9 and 11 above). However, that final consolidation of the court’s actions cannot make up for the previous delays (see Rutkowski and Others, cited above, § 139).
38. Accordingly, having regard in particular to the delays occurring at the initial stage of the proceedings, the Court considers that in the present case there has been a violation of Article 6 § 1 of the Convention on account of the unreasonable length of the second set of the proceedings.
2. Article 13 of the Convention
39. The applicant further submitted that he had had no effective domestic remedy in respect of the protracted length of the second set of proceedings in his case.
40. The Government contested the allegation that there had been a breach of this provision of the Convention.
41. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time. However, the “effectiveness” of a “remedy” within the meaning of that provision does not depend on the certainty of a favourable outcome for the applicant (see Kudła v. Poland [GC], no. 30210/96, §§ 154 et seq., ECHR 2000-XI).
42. While the subsidiarity principle underlying the Convention system requires the Contracting States to introduce a mechanism addressing complaints about the excessive length of proceedings within the national legal system, they are afforded – subject to compliance with the requirements of the Convention – some discretion as to the manner in which they provide individuals with the relief required by Article 13 and thus conform to their Convention obligations under that provision.
43. The Court further reiterates that the word “remedy” within the meaning of Article 13 does not mean a remedy which is bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see, for example, Šidlová v. Slovakia, no. 50224/99, § 77, 26 September 2006; Figiel v. Poland (no. 2), no. 38206/05, § 33, 16 September 2008; and Baszczyński v. Poland (dec.), no. 77103/13, § 51, 12 December 2017).
44. Having regard to its finding in respect of Article 6 § 1 of the Convention and the fact that the applicant had the opportunity to raise complaints under the 2004 Act, and made use of that opportunity on several occasions, the Court concludes that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
45. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
46. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum
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on that account.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 and Article 13 of the Convention with respect to the first set of proceedings and of the modalities for ensuring compliance with the undertakings referred to therein;
2. Decides to strike part of the application with respect to the first set of proceedings out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;
3. Declares the complaint concerning the unreasonable length of the second set of proceedings admissible and the remainder of the application inadmissible;
4. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the second set of proceedings.
Done in English, and notified in writing on 13 June 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Renata Degener Pere Pastor VilanovaDeputy RegistrarPresident
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FIRST SECTION
CASE OF MOROZOV v. RUSSIA
(Application no. 38758/05)
JUDGMENT
STRASBOURG
12 November 2015
FINAL
12/02/2016
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Morozov v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
András Sajó, President,Mirjana Lazarova Trajkovska,Julia Laffranque,Paulo Pinto de Albuquerque,Linos-Alexandre Sicilianos,Erik Møse,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar,
Having deliberated in private on 20 October 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 38758/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vladimir Alekseyevich Morozov (“the applicant”), on 3 October 2005.
2. The applicant, who had been granted legal aid, was represented by Mr A. Derkach, a lawyer practising in Rostov-on-Don. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged, in particular, that in 2004-05 he had been detained in appalling conditions, and that he had had no effective domestic remedies at his disposal in that respect.
4. On 9 January 2009 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1969 and lives in Morozovsk in the Rostov Region.
A. Conditions of the applicant’s detention and transport
1. Temporary detention centre in Morozovsk
6. On 7 July 2004 the applicant was arrested and placed in a temporary detention centre at the Morozovsk police station («Изолятор временного содержания», «ИВС», “IVS”) on suspicion of murder.
7. The applicant was detained in the IVS on four separate occasions: between 7 and 24 July 2004; 17 August and 8 October 2004; 24 October and 16 November 2004; and 4 and 16 December 2004.
(a) The applicant’s account
(i) Material conditions of detention
8. In the applicant’s submission, the conditions of his detention in the IVS during those four periods were essentially identical and as described below.
9. The IVS was situated in the basement of the police station. The applicant was placed in a cell measuring approximately 12.5 square metres, which housed six to seven people. The walls, floor and ceiling were all covered with cement. There was no ventilation in the cell and consequently it was stuffy. The windows were covered with exterior and interior metal plates with minuscule openings, which gave practically no access to natural light. The cell was lit by a lamp set high up in an alcove in the wall, so there was insufficient light for reading or writing.
10. In summer, temperatures inside exceeded 40˚C and the cell had a high level of humidity. There was no glass in the windows and in winter it was cold.
11. No mattresses, bedding, cups, eating utensils or toiletries were distributed. There were no pest control measures in place to eliminate cockroaches and mice. The cell was not connected to a sewer and detainees had to relieve themselves in a bucket, which was removed from the cell once a day to be emptied. The water which was distributed once a day (ten litres per cell) was not drinkable. There was no provision for outside exercise or showers.
12. The applicant was fed once a day. The food was wholly inadequate, both in terms of quality and portion size.
(ii) The applicant’s state of health
13. The applicant sustained an injury to his head prior to his arrest.
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While in the IVS, he did not receive adequate medical treatment for the injury. The applicant – who had contracted tuberculosis in 2001 – shared a cell with a person who was actually suffering from the open form of the disease at the time of his detention, and this represented a potential risk to his health.
(b) The Government’s account
14. Each of the IVS cells in which the applicant was kept measured approximately 15 square metres and had six sleeping places. However, it was impossible to provide more detailed information, as the registration logs for the IVS had been destroyed.
15. According to the findings of the inquiry carried out by the Morozovskiy district prosecutor’s office on the basis of the applicant’s complaint, the applicant shared one of the cells in which he was kept – which was equipped with six sleeping places – with four inmates. At some point, he was transferred to a solitary confinement cell upon his request. The applicant received three meals a day. There were no mice or insects in the cells. The bucket that acted as a substitute for sanitary facilities was cleaned daily. The applicant had access to drinking water and toiletries. The applicant was provided with adequate medical assistance on request.
2. The applicant’s conviction and subsequent transfer to the post‑conviction detention facility
16. On 12 November 2004 the Morozovskiy District Court of the Rostov Region convicted the applicant of murder and sentenced him to eleven years’ imprisonment. On 15 March 2005 the Rostov Regional Court upheld the conviction on appeal.
17. The applicant was then sent to serve his sentence at a post‑conviction detention facility in the town of Pechora in the Komi Republic. The journey there included train travel and accommodation in SIZO-type detention facilities («следственный изолятор временного содержания», «СИЗО»). These facilities generally serve as remand prisons, yet can also be used for the temporary detention of people who have already been convicted.
(a) Novocherkassk detention facility no. IZ-61/3 (SIZO-3)
18. At certain times between 24 July 2004 and 6 June 2005, the applicant was kept in Novocherkassk detention facility no. IZ-61/3.
(i) The applicant’s account
19. The applicant was detained in a cell measuring 28 square metres, which was designed to hold ten people. However, he shared this cell with fifteen other detainees, so they had to sleep in shifts. The bedding supplied was dirty, worn out and covered in bloodstains. Mattresses were also worn out and infested with insects. There was no ventilation. Lights were on day and night. No toiletries were supplied.
20. In summer, the cell was extremely humid and stuffy. Owing to water shortages lasting up to two or three days, the applicant had difficulties in obtaining drinking water and flushing the lavatory. The cell was infested with insects such as cockroaches. Conditions were unsanitary and no showers were available.
(ii) The Government’s account
21. While in detention facility no. IZ-61/3, the applicant was kept in the following cells:
- cell no. 247 measuring 25.7 square metres;
- cell no. 243 measuring 23 square metres;
- cell no. 244 measuring 25.7 square metres;
- cell no. 284 measuring 18.5 square metres;
- cell no. 162 measuring 33.8 square metres;
- cell no. 337 measuring 18.7 square metres;
- cell no. 372 measuring 18.7 square metres;
- cell no. 402 measuring 10.5 square metres;
- cell no. 393 measuring 10.5 square metres;
- cell no. 385 measuring 18.5 square metres;
- cell no. 316 measuring 18.7 square metres;
- cell no. 304 measuring 18.5 square metres;
- cell no. 326 measuring 10.5 square metres;
- cell no. 332 measuring 10.4 square metres;
- cell no. 330 measuring 10.4 square metres.
22. The Government did not specify the actual number of sleeping places in the cells in question and/or the number of inmates who had shared the cells with the applicant, referring to the fact that the detention facility’s logbooks had been destroyed.
23. The Government provided a number of documents dated 30 April 2009 and signed by the governor of detention facility no. IZ-61/3, which stated in particular that: (a) the
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number of inmates kept together with the applicant in the fifteen cells of Novocherkassk detention facility had not exceeded the number of sleeping places available; (b) on 1 December 2005 an additional new building to accommodate 500 inmates had been opened; (c) there had been no rodents or insects in the facility and the cells had been regularly cleaned and disinfested; (d) each of the fifteen cells had been equipped with lavatories which were separated from the living areas and sinks; and (e) detainees had been provided with good-quality food pursuant to internal regulations.
24. The Government provided three handwritten undated statements from IZ-61/3 officials who stated that they “certainly remembered” that the applicant had been kept in fifteen cells at the facility. In their statements, the officials listed the numbers of the cells and confirmed that he had been provided with an individual sleeping place in each of those cells.
(b) Ryazan detention facility no. IZ-62/1 (SIZO-1)
25. Between 7 June and 9 July 2005 the applicant was kept in Ryazan detention facility no. IZ-62/1.
(i) The applicant’s account
26. In the applicant’s submission, he was kept in a transit cell measuring 49 square metres, which was designed for twenty-two detainees. Instead, during the relevant period, the cell housed no fewer than forty-two people, who had to sleep in shifts. The applicant suffered from a lack of food and found the food which he was given to be of poor quality. He also sustained numerous painful insect bites which left marks on his body.
(ii) The Government’s account
27. According to the Government, the applicant was kept in cell no. 32 (measuring 49 square metres), cell no. 46 (measuring 56 square metres) and cell no. 56 (measuring 32 square metres). The number of sleeping places and/or inmates who had been kept in the cells with the applicant was unknown, as the facility’s logbooks had been destroyed.
28. The Government provided documents dated 4 May 2009 which had been signed by the deputy governor of IZ-62/1 and which stated that: (a) cell no. 32 had been equipped with a sink; (b) during the applicant’s detention, a private contractor had regularly carried out disinfestation procedures at the detention facility pursuant to a contract which had been concluded on 9 January 2008; and (c) detainees had been provided with three meals a day, pursuant to the relevant regulations. The Government also enclosed a photo of a sink and invoices from the disinfestation contractor which were dated July 2008.
(c) Yekaterinburg detention facility no. IZ-66/1 (SIZO-1)
29. Between 20 and 27 July 2005 the applicant was kept in Yekaterinburg detention facility no. IZ-66/1.
(i) The applicant’s account
30. According to the applicant, he was placed in a cell measuring 25 square metres, together with twenty-three other inmates. No bedding was supplied. The cell was infested with insects. After some days there, he was moved to another cell measuring 22.5 square metres, which housed thirty‑five people. The cell had a row of benches, which were no use for sitting on, let alone sleeping on. No food or drinking water was provided.
(ii) The Government’s account
31. In the Government’s submission, the applicant was kept in cell no. 137 (measuring 12.5 square metres), cell no. 302 (measuring 31.4 square metres), cell no. 307 (measuring 29.2 square metres) and cell no. 404 (measuring 15.2 square metres). In each cell, he was provided with an individual sleeping place and bedding. The number of inmates who were kept in the cells with the applicant was unknown, as was the number of sleeping places which were available, as the logbooks had been destroyed.
32. The Government provided documents dated 5 May 2009 and signed by the governor of IZ-66/1 confirming that the applicant had been detained in the facility between 20 and 27 July 2005. There had been no rodents or insects in the cell during this period, and the cell had been equipped with sanitary facilities. The applicant had been provided with access to a shower upon his arrival at the facility and had been provided with food, pursuant to the relevant regulations. The cell had been equipped with sixteen sleeping spaces and had housed four to sixteen inmates. The Government also enclosed contracts for disinfestation services, as well as relevant invoices.
33. Another document dated 5 May 2009 and signed by the head of the Sverdlovsk
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regional department of the Federal Prison Service (“the Sverdlovsk FSIN”) stated that, between 20 and 27 July 2005, the applicant had been kept in cell no. 307 at IZ‑66/1. According to the document, this cell measured 29.2 square metres and was equipped with twenty sleeping places, and the applicant had shared it with four to sixteen other inmates.
B. The applicant’s complaints to various national authorities
34. The applicant made a complaint to various public authorities, including the prosecutor’s office and courts, in relation to the alleged lack of adequate medical assistance and the conditions of detention in the IVS (see paragraphs 6 to 15 above). In particular, he alleged that he had sustained a post-traumatic brain injury, contracted tuberculosis and become ill with gastritis, astigmatism, alimentary anaemia and muscular hypotrophy while in detention.
35. As regards his complaint to the prosecutor’s office it appears that on 5 November 2005 the Morozovskiy district prosecutor’s office refused to initiate criminal proceedings regarding the alleged poor conditions of the applicant’s detention in the IVS. The applicant was not provided with a copy of that decision. A further refusal was issued on 16 February 2006. However, the prosecutor found that the applicant’s allegations concerning the conditions of detention in the IVS “had been confirmed in part”, but that such conditions did not constitute a crime under the Criminal Code. He also indicated that the head of the police station had been instructed to remedy the irregularities which had been identified. The applicant was not given access to the prosecutor’s inquiry file.
36. On 20 March 2007 the Morozovskiy District Court of the Rostov Region upheld the prosecutor’s decision. On 28 August 2007 the Rostov Regional Court upheld the first-instance judgment.
37. As regards other court proceedings, in 2007 the applicant initiated civil proceedings, claiming compensation for the non‑pecuniary damage caused by the conditions of detention in the IVS and the lack of adequate medical assistance rendered to him in that facility. On three occasions – on 26 November and 26 December 2007, and on 11 January 2008 – the Morozovskiy District Court invited the applicant to eliminate discrepancies in his statements of claim. The applicant did not comply with the court’s requests, neither did he appeal against the court’s rulings. The Morozovskiy District Court left the claims unexamined.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
38. The provisions of domestic and international law relating to conditions of detention are set out in the Court’s judgment in the judgment of Ananyev and Others v. Russia (nos. 42525/07 and 60800/08, §§ 25-65, 10 January 2012).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE CONVENTION
39. The applicant complained that while in the IVS he had not been provided with adequate medical assistance in relation to the head injury which he had allegedly sustained. He also claimed that the medical assistance rendered to him in the detention facilities in Novocherkassk, Ryazan and Yekaterinburg had been insufficient.
40. The applicant further complained that the conditions of detention in the IVS and in the detention facilities in Novocherkassk, Ryazan and Yekaterinburg had been poor.
41. Lastly, the applicant maintained that his complaints to the domestic authorities in respect of above grievances had been unsuccessful.
42. Being the master of the characterisation to be given in law to the facts of the case (see Margaretić v. Croatia, no. 16115/13, § 75, 5 June 2014), the Court considers that the applicant’s complaints fall to be examined under Articles 3 and 13 of the Convention.
43. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
44. Article 13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. Admissibility
1. The parties’ submissions
45. Having acknowledged that the applicant had complied with the six‑month rule in relation to all periods of his detention, including that in the IVS, the Government, submitted that he had failed to exhaust the effective domestic remedies available to him in connection with his complaints relating to the detention facilities in Novocherkassk, Ryazan and Yekaterinburg, as he had not instituted civil proceedings seeking
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compensation for non-pecuniary damage before the domestic courts. To prove the effectiveness of that remedy, they referred to two cases which had been resolved at national level. The first case was that of Mr D., who had been awarded 25,000 Russian roubles (RUB) in respect of the non‑pecuniary damage relating to the suffering which had resulted from his transfer outside the region in which he was normally resident in order to serve his sentence, and from the fact that he had contracted scabies while in detention. The second case referred to by the Government was that of Mr R., who had received RUB 30,000 in respect of fifty-six days of unlawful detention, and in view of the fact that he had not been fed for five days while in detention. The Government further asserted that the applicant had failed to comply with the Morozovskiy District Court’s requests in connection with his claims relating to his detention in the IVS, and, accordingly, had not exhausted the remedies available to him.
46. In response to the Government’s plea, the applicant maintained that he had not had effective remedies at his disposal, as the poor conditions of detention in Russia constituted a systemic problem. He also stated that he had lodged two complaints about the lack of medical assistance in the IVS with both the head of the IVS administration and the prosecutor’s office, neither of which had been properly registered in his personal file.
2. The Court’s assessment
(a) Complaints concerning the allegedly inadequate medical assistance and the alleged lack of effective remedies in that respect
47. The Court observes that in previous cases against Russia concerning an alleged lack of adequate medical assistance for detainees, it has clearly distinguished between two situations. It has found that no effective remedies existed in Russia for applicants who have complained of an ongoing deterioration in their health as a result of a lack of proper medical care while in detention (see, among other authorities, Koryak v. Russia, no. 24877/10, § 95, 13 November 2012; Dirdizov v. Russia, no. 41461/10, § 91, 27 November 2012; and Reshetnyak v. Russia, no. 56027/10, § 80, 8 January 2013). However, when applicants have complained of the detention authorities’ failure to provide them with adequate medical services, but at the time of the complaint were no longer in the situation complained of, the Court has stressed that a civil claim for damages would have been capable of providing redress in respect of that complaint, and would have offered reasonable prospects of success (see Buzychkin v. Russia, no. 68337/01, § 83, 14 October 2008; Shchebetov v. Russia, no. 21731/02, §§ 89-92, 10 April 2012; and Gadamauri and Kadyrbekov v. Russia, no. 41550/02, § 34, 5 July 2011). Given that the applicant’s complaint of inadequate medical assistance relates to his period of detention in the IVS that ended on 16 December 2004 (see paragraph 7 above), and to his detention in the SIZO-type facilities (the latest period of which ended on 27 July 2005 – see paragraph 29 above), his situation in the present case falls into the latter category.
48. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms, in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Menteş and Others v. Turkey, 28 November 1997, § 89, Reports of Judgments and Decisions 1997‑VIII).
49. The Court observes that Russian law undoubtedly provided the applicant with the opportunity to bring proceedings in tort against the State (see Gusev v. Russia (dec.), no. 49038/12, § 24, 24 March 2015, and Mumryayev v. Russia (dec.), no. 52025/13, § 14, 21 April 2015). The applicant did not explain why he had failed to comply with the Morozovskiy District Court’s repeated requests to eliminate discrepancies in his statements of claim relating to the alleged non-pecuniary damage caused, in particular, by
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the lack of adequate medical assistance in the IVS (see paragraph 37 above). Neither did he provide any explanation as to why he had not brought any proceedings for damages in relation to the allegedly inadequate medical assistance rendered to him in the detention facilities in Novocherkassk, Ryazan and Yekaterinburg.
50. In such circumstances, the Court does not see any reason in the present case to depart from its well-established approach (see Shchebetov, cited above, §§ 89‑92; Buzychkin, cited above, § 84; and Gadamauri and Kadyrbekov, cited above, §§ 34 and 36), and concludes that the remedy available to the applicant satisfied the criteria laid down in paragraph 45 above. It follows that this part of the complaint under Article 13 is manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, and must be rejected pursuant to Article 35 § 4.
51. Given this finding, the Court further concludes that the applicant failed to exhaust domestic remedies with regard to his complaints about the poor quality of the medical assistance he received. It follows that this part of his complaint under Article 3 of the Convention must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
(b) Complaints concerning the conditions of detention in the IVS and in the SIZO-type facilities, and the alleged lack of effective remedies in that respect
52. With regard to the Government’s plea of non-exhaustion of domestic remedies in relation to the conditions of the applicant’s detention, the Court points out that it has previously dismissed similar arguments on the part of the Government (see Ananyev and Others, cited above, §§ 70 and 100-19). It finds no reason to reach a different conclusion in the present case (see Yevgeniy Bogdanov v. Russia, no. 22405/04, § 70, 26 February 2015), and accordingly dismisses the Government’s objection.
53. The Court further reiterates that, in contrast with an objection on the basis of non‑exhaustion of domestic remedies, which must be raised by the respondent Government, it is not open to it to dispense with the application of the six-month rule solely because the respondent Government have not made an objection to that effect (see Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006‑III; Ananyev and Others, cited above, § 71; Fetisov and Others v. Russia, nos. 43710/07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, § 72, 17 January 2012; and Musaev v. Turkey, no. 72754/11, § 46, 21 October 2014).
54. Article 35 § 1 of the Convention permits the Court to deal with a matter only if the relevant application is lodged within six months of the date of the final decision in the process of exhaustion of domestic remedies. Where no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of the knowledge of that act or its effect on or prejudice to the applicant (see Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002). In cases featuring a continuing situation, the six-month period runs from the cessation of that situation (see Fetisov and Others, cited above, § 73). Detention in facilities of different types does not constitute a continuing situation, and the applicant is expected to submit a separate complaint in respect of the conditions of his or her detention in each detention facility (see Mela v. Russia, no. 34044/08, § 45, 23 October 2014).
55. The Court observes that the present application was lodged on 3 October 2005, that is in any event within six months of the end of each respective period of his detention in the SIZO-type detention facilities in Novocherkassk, Ryazan and Yekaterinburg (see paragraphs 18, 25 and 29 above). It therefore considers that the applicant has complied with the six‑month rule in respect of the conditions of detention in these three facilities.
56. With regard to the conditions of detention in the IVS, the Court points out that the applicant’s latest period of detention in that facility ended on 16 December 2004 (see paragraph 7 above). The Court reiterates that, in order to satisfy the six-month rule, his complaint about the inadequate conditions of detention in this facility should have been lodged within six months of the day after his transfer out of the detention facility (see Norkin v. Russia (dec.), no. 21056/11, §§ 14-25, 5 February 2013; Zhir
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ko v. Russia (dec.), no. 8696/12, § 13, 17 September 2013; and Tuvykin v. Russia (dec.), no. 31970/09, § 12, 27 March 2014). In the absence of any arguments or factual information which would warrant a departure from the Court’s constant approach, the part of the application concerning the allegedly inadequate conditions of the applicant’s detention in the IVS, and the lack of effective remedies in that respect, is inadmissible for non‑compliance with the six-month rule set out in Article 35 § 1 of the Convention, and must be rejected pursuant to Article 35 § 4.
57. The Court further notes that the complaints concerning the conditions of detention in the detention facilities in Novocherkassk, Ryazan and Yekaterinburg and the lack of effective remedies in that respect are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds and must therefore be declared admissible.
B. Merits
1. Article 13 of the Convention
(a) The parties’ submissions
58. The Government argued that Article 13 of the Convention had been complied with in the present case. Firstly, they submitted that it had been open to the applicant to lodge a complaint with a prosecutor’s office. To demonstrate the effectiveness of that remedy, they referred to an example in the Kaluga region, where the local prosecutor’s office had in 2006 declared 13.1% of complaints about inadequate conditions of detention well‑founded, a proportion which had risen to 18% in the first half of 2007. They also submitted, without providing any further details, that in two detention facilities in the Vladimir and Khabarovsk regions, material conditions of detention had been improved following complaints to prosecutor’s offices. Secondly, the Government argued that it had been open to the applicant to institute civil proceedings before the domestic courts in relation to the pecuniary and non-pecuniary damage caused by the conditions of detention, as, in their submission, that avenue of recourse constituted an effective remedy within the meaning of Article 13 of the Convention. To illustrate their point, the Government stated that an unspecified number of individuals had successfully sought damages in the courts of the Perm region and Kazan. They further referred to the case of Mr S., who had been awarded RUB 250,000 by a domestic court for non‑pecuniary damage, and to that of Mr D. – already cited in connection with their plea of non‑exhaustion. Lastly, the Government stated that the applicant had failed to properly bring his civil claims in connection with the conditions of detention in the IVS. Referring to the Court’s case-law (see Whiteside v. the United Kingdom, Commission decision of 7 March 1994, application no. 20357/92, Decisions and Reports 76, p. 80), they pointed out that a mere doubt on the applicant’s part as to the prospects of success was not sufficient to exempt him from submitting his claim to any of the aforementioned national authorities with jurisdiction in such matters.
59. The applicant maintained his complaint under Article 13 of the Convention, submitting that no coherent and well-established practice of affording redress in respect of similar complaints existed at national level.
(b) The Court’s assessment
60. In the case of Ananyev and Others v. Russia (cited above, §§ 93-119) the Court carried out a thorough analysis of domestic remedies in the Russian legal system in respect of a complaint relating to the material conditions of detention in a SIZO-type detention facility. The Court concluded in that case that it had not been shown that the Russian legal system offered an effective remedy which could be used to prevent a violation, or to prevent a violation from continuing once it had occurred, or to provide an applicant with adequate and sufficient redress in connection with a complaint of inadequate conditions of detention. Accordingly, the Court found that the applicants in that case did not have at their disposal an effective domestic remedy for their grievances, in breach of Article 13 of the Convention.
61. Having examined the Government’s arguments, the Court finds no reason to depart from that conclusion in the present case. Noting that the applicant raises an “arguable” complaint under Article 3 of the Convention, the Court considers that there has been a violation of Article 13 of the Convention.
2. Article 3 of the Convention
(a) The parties’ submissions
62. The Government submitted that in all the cells of the detention facilities in Novocherkassk, Ryazan and Yekaterinburg in which the applicant had been kept, the number of inmates had not exceeded the number of sleeping places. The Government were not in a position to advise the
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Court of the exact number of inmates who had shared the cells with the applicant, as the detention facilities’ logbooks had been destroyed. They submitted the following description of the conditions of the applicant’s detention, based on reports prepared in 2009 by the management of the respective detention facilities. All cells had been equipped with functioning ventilation systems. Each cell had been adequately heated. The temperature had been maintained between 18˚C and 22˚C; in summer it had not exceeded 27˚C. The applicant had at all times been provided with an individual sleeping place and bedding so that he had not had to sleep in turns with other inmates, and the bedding had been changed once a week. He had also been provided with a spoon and a mug. The applicant had used the showers once a week. The management of the detention facilities had not received any complaints from the applicant. Lavatories had been separated from the living areas of the cells. There had been running tap water in the cells. The applicant had had access to drinking water of acceptable quality. He had been provided with three hot meals of acceptable quality per day. The applicant had been provided with adequate medical assistance and he had not complained about the quality of the medical assistance rendered to him. The cells had been equipped with all necessary furniture and had not been infested with insects or rodents. The inmates had been escorted daily on a one-hour walk.
63. The applicant maintained his complaint about the appalling conditions of detention in the detention facilities in Novocherkassk, Ryazan and Yekaterinburg. He pointed out that the Government had failed to submit any documentary evidence to disprove his allegations about these conditions. The applicant contended that the Government’s references to the destruction of the relevant logbooks owing to the expiry of the retention periods were unconvincing, and observed that the documents submitted by the Government related to the state of affairs in the detention facilities some years after the respective periods of his detention.
(b) The Court’s assessment
64. The Court will examine the merits of this part of the applicant’s complaint under Article 3 in the light of the applicable general principles reiterated in the case of Ananyev and Others (cited above, §§ 139-41).
65. The Court has held on many occasions that cases concerning allegations of inadequate conditions of detention do not lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation), because in such instances the respondent Government alone have access to information capable of corroborating or refuting these allegations. It follows that, after the Court has given notice of the applicant’s complaint to the Government, the burden is on the latter to collect and produce relevant documents. A failure on their part to submit convincing evidence relating to the material conditions of detention may give rise to the drawing of inferences as to the well‑foundedness of the applicant’s allegations (see Ananyev and Others, cited above, § 123; and Suldin v. Russia, no. 20077/04, § 39, 16 October 2014).
66. The Court notes that the parties disagreed on most aspects of the conditions of the applicant’s detention in the facilities in Novocherkassk, Ryazan and Yekaterinburg. However, where conditions of detention are in dispute, there is no need for the Court to establish the veracity of each and every disputed or contentious point. It can find a violation of Article 3 on the basis of any serious allegation which the respondent Government have failed to refute (see Grigoryevskikh v. Russia, no. 22/03, § 55, 9 April 2009; and Adeishvili (Mazmishvili) v. Russia, no. 43553/10, § 65, 16 October 2014).
67. The Court observes at the outset that the Government failed to provide any original documents to refute the applicant’s allegations, claiming that they had been destroyed after the expiry of the statutory time‑limit for their storage. Their submissions are based on documents issued by officials of the detention facilities in April and May 2009 (see paragraphs 23, 28 and 32 above). The Court notes, however, that these documents – issued almost four years after the applicant’s detention in the impugned facilities had come to an end – contain no clear references to the capacity of the cells in which he was detained, or to the number of inmates who were kept there during the relevant periods in 2004-05. The documents provided by the Government are either irrelevant (as they relate to periods of time which followed the applicant’s detention), or give rise to serious doubts as to their reliability. For example, the Court is not prepared to attach any evidential value to the handwritten statements of the officers of the Novocherkassk detention facility – which, albeit undated,
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appear to have been drafted after 2005 – as it is highly implausible that the officers would “certainly remember” the numbers of all fifteen cells in which one particular detainee had been kept (see paragraph 24 above).
68. In view of the fact that the Government did not submit any convincing relevant information, the Court will now proceed to examine the issue concerning the number of inmates kept in the relevant cells of the Novocherkassk, Ryazan and Yekaterinburg facilities on the basis of the applicant’s submissions (see Igor Ivanov v. Russia, no. 34000/02, § 35, 7 June 2007).
69. With regard to Novocherkassk detention facility no. IZ‑61/3 where he stayed from 24 July 2004 to 6 June 2005, the applicant submitted that he had shared a cell measuring 28 square metres – which had been designed for ten people – with sixteen other inmates (see paragraph 19 above). Even assuming that the number of inmates did not exceed the number of sleeping places, it is clear that the floor space afforded to each detainee would have been less than 3 square metres. In the absence of any submissions by the Government capable of refuting the applicant’s allegations, the Court finds it established that in IZ-61/1 the applicant was provided with 1.75 square metres of floor space.
70. With regard to Ryazan detention facility no. IZ-62/1 where the applicant stayed from 7 June to 9 July 2005, the applicant claimed that he had been kept in a cell measuring 49 square meters (see paragraph 26 above), which corresponds to the information provided by the Government in respect of cell no. 32 (see paragraph 27 above). Given the absence of any information submitted by the Government to refute the applicant’s allegations regarding the capacity of the cell, the Court accepts that the cell was equipped with twenty-two sleeping places. Accordingly, even where the number of inmates did not exceed the capacity of the cell, each inmate would have been afforded 2.2 square metres of floor space. Accordingly, the Court finds it established that in IZ-62/1 the applicant was detained in cramped conditions.
71. With regard to Yekaterinburg detention facility no. IZ-66/1 where the applicant stayed from 20 to 27 July 2005, it follows from the document supplied by the head of the Sverdlovsk FSIN (see paragraph 30 above) that, at some point at least, the applicant shared a cell measuring 29.2 square metres with sixteen other inmates. The Court therefore finds it established that, at some point in time while being detained in the facility in question, the applicant was afforded approximately 1.8 square metres of personal space.
72. The Court has frequently found violations of Article 3 of the Convention on account of insufficient personal space being afforded to detainees (see, among numerous other authorities, Ananyev and Others, cited above, §§ 120-66).
73. Having regard to the material in its possession, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case regardless of the fact that the period of detention in IZ-66/1 was of relatively short duration. The Court therefore concludes that the conditions of the applicant’s detention in the SIZO-type detention facilities in question amounted to inhuman and degrading treatment in breach of Article 3 of the Convention.
74. In view of the above, the Court does not consider it necessary to examine the remainder of the parties’ submissions on other aspects of the conditions of the applicant’s detention in the facilities in question.
75. Accordingly, there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in the detention facilities in Novocherkassk, Ryazan and Yekaterinburg in 2004‑05.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
76. The Court has examined the other complaints submitted by the applicant. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. This part of the application must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
77. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party
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.”
A. Damage
78. The applicant claimed that he had sustained non-pecuniary damage as a result of the poor conditions of his detention, and on that basis invited the Court to establish the appropriate amount of compensation to be awarded.
79. The Government insisted that the applicant’s rights had not been violated and submitted that, should the Court find to the contrary, the finding of a violation would, in itself, constitute sufficient just satisfaction.
80. Having regard to its above findings of violations of Articles 3 and 13 of the Convention, the Court awards the applicant 5,000 euros (EUR) in respect of non-pecuniary damage.
B. Costs and expenses
81. The applicant did not claim costs and expenses. Accordingly, there is no call to make an award under this head.
C. Default interest
82. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaints concerning the conditions of the applicant’s detention in the detention facilities in Novocherkassk, Ryazan and Yekaterinburg and the lack of effective domestic remedies in this respect admissible, and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 13 of the Convention on account of the lack of an effective domestic remedy in connection with the conditions of the applicant’s detention in the detention facilities in Novocherkassk, Ryazan and Yekaterinburg;
3. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in the detention facilities in Novocherkassk, Ryazan and Yekaterinburg;
4. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 12 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren NielsenAndrás SajóRegistrarPresident
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FOURTH SECTION
CASE OF HEGER v. SLOVAKIA
(Application no. 62194/00)
JUDGMENT
STRASBOURG
17 May 2005
FINAL
12/10/2005
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Heger v. Slovakia,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
SirNicolas Bratza, President,MrJ. Casadevall,MrM. Pellonpää,MrR. Maruste,MrS. Pavlovschi,MrJ. Borrego Borrego,MrJ. Šikuta, judges,and Mr M. O’Boyle, Section Registrar,
Having deliberated in private on 26 April 2005,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 62194/00) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovakian national, Mr Marián Heger (“the applicant”), on 12 July 2000.
2. The Slovakian Government (“the Government”) were represented by their Agent, Mr P. Kresák, succeeded by Mrs A. Poláčková.
3. On 21 July 2004 the Court decided to communicate the application. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1953 and lives in Modra. The facts of the case, as submitted by the parties, may be summarised as follows.
A. Proceedings concerning the termination of lease of a flat
5. On 24 August 1993 the Modra municipality sued the applicant before the Bratislava-vidiek District Court. The plaintiff sought to have a contract of lease terminated in respect of a flat which had been earlier allocated to the applicant.
6. Between 7 September 1993 and 7 December 1993 the District Court scheduled five hearings. The applicant did not appear. On two occasions he informed the court that he was ill and on another two occasions he stated that his duties prevented him from attending the court hearings.
7. On 30 September 1994 a different judge was assigned to deal with the case. A hearing was held on 24 November 1994 at which the applicant failed to appear. The District Court therefore imposed a fine on the applicant as well as on a witness who had also failed to appear.
8. At a hearing held on 19 December 1994 the applicant appealed against the decision on a fine and he also challenged the District Court judge dealing with the case. The file was transmitted to the Bratislava Regional Court. On 25 April 1994 the latter quashed the decision on the fine and refused to exclude the District Court judge from dealing with the case.
9. The file was returned to the District Court on 1 June 1995. A hearing was scheduled for 4 March 1996. The court had difficulties in serving the summons on the applicant. On 1 March 1996 the applicant requested that the hearing be adjourned as he was ill.
10. On 4 April 1996 the case was again adjourned due to the absence of the applicant. The court requested a doctor to submit information on the applicant’s health. Both the applicant and the plaintiff’s lawyer informed the District Court that they could not attend a hearing scheduled for 5 August 1996.
11. On 17 September 1996 the District Court decided to jointly deal with the above case and an action of 31 July 1996 seeking termination of the applicant’s contract of lease on a different ground.
12. On 27 September 1996 the applicant requested that a hearing scheduled for 30 September 1996 be adjourned as he was ill.
13. On 14 November 1996 the District Court heard the parties.
14. In the context of a reform of the judiciary the case was transferred to the Bratislava III District Court. The new judge received the file in May 1997. In February 1998 she scheduled a hearing for 6 April 1998. On 16 March 1998 the applicant informed the court that he was ill. The case was adjourned as both the applicant and the plaintiff had failed to appear.
15. On 17 June 1998 the applicant made a counter-claim.
16. On
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