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and 9 April 2003.
63. The investigation failed to establish the whereabouts of Akhmed Shaipov but was not completed. The investigating authorities sent requests for information to the competent State agencies and took other steps to have the crime solved. The investigation found no evidence to support the involvement of law enforcement agencies in the crime.
64. The Government further submitted that the investigating authorities were taking measures to verify whether persons involved in drug trafficking had been implicated in Akhmed Shaipov’s kidnapping.
65. Despite specific requests by the Court the Government did not disclose most of the contents of the investigation file in case no. 34055, providing only copies of decisions to suspend and resume the investigation and to grant victim status, as well as of several notifications to the relatives. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.
II. RELEVANT DOMESTIC LAW
66. For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007.
THE LAW
I. The government’s objection REGARDING ABUSE OF THE RIGHT OF PETITION
67. The Government submitted that the application had not been lodged in order to restore the allegedly violated rights of the applicants. The actual object and purpose of the application was clearly political as the applicants wanted to “incriminate the Russian Federation [for] allegedly adopting [a] policy infringing upon human rights in the Chechen Republic”. They concluded that there had been an abuse of the right of petition on the part of the applicants and that the application should be dismissed pursuant to Article 35 § 3 of the Convention.
68. The Court observes that the complaints the applicants brought to its attention concerned their genuine grievances. Nothing in the case file reveals any appearance of abuse of their right of individual petition. Accordingly, the Government’s objection must be dismissed.
II. The government’s objection regarding non-exhaustion of domestic remedies
A. The parties’ submissions
69. The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation of the disappearance of Akhmed Shaipov had not yet been completed. They further argued that it had been open to the applicants to challenge in court or before higher prosecutors any actions or omissions of the investigating or other law enforcement authorities, but that the applicants had not availed themselves of that remedy. They also argued that it had been open to the applicants to lodge with courts civil claims for damage caused by actions and omissions of the investigators, but they had failed to do so.
70. The applicants contested that objection. They stated that the criminal investigation had proved to be ineffective and that they had not been obliged to apply to civil courts in order to exhaust domestic remedies.
B. The Court’s assessment
71. The Court reiterates that the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Aksoy v. Turkey, 18 December 1996, §§ 51‑52, Reports of Judgments and Decisions 1996-VI; Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports of Judgments and Decisions 1996‑IV Akdivar and Others; and, most recently, Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, no. 41964/98, § 64, 27 June 2006).
72. It is incumbent on the respondent Government claiming non-exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicants have not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Akdivar and
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Others, cited above, p. 1211, § 68, or Cennet Ayhan and Mehmet Salih Ayhan, cited above, § 65).
73. The Court notes that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies.
74. As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention. A civil court is unable to pursue any independent investigation and is incapable, without the benefit of the conclusions of a criminal investigation, of making any meaningful findings regarding the identity of the perpetrators of fatal assaults or disappearances, still less of establishing their responsibility (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-121, 24 February 2005). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies.
75. As regards criminal law remedies provided for by the Russian legal system, the Court observes that the applicants complained to the law enforcement authorities shortly after the kidnapping of Akhmed Shaipov and that an investigation has been pending since 12 May 2003. The applicants and the Government dispute the effectiveness of the investigation into the kidnapping.
76. The Court considers that the Government’s objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicants’ complaints under Article 2. Thus, it considers that these matters fall to be examined below.
III. THE COURT’S ASSESSMENT OF THE EVIDENCE AND ESTABLISHMENT OF THE FACTS
A. The parties’ arguments
77. The applicants maintained that it was beyond reasonable doubt that the men who had taken away Akhmed Shaipov had been State agents. In support of their complaint they referred to the following facts. The perpetrators had been wearing military uniforms, had Slavic features and spoke Russian without an accent, which proved that they were not of Chechen origin. Their machine guns had been equipped with silencers used by security forces. The armed men had moved freely around Urus-Martan past curfew; on their way to the centre of Urus-Martan they must have passed two military checkpoints. The authorities had taken no measures to find and arrest the perpetrators. The applicants had recognised the footprints left by their relative’s running shoes, because no one had walked over those footprints at an early hour. Russian servicemen could have worn running shoes to make less noise when walking. The applicants also pointed out that the ground given for the Government’s refusal to submit the file in criminal case no. 34055 was that it contained “information of a military nature disclosing the location and nature of actions by military and special security forces”.
78. The Government submitted that the Russian authorities had no reasons to apprehend Akhmed Shaipov. He could have been a victim of vengeance by drug dealers to whom he had owed money, or he could also have staged his kidnapping to escape such vengeance. It was doubtful that the prints of running shoes seen by the first and second applicants had been left by Akhmed Shaipov, because some of the perpetrators had worn running shoes as well and that type of shoe had been quite popular among Urus-Martan residents. Moreover, State agents on a mission could not wear running shoes because that would be a breach of military rules on dress-code; accordingly, the kidnappers were not federal servicemen. They further contended that the investigation into the incident was pending, that there was no evidence that the armed men had been State agents and that there were therefore no grounds for holding the State liable for the alleged violations of the applicants’ rights. They further pointed out that groups of Ukrainian, Belorussian and ethnic Russian mercenaries had committed crimes in the territory of the Chechen Republic and emphasised that the fact that the perpetrators had Slavic features and spoke Russian did not prove their attachment to the Russian military. They also observed that a considerable number of armaments had been stolen by illegal armed groups from Russian arsenals in the 1990s and that anyone could purchase masks and camouflage uniforms. In sum, the Government insisted that involvement of State agents in Akhmed Shaipov’s kidnapping had not been proven beyond reasonable doubt.
B. The Court’s evaluation of the facts
79. In cases where 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. When, as in the instant case, the respondent Government have exclusive access to information able to corroborate or refute the applicants’ allegations, any
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lack of cooperation by the Government without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see Taniş and Others v. Turkey, no. 65899/01, § 160, ECHR 2005‑...).
80. The Court points out that a number of principles have been developed in its case-law as regards cases where it is faced with the task of establishing facts on which the parties disagree. As to the facts that are in dispute, the Court reiterates its jurisprudence requiring the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001‑VII (extracts)). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Taniş and Others, cited above, § 160).
81. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336; and Avşar, cited above, § 283) even if certain domestic proceedings and investigations have already taken place.
82. The Court reiterates that it has noted the difficulties for applicants to obtain the necessary evidence in support of allegations in cases where the respondent Government are in possession of the relevant documentation and fail to submit it. Where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of such documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicants, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005-II).
83. The Court notes that despite its requests for a copy of the investigation file concerning the abduction of Akhmed Shaipov, the Government produced only a part of the material from the investigation file. The Government referred to Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006‑... (extracts)).
84. The Court has found the Russian State authorities responsible for extra-judicial executions or disappearances of civilians in the Chechen Republic in a number of cases, even in the absence of final conclusions from the domestic investigation (see Khashiyev and Akayeva, cited above; Luluyev and Others v. Russia, no. 69480/01, ECHR 2006-... (extracts); Estamirov and Others v. Russia, no. 60272/00, 12 October 2006; Imakayeva, cited above; and Baysayeva v. Russia, no. 74237/01, 5 April 2007). It has done so primarily on the basis of witness statements and other documents attesting to the presence of military or security personnel in the area concerned at the relevant time. It has relied on references to military vehicles and equipment, on witness accounts, on other information on security operations and on the undisputed effective control of the areas in question by the Russian military. On that basis, it has concluded that the areas in question were “within the exclusive control of the authorities of the State” in view of military or security operations being conducted there and the presence of servicemen (see, mutatis mutandis, Akkum v. Turkey, cited above, § 211; and Zubayrayev v. Russia, no. 67797/01, § 82, 10 January 2008).
85. However, in the present case the Court has little evidence on which to draw such conclusions. The applicants submitted that the kidnappers had been armed, spoke Russian and wore camouflage uniforms. It was not alleged that
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they had used military vehicles, such as armoured personnel carriers. The mere fact that the armed men’s machine guns were equipped with silencers does not necessarily prove that the men were State servicemen. The camouflage uniform that they were wearing bore none of the insignia that should normally appear on uniforms of State agents. It appears that silencers and camouflage uniforms with no insignia could have been obtained by persons not belonging to the military via various, possibly illegal channels. According to the applicants, the perpetrators spoke Russian fluently; however, lack of accent does not necessarily show that they were Russian servicemen. Some of the kidnappers wore running shoes, which do not normally form part of the regular uniform of any Russian law enforcement agencies. There are no witness statements confirming that Akhmed Shaipov was seen being brought to the military commander’s office or any other State agency after his abduction. The applicants’ assertion that they identified footprints from their relative’s running shoes and followed them to the centre of Urus-Martan has been rather vague and unsubstantiated. The Court is not persuaded that the first and second applicants could so easily identify with a naked eye the footprints left by a pair of running shoes with no distinctive marks. Furthermore, given that the perpetrators used no vehicles and walked, they could have moved around the town unbeknownst to servicemen at military checkpoints with greater ease than, for example, groups of armed men riding in an armoured personnel carrier. Accordingly, the information at the Court’s disposal does not suffice to establish that the perpetrators belonged to the security forces or that a security operation had been carried out in respect of Akhmed Shaipov.
86. At the same time the Court takes into account the Government’s submission that the crime could have been committed by drug dealers with whom Akhmed Shaipov had allegedly had certain connections. In such circumstances, the Court cannot attribute responsibility for the unlawful acts in the present case to the respondent State without additional evidence to that effect.
87. To sum up, it has not been established to the required standard of proof “beyond reasonable doubt” that the security forces were implicated in the kidnapping of Akhmed Shaipov; nor does the Court consider that the burden of proof can be entirely shifted to the Government.
IV. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
88. The applicants complained under Article 2 of the Convention that their relative had disappeared after having been detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into the matter. Article 2 reads:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
A. The parties’ submissions
89. The Government contended that the domestic investigation had obtained no evidence to the effect that Akhmed Shaipov was dead or that any servicemen of federal law enforcement agencies had been involved in his kidnapping or alleged killing. The Government claimed that the investigation into the kidnapping of the applicants’ relative met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the perpetrators.
90. The applicants argued that Akhmed Shaipov had been detained by State servicemen and should be presumed dead in the absence of any reliable news of him for five years. The applicants also argued that the investigation had not met the requirements of effectiveness and adequacy, as required by the Court’s case-law on Article 2. The applicants invited the Court to draw conclusions from the Government’s unjustified failure to submit the documents from the case file to them or to the Court.
B. The Court’s assessment
1. Admissibility
91. 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. Further, the Court has already found that the Government’s objection concerning the alleged non-exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 76 above). The complaint under Article 2 of the Convention must therefore be declared admissible.
2. Merits
(a) The alleged violation of Akhmed Shaipov
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’s right to life
92. The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances in which deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-47, Series A no. 324 and Avşar, cited above, § 391).
93. As noted above, the domestic investigation failed to produce any tangible results as to the identities of the persons who committed the kidnapping. The applicants did not submit persuasive evidence to support their allegations that State agents were the perpetrators of the crime. The Court has already found above that, in the absence of relevant information, it is unable to find that security forces were implicated in the kidnapping of the applicants’ relative (see paragraph 87 above). Neither has it established “beyond reasonable doubt” that Akhmed Shaipov was deprived of his life by State agents.
94. In such circumstances the Court finds no State responsibility, and thus no violation of the substantive limb of Article 2 of the Convention.
(b) The alleged inadequacy of the investigation into the kidnapping
95. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others, cited above, § 161; and Kaya v. Turkey, 19 February 1998, § 86, Reports of Judgments and Decisions 1998‑I). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim’s family, carried out with reasonable promptness and expedition, effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 105-09, ECHR 2001‑III (extracts); and Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002).
96. The Court notes that there is no proof that Akhmed Shaipov has been killed. However, it reiterates that the above-mentioned obligations also apply to cases where a person has disappeared in circumstances which may be regarded as life-threatening (see Toğcu, cited above, § 112). The applicants informed the investigating authorities that Akhmed Shaipov had been kidnapped by a large group of unknown armed men. Given a considerable number of reported enforced disappearances of persons in the Chechen Republic and enduring confrontation between illegal armed groups and federal troops in the region in the early 2000s, the Court considers that the disappearance of Akhmed Shaipov could be regarded as life-threatening. Furthermore, after a certain lapse of time during which no information on the fate of the missing man had been received, both the applicants and investigators could have presumed that he had been deprived of his life at the hands of the kidnappers. Accordingly, the Court concludes that the State authorities were under a positive obligation to investigate the crime in question.
97. Given that there was an investigation into the kidnapping of Akhmed Shaipov, the Court must now assess whether it met the requirements of Article 2 of the Convention.
98. The Court notes at the outset that most of the documents from the investigation were not disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of the few documents submitted by the parties and the information about its progress presented by the Government.
99. The Court notes that the authorities were immediately made aware of the crime by the applicants’ submissions. The investigation in case no. 34055 was instituted on 12 May 2003, that is, more than a month after Akhmed Shaipov’s abduction. Such a delay per se was liable to affect the investigation into the kidnapping in life-threatening circumstances, where crucial action has to be taken in the first days after the event. Furthermore, it transpires from the documents
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submitted to the Court that at least several investigative measures were unreasonably delayed (see paragraphs 42 and 51 above). Moreover, it remains unclear whether they have ever been taken at all. It is obvious that these measures, if they were to produce any meaningful results, should have been taken immediately after the crime was reported to the authorities, and as soon as the investigation commenced. Such delays, for which there has been no explanation in the instant case, not only demonstrate the authorities’ failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002-II).
100. The Court also notes that even though the first applicant was eventually granted victim status in case no. 34055, she was only informed of the suspension and resumption of the proceedings, and not of any other significant developments. Her requests for access to the investigation file were constantly rejected. Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings.
101. Finally, the Court notes that the investigation in case no. 34055 was suspended and resumed six times and that there were lengthy periods of inactivity on the part of the district prosecutor’s office. For instance, no proceedings were pending between 23 December 2003 and 18 November 2005, nor between 18 December 2005 and 18 January 2007.
102. The Government mentioned the possibility for the applicants to apply for judicial review of the decisions of the investigating authorities, in the context of the exhaustion of domestic remedies. The Court observes that the applicants, having no access to the case file and not being properly informed of the progress of the investigation, could not have effectively challenged actions or omissions of investigating authorities before a court. Furthermore, taking into account the fact that the effectiveness of the investigation had already been undermined in its early stages by the authorities’ failure to take necessary and urgent investigative measures, it is highly doubtful that the remedy in question would have had any prospects of success. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and dismisses their preliminary objection as regards the applicants’ failure to exhaust domestic remedies in the context of the criminal investigation.
103. In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Akhmed Shaipov, in breach of Article 2 in its procedural aspect.
V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
104. The applicants relied on Article 3 of the Convention, submitting that as a result of their relative’s disappearance and the State’s failure to investigate it properly, they had endured mental distress in breach of Article 3 of the Convention. Article 3 reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties’ submissions
105. The Government disagreed with these allegations and argued that the investigation had not established that the applicants had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention and that the State was not responsible for the applicants’ mental distress.
106. The applicants maintained their submissions.
B. The Court’s assessment
107. Referring to its settled case-law, the Court reiterates that, where a person has been abducted by State security forces and subsequently disappeared, his or her relatives can claim to be victims of treatment contrary to Article 3 of the Convention on account of their mental distress caused by the “disappearance” of their family member and the authorities’ reactions and attitudes to the situation when it is brought to their attention (see, among many other authorities, Kurt v. Turkey, 25 May 1998, §§ 130-34, Reports of Judgments and Decisions 1998‑III; and Timurtaş v. Turkey, no. 23531/94, §§ 96-98, ECHR 2000‑VI).
108. Turning to the circumstances of the present case, the Court notes that the applicants are close relatives of Akhmed Shaipov. Accordingly, it has no doubt that the applicants have indeed suffered from grave emotional distress following the kidnapping of their son, husband and father.
109. The Court recalls that it has already found violations of Article 3 of the Convention in respect of relatives of missing persons in a series of cases concerning the phenomenon of “disappearances” in the Chechen Republic (see, for example, Luluyev and Others, cited above, §§ 117-18; Khamila Isayeva v. Russia, no. 6846/02, § 143-45, 15 November 2007; and Kukayev v. Russia, no. 29
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361/02, §§ 107-10, 15 November 2007). It is noteworthy, however, that in those cases the State was found to be responsible for the disappearance of the applicants’ relatives. In the present case, by contrast, it has not been established to the required standard of proof “beyond reasonable doubt” that the Russian authorities were implicated in Akhmed Shaipov’s kidnapping (see paragraph 87 above). In such circumstances the Court considers that this case is clearly distinguishable from those mentioned above and therefore concludes that the State cannot be held responsible for the applicants’ mental distress caused by the commission of the crime itself.
110. Furthermore, in the absence of a finding of State responsibility for Akhmed Shaipov’s kidnapping, the Court is not persuaded that the investigating authorities’ conduct, although negligent to the extent that it has breached Article 2 in its procedural aspect, could have in itself caused the applicants mental distress in excess of the minimum level of severity which is necessary in order to consider treatment as falling within the scope of Article 3 (see, among other authorities, Cruz Varas and Others v. Sweden, 20 March 1991, § 83, Series A no. 201).
111. It follows that this part of the application is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
VI. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
112. The applicants further stated that Akhmed Shaipov had been detained in violation of the guarantees of Article 5 of the Convention, which reads, in so far as relevant:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
...
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
A. The parties’ submissions
113. In the Government’s opinion, no evidence was obtained by the investigators to confirm that Akhmed Shaipov had been deprived of his liberty by State agents in breach of the guarantees set out in Article 5 of the Convention.
114. The applicants reiterated the complaint.
B. The Court’s assessment
115. The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001; and Luluyev and Others, cited above, § 122).
116. Nevertheless, the Court has not found it established “beyond reasonable doubt” that Akhmed Shaipov was apprehended by Russian servicemen (see paragraph 87 above). Similarly, it cannot presume that upon his kidnapping the missing man was placed in unacknowledged detention under the control of State agents.
117. The Court therefore considers that this part of the application should be dismissed as being incompatible ratione personae and must be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.
VII. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION
118. The applicants alleged that the intrusion by Russian servicemen into their house on 9 April 2003 had infringed their right to respect for their home. They also complained under the same head that their right to respect for family life had been breached as a result of Akhmed Shaipov’s abduction. They relied in this respect on Article 8 of the Convention, which provides:
“1. Everyone has the right to
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respect for his private and family life, his home and his correspondence.
“2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ”
119. The Court reiterates that, according to its above findings, it has not been proven that the armed men who intruded into the applicants’ home on 9 April 2003 and kidnapped their relative were State agents (see paragraph 87 above). It thus concludes that the State cannot be held liable for the alleged violation of the applicants’ rights guaranteed by Article 8 of the Convention.
120. The Court therefore considers that this part of the application should be dismissed as being incompatible ratione personae and must be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.
VIII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
121. The applicants complained that they had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
122. The Government contended that the applicants had had effective remedies at their disposal as required by Article 13 of the Convention and that the authorities had not prevented them from using those remedies. The applicants had had an opportunity to challenge the actions or omissions of the investigating authorities before higher prosecutors or courts. They could also submit a claim for non-pecuniary damage caused by unlawful actions of investigating authorities.
123. The applicants reiterated the complaint.
124. The Court observes that the complaint made by the applicants under this Article has already been examined in the context of Article 2 of the Convention. Having regard to the findings of a violation of Article 2 under its procedural head (see paragraph 87 above), the Court considers that, whilst the complaint under Article 13 taken in conjunction with Article 2 is admissible, there is no need to make a separate examination of this complaint on its merits (see, mutatis mutandis, Makaratzis v. Greece [GC], no. 50385/99, §§ 84-86, ECHR 2004‑XI, and Anık and Others v. Turkey, no. 63758/00, § 86, 5 June 2007).
IX. APPLICATION OF ARTICLE 41 OF THE CONVENTION
125. 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
126. The applicants did not submit any claims for pecuniary damage. As regards non-pecuniary damage, the first and second applicants claimed 40,000 euros (EUR) each, while the third, fourth and fifth applicants claimed EUR 20,000 each in respect of non-pecuniary damage for the suffering they had endured as a result of the loss of their family member, the indifference shown by the authorities towards them and the failure to provide any information about the fate of their close relative.
127. The Government considered the amounts claimed to be exaggerated.
128. The Court has found a violation of Article 2 in its procedural aspect. It thus accepts that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. It finds it appropriate to award the applicants EUR 6,000 jointly in respect of non-pecuniary damage, plus any tax that may be chargeable thereon.
B. Costs and expenses
129. The applicants claimed costs for legal representation at the rate of EUR 80 per hour, EUR 5,390 in total. They also claimed administrative expenses in the amount of EUR 366 and translation fees in the amount of EUR 552.
130. The Government contested those claims as unfounded.
131. The Court has to establish first whether the costs and expenses indicated by the applicants’ relative were actually incurred and, second, whether they were necessary (see McCann and Others, cited above, § 220).
132. Having regard to the details of the information, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicants’ representative.
133. Further, it has to be established whether the costs and expenses incurred for legal representation were necessary. The Court notes
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that this case was rather complex and required a certain amount of research and preparation. It notes at the same time, that, owing to the application of Article 29 § 3 in the present case, the applicants’ representative submitted the observations on admissibility and merits in one set of documents. Furthermore, the case involved little documentary evidence, in view of the Government’s refusal to submit most of the case file. The Court thus doubts that legal drafting was necessarily time-consuming to the extent claimed by the representative.
134. Having regard to the details of the claims submitted by the applicants, the Court finds it appropriate to award the applicants’ representatives EUR 5,000, less EUR 850 received by way of legal aid from the Council of Europe.
C. Default interest
135. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government’s objection regarding abuse of the right of petition;
2. Decides to join to the merits the Government’s objection as to non-exhaustion of criminal domestic remedies and rejects it;
3. Declares the complaints under Articles 2 and 13 of the Convention admissible and the remainder of the application inadmissible;
4. Holds that there has been no violation of Article 2 of the Convention in its substantive limb in respect of Akhmed Shaipov;
5. Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Akhmed Shaipov disappeared;
6. Holds that no separate issues arise under Article 13 of the Convention in respect of the alleged violation of Article 2;
7. Holds
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to the applicants jointly:
(i) EUR 6,000 (six thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable on that amount;
(ii) EUR 4,150 (four thousand one hundred and fifty euros) in respect of costs and expenses, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicants on that amount;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
8. Dismisses the remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 6 November 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren NielsenChristos Rozakis RegistrarPresident
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FOURTH SECTION
CASE OF BISER KOSTOV v. BULGARIA
(Application no. 32662/06)
JUDGMENT
STRASBOURG
10 January 2012
FINAL
10/04/2012
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Biser Kostov v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Lech Garlicki, President,David Thór Björgvinsson,George Nicolaou,Ledi Bianku,Zdravka Kalaydjieva,Nebojša Vučinić,Vincent A. De Gaetano, judges,and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 6 December 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 32662/06) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Biser Milanov Kostov (“the applicant”), on 1 August 2006.
2. The applicant was represented by Ms Zh. Aldinova, a lawyer practising in Yambol. The Bulgarian Government (“the Government”) were represented by their Agent, Ms N. Nikolova, of the Ministry of Justice.
3. The applicant alleged, in particular, that the authorities had failed to prosecute diligently individuals who had assaulted him.
4. On 4 March 2010 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
5. The application was later transferred to the Fourth Section of the Court, following the re‑composition of the Court’s sections on 1 February 2011.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1951 and lives in Yambol.
A. The incident of 21 April 2004
7. Around 9 a.m. on 21 April 2004, while shopping in a small supermarket in the town of Yambol, the applicant was stopped by supermarket employees on suspicion of stealing a small bottle of vodka. The bottle cost 1.2 Bulgarian levs, the equivalent of approximately 61 euro cents. The supermarket employees took the applicant to an office at the back of the supermarket and left him with the manager, S.F. The owner of the store, P.D., was also informed and arrived at the supermarket before the police came.
8. Meanwhile, someone called the police and notified them that a theft had been committed in the supermarket.
9. According to the applicant, he was searched and his shopping basket was taken away from him. S.F. then accused him of theft, punched him in the face, knocked him down and began kicking his chest, while the applicant was yelling and pleading with him to stop. When S.F. stopped, the applicant managed to stand up and realised that a small amount of his money was missing. When he asked for the money back, as well as his glasses, which had fallen off during the beating, S.F. punched him again in the side of the head and knocked him down, after which P.D. also kicked him several times and told him that people like him caused damage to his business.
10. Shortly thereafter, two police officers arrived and found the applicant squatting by the wall in the presence of S.F. and P.D. The latter left immediately after the police had arrived, apparently using the back door.
11. According to the applicant’s statements, made during the ensuing investigation, he had told the police officers that he had been beaten up by two men and that he needed medical help. He also claimed that after the incident he could hardly walk and the police officers had helped him to the police car. During the investigation the police officers stated that upon their arrival they had been informed by the applicant about the beating. They contested the applicant’s assertions that he had requested medical help and maintained that he had not been injured and had been able to walk on his own.
12. The policemen drove the applicant to the police station in order to establish the circumstances surrounding the theft. While waiting in the
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reception hall to meet the officer in charge of the case, the applicant apparently felt severe pain, so he left and asked a stranger to drive him home.
13. Soon after that two police officers headed towards the applicant’s apartment. They found him sitting on a bench in front of the apartment building and accompanied him to the apartment. There the applicant signed a record in connection with the theft. During the ensuing investigation one of the police officers contended that while the officers had been at his apartment the applicant had lain in bed and had looked ill.
14. After the police officers had left, the applicant felt very sick and his wife called an ambulance.
B. The applicant’s medical condition
15. On the same day the applicant was admitted to the emergency department of the Yambol Hospital, where it was established that he had five broken ribs, bilateral pneumothorax, subcutaneous emphysema of the upper part of the body and bruising to the head, chest and abdomen.
16. Two days later, on 23 April 2004, the applicant was transferred to Stara Zagora Hospital, where he underwent several examinations. According to the medical reports he had ten broken ribs, subcutaneous emphysema, haematomas on the front, the back, and both sides of the chest, large hematomas in the lumbar area and bilateral hemopneumothorax. On 28 April 2004 he underwent an abdominal ultrasound scan which revealed two-sided pleurisy and traumatic functional changes in the kidneys.
17. The applicant underwent several medical procedures, including, inter alia, thoracentesis for the removal of 200 ml of liquid from the pleural space.
18. The applicant was discharged on 5 May 2004 and was granted forty‑five days’ sick leave.
19. On 14 May 2004 the applicant underwent a chest and lung examination. In his report the doctor noted, in particular, old fractures of ten ribs and pulmonary fibrosis. At another check up, on 4 June 2004, the doctors reiterated those conclusions.
C. The criminal investigation
20. In the afternoon of 21 April 2004 the authorities of Yambol Hospital informed the police about the admission of the applicant and his condition. A police officer was dispatched to the hospital but was unable to see the applicant because of the latter’s serious medical condition.
21. On the next day, 22 April 2004, the same police officer visited the applicant in hospital. This time the applicant was able to communicate and informed the officer that he had been beaten up by two men at the supermarket who he could identify.
22. On the same day a police investigation (дознание) was instituted against unknown perpetrators.
23. On 23 April 2004 the applicant’s wife filed an official complaint with the Yambol District Police Administration, describing the events and requesting that an investigation be opened and the responsible individuals punished.
24. Between 23 April and 18 May 2004 a police investigator questioned P.D., S.F. and two employees of the shop, the police officers who had been dispatched to the scene of the incident, the police officer who had visited the applicant in hospital and the applicant. The policemen who had been in the supermarket stated that the applicant had smelled of alcohol and had told them he had been beaten up, but that there had been no visible signs of violence on his body. They further stated that he had been able to walk unaided and had not requested medical help. S.F. claimed that while he had been calling the police, the applicant had tried to leave the room. S.F had put a hand against the applicant’s chest to stop him and the latter had bumped into the door. He denied having beaten the applicant up and maintained that the applicant had been drunk and had threatened him. P.D. claimed that when he had arrived at the supermarket the applicant and S.F. had indeed been in the back room but the applicant had been drunk and had not had any injuries. He denied having hit the applicant. He further added that he was not aware of what had happened between the applicant and S.F. while they had been by themselves in the room. The applicant provided a detailed account of the events, although he claimed to have vague memories of certain moments immediately after the incident due to the shock he had experienced.
25. On 18 May the police investigator ordered a forensic medical report, which was submitted on 23 May 2004. It reiterated the information contained in the applicant’s hospital file. The expert concluded that the applicant’s injuries could have been inflicted in the manner described by the applicant, namely by punching and kicking, but not in the manner asserted by S.F.
26. The investigator organised a line up on 25 May 2004 during which the applicant identified the supermarket manager, S.F., and the owner
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, P.D., as the individuals who had beaten him up.
27. On 27 May 2004 the applicant was questioned before a judge of the Yambol District Court. He reiterated his account of the events and said that he would bring a civil claim against the alleged perpetrators during the judicial phase of the proceedings.
28. On 2 June 2004 S.F. was questioned as a suspect (уличен). He decided to remain silent. On the same day the police investigator concluded the police investigation and transferred the file to the Yambol district prosecutor’s office with the opinion that S.F. should be brought to trial for causing the applicant an intermediate bodily harm. It appears that no charges were brought against P.D.
29. On 8 June 2004 prosecutor R.L. at the Yambol district public prosecutor’s office terminated the proceedings against S.F., finding that there was not sufficient evidence that he and P.D. had beaten the applicant up. The prosecutor stated, in particular, that the account of the events asserted by the applicant had been contradictory. She made two points in this regard. First, the applicant had not informed the police officers that he had needed medical help. Secondly, despite his allegations that he had been punched in the head twice the witnesses had not reported any injuries and the doctors who had examined the applicant had not recorded any such injuries in their reports. She further added that in addition, the applicant had vague memories of the period immediately after the incident.
30. On an unknown date the applicant appealed to the court. He maintained that he had informed the police officers that he had been beaten up and that it had been natural for his injuries to become visible later. He also contested the prosecutor’s version of events, which, in the applicant’s view, could have been interpreted as implying that the applicant had inflicted his injuries by himself.
31. On 2 July 2004 the Yambol District Court quashed the prosecutor’s decree as ill-founded and remitted the case for further investigation. Judge D.S. held that there was substantial circumstantial evidence that the applicant had been beaten up by two men in the shop. As regards the conclusions of the prosecutor, the court noted that right after the incident the applicant had informed the police officers that he had been beaten up by two individuals and had later identified them and that the alleged punching in the head had been recorded in the medical documents which stated, inter alia, that the applicant had suffered from subcutaneous emphysema of the upper part of the body and contusion of the head. The court also specifically referred to the expert’s report, which found that the applicant’s injuries could have been inflicted in the manner described by the applicant, namely, by punching and kicking, but not in the manner asserted by S.F.
32. Following the remittal, on 15 July 2004 the prosecutor instructed the investigator to question the police officers who had seen the applicant in the police department in order to elucidate whether the applicant had had visible injuries, had requested medical help, had needed assistance walking and whether he had consumed alcohol. On 16 and 19 July 2004 the police investigator questioned several officers. The witnesses stated, in particular, that the applicant had been able to move on his own and had not had any visible injuries.
33. On 20 July 2004 the police investigator concluded the investigation and transferred the file to the prosecutor’s office with the opinion that S.F. should be brought to trial for inflicting intermediate bodily harm.
34. On 22 July 2004 prosecutor R.L. once again terminated the criminal proceedings against S.F., finding with identical reasoning that despite the additional investigative measures taken there was no evidence that the alleged perpetrators had beaten the applicant up. She stated, in particular, that the applicant had not requested medical help and had had no visible injuries.
35. The applicant appealed against that decree, maintaining that the prosecutor had failed to discuss crucial evidence. He further argued that the evidence collected supported accusations not only against S.F., but also against P.D.
36. On 4 October 2004 the Yambol District Court quashed the decree of 22 July 2004 as ill-founded and remitted the case. Judge G.K. noted, in particular, that the applicant had complained to the police officers that he had been beaten up and had later identified the alleged offenders; furthermore, his statements regarding his injuries had been corroborated by the doctors’ opinions. In view of that the court concluded that there was sufficient evidence allowing the prosecutor to bring the accused to trial. Nevertheless, in order to supplement the evidential material, the court instructed the prosecution authorities to question the applicant’s wife and an employee at the shop, who had not been questioned earlier.
37. Following the remittal, in accordance with the court’s instructions the police investigator questioned the
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said witnesses. On 15 October 2004 the police investigator concluded the investigation and transferred the file to the prosecutor with the opinion that S.F. should be brought to trial.
38. On 3 November 2004 prosecutor R.L. once again terminated the criminal proceedings against S.F. with identical reasoning. She further concluded that the statements of the witnesses who had been additionally questioned could not alter her prior conclusions.
39. The applicant appealed, reiterating his earlier arguments against the discontinuation. In a decision of 9 December 2004 the District Court quashed the decree of 3 November 2004 and remitted the case to the prosecution authorities for a third time. Judge N.N. noted that most of the inflicted injuries had been internal and therefore the witnesses could not have noticed them. The court found that the prosecutor’s conclusions did not correspond to the facts of the case, that she had failed to take into account the medical reports and that there had been sufficient evidence to bring the offenders to trial. It also instructed the prosecutor to question one of the police officers who had been at the scene of the incident.
40. In the meantime the applicant filed a complaint with the Yambol regional public prosecutor’s office, stating that prosecutor R.L. was not impartial and should be replaced. By a decree of 27 December 2004 the regional prosecutor dismissed the complaint. He stated that the discontinuation of the investigation had been based on the prosecutor’s opinion, which had been formed on the basis of the additional investigation carried out in compliance with the court’s instructions, and that in the absence of other indications the mere fact that the prosecutor had discontinued the proceedings on several occasions did not cast doubt on her impartiality.
41. On 17 January 2005 the police investigator questioned one of the police officers who had been in the supermarket and on 21 January 2005 concluded the investigation with the opinion that the accused should be brought to trial. On 25 February 2005 the same prosecutor terminated the criminal proceedings for the fourth time with identical reasoning. She stated that the applicant’s memory about events was extremely vague and that there was no information indicating what exactly had happened in the period between his leaving the police department and his arrival at his home.
42. The applicant appealed. On 11 July 2005 the District Court quashed the decree of 25 February 2005 as unlawful and unsubstantiated and remitted the case. Judge A.A. held, inter alia, that the prosecutor’s conclusions suggested that after leaving the police department the applicant had somehow injured himself or had been attacked by unknown individuals. The court stated that, having regard to the time and location of the incident as suggested by the prosecutor, namely while the applicant was retuning home, it was very unlikely that it would have gone unnoticed.
D. The discontinuation of the criminal proceedings
43. Meanwhile on an unspecified date S.F. made a request under Article 239a of the Code of Criminal Procedure 1974 that the case against him be examined by a court or terminated as the proceedings had already lasted for too long. In a decision of 24 November 2005 the District Court instructed the prosecutor to either submit an indictment within two months or terminate the proceedings.
44. It appears that no investigation was conducted in the period between 11 July and 2 December 2005. On 2 December 2005 the case was assigned to another prosecutor as prosecutor R.L. had been promoted.
45. On 10 January 2006 the prosecutor instructed a different police investigator to proceed with the investigation.
46. On 17 January 2006 the police investigator ordered a medical report. On an unspecified date before 2 February 2006 the medical expert presented his conclusions. He stated that the injuries sustained by the applicant had aggravated with time, therefore he had been able to walk independently immediately after the incident. He also stated that it normally took thirty minutes to up to two hours for haematomas to become visible; therefore it was possible that the applicant’s injuries could not have been seen immediately after they had been inflicted.
47. As in the meantime the two-month deadline under Article 239a for discontinuing the proceedings or filing an indictment to the court had expired, by a decision of 9 February 2006 the District Court terminated the criminal proceedings.
48. The applicant appealed against the decision, arguing that although intermediate bodily harm was a serious offence within the meaning of Article 93 § 7 of the Criminal Code and the accused was therefore entitled to request discontinuation of the proceedings after two years of investigation, the two-year period had not expired and the accused’s request in this respect had therefore been premature.
49. On 8 May 2006 the Yambol Regional Court upheld the decision. It held that intermediate bodily harm was an offence which did not fall within the scope of Article 93 § 7 of the Criminal Code and therefore the accused’s request had not been premature. It reasoned that pursuant to Article 239a of the Code of Criminal Procedure of 1974 after a certain period of time
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the suspect was entitled to have his case examined by the court or terminated and that in this case the court was only competent to verify whether the prosecution authorities had observed the statutory deadlines and could not examine the merits of the case.
E. Other developments
50. On 3 August 2006 the applicant lodged a complaint with the Chief Public Prosecutor, stating, in particular, that prosecutor R.L. had repeatedly terminated the criminal proceedings despite the court’s instructions to bring the accused to trial and that the second prosecutor in charge of the case had been inactive, which had led to the termination of the proceedings.
51. On 16 August 2006 a prosecutor from the Supreme Cassation Prosecutor’s Office opened an inquiry into the applicant’s allegations and requested an explanation from the second prosecutor in charge of the case and his superior in respect of the delay in filing an indictment with the court.
52. On 30 August 2007 the district prosecutor of Yambol informed the Supreme Cassation Prosecutor’s Office that no disciplinary penalty had been imposed on the prosecutor as he was considered a reliable employee and that the failure to file an indictment on time had been an unintentional mistake.
53. There is no information on whether disciplinary action was pursued against prosecutor R.L.
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Intermediate bodily harm
54. The Criminal Code 1968 defines intermediate bodily harm (средна телесна повреда) as, inter alia, involving a temporary life-threatening health disorder or a permanent non-life-threatening health disorder (Article 129 § 2). At the relevant time the wilful infliction of intermediate bodily harm was an offence punishable by up to five years’ imprisonment (Article 129 § 1). It is publicly prosecutable (Article 161).
55. Article 93 § 7 provides that offences punishable by more than five years’ imprisonment shall be considered “serious” for the purposes of the Code.
2. Taking a case to court at the request of the accused
56. Article 239a of the Code of Criminal Procedure of 1974, in force at the relevant time, provided, inter alia, that individuals accused of committing a crime, the preliminary investigation against whom had not been completed within one year, were entitled to request to have their case examined by a court or terminated. For serious offences such a request could be lodged if the authorities failed to complete the preliminary investigation within two years.
57. In such instances the court would send the case to the public prosecutor’s office with instructions to either submit an indictment within two months or discontinue the criminal proceedings. If the prosecutor’s office failed to take action, the court had to terminate the criminal proceedings.
58. The provision was reproduced almost verbatim in Articles 368 and 369 of the new Code of Criminal Procedure 2005. On 25 March 2010 Parliament repealed Articles 368 and 369 with effect from 28 May 2010. In a decision of 28 September 2010 (реш. № 10 от 28 септември 2010 г., по к. д. № 10/2010 г., обн., ДВ, бр. 80 от 12 октомври 2010 г.) the Constitutional Court dismissed the request of the President of the Republic to strike down the repeal, finding that the repeal was not contrary to the Constitution. It noted, inter alia, that the main weakness of the repealed procedure was that it used a formal, purely quantitative criterion to determine what constituted a “reasonable time” for the pre‑trial phase of the proceedings to last. It further stated that while in most cases that approach would lead to a correct assessment, in some complex cases that criterion might, contrary to the public interest that all offenders be brought to justice, give the accused an undue advantage.
3. State liability for damages
59. Pursuant to section 1 of the State and Municipalities Responsibility for Damage Act of 1988 (hereafter “the State Responsibility Act”) the State is liable, in particular, for damage suffered by individuals as a result of unlawful decisions, actions or omissions by its organs and officials, committed in the course of or in connection with the performance of administrative action. According to the Supreme Court of Cassation’s case‑law, the actions of the investigative and the prosecuting authorities in the context of a criminal investigation do not amount to administrative action and those authorities are therefore not liable under section 1 of the Act (тълк. реш. № 3 от 22 април 2005 г. на ВКС по тъл
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к.д. № 3/2004 г., ОСГК).
60. Section 2 of the State Responsibility Act sets out that the State is liable for damage caused to individuals by, inter alia, the organs of investigation and prosecution for: (i) unlawful pre-trial detention, (ii) unlawful accusation of a crime, (iii) execution of a sentence above and beyond the specified period.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
61. The applicant complained that the criminal investigation into the act of violence against him had been ineffective. He relied on Article 6 § 1 of the Convention.
62. The Court considers that this complaint falls to be examined under Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties’ submissions
1. The Government
63. The Government submitted that the applicant had failed to exhaust domestic remedies as he did not bring an action against the investigative authorities under the State Responsibility Act or a civil claim against the alleged perpetrators.
64. In addition, the Government noted that the investigation into the alleged ill-treatment had started immediately and had been swift and comprehensive. The prosecutor had strictly followed the court instructions at remittal and had undertaken additional investigatory steps accordingly.
65. The authorities had made efforts to establish the facts and had gathered significant evidential material. Thus in the Government’s view it had been established that the applicant had consumed alcohol, had committed theft in the supermarket and instead of having sought assistance from the police officers had practically fled from the police station.
66. The Government further argued that the applicant’s account of the events had been contradictory and had not been corroborated by the witnesses’ statements or by the medical documents. The Government stated that the expert report had not established with sufficient certainty that the applicant’s injuries had been inflicted in the manner asserted by him and that the doctor’s record of 4 June 2004 had noted “old injuries” on his ribs, thus casting doubt on the exact moment when these fractures had been inflicted.
2. The applicant
67. The applicant stated that the State Responsibility Act was not applicable in his case as he had been neither accused nor convicted.
68. The applicant further argued that he had never committed theft and even if he had done so, the latter could not have justified his ill-treatment. Furthermore, he had requested medical help on the day of the incident and several medical documents had recorded his injuries. In view of the Government’s statement that the expert report had not been convincing enough, the applicant asserted that it clearly stated that the injuries could have been inflicted in the manner described by him.
69. The applicant further argued that the investigation could not be regarded as effective. He pointed out that the prosecutor had failed to conduct a proper investigation despite the court’s numerous instructions in this regard. As a result of the protracted and belated investigation, the accused had obtained discontinuation of the proceedings under Article 239a of the Code of Criminal Procedure 1974.
B. The Court’s assessment
1. Admissibility
70. The Government contended that the applicant had failed to exhaust domestic remedies as he could have lodged an action under the State Responsibility Act against the investigative authorities or a civil claim against the alleged perpetrators.
71. The Court notes that a potential claim against the investigative authorities does not appear to fall within the scope of the State Responsibility Act. Under the domestic case-law investigative and prosecuting authorities are not liable under section 1 of the State Responsibility Act. At the same time, while section 2 contains a list of specific circumstances under which the responsibility of the investigative authorities can be engaged, this list does not include a situation similar to that of the applicant (see paragraphs 59-60 above). In any event the Government failed to substantiate its assertion that the State Responsibility Act was applicable in the present case by providing relevant domestic case-law concerning awards of damages in similar situations.
72. In respect of a possible claim against the alleged perpetrators for the damage sustained, the Court considers that having exhausted the possibilities available to him within the criminal justice system, the applicant was not required to use the civil remedy invoked by the Government (see, mutatis mutandis, Assenov and Others v. Bulgaria, 28 October 1998, § 86, Reports of Judgments and Decisions 1998‑VIII). Moreover, the civil remedy relied on by the Government cannot be regarded as sufficient for the fulfilment of a State’s obligation under Article 3 in cases such as the present one, as it is aimed at awarding damages rather than identifying and punishing those responsible (see Beganović v. Croatia, no. 46423/06, § 56, 25 June
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2009).
73. It follows that the Government’s objection of non-exhaustion of domestic remedies in respect of the applicant’s complaint under Article 3 must be dismissed.
74. The Court further notes that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and not inadmissible on any other ground. It must therefore be declared admissible.
2. Merits
a) General principles
75. The Court reiterates that Article 3 enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment.
76. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see A. v. the United Kingdom, 23 September 1998, § 20, Reports of Judgments and Decisions 1998‑VI).
77. The Court reiterates that the obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see, among other authorities, Šečić v. Croatia, no. 40116/02, § 52, 31 May 2007).
78. Where an individual raises an arguable claim of ill-treatment, including of ill-treatment administered by private individuals, Article 3 of the Convention gives rise to a procedural obligation to conduct an independent official investigation (see Šečić, cited above, § 53; Nikolay Dimitrov v. Bulgaria, no. 72663/01, § 67, 27 September 2007 and, mutatis mutandis, Menson and Others v. the United Kingdom (dec.), no. 47916/99, 6 May 2003). The investigation must be capable of leading to the identification of those responsible with a view to their punishment.
79. The scope of this obligation by the State is one of means, not of result; the authorities must have taken all reasonable steps available to them to secure the evidence concerning the incident (see Nikolay Dimitrov, cited above, § 69, and, mutatis mutandis, Menson and Others, cited above). A requirement of promptness and reasonable expedition is implicit in this context. Tolerance by the authorities towards such acts cannot but undermine public confidence in the principle of lawfulness and the State’s maintenance of the rule of law (see, for example, Members (97) of the Gldani Congregation of Jehovah’s Witnesses v. Georgia, no. 71156/01, § 97, ECHR 2007‑V, and Milanović v. Serbia, no. 44614/07, § 86, 14 December 2010).
b) Application of those principles to the present case
80. On the basis of the submitted medical evidence, which appears reliable and comprehensive and which established that the applicant had ten broken ribs, large bruises on the upper part of his body, suffered from emphysema and pneumothorax and was in need of major surgery, the Court considers that the treatment complained of was sufficiently serious to amount to ill-treatment within the meaning of Article 3 of the Convention.
81. Therefore the authorities had a procedural obligation to conduct an official investigation. The Court notes at the outset that the authorities took a number of investigatory steps. They instituted criminal proceedings shortly after the incident, questioned a number of witnesses, commissioned a medical report and conducted a line up. At the close of both the original and the renewed investigations the police investigator, having assessed the evidence, proposed to the prosecutor that S.F. be brought to trial. All of that shows that in the early stages of the investigation the authorities deployed reasonable efforts to gather the evidence and establish the facts.
82. Having said that, the Court further observes that the prosecutor decided to terminate the proceedings, concluding that no ill-treatment had taken place in the supermarket, on two main grounds: the fact that the applicant had not requested the police officers to provide him with medical help and the fact that despite his allegations that he had been punched in the head twice the witnesses had not reported any injuries on his person and the doctors who had examined him had not recorded any such injuries. The Court notes that the applicant sought judicial review of the prosecutor’s decrees, contesting on all occasions her reasoning, and when examining the applicant’s appeals the domestic court acceded to his
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arguments and rejected the prosecutor’s conclusions as ill-founded (see paragraphs 30 and 31 above). Nevertheless, despite the court’s findings, which clearly disproved the two basic arguments for the discontinuation of the proceedings, the prosecutor terminated the proceedings three more times with identical reasoning, thus rendering the judicial review practically ineffective.
83. In the light of the aforementioned, while acknowledging the fact that the prosecutor has a certain discretion when assessing the evidence and deciding whether to bring an accused to trial, the Court considers that in the particular circumstances of the instant case, by discontinuing the criminal proceedings on four occasions with identical reasons despite court findings which disproved the prosecutor’s position and even explicitly stated that there was sufficient evidence to bring the accused to trial, the prosecution authorities failed to act diligently and also unjustifiably delayed the proceedings.
84. Furthermore, following the District Court’s decision of 24 November 2005, which gave a two-month deadline for submitting an indictment, the prosecution authorities were required to react promptly. Instead, they did not resume working on the case until 10 January 2006 and only commissioned a medical report on 17 January 2006. The report was presented to the authorities before 2 February 2006 but despite its findings the authorities failed to react immediately. Thus, as a result of the procrastination of the prosecutor, the proceedings were terminated under Article 239a of the Code of Criminal Procedure of 1974.
85. In respect of the procedure under Article 239a, the Court has already observed that it was the only remedy which could be considered effective (at least in some situations) in respect of complaints about the excessive length of criminal proceedings. However, as was pointed out by the Bulgarian Constitutional Court (see paragraph 58 above), that remedy used a formal criterion to measure “reasonable time”, which in some cases could, contrary to the public interest that offenders be brought to justice, result in the undue discontinuance of criminal prosecutions (see Dimitrov and Hamanov v. Bulgaria, nos. 48059/06 and 2708/09, § 119, 10 May 2011). In the Court’s view, that is precisely what occurred in the instant case. The successful invocation by the accused of the Article 239a remedy brought to an abrupt end a deficient investigation marked by an obstinate refusal of the prosecutor to address the concerns repeatedly expressed by the courts. The result must be regarded as at variance with the requirements of the respondent State’s procedural obligation under Article 3 (see, in this connection, Beganović, cited above, §§ 85-87).
86. In the light of the foregoing the Court concludes that in the present case the authorities failed to conduct an effective investigation into the applicant’s allegations of ill-treatment which led to the expiration of the relevant deadline and the impossibility to prosecute any further. Accordingly, there has been a violation of Article 3 of the Convention in its procedural limb.
II. THE REMAINDER OF THE APPLICANT’S COMPLAINTS
87. The applicant also complained, relying on Article 6 § 1, that the inactivity of the public prosecutor had precluded him from seeking damages from his attackers.
88. The Court has examined this complaint as submitted by the applicant. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
89. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
III. 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 15,000 euros (EUR) in respect of non‑pecuniary damage.
92. The Government contested this claim as unfounded and excessive.
93. The Court considers that the applicant must have suffered anxiety and frustration as a result of the violation found. Accordingly, deciding on an equitable basis, it awards him EUR 4,000.
B. Costs and expenses
94. The applicant also claimed EUR 1,500 for costs and expenses incurred for legal work carried out by his lawyer after the communication of the present application to the Court. In support of the claim he submitted a contract for legal representation, stipulating the said amount as remuneration for the legal services provided.
95. The Government contested this claim as unfounded and excessive.
96.
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According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court, noting that the exact number of hours of legal work done was not indicated and that the applicant’s lawyer did not represent him at the initial stage of the proceedings (see, for the same approach, Bachvarovi v. Bulgaria, no. 24186/04, § 40, 7 January 2010), considers it reasonable to award the sum of EUR 1,000 covering costs and expenses under all heads.
C. Default interest
97. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning the alleged ineffectiveness of the criminal investigation into the applicant’s ill-treatment admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 3 of the Convention under its procedural limb;
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 Bulgarian levs at the rate applicable at the date of settlement:
(i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 10 January 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş AracıLech GarlickiDeputy RegistrarPresident
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Kalaydjieva and De Gaetano is annexed to this judgment.
LGFA
JOINT SEPARATE OPINION OF JUDGES KALAYDJIEVA AND DE GAETANO
1. We fully subscribe to the conclusion that the Bulgarian authorities failed to meet their obligations under the procedural limb of Article 3 of the Convention. However, quite apart from considerations relating to delay, we are of the view that the case raises serious questions concerning another aspect of the positive obligation to conduct “an independent official investigation...capable of leading to the identification of those responsible with a view to their punishment” (§ 78), which aspect has not been adequately addressed in the present judgment.
2. While we are prepared to accept that a prosecutor must be accorded a degree of discretion to decide whether the facts and the evidence justify a decision to bring an alleged offender before the courts in order to seek his punishment, we also believe that this power is based on the premise that the discretion is exercised in good faith; and, generally speaking, the exercise of this discretion will be compatible with the positive obligation under Article 3 only if accompanied by some system of appropriate checks and balances capable of preventing abuse. Where this discretion is capable of being exercised arbitrarily or in bad faith, as is suggested by the facts of the instant case, the very object of the procedural requirement of Article 3 is undermined, since the punishment component can never materialise notwithstanding that the investigation was capable of identifying the offender or offenders.
3. The applicant’s appeals against the successive orders for the discontinuation of the investigation proceedings provided for a semblance of such checks at the national level and, indeed, resulted in four different independent judges expressing in clear terms their concern as to the good faith of the prosecution authorities when the latter repeatedly found the facts and evidence in the case insufficient for the purposes of indictment. Even assuming that the prosecutors in the present case acted in the sincere belief that these facts and evidence did not justify a decision to indict the suspect/s in question, we fail to see any justification for the absence of further diligent investigation of other avenues which the prosecution authorities might have seen as a more plausible explanation of the origin of the applicant’s serious injuries. In the opinion of one of the judges in the appeal proceedings, “the prosecutor’s conclusions suggested that... the applicant had somehow injured himself
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or had been attacked by unknown individuals...[H]aving regard to the time and location of the incident as suggested by the prosecutor, namely while the applicant was retuning home, it was very unlikely that this would have gone unnoticed.”
4. The questionable good faith with which the investigation proceedings were repeatedly discontinued also raised a sufficient degree of concern with the higher prosecution authorities which led them to consider the possibility of disciplinary measures against the responsible prosecutors. We see no reason not to share their concerns. However, such concerns were clearly insufficient to either bring the identified suspects before the courts, or to trigger any further investigation to ascertain other circumstances or perpetrators.
5. In the instant case the situation amounted to de facto tolerance by the authorities towards violence causing suffering beyond the threshold of Article 3, which cannot but undermine public confidence in the principle of lawfulness and maintenance of the rule of law. We regret that the present judgment fails to examine the extent to which the demonstrated arbitrary exercise of prosecutorial discretion contributed to the respondent Government’s failure to meet the obligations under Article 3. Unaccountable discretion renders meaningless the positive obligation to conduct an investigation capable of leading to punishment and, in practice, relegates the victim to the position obtaining before the development of the positive obligation doctrine in the context of Articles 2 and 3.
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FIRST SECTION
CASE OF INDERBIYEVA v. RUSSIA
(Application no. 56765/08)
JUDGMENT
STRASBOURG
27 March 2012
FINAL
24/09/2012
This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision.
In the case of Inderbiyeva v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Nina Vajić, President,Anatoly Kovler,Peer Lorenzen,Elisabeth Steiner,Khanlar Hajiyev,Linos-Alexandre Sicilianos,Erik Møse, judges,and Søren Nielsen, Section Registrar,
Having deliberated in private on 6 March 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 56765/08) 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 Deshi Inderbiyeva (“the applicant”), on 10 July 2008.
2. The applicant was represented by Mr D. Itslayev, a lawyer practising in Grozny. 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 that two of her sisters had been killed by Russian servicemen in Grozny in January 2000. She alleged a violation of Articles 2, 3, 6 and 13 of the Convention.
4. On 11 September 2009 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application and to give notice of the application to the Government. Under the provisions of former Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.
5. The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government’s objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1968. She lives in Grozny. She is the sister of Shema (also spelt Sheima) Inderbiyeva, who was born in 1963, and Shamani Inderbiyeva, who was born in 1966.
A. The killing of Shema and Shamani Inderbiyeva and subsequent events
1. The applicant’s account
7. At some point in 1999 due to heavy hostilities between Russian forces and Chechen fighters the applicant moved to a refugee camp in Ingushetia. Two of her sisters, Shema Inderbiyeva and Shamani Inderbiyeva, and her mother Yakhita Inderbiyeva remained in their flat – no. 10 in the block of flats at 154B, Pugacheva Street in the Staropromyslovskiy District of Grozny. Most of the other residents of the district left for safer areas, but the applicant’s relatives stayed to look after the family property. According to the applicant, Russian forces regained control over the Staropromyslovskiy District at the beginning of January 2000.
8. In December 1999 the applicant’s mother and her sisters Shema and Shamani Inderbiyeva moved from their flat to the basement under the pavilion situated in the courtyard of their block of flats. On 1 January 2000, owing to the intensity of a fire, Shema and Shamani Inderbiyeva decided to hide in the basement of the applicant’s block of flats at no. 285 (in the documents submitted the address is also stated as no. 287) in Derzhavina Street in the Staropromyslovskiy District of Grozny. Their mother, Yakhita, remained in the basement at 154B, Pugacheva Street as she was sick and could not walk. The applicant’s sisters regularly visited their mother and brought her food.
9. On 8 February 2000 (in the submitted documents the date was also referred to as 12 February 2000) the applicant, together with an acquaintance, Ms F.A., went to visit her relatives in Grozny. She did not find anybody in her family’s flat
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in Pugacheva Street and went to find out about her sisters and mother from the neighbours who lived in her block of flats in Derzhavina Street. In the basement of the house the applicant found her mother, who was in bed, in a state of shock and incoherent, and who kept saying: “Russian soldiers, smoke, fire”.
10. Having spent the night with her mother in the basement, on the following day the applicant went to look for her sisters in Pugacheva Street. In the basement located in the courtyard of her family’s block of flats she found the two burnt corpses of Shema and Shamani Inderbiyeva. The applicant was able to identify her sisters by their personal belongings, pieces of hair, remaining facial features and teeth crowns.
11. The applicant collected the remains in pillow cases and returned with them to Derzhavina Street, where she met Ms M.Z., an elderly ethnic Russian. The woman told her that on 10 January 2000 she and her husband had been walking next to the basement at 154B, Pugacheva Street when they had seen three servicemen looking into the basement under the pavilion. One of the servicemen, a senior one, had said to someone in the basement: “Mother, come out and let’s go to the military commander’s office for an identity check”. Then he had leaned over and pulled the applicant’s mother out. He had walked her away from the pavilion by hand whereas two other servicemen had remained next to the basement. Next, one of the two soldiers had thrown something inside. A powerful explosion followed as a result of which the pavilion had been partially destroyed and smoke had been coming out from the basement. The applicant’s mother had turned back and fainted; looking at her the soldiers had started laughing. Ms M.Z. and her husband had become scared and walked away.
12. On 10 February 2000 the applicant and Ms F.A. went to the Staropromyslovskiy District military commander’s office to obtain permission to bury her sisters’ remains in the cemetery of the village of Valerik in the Urus-Martan District. After she explained to the servicemen that her sisters had been killed by Russian soldiers, the servicemen wanted to detain her and even opened gunfire to stop her, but she managed to run away. Then she saw a group of Chechens in military uniforms and asked them for help. The servicemen from the military commander’s office requested that the Chechens hand the applicant over to them, but they refused. Then the Chechen servicemen took her to the 36th District of Grozny (36-й участок); from there the applicant managed to get a lift to Valerik.
13. On the same date, 10 February 2000, the applicant buried her sisters’ remains in the Valerik cemetery. After that, she returned to the refugee camp in Ingushetia.
14. According to the applicant, her mother Yakhita, after witnessing the murder of her daughters Shema and Shamani by the soldiers, suffered a severe psychological breakdown and became mentally ill.
15. In support of her statements, the applicant submitted her own statement dated 22 February 2010; a statement by Ms G.P. dated 29 January 2004; a statement by Mr S.Kh. dated 1 March 2010; a statement by Ms Z.T. dated 1 February 2004, a copy of the witness statement by the applicant’s mother Yakhita Inderbiyeva dated 5 July 2000 and copies of other documents received from the authorities. The applicant also enclosed a Human Rights Watch report “Civilian Murders in the Staropromyslovskiy District of Grozny” of February 2000 and a sketched map of the district indicating the place where the bodies of her sisters had been discovered. The applicant also referred to the Court’s judgments Khashiyev and Akayeva v. Russia (nos. 57942/00 and 57945/00, 24 February 2005), Makhauri v. Russia (no. 58701/00, 4 October 2007), Tangiyeva v. Russia (no. 57935/00, 29 November 2007), Goncharuk v. Russia (no. 58643/00, 4 October 2007), and Goygova v. Russia (no. 74240/01, 4 October 2007), and the witness statements contained therein, stating that the events she complained of had been examined by the Court in those judgements and that they concerned the same events which had taken place in the Staropromyslovskiy District of Grozny in January 2000.
2. Information submitted by the Government
16. The Government did not challenge the matter as presented by the applicant
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. They stated that the circumstances of the events were still under criminal investigation and that unidentified persons had killed the applicant’s sisters.
B. The official investigation of the murder
1. Information submitted by the applicant
17. The death of Shema and Shamani Inderbiyeva was initially investigated as part of criminal case no. 12038 opened on 3 May 2000 by the Grozny Town Prosecutor’s Office (the town prosecutor’s office). The criminal investigation was initiated after the publication in the newspaper Novaya Gazeta on 27 April 2000 of an article entitled “Freedom or death” concerning the mass murder of civilians by servicemen of the 205th brigade on 19 January 2000 (in the documents submitted the date was also referred to as 19 February 2000) in Grozny.
18. On 5 and 17 July 2000 the applicant’s other sister Mobarik Inderbiyeva (in the documents submitted also spelt Moberik) and her mother Yakhita Inderbiyeva were questioned by the investigators.
19. The applicant was neither kept informed of the progress in the investigation of criminal case no. 12038 nor granted victim status in the criminal case.
20. On 2 July 2003 the Staropromyslovskiy District Prosecutor’s Office in Grozny (the district prosecutor’s office) opened criminal case no. 50080 in connection with the murder of the applicant’s sisters.
21. On 6 December 2007 the applicant requested that the investigators allow her to access the investigation file. On 10 December 2007 her request was granted in part and she was able to obtain copies of a few basic procedural decisions.
22. On 15 April 2008 the applicant complained to the Staropromyslovskiy District Court of Grozny (the district court) that the investigation in criminal case no. 50080 was ineffective. She requested that the court order the district prosecutor’s office to resume the investigation and conduct it in a thorough and effective manner.
23. On 19 May 2008 the district court rejected the applicant’s complaint stating that on 16 May 2008 the district prosecutor’s office had already resumed the investigation of the criminal case.
24. According to the applicant, throughout the investigation the authorities failed to provide her with information on the progress of the criminal proceedings in case no. 50080.
2. Information submitted by the Government
25. On 3 May 2000 the town prosecutor’s office opened criminal case no. 12583 in connection with the publication of the article “Freedom or death” in Novaya Gazeta concerning the mass murder of civilians on 19 February 2000 by the 205th brigade of the Russian military forces in the Katayama (also spelt Katoyama) settlement in the Staropromyslovskiy District of Grozny.
26. On 17 June 2000 the investigators from the town prosecutor’s office questioned the applicant who stated that on 9 February 2000 she had returned to Grozny from Ingushetia and found out that her sisters Shema and Shamani had been killed by servicemen from military unit no. 3737. On the same date she had found her sisters’ bodies in the basement at no. 154B Pugacheva Street and had subsequently buried them at a cemetery in the Achkhoy‑Martan District.
27. On the same date the investigators questioned the applicant’s sister Mobarik Inderbiyeva who stated that on 12 February 2000 the applicant had returned home with the remains of their sisters Shema and Shamani who had been blown up by military servicemen with a flamethrower on 10 January 2000 while they had been hiding in the basement. The witness further stated that she had been able to identify the remains of her sisters by their personal belongings, pieces of hair, remaining facial features and teeth crowns. The witness stressed that her sisters could have been killed only by Russian soldiers as the area in question had at the time been under the full control of the Russian military and it had been impossible for persons who had not belonged to the federal forces to access the premises without a special pass.
28. On 5 July 2000 the investigators questioned the applicant’s mother Yakhita Inderbiyeva who stated, amongst other things, that at some point in January 2000 the applicant had told her that she had found the burnt remains of her daughters Shema and Shamani in the basement next to the pavilion.
29. On 27 July 2000 the investigators questioned Ms Ya.Z. whose statement concerning the circumstances surrounding the death of the applicant’s sisters the Government did not give to the Court.
30. On 11 June 2003 the Chechnya Prosecutor’s Office forwarded part of criminal case file no. 12038 to the district prosecutor’s office to be severed into a separate criminal case.
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The relevant part of the file concerned the discovery by the applicant on 12 February 2000 of the burnt bodies of her sisters Shema and Shamani Inderbiyeva.
31. On 16 June 2003 the investigators in criminal case no. 12583 requested that the military prosecutor of the United Group Alignment (the UGA) inform them which military units had participated in the military operation in the Staropromyslovskiy District of Grozny in January and February 2000.
32. On 25 June 2003 an investigator from the district prosecutor’s office initiated a preliminary inquiry into the discovery by the applicant of her sisters’ bodies.
33. On 2 July 2003 the district prosecutor’s office opened criminal case no. 50080 under Article 105 § 2 of the Russian Criminal Code (murder) in connection with the discovery on 12 February 2000 of the bodies of Shema and Shamani Inderbiyeva in the basement situated across the courtyard from the block of flats at no. 154B Pugacheva Street in Grozny.
34. On 3 July 2003 the investigators examined the crime scene at no. 154B Pugacheva Street. Nothing was collected from the scene.
35. On 29 July 2003 the investigators requested that the Staropromyslovskiy District Department of the Interior (the ROVD) identify any witnesses to the applicant’s sisters’ murder and that those witnesses be brought in for questioning.
36. In reply to the above request, on 1 August 2003 the ROVD informed the investigators that the applicant’s mother and Ms Ya.Z. had been summoned for questioning.
37. On 15 September 2003 the investigators again requested that the ROVD identify witnesses to the murder, bring the applicant, her mother, her sister Mobarik Inderbiyeva and Ms Ya.Z. for questioning and identify the place of the applicant’s sisters’ burial.
38. On 17 September 2003 the ROVD reported to the investigators that it was impossible to establish other witnesses to the events, other than the applicant and Mobarik Inderbiyeva, as the buildings in the area had been destroyed as a result of the armed hostilities and residents who had resided there in 2000 had moved elsewhere.
39. On 17 September 2003 the applicant provided the ROVD officers with a short statement concerning the circumstances surrounding the discovery of her sisters’ bodies and stated that her mother Yakhita Inderbiyeva had developed a mental illness as a result of her daughters’ murder.
40. On 23 September 2003 the investigators again requested that the ROVD identify the witnesses to the events and bring them for questioning stating that the ROVD had provided them with superficial replies and failed to take meaningful steps to identify the witnesses.
41. On 5 October 2003 the investigators granted the applicant victim status in criminal case no. 50080 and questioned her. The applicant stated that on 9 February 2000 she had gone from Ingushetia to visit her sisters and mother in Grozny. On 10 February 2000 she had gone to Pugacheva Street where she had met a woman who had told her that her mother had became mentally ill and was living in a basement situated in a former dentist’s office. The applicant had found her mother in an incoherent state. Then the applicant had met an elderly, ethnically Russian couple and the woman had told her about the circumstances of her sisters’ murder by servicemen from military unit no. 3737. According to the woman, the soldiers had conducted a ‘sweeping-up’ operation in the area; they had pulled Yakhita Inderbiyeva out from the basement and let her go, but they had killed her daughters Shema and Shamani who had remained in the basement, with a flamethrower. Then the applicant had gone to the basement, found the burnt bodies of her sisters and had taken the remains to the village of Valerik for burial.
42. On 17 October 2003 the investigators ordered that the bodies of Shema and Shamani Inderbiyeva be exhumed.
43. On 21 October 2003 the investigators examined the bodies. It was impossible to establish any traces of physical violence, other than burns, owing to the state of decomposition.
44. On 22 October 2003 the investigators ordered forensic medical examinations of the remains of Shema and Shamani Inderbiyeva and requested that the experts determine the cause of their death, possible origins and the extent of the injuries, traces of gunshot wounds and their number.
45. On 23 October 2003 the Chechnya Bureau of Forensic Expert Evaluations (the Bureau) reported to the investigators that the state of the bodies of Shema and Shamani Inderbiyeva, which must have been exposed to high temperatures, precluded them from obtaining the information necessary to reply to the
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investigators’ questions.
46. On 2 November 2003 the investigation in criminal case no. 50080 was suspended for failure to identify the perpetrators.
47. On 3 April 2004 (in the documents submitted the date was also referred to as 1 April 2004) the deputy Chechnya prosecutor overruled the decision to suspend the investigation as unsubstantiated and premature and ordered the investigators to resume the proceedings and take a number of steps, such as identifying the servicemen from military unit no. 3737 who had participated in the military operation in the Staropromyslovskiy District of Grozny in January 2000 and providing an explanation of the differences in the witness statements given by the applicant, her sister Mobarik Inderbiyeva and Ms Ya.Z.
48. On 10 April 2004 the investigators again requested that the ROVD identify among the neighbourhood’s residents the witnesses to the applicant’s sisters’ murder.
49. On 12 April 2004 the investigators again examined the crime scene; no evidence was collected.
50. On various dates in April 2004 the investigators questioned a number of witnesses, including Ms M.S., Mr R.M., Ms M.Ib., Ms T.Sh., Ms Kh.D., Mr R.Kh., Mr A.Kh., Ms F.M., Ms M.Kh., and Ms M.O., all of whom stated that at the material time they had lived elsewhere and had not witnessed the events in question; however, at some point they had learnt from their relatives and neighbours that the applicant’s sisters Shema and Shamani had been killed by Russian servicemen and their corpses had been found later in the basement.
51. On 15 May 2004 the investigators requested that the Central Archives of the Russian Ministry of the Interior (the MVD) provide them with the following information:
“....the investigation established the involvement in the crime [the murder of the applicant’s sisters] of military servicemen from military brigade no. 205.
According to the reply from the North-Caucasus Headquarters of the Internal Troops of the Ministry of the Interior to our request for information, documents concerning special operations conducted in the Chechen Republic in 1999, 2000, 2001 and 2002 were transferred to the Central Archives of the Ministry of the Interior.
Based on the above information, I ask you.... to identify which regiments of which military units and troops of the Ministry of the Interior carried out their service duties or were stationed between October 1999 and February 2000 inclusive in the Staropromyslovskiy District of Grozny... and to establish the location of these regiments and units at present...
...you are also requested to declare which troops of military brigade no. 205 of the Russian Military Forces participated in the military operation in Grozny... between October 1999 and February 2000 in the Staropromyslovskiy District of Grozny...”
52. On 16 May 2004 the investigators again requested that the ROVD identify the witnesses to the events, including the elderly Russian couple who had informed the applicant of the circumstances of her sisters’ murder, and bring them for questioning.
53. On 8 June 2004 the investigation in the criminal case was again suspended for failure to identify the perpetrators.
54. On 9 July 2004 the supervising prosecutor overruled the decision to suspend the investigation as unsubstantiated and premature and ordered the investigators to resume it and take a number of steps, such as identifying the servicemen from military unit no. 3737 who had participated in the military operation in the Staropromyslovskiy District of Grozny in January 2000. The prosecutor also ordered the investigators to provide an explanation of the differences in the witness statements given by the applicant, her sister Mobarik Inderbiyeva and Ms Ya.Z., and to identify the elderly Russian couple who had informed the applicant about the circumstances of her sisters’ murder.
55. On 15 July 2004 the investigators again questioned the applicant’s sister Mobarik Inderbiyeva who stated that she had found out about the circumstances of her sisters’ murder from the applicant and that the area where her sisters had been killed had at the time been under the full control of the Russian military.
56. On 2 August 2004 the investigators questioned Mr I.A. who stated that he had not witnessed the murder, but had learnt from his relatives and neighbours that the applicant’s sisters had been killed during a ‘sweeping‑up’ operation by Russian military servicemen who had been called by the local population ‘the jailers’ (‘тюремщики’).
57. On the same date, 2 August 2004, the investigators questioned Mr A.G. whose statement about the events was similar to the one given by Mr I.A.
58.
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On 9 August 2004 the investigation in the criminal case was suspended for the third time for failure to identify the perpetrators.
59. On 18 October 2004 the supervising prosecutor overruled the decision to suspend the investigation as unsubstantiated and premature and ordered the investigators to take the necessary steps ordered on 9 July 2004. The investigation was resumed on the same date.
60. On 21 October 2004 the investigators questioned Mr K.S. whose statement about the events was similar to that given by Mr I.A. (see paragraph 56 above).
61. On 18 November 2004 the investigation in the criminal case was suspended for the fourth time for failure to identify the perpetrators.
62. On 14 December 2004 the supervising prosecutor again overruled the decision to suspend the investigation as unsubstantiated and premature and ordered the investigators to take the necessary steps, including those ordered on 9 July and 18 October 2004. The investigation was resumed on the same date and the applicant was informed of this decision.
63. On 14 January 2005 the investigation in the criminal case was again suspended for failure to identify the perpetrators without having taken any of the steps ordered by the supervising prosecutor.
64. On 27 January 2005 the investigators requested that the ROVD identify the witnesses to the murder and bring them for questioning. On the same date the investigators requested that the Archives of the North‑Caucasus Military Circuit inform them which military unit had been stationed in the area of the events at the material time.
65. On 6 December 2007 the applicant complained to the district prosecutor’s office that the investigation into her sisters’ murder was ineffective and requested that the investigators allow her to access the investigation file.
66. On 10 December 2007 the investigators granted the applicant’s request in part and allowed her to access the procedural documents reflecting the investigative steps taken with her participation.
67. On 8 April 2008 the applicant again complained to the district prosecutor’s office that the investigation into her sisters’ murder was ineffective and requested that the investigators grant her access to the investigation file and resume the criminal proceedings. No reply was given to this request.
68. On 16 May 2008 the supervising prosecutor again overruled the decision to suspend the investigation as unsubstantiated and premature and ordered the investigators to take the necessary steps, including those ordered on 9 July, 18 October and 14 December 2004. The investigation was resumed on the same date.
69. On 20 May 2008 the investigators requested that the investigative department of the UGA assist them in identifying the military unit which had been stationed in the area of the events in January and February 2000, provide them with a list of its servicemen for the period and inform them of the stationing of the military unit at present.
70. On 2 June 2008 the investigators questioned Ms Ya.Z. The Government did not furnish a copy of this statement to the Court either (see paragraph 29 above).
71. On 9 June 2008 the ROVD informed the investigators that it was impossible to establish the identities of the elderly Russian couple who had witnessed the applicant’s sisters’ murder.
72. On 16 June 2008 the investigation in the criminal case was suspended for the sixth time for failure to identify the perpetrators.
73. On 26 June 2008 the applicant again complained to the district prosecutor’s office that the investigation into her sisters’ murder was ineffective and requested that the investigators grant her access to the investigation file and resume the criminal proceedings.
74. On 30 June 2008 the investigators replied to the applicant’s complaint stating that she was entitled to a copy of the last decision to suspend the investigation.
75. On an unspecified date in January 2009 the supervising prosecutor again overruled the decision to suspend the investigation as unlawful and ordered the investigators to take the necessary steps. The Government did not furnish the Court with a copy of this document.
76. On 19 January 2009 the investigation in the criminal case was resumed.
77. The Government submitted that although the investigation had failed to establish the perpetrators of the murder of Shema and Shamani Inderbiyeva, the proceedings were still in progress. The information gathered by the investigators demonstrated that the applicant’s sisters had been killed by unidentified persons and that “it cannot be seen from the case file that Shema and Shamani Inderbiyeva were killed as a result of the use of lethal force by representatives of the State”. The Government further submitted that the domestic authorities had been taking all possible steps to have the crime resolved.
78. In reply to the Court’s request for the full contents of the investigation file in criminal case no. 50080, the Government stated in a Memorandum of 20 January 2010 that they enclosed the contents of the criminal case file ‘in full’ and that it ran to 171 pages. However, from the documents submitted and their pagination it follows that a
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number of documents, such as witness statements, were not furnished by the Government and no explanation had been given for the failure to submit the remaining documents to the Court.
II. RELEVANT DOMESTIC LAW
79. For a summary of the relevant domestic law see Goygova v. Russia (no. 74240/01, §§ 63‑64, 4 October 2007).
THE LAW
I. THE ISSUE OF EXHAUSTION OF DOMESTIC REMEDIES
A. The parties’ submissions
80. The Government submitted that the investigation into the murder of the applicant’s sisters had not yet been completed. They further argued, in relation to the complaint under Article 13 of the Convention, that it had been open to the applicant to lodge court complaints about any acts or omissions of the investigating authorities. She could also have applied for civil damages.
81. The applicant contested the Government’s submission. She stated that the only available remedy, the criminal investigation, had proved to be ineffective.
B. The Court’s assessment
82. The Court will examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (for a relevant summary, see Estamirov and Others v. Russia, no. 60272/00, §§ 73‑74, 12 October 2006).
83. The Court notes that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies.
84. As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, cited above, §§ 119‑21, and Estamirov and Others, cited above, § 77). In the light of the above, the Court confirms that the applicant was not obliged to pursue civil remedies. The Government’s objection in this regard is thus dismissed.
85. As regards criminal-law remedies, the Court observes that the investigation into the murders has been pending since 3 May 2000. The applicant and the Government dispute the effectiveness of the investigation.
86. The Court considers that the Government’s objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicant’s complaints. Thus, it decides to join this objection to the merits of the case and considers that the issue falls to be examined below.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
87. The applicant alleged that her sisters had been unlawfully killed by agents of the State and that no effective investigation had been carried out into the matter. She relied on Article 2 of the Convention, which reads:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
A. Admissibility
88. 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. Further, the Court has already found that the Government’s objection concerning the issue of exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 86 above). The complaint under Article 2 of the Convention must therefore be declared admissible.
B. The alleged violation of the right to life of Shema and Shamani Inderbiyeva
1. The parties’ submissions
89. The applicant alleged that her sisters had been unlawfully killed by agents of the State and referred to the Court’s conclusion in the cases of Khashiyev and Akayeva, Goygova, Makhauri, Goncharuk, and Tangiyeva (all cited above), noting that, at the relevant time, the area was under the full control of the Russian federal forces. She argued that the Government had not suggested any other version of the events.
90. The Government denied any involvement of State agents in the killing of the applicant’s sisters
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and stated that they had been murdered by unidentified criminals.
2. The Court’s assessment
91. It was not disputed by the parties that the applicant’s sisters had been killed. The Government did not suggest that the exceptions provided for in the second paragraph of Article 2 could be applicable in the present case. The question remains whether the respondent State may be held responsible for their death.
92. The Court observes that it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of a violation of Article 2 (for a summary of these, see Estamirov and Others, cited above, §§ 98‑101). In the light of these principles, the Court will decide whether the death of the applicant’s sisters can be attributed to the State and whether there has been a violation of Article 2 in this respect.
93. The Court finds that the factual circumstances as presented by the applicant were not disputed by the Government and were not contradicted by the documents in the investigation file. As it appears, the only version of the events pursued by the investigation was that suggested by the applicant. The Government did not present any alternative account of the attack and, moreover, the investigation obtained information proving the applicant’s allegations of the State agents’ responsibility for her sisters’ death (see paragraph 51 above).
94. In addition, the Court has long held that where the events in issue lie wholly, or to a large extent, within the exclusive knowledge of the authorities – as in the case of persons in custody under those authorities’ control – strong presumptions of fact will arise in respect of injuries and deaths occurring during such detention. Thus, it has found that where an individual is taken into custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which an issue will arise under Article 3 of the Convention (see Tomasi v. France, 27 August 1992, §§ 108-11, Series A no. 241-A; Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336; and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V). Indeed, in such situations the burden of proof may be regarded as resting on the authorities (see, inter alia, Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII).
95. The Court has also considered it legitimate to draw a parallel between the situation of detainees, for whose well-being the State is held responsible, and the situation of persons found injured or dead in an area within the exclusive control of the State authorities. Such a parallel is based on the salient fact that in both situations the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities (see Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005‑II (extracts)).
96. The Court will assess the effectiveness of the investigation into the death of the applicant’s sisters below (see paragraphs 100 - 107), but it is clear that it failed to establish the military units presumably involved in the incident or to indict the individuals responsible. Taking this into account and the Court’s finding in the judgments referred to by the applicant, the Court finds that she has made a prima facie case that her sisters were killed by servicemen during a security operation on or around 10 January 2000 in the Staropromyslovskiy District of Grozny, and that the Government have failed to provide any other satisfactory and convincing explanation of the events. Their reference to the absence of conclusions from the criminal investigation is not enough to absolve them from their burden of proof under Article 2 of the Convention.
97. On the basis of the above, the Court finds that the death of Shema and Shamani Inderbiyeva can be attributed to the State. In the absence of any justification put forward by the Government, the Court finds that there has been a violation of Article 2 under its substantive limb.
C. Alleged inadequacy of the investigation
1. The parties’ submissions
98. The applicant alleged that the authorities had failed to conduct an effective investigation into the circumstances of her sisters’ death, in violation of their procedural obligation under Article 2. She argued that the investigation had fallen short of the standards established by the Convention and national legislation. In particular, the investigation had not been prompt because of the delay in opening it and in taking important steps. A number of investigative measures had never been taken, such as securing the relevant evidence and questioning servicemen who could have been involved. The investigation had been ongoing for more than ten years without producing any tangible results. The authorities had systematically failed to inform her
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of the progress of the proceedings and that she had been given no information about important procedural steps.
99. The Government contended in reply that the investigation was being carried out in accordance with the relevant domestic legislation and Convention standards.
2. The Court’s assessment
100. The Court has on many occasions stated that the obligation to protect the right to life under Article 2 of the Convention also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. It has developed a number of guiding principles to be followed for an investigation to comply with the Convention’s requirements (for a summary see, for example, Bazorkina v. Russia, no. 69481/01, §§ 117‑19, 27 July 2006).
101. In the present case, an investigation was carried out into the murder of the applicant’s sisters. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.
102. The Court notes from the outset that it has previously found the investigation into the murders of the inhabitants of the Staropromyslovskiy District perpetrated in January and February 2000 to be ineffective and in breach of the requirements of Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, cited above, §§ 156-66; Goygova, cited above, §§ 76-85; Makhauri v. Russia, cited above, §§ 105‑14; Goncharuk v. Russia, cited above, §§ 65‑71; and Tangiyeva v. Russia, cited above §§ 88‑95). It can be seen from the documents submitted that no different conclusion could be arrived at in the present case for the following reasons.
103. The Court notes that the authorities were aware of the crime by at least May 2000, when a criminal investigation into the killings committed in the Staropromyslovskiy District was opened by the town prosecutor’s office. In June and July 2000, within the scope of this investigation, the applicant, her sister and her mother were questioned and confirmed information about the circumstances in which their relatives’ bodies had been found and their burial. However, it does not appear that any other steps were taken at that time in order to solve the murders. More than three years later, in June 2003, the documents relating to the murder of the applicant’s sisters were transferred to the district prosecutor’s office with an instruction to carry out a separate investigation but the authorities only initiated a separate set of proceedings to investigate the matter in July 2003.
104. The Court further notes that even the most basic procedural steps in the investigation were taken after September 2003, that is, more than three and half years after the events in question. The measures taken after September 2003 included such crucial steps as the questioning of other witnesses, examination of the crime scene, attempts to identify the military units that could have been involved in the murders and the carrying out of a forensic medical examination. It is obvious that these measures, if they were to produce any meaningful results, should have been taken immediately after the crime was reported to the authorities, and certainly as soon as the investigation had commenced. The Court reiterates that it is crucial in cases of deaths in contentious situations for the investigation to be prompt. The passage of time will inevitably erode the amount and quality of the evidence available and the appearance of a lack of diligence will cast doubt on the good faith of the investigative efforts, as well as drag out the ordeal for the members of the family (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002‑II). These delays, unexplained in this case, not only demonstrate the authorities’ failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime.
105. The Court also notes that the applicant was granted victim status only in October 2003. Even after that she was only informed of the suspension and reopening of the proceedings, and not of any other significant developments. Accordingly, the investigators did not ensure sufficient public accountability to provide the investigation and its results with the required level of public scrutiny; nor did it safeguard the interests of the next of kin in the proceedings.
106. Finally, the Court notes that the investigation was suspended and resumed a number of times and that on several occasions the supervising prosecutors pointed out the deficiencies in the proceedings and ordered measures to remedy them, but that these instructions were not complied with.
107. In the light of the foregoing, the Court finds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the death of Shema and Shamani Inderbiyeva. This rendered recourse to the criminal domestic remedies, referred to by the Government, ineffective in the circumstances. The Court accordingly dismisses the Government’s objection in
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this respect and holds that there has been a violation of Article 2 under its procedural limb as well.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
108. The applicant relied on Article 3 of the Convention, submitting that prior to their killing Shema and Shamani Inderbiyeva were subjected to ill‑treatment and that as a result of her sisters’ death and the State’s reaction thereto, she had endured psychological suffering in breach of Article 3 of the Convention. Article 3 reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Admissibility
109. Turning to the first part of the applicant’s complaint, the Court notes that the applicant neither raised it with competent domestic authorities nor enclosed any documents with the application to substantiate her allegations.
110. As for the second part of the complaint, the Court notes that the present case concerns the instantaneous death of the applicant’s sisters as a result of an explosion. In this regard, the Court refers to its practice by which the application of Article 3 is usually not extended to the relatives of persons who have been killed by the authorities in violation of Article 2 (see Yasin Ateş v. Turkey, no. 30949/96, § 135, 31 May 2005) or to cases of unjustified use of lethal force by State agents (see Isayeva and Others v. Russia, nos. 57947/00, 57948/00 and 57949/00, § 229, 24 February 2005), as opposed to the relatives of the victims of enforced disappearances. The latter approach is exercised by the Court in view of the continuous nature of the psychological suffering of the applicants whose relatives disappeared and the applicants’ inability for a prolonged period of time to find out what happened to them (see, among many other authorities, Bazorkina, cited above, § 141; Imakayeva v. Russia, no. 7615/02, § 166, ECHR 2006‑XIII (extracts); and Luluyev and Others v. Russia, no. 69480/01, § 115, ECHR 2006‑XIII (extracts)). As for the present case, even though the Court does not doubt that the tragic death of her sisters caused the applicant profound suffering, it nonetheless, owing to the instantaneous nature of the incident, does not find that it amounts to a violation of Article 3 of the Convention (see, for a similar situation, Udayeva and Yusupova v. Russia, no. 36542/05, §§ 82‑83, 21 December 2010).
111. It therefore follows that the applicant’s complaint under Article 3 should be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
112. The applicant complained that the proceedings brought by her against the investigators were unfair (see paragraph 22 above). She relied on Article 6 of the Convention, which, in so far as relevant, reads as follows:
“1. In the determination of his civil rights and obligations..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...”
113. The Court finds that Article 6 § 1 of the Convention is inapplicable to the proceedings in question, as they did not involve the determination of the applicant’s civil rights or obligations or a criminal charge against the applicant, within the meaning of the Convention (see, among many other authorities, Udayeva and Yusupova, cited above, § 86).
114. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 thereof.
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
115. The applicant complained that she had been deprived of effective remedies in respect of the alleged violations of Article 2 contrary to Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. The parties’ submissions
116. The Government contended that the applicant had effective remedies at her disposal as required by Article 13 of the Convention and that the authorities had not prevented her from using those remedies. The applicant had the opportunity to challenge the acts or omissions of the investigating authorities in court. They added that participants in criminal proceedings could also claim damages in civil proceedings. In sum, the Government submitted that there had been no violation of Article 13.
117. The applicant maintained the complaint.
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B. The Court’s assessment
1. Admissibility
118. 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.
2. Merits
119. The Court reiterates that in circumstances where, as in the present case, a criminal investigation into a murder has been ineffective and the effectiveness of any other remedy that might have existed has consequently been undermined, the State has failed in its obligations under Article 13 of the Convention (see Khashiyev and Akayeva, cited above, § 183).
120. Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
121. 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
122. The applicant did not submit any claims for pecuniary damage. As regards non-pecuniary damage, she stated that she had endured emotional suffering in relation to the loss of her sisters and the authorities’ failure to effectively investigate their death. She left the determination of the amount of compensation to the Court.
123. The Government submitted that finding a violation of the Convention would be adequate just satisfaction in the applicant’s case.
124. The Court has found a violation of both aspects of Article 2 and of Article 13 of the Convention on account of the death of the applicant’s sisters and the authorities’ failure to effectively investigate the matter. The Court thus accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards the applicant 100,000 euros (EUR) plus any tax that may be chargeable thereon.
B. Costs and expenses
125. The applicant was represented by Mr D. Itslayev, a lawyer practising in Grozny. The applicant submitted a contract with her representative and an itemised schedule of costs and expenses that included legal research and drafting, as well as administrative and translation expenses. The overall claim in respect of costs and expenses related to the applicant’s legal representation amounted to EUR 4,306. The applicant submitted the following breakdown of costs:
(a) EUR 3,637 for 24.25 hours of interviews and drafting of legal documents submitted to the Court and the domestic authorities, at the rate of EUR 150 per hour;
(b) EUR 125 of administrative expenses;
(c) EUR 544 in translation fees based on the rate of EUR 80 per 1000 words.
126. The Government regarded the claim as unsubstantiated, pointing out that the relevant documents were not sufficiently itemised or supported by documentary evidence.
127. The Court has to establish first whether the costs and expenses indicated by the applicant were actually incurred and, second, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324)
128. Having regard to the details of the information submitted by the applicant, the Court is satisfied that these rates are reasonable and reflect the expenses incurred. The Court notes that this case was rather complex and required the amount of research and preparation claimed by the applicant.
129. Having regard to the details of the claims submitted by the applicant, the Court awards her the amount of EUR 4,000 together with any tax that may be chargeable to the applicant, the net award to be paid into the representative’s bank account, as identified by the applicant.
C. Default interest
130. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides to join to the merits the Government’s objection as to the issue of exhaustion of criminal domestic remedies and rejects it;
2. Declares the complaints under Articles 2 and 13 of the Convention admissible and the remainder of the application inadmissible;
3. Holds that there has been a substantive violation of Article 2 of the Convention in respect of Shema and Shamani Inderbiyeva;
4. Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Shema and Shamani Inderbiyeva
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died;
5. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention;
6. Holds
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the date of settlement:
(i) EUR 100,000 (one hundred thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the applicant;
(ii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the representative’s bank account;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 27 March 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren NielsenNina VajićRegistrarPresident
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FOURTH SECTION
CASE OF VELIKOVA v. BULGARIA
(Application no. 41488/98)
JUDGMENT
STRASBOURG
18 May 2000
FINAL
04/10/2000
In the case of Velikova v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
MrM. Pellonpää, President,MrG. Ress,MrA. Pastor Ridruejo,MrI. Cabral Barreto,MrV. Butkevych,MrJ. Hedigan,MrsS. Botoucharova, judges,and Mr V. Berger, Section Registrar,
Having deliberated in private on 20 January and 27 April 2000,
Delivers the following judgment, which was adopted on the last‑ mentioned date:
PROCEDURE
1. The case originated in an application (no. 41488/98) against the Republic of Bulgaria lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), by Ms Anya Velikova, a Bulgarian national, on 12 February 1998. The applicant was represented by Mr I. Dimitrov and Mr Y. Grozev, lawyers practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs V. Djidjeva, of the Ministry of Justice.
The applicant complained under Articles 2, 6, 13 and 14 of the Convention in respect of the death in police custody of Mr Tsonchev, the man with whom she had been living for about twelve years, the alleged ineffective investigation into this event, the alleged obstacles to the determination of her civil right to compensation arising out of the death of Mr Tsonchev, the alleged lack of effective remedies in this respect and the alleged discrimination on the basis of Mr Tsonchev's Romany ethnic origin.
2. On 7 September 1998 the Commission decided to communicate the application to the Government.
Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998, and in accordance with Article 5 § 2 thereof, the application was examined by the Court.
In accordance with Rule 52 § 1 of the Rules of Court, the President of the Court, Mr L. Wildhaber, assigned the case to the Fourth Section. The Chamber constituted within that Section included ex officio Mrs S. Botoucharova, the judge elected in respect of Bulgaria (Article 27 § 2 of the Convention and Rule 26 § 1 (a)), and Mr M. Pellonpää, President of the Section (Rule 26 § 1 (a)). The other members designated by the latter to complete the Chamber were Mr G. Ress, Mr I. Cabral Barreto, Mr V. Butkevych, Mrs N. Vajić and Mr J. Hedigan (Rule 26 § 1 (b)).
3. The Government's written observations were submitted on 14 December 1998, after an extension of the time-limit fixed for that purpose. The applicant replied on 8 February 1999.
4. The Court declared the application admissible on 18 May 1999[1].
5. On 9 August 1999 the applicant submitted written observations on the merits and just satisfaction claims, in support of which she filed additional documents on 7 October 1999. On 27 September 1999 the Government submitted, of their own motion, written observations on the facts and the admissibility of the application. They also requested a hearing.
6. On 14 October 1999 the Court examined the state of the proceedings in the case. It decided to invite the Government to comment in writing on the merits of the application and to submit “copies of all documents contained in the files of all authorities which [had] dealt with the investigation into the death of Mr Tsonchev”. The Court also decided to invite the parties to a hearing on the merits of the case.
7. The Government submitted their observations on the merits and “copies of all documents contained in the files” on 11 November 1999.
On 14 January 2000 the Government submitted observations on the applicant's claims for just satisfaction. These observations were accepted by decision of the President of the Chamber, acting under Rule 38 § 1.
On 14 January 2000 the applicant submitted an additional claim for just satisfaction in respect of the costs of the hearing in Strasbourg, which was accepted for examination by the President of the Chamber, acting under Rule 60 § 1. The Government replied on 28 January 2000.
8
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. Having originally been designated by the initials A.V., the applicant subsequently agreed to the disclosure of her name.
9. Having declared the application admissible, the Court, acting in accordance with Article 38 § 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement. No friendly settlement was reached.
10. Pursuant to a decision of the Chamber of 13 January 2000, the President of the Chamber held on 20 January 2000, before the commencement of the public hearing, a preparatory meeting concerning, inter alia, the Government's objection as to the authenticity of the application. The meeting was attended by the representatives of the parties and the applicant herself. The President of the Chamber and the representative of the Government put questions, to which the applicant replied.
The hearing took place in public in the Human Rights Building, Strasbourg, on 20 January 2000.
There appeared before the Court:
(a) for the GovernmentMrsV. Djidjeva, Ministry of Justice,Agent;
(b) for the applicantMrY. Grozev, Lawyer,Counsel.
The applicant herself was also present.
The Court heard addresses by Mr Grozev and Mrs Djidjeva.
11. As Mrs Vajić was unable to attend the deliberations on 27 April 2000, she was replaced by Mr A. Pastor Ridruejo, substitute judge, as a member of the Chamber (Rule 26 § 1 (c)).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
12. The applicant is a Bulgarian national, born in 1942 and residing in Pleven. At the relevant time she lived in Bukovlak, a village in the district of Pleven.
A. Circumstances surrounding the death of Mr Tsonchev
13. In the early hours of 25 September 1994, the man with whom the applicant had lived for about twelve years, Mr Slavtcho Tsonchev, 49 years old, belonging to the ethnic group of the Romanies (Gypsies), died after he had spent about twelve hours in police custody following his arrest and detention on charges of cattle theft.
14. On 24 September 1994 at 11 a.m. the Pleven police received a telephone call from the village of Bukovlak informing them of the theft of nine cows. Police Sergeant Ivanov and his colleague Petranov were immediately dispatched to the village, where they met Mr N., the person who had been tending the cattle. Mr N. was brought to the police station in Pleven.
There he initially stated that the cows had been stolen by unknown persons who had sprayed him with nerve gas, but then explained that, at about 10 a.m., Mr Tsonchev, accompanied by a 10-year-old boy, had taken away the nine cows through the use of threats and had warned him that if asked about the incident he should maintain that someone had sprayed him with nerve gas. Mr N. affirmed that he was afraid of Mr Tsonchev, who had been drunk at the time of their encounter.
15. In his testimony given later, Sergeant Ivanov relayed the following: “We were told that the perpetrator was Slavtcho [Tsonchev] – a Gypsy from the village of Bukovlak whose nickname was Patcho. We knew this person as he was from our criminally active contingent.”
It transpires from all testimonies that Mr Tsonchev's relatives, who were later questioned in relation to the investigation into his death, also knew the police officers and their nicknames.
16. The same police patrol drove back to the village of Bukovlak, where they were joined by two of the cattle owners and all four started searching the village for Mr Tsonchev. They found him at about 2 p.m. at his aunt and uncle's house. According to Sergeant Ivanov's testimony, Mr Tsonchev was “drinking alcohol in the company of other Gypsies”.
17. According to the testimonies of Mr Tsonchev's cousin and Mrs K., an elderly woman who was a neighbour of Mr Tsonchev's relatives, he had spent the late morning and early afternoon of 24 September 1994 digging a ditch at the house of Mrs K. During this time Mr Tsonchev drank four beers. He had apparently also drunk alcohol before that. According to the same testimony and that of Mr Tsonchev's uncle and aunt, he came to their house in the early afternoon, about fifteen minutes before the arrival of the police. The uncle further testified that Mr Tsonchev had not complained of any medical problem and had behaved normally.
18. The police officers invited Mr Tsonchev to come with them. He answered that he wished to finish his beer, to which the police officers agreed. Mr T
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sonchev was then placed in the back seat of the police car, between the two cattle owners. The car first drove for several minutes to the home of the cattle owners. According to the statement of one of the police officers, during this short drive the persons in the back of the car “had an argument with the Gypsy but... did not beat him. They only talked”. The car arrived at the home of the cattle owners, where a crowd of about twenty to thirty persons had gathered. According to police officer Ivanov they wanted to beat up Mr Tsonchev, but he and his colleague did not allow this to happen. The police car then drove to the Pleven police station where not later than 2.30 p.m. Mr Tsonchev was handed over to Sergeant Kostadinov, the officer on duty.
19. Sergeant Kostadinov stated in his testimony to investigator Enchev that he had locked Mr Tsonchev in the arrest cell, as he had been too drunk to be questioned. Mr N., the person who had reported the cattle theft and who had been waiting at the police station to give evidence, claimed that Mr Tsonchev had been seated on a couch in the hallway.
Both Sergeant Kostadinov and Mr N. testified that Mr Tsonchev had been very drunk. According to Mr N. at some point, while seated, Mr Tsonchev had defecated into his trousers.
It appears that Mr Tsonchev had some verbal exchanges with others while at the police station. An internal police note of 20 October 1994 concerning the death of Mr Tsonchev (see paragraph 33 below) stated that he had denied having stolen the cows. The source of this information was not mentioned in the note. Mr N. on his part relayed in his testimony that at some point Mr Tsonchev had been asked questions about the cattle theft, but had replied that he had slaughtered one of the cows.
20. At 5 p.m. Sergeant Kostadinov contacted by telephone police officer Lubenov who arrived at the police station and started questioning the witness, Mr N. According to officer Lubenov, Mr Tsonchev was too drunk to be questioned.
Police officer Lubenov issued an order for the detention of Mr Tsonchev after having consulted the prosecutor on duty, Ms Popova. The order stated that it was issued on 24 September 1994 at 7 p.m.
21. According to the testimony of police officers Kostadinov and Lubenov, at about 7 p.m. Mr Tsonchev “complained that he was not feeling well” whereupon Sergeant Kostadinov contacted the emergency unit of the local hospital for an ambulance.
At the police station were present Mr N. and one of the owners of the stolen cattle, who had arrived at about 7 p.m. to report that the cows had been found earlier in the afternoon. The two men left shortly after 7 p.m., Mr N. apparently having spent the whole afternoon at the police station. The testimony of Mr N. does not contain any reference to the fact that Mr Tsonchev had displayed signs of ill-health. Apparently, the other person present was not questioned in the course of the investigation, as no such testimony has been submitted by the Government.
According to the internal police note of 20 October 1994, all the above events, including Mr Tsonchev's complaint that he did not feel well and the arrival of an ambulance, happened at about 10 p.m. and not at about 7 p.m. The note did not specify the source of this information.
22. According to the testimony of officers Kostadinov and Lubenov, a physician and a paramedic arrived at the police station shortly after the call for an ambulance and examined Mr Tsonchev briefly. The physician allegedly pressed and touched Mr Tsonchev's body, but said that the latter was too drunk to be examined and that he would examine him when he sobered up.
No written record of this medical examination is to be found among the documents in the files, as submitted by the Government, of all authorities which had dealt with the case. During the investigation into the death of Mr Tsonchev apparently no questions were put to the police officers about the identity of the members of the medical team and no further detail was established.
23. At about 11 p.m. a Mr I.P., who had been arrested for violent behaviour, was brought to the police station and detained there.
According to the internal police note of 20 October 1994, Mr I.P. had testified that Mr Tsonchev was drunk. No such testimony can be found in the material submitted by the Government.
24. According to the testimony of Sergeant Kostadinov, the officer on duty, at a certain point during the night Mr Tsonchev started vomiting in the cell where he had been placed. He
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was allowed to go to the toilet and was not locked up afterwards, but sat on a couch in the hallway. After midnight Mr Tsonchev went to the toilet again. On his way back to the couch, he fell on the floor. Police officer Kostadinov instructed the detained Mr I.P. to help to get Mr Tsonchev seated on the couch. Officer Kostadinov noticed that Mr Tsonchev was sick and he called the hospital emergency unit again. At that point Mr I.P. was released and left the police station.
The internal note of 20 October 1994 specified that Sergeant Kostadinov had seen Mr Tsonchev lying on the ground at about 1.50 a.m. on 25 September 1994. The source of the information about the hour was not mentioned.
25. According to the police officers' testimonies, the same physician and paramedic, whose identities have not been disclosed, arrived at around 2 a.m. and found Mr Tsonchev dead. The doctor did not draw up a death certificate. This was done later by Dr Dorovski, the forensic expert who visited the site with the investigator, Mr Enchev, and who also conducted the autopsy.
B. The investigation into the death of Mr Tsonchev
26. Immediately after Mr Tsonchev was found dead, the police informed the investigator on duty, Mr Enchev, who arrived at 2.30 a.m. to inspect the scene.
According to the written record of the inspection, the dead body of Mr Tsonchev was found in the hallway of the first floor, southern section, of the Pleven police station. He was seated on a couch, with two hands hanging on both sides of the couch, and the head hanging back. The victim was dressed in a white shirt, wide open at the chest, with unbuttoned trousers and no underwear. The report further states that “[o]n the right side of the face there was a bruise. Because of the dark colour of the skin, there were no other visible injuries on the body”. The investigator finished the inspection at 3 a.m. The inspection record states that a forensic expert, Dr Dorovski, and three other persons were present during the inspection. None of them signed the record, which was only signed by the investigator.
Photographs of the scene were taken during the inspection. The Government have not submitted copies thereof.
27. Dr Dorovski issued death certificate no. 217 on 25 September 1994 indicating “acute anaemia, fat embolism and haematomas on the trunk and the limbs” as the causes of death. He also marked the option “accident” in the column requesting information about the possible circumstances. He left blank the space provided to indicate the time of death.
28. On 25 September 1994 Mr Enchev, regional investigator, issued an order for the opening of a criminal investigation into the death of Mr Tsonchev.
On the same day early in the morning, after 4.25 a.m., investigator Enchev questioned three of the police officers involved, officers Ivanov, Kostadinov and Lubenov. The documents in the files of the authorities which investigated the death of Mr Tsonchev, as submitted by the Government, contain no trace of any questioning of police officer Petranov, who had been together with Sergeant Ivanov during Mr Tsonchev's arrest and his transfer to the police station.
29. The investigator also ordered a biochemical report and a forensic medical report. The forensic medical report was assigned to Dr Dorovski, who had been present at the inspection of the corpse. He was requested by investigator Enchev to answer the following questions:
“1. What traumatic injuries are to be found on the corpse [of Mr Tsonchev]?
2. What was the cause of his death?
3. How were the injuries inflicted?”
30. The forensic expert carried out a post-mortem examination between 8.30 a.m. and 11.30 a.m. on 25 September 1994. He found a haematoma of purple-blue colour under the lower right eyelid; oval bruises of a red-brown colour measuring 2 by 0.5 to 1 cm beneath the lower eyelid and on the opposite side of the face under the cheek bones; one bruise of the same colour on the left side of the lower jaw measuring 0.5 by 0.5 cm; one bruise of a red-brown colour, oblong, measuring 2 by 0.5 cm on the centre of the chin; symmetrical haematomas of a strong purple-blue colour measuring 40 by 18 cm on the front side of both armpits and the upper part of the arms; and three haematomas of purple-blue colour on the left buttock and on the upper back of the left
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thigh, perpendicular to the femur, measuring 8 to 10 cm by 1.5 to 2 cm.
The laboratory analysis of the blood and the urine of Mr Tsonchev revealed an alcohol content of 0.4 per thousand[1].
The report concluded:
“The inspection and the autopsy of Slavtcho Tsonchev's corpse discloses a state of acute loss of blood – pale post-mortal spots, anaemic internal organs, massive haematomas on a large surface of the upper limbs and the left buttock, a bruise on the left eyelid, scratches on the face.
The cause of Mr Tsonchev's death was the acute loss of blood resulting from the large and deep haematomas on the upper limbs and the left buttock, as it appears from the autopsy.
The injuries are the result of a blunt trauma. The injuries described as double stripped haematomas on the left buttock resulted from the impact of one or more long hard objects, approximately 2 cm wide. The haematomas in the upper limbs resulted from the impact of – blows by or collision with – a hard, blunt object. They do not have a characteristic shape and it is therefore not possible to identify the object which had caused them. The injuries on the face could have been caused by blows, or could have been the result of falling, as they are located on the protruding parts of the face.
The analysis of the corpse did not disclose any ailment which could be related to the death [of Mr Tsonchev]. No injuries from sharp objects or firearms were found.”
The report placed the time of the death at about ten to twelve hours prior to the autopsy. The report expressed no opinion as to the timing of the injuries which had caused the death. No such question had been put by the investigator.
31. On the morning of 25 September 1994 the applicant, who went to the police station to wait for the release of Mr Tsonchev, was informed that he was dead. When later that day his body was transported to the applicant's house in the village of Bukovlak, the applicant allegedly observed numerous bruises and injuries. Upon her request neighbours called journalists from local newspapers. Mr Tsonchev was buried that evening.
32. On 28 September 1994 the investigator questioned Mr Tsonchev's uncle, aunt and cousin, Mrs K., their neighbour, and Mr N., the person whose cows had been stolen.
33. On 20 October 1994 a colonel from the Directorate of the National Police (Дирекция на националната полиция) in Sofia drew up a note on the death of Mr Tsonchev, apparently in the framework of an internal inquiry conducted within the police department. The note described the events and concluded that the case was within the competence of the investigation authorities. No other document in respect of this police inquiry can be found among the material submitted by the Government.
34. On 21 December 1994 an expert in chemistry issued a report on the analysis of samples of stomach contents as well as liver, kidney and brain tissue taken from the corpse. The purpose of the analysis, as defined by the investigator, had been to search for traces of toxic substances. No such substances were found. Insignificant quantities of aspirin, pain killers and codeine were detected.
35. The material submitted by the Government in response to the Court's request for “all documents contained in the files of all authorities which [had] dealt with the investigation into the death of Mr Tsonchev” does not show any investigation activity after December 1994.
36. In the months following the death of Mr Tsonchev, the applicant regularly visited the office of investigator Enchev to ask for information about the progress of the investigation. In 1995 counsel for the applicant allegedly visited Mr Enchev's office on several occasions and spoke to him on the telephone several times. Mr Enchev allegedly refused to release any specific information. Also, according to the applicant, those of the documents in the investigation file to which counsel was permitted access contained no information concerning any investigation proceedings which may have been conducted after 21 December 1994.
37. On 5 December 1995 counsel for the applicant requested the Pleven Regional Prosecutor's Office (Окръжна прокуратура) to expedite the investigation. As no response was received, on 28 February 1996 counsel filed a request with the Chief Public Prosecutor's Office (Главна прокуратура).
On 19 March 1996 regional prosecutor Popova issued an order suspending the criminal proceedings in the death of Mr Tsonchev. The order stated, inter alia:
“Tsonchev's death [was] caused by a number of internal
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haemorrhages and acute loss of blood, as a result of deliberate beating. The deceased Tsonchev was detained under a police order for [a maximum period of] twenty-four hours pursuant to the Police Act [Закон за националната полиция], for the theft on 24 September 1994 of nine cows in the vicinity of the village of Bukovlak, Pleven District...
In the course of the investigation, it proved impossible to determine whether Tsonchev was beaten up in the Pleven police station or outside it. Nor was there any evidence demonstrating whether it was the cattle owners or police officers who did the beating.”
38. In her ensuing appeal of 20 May 1996 to the Chief Public Prosecutor's Office, the applicant argued that the investigation had not been thorough and that there had been significant omissions. She suggested that all evidence indicated that the injuries resulting in the death had been inflicted after the victim had been taken to the police station. She also objected to the significant delays in the investigation.
By an order of 8 July 1996 prosecutor Slavova of the Chief Public Prosecutor's Office granted the applicant's request for the reopening of the investigation. The order stated, inter alia:
“[A] careful reading of the file demonstrates that the investigation [was] not thorough and complete. Not all possible investigations were carried out, for which reason the decision to suspend the investigation is unfounded...
... it is necessary to establish Mr Tsonchev's particular health problems during his stay at the police station and the findings of the emergency medical team on his state of health. The physician and the paramedic of the emergency unit who examined [Mr Tsonchev] should be found and questioned, and the relevant documents recording the examinations be requested. The reasons why no medical care was offered to the victim should be established (there is no evidence in that respect, at least up to this moment) and, depending on the findings, a conclusion should be drawn as to whether a crime, under Article 123 of the Criminal Code [Наказателен кодекс], was committed. The health condition of Mr Tsonchev prior to his arrest should be ascertained. An additional medical report should be ordered, to be carried out by three forensic experts, which should establish in particular the cause of the death, the manner in which the injuries were inflicted and the time at which the injuries occurred. [This] should be used to identify the person who inflicted the injuries on that same day or on the previous day. The death certificate of Mr Tsonchev should be requested and attached to the file, and [the applicant's] allegation of incorrect documents should be investigated. After all these issues, as well as others that may come up during the investigation, are clarified, a decision on the merits should be taken.”
39. According to the applicant, during the months following the order of the Chief Public Prosecutor's Office, her counsel spoke by telephone, on at least two occasions, with investigator Enchev. In both conversations investigator Enchev allegedly declined to provide any information concerning the investigation. On 6 January 1997 counsel filed a complaint with the Pleven Regional Prosecutor's Office, asserting that no investigation was taking place in defiance of the order of the Chief Public Prosecutor's Office, and requested that investigator Enchev be taken off the case.
Counsel for the applicant received no reply to his written complaint for more than four months. On 22 May 1997 counsel Dimitrov allegedly spoke to investigator Enchev over the telephone. Investigator Enchev informed counsel that he was still the investigator responsible for the case. During the conversation it allegedly became apparent that no investigation had been undertaken since the order of the Chief Public Prosecutor's Office of 8 July 1996. Following this conversation, counsel for the applicant filed another complaint with the Chief Public Prosecutor's Office renewing his request for investigator Enchev to be taken off the case and to expedite the proceedings.
40. On 17 August 1997 counsel received a copy of a letter signed by regional prosecutor Popova and dated 3 June 1997, addressed to the Chief Public Prosecutor's Office. In apparent response to counsel's complaint of May 1997, the letter stated that no further investigation was possible, and that in prosecutor Popova's opinion the investigation should be suspended. According to the prosecutor, “there are no clues as to the identity of the offender and this precludes any further investigation”. She also refused to remove investigator Enchev and expressed her frustration with the numerous complaints raised by counsel Dimitrov.
The investigation has apparently not been suspended as there is no formal order to that effect. In December 1997, in a telephone conversation with counsel Dimitrov, investigator Enchev allegedly confirmed that he was still working on the case.
II. RELEVANT DOMESTIC LAW
41. Under Bulgarian
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law, criminal proceedings can be brought only by the decision of a prosecutor or an investigator (Article 192 of the Code of Criminal Procedure (Наказателно процесуален кодекс)).
In accordance with the law as in force at the relevant time and until 1 January 2000, a decision to terminate pending criminal proceedings was subject to appeal by the victim to the higher prosecutor (Article 237 § 6 of the Code as in force until 1 January 2000). In practice, as in the applicant's case, appeals to the higher prosecutor were also possible against a decision to suspend criminal proceedings (Article 239 of the Code as in force until 1 January 2000). No further remedies existed under the relevant law.
FINAL SUBMISSIONS TO THE COURT
42. At the hearing on 20 January 2000, the Government invited the Court to reject the application as being inadmissible, or to dismiss the applicant's claims as unfounded.
43. On the same occasion the applicant reiterated her request to the Court to find violations of Articles 2, 6, 13 and 14 of the Convention.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
44. The Government raised a number of preliminary objections, whereas the applicant maintained that the case should be examined on the merits.
A. The authenticity of the application
45. In their written observations on the merits of 11 November 1999, the Government noted that a declaration of means, made on 1 July 1999 before a notary and submitted by the applicant in support of her legal aid request, contained the applicant's thumb-print and a note from the notary stating that the applicant was illiterate. The Government further observed that the power of attorney, whereby the applicant had authorised her lawyers to represent her before the Convention organs and which was dated 9 February 1998, contained a signature.
The Government submitted that a power of attorney issued by an illiterate person could only be valid, in accordance with Article 151 § 1 of the Bulgarian Code of Civil Procedure, if it contained that person's thumb-print and if it was co-signed by two witnesses. Since this was not the case in respect of the power of attorney of 9 February 1998, it followed that the application had been submitted by persons who were not duly authorised to do so on behalf of the applicant. The Government requested the Court to declare the application inadmissible.
46. During the preparatory meeting before the public hearing on 20 January 2000 (see paragraph 10 above), the applicant declared that she had signed the document in issue and explained in detail the circumstances in which she did so. She stated, inter alia, that she had been assisted in filling out the form and had signed it herself. Asked whether she wished to demonstrate her ability to sign, she put her signature on a piece of paper, in the presence of the President of the Chamber and the representatives of the parties. At the close of the preparatory meeting, the representative of the Government did not comment on the authenticity of the applicant's signature on the power of attorney, but stated that she maintained the Government's preliminary objection.
47. The Court observes that the Government are not estopped from raising the above objection, as it is based on a document which was created and came to light after 18 May 1999, the date of the admissibility decision in the present case (see the Ergi v. Turkey judgment of 28 July 1998, Reports of Judgments and Decisions 1998-IV, p. 1770, § 62).
48. The Court further recalls that in cases of similar challenges by Governments a question was put to the applicant as to whether he or she had signed the document in issue. A general assessment of all the evidence and, in particular, of the question whether the applicant maintained an interest in pursuing the case, was also relevant (see the Ergi v. Turkey judgment cited above, pp. 1770-71, §§ 63-64; Kurt v. Turkey, application no. 24276/94, Commission decision of 22 May 1995, Decisions and Reports 81-A, p. 112; Sarli v. Turkey, application no. 24490/94, Commission's report of 21 October 1999, § 107, unpublished; and Aslan v. Turkey, applications nos. 22491/93 and 22497/93, Commission's report of 22 May 1997, unpublished).
49. In the present case the Government do not allege in express terms that the application was made without the applicant's consent. Their objection appears to be centred on the question whether the power of attorney of 9 February 1998 is legally valid.
50. In so far as the Government rely on the requirement of Bulgarian law that a document emanating from an illiterate person must carry a thumb-print placed in the presence of two witnesses, the Court first observes that it is unclear whether a
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genuine document, signed by the hand of someone who had on another occasion stated to be illiterate, would be considered null and void under Bulgarian law.
In any event, the Court recalls that the representative of the applicant must produce a “power of attorney or a written authority to act” (Rule 45 § 3 of the Rules of Court and Rule 43 § 3 of the Rules of Procedure of the Commission, as in force at the time the present application was filed with the Commission). Therefore, a simple written authority would be valid for purposes of the proceedings before the Court, in so far as it has not been shown that it was made without the applicant's understanding and consent.
51. As regards this latter point, the Court takes into account all evidence before it, including the meeting with the applicant in person in the presence of the President of the Chamber and the representative of the Government (see paragraph 46 above). It further considers that at no point has there been serious doubt as to the will of the applicant to pursue her complaints.
Finally, the Court notes that one of the two lawyers, whose names appear on the impugned power of attorney dated 9 February 1998, has been her representative before the domestic authorities since at least 1995 (see paragraphs 1 and 36 above).
52. The Court finds, therefore, that the application has been validly submitted on behalf of the applicant and dismisses the first preliminary objection by the Government.
B. The remaining preliminary objections
53. In their written observations of 27 September 1999, the Government stated that the admissibility decision of 18 May 1999 contained a number of incorrect statements of fact and unjustified conclusions. In particular, on pages 7 to 12 of the admissibility decision, there were unacceptable statements.
The Government further reiterated their position that the application should be rejected for failure to exhaust domestic remedies. They maintained, as they did at the admissibility stage of the proceedings, that, inter alia, the applicant should have brought a civil action for damages and should have joined the criminal investigation into the death of Mr Tsonchev as a private prosecutor. The Government further stated that the Court's finding as regards the six-month time-limit was “contrary to the letter and the meaning of Article 35 of the Convention”.
In their observations of 11 November 1999 and at the hearing before the Court, the Government also maintained that the application amounted to an abuse of the right of petition.
On the basis of the above considerations, the Government requested the Court to declare the application inadmissible.
54. The applicant replied that the application should be examined on the merits.
55. The Court takes cognisance of the Government's observations on the facts and takes them into account fully, along with all other evidence. Indeed, it is precisely after declaring an application admissible that the Court proceeds to a final establishment of the facts, in accordance with Article 38 of the Convention, on the basis of the submission of the parties and, if need be, its own investigation.
56. The Court further notes that the alleged unacceptable statements in its admissibility decision are all to be found in the summary of the applicant's complaints and submissions, which forms part of the text of the decision as much as the summary of the Government's position does, without any of them being the expression of the Court's opinion.
57. In respect of the Government's request that the application be declared inadmissible, the Court recalls that the provision of Article 35 § 4 in fine of the Convention, according to which the Court may declare an application inadmissible at any stage of the proceedings, does not signify that a respondent State is able to raise an admissibility question at any stage of the proceedings if that question could have been raised earlier (see paragraph 88 of the explanatory report to Protocol No. 11 to the Convention and Rule 55 of the Rules of Court).
In the present case the Government, for the most part, reiterate their objections as to the admissibility of the application, which were already examined by the Court and rejected by its decision of 18 May 1999. The Court sees no new element justifying a re-examination of these matters.
In any event, looking into the substance of the Government's preliminary objections, the Court finds no merit in any of them.
58. The Court dismisses, therefore, the remainder of the Government's preliminary objections.
II. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION
59. The applicant alleged violations of Article 2 of the Convention in that Mr Tsonchev had died as a result of injuries intentionally inflicted by the police, that he had not received adequate medical treatment while in police custody and that there had not been a meaningful investigation into the circumstances of his death.
Article 2 provides as follows:
“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the
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execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
A. Arguments of the parties
1. The applicant
60. In the applicant's view all available evidence indicated that Mr Tsonchev was in good health at the time he first encountered the police in the early afternoon of 24 September 1994. The fact that he had been drinking alcohol (not more than four beers) did not affect his general state of health, which was apparently good.
61. The applicant submitted that the Government had not provided any explicit explanation, let alone a plausible one, for what had happened, and had thus failed to show that its agents had not been responsible for the death of Mr Tsonchev. The Government had only implied, in their submissions to the Court, that Mr Tsonchev might have received his injuries by falling on the ground, due to his alcohol intoxication. However, it sufficed to examine the conclusions of the forensic report concerning the type and the size of the injuries which had caused Mr Tsonchev's death to discard such a version of the facts as implausible.
62. The applicant further submitted that Mr Tsonchev had not received adequate medical treatment for several hours, while he had been in police custody apparently suffering from life-threatening injuries. The applicant stated that Bulgarian legislation contained no provisions guaranteeing access to a doctor for persons deprived of their liberty.
She further disputed the Government's position that everything possible had been done. She recalled that, according to the police officers' testimonies, the doctor who had seen Mr Tsonchev, and whose identity was never disclosed, had stated that Mr Tsonchev had been too drunk to be examined. In the applicant's view these facts, if they were true, could only serve to establish the doctor's liability for medical malpractice, and not as grounds for the conclusion that adequate measures had been taken. She submitted that there were two possible explanations: either the doctor had arrived after the death of Mr Tsonchev and, appalled by what the police had done, had refused cooperation, or no doctor had ever arrived, the whole story having been made up by the police. In either case, Mr Tsonchev had been denied appropriate and timely medical care.
63. The applicant also alleged that the authorities had failed in their duty under Article 2 of the Convention to undertake a prompt, thorough and effective investigation into the circumstances surrounding Mr Tsonchev's death. Although the investigation had started promptly, nothing had been done since December 1994, despite the applicant's repeated requests.
64. The applicant further contended that the investigation had been characterised by a number of omissions and inconsistencies which had resulted in most of the questions surrounding the death of Mr Tsonchev remaining unanswered. In the applicant's view these omissions were so numerous and so striking that they could only be described as an effort by the investigation authorities to cover up for the police, rather than to investigate their acts.
2. The Government
65. The Government contended that the complaints under Article 2 were manifestly ill-founded. In their view, the applicant's allegation that Mr Tsonchev had died as a result of ill-treatment by police officers was not supported by the evidence in the case. The investigation had established that prior to his arrest he had consumed a large quantity of alcohol and that he had been staggering and falling when apprehended and later at the police station. At the same time little and highly contradictory evidence was available regarding the manner in which he had spent the hours prior to his arrest.
The Government submitted that the forensic medical experts had concluded that the fatal injuries could have been the result of falling. These considerations and the fact that no evidence of police brutality was established during the investigation should, in their view, lead to the conclusion that the applicant's allegations were unfounded.
66. The Government further maintained that until 10 p.m. on 24 September 1994, Mr Tsonchev had not complained of any ailment. He had been under the influence of alcohol and had not been communicative. It was normal in these circumstances that the police officers had decided to leave him to sober up. When Mr Tsonchev had complained that he felt unwell, an emergency medical team had urgently been dispatched, but the doctor had found it impossible to examine him due to his state of alcohol intoxication. In the Government's view, therefore, the police could not be held responsible for not having provided adequate medical treatment. In fact, everything possible was done.
67
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. The Government also affirmed that all necessary investigation steps had been undertaken promptly. An investigator had visited the site immediately after Mr Tsonchev's death and had then proceeded with questioning witnesses. An autopsy had been ordered and promptly performed. Therefore, the allegation that the investigation was not effective was also unfounded.
B. The Court's assessment
1. As to the alleged killing of Mr Tsonchev
68. The Court recalls that Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. In the light of the importance of the protection afforded by Article 2, the Court must subject to the most careful scrutiny complaints about deprivation of life (see, among other authorities, Çakıcı v. Turkey [GC], no. 23657/94, § 86, ECHR 1999-IV).
69. In the present case it is alleged by the applicant that the authorities were responsible for the death of Mr Tsonchev. It is alleged that he was severely beaten while in the hands of the police, that he did not receive proper medical treatment despite the grave injuries thus inflicted, and that he died as a consequence.
70. The Court considers that where an individual is taken into police custody in good health but is later found dead, it is incumbent on the State to provide a plausible explanation of the events leading to his death, failing which the authorities must be held responsible under Article 2 of the Convention (see, mutatis mutandis, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V).
In assessing evidence, the general principle applied in cases has been to apply the standard of proof “beyond reasonable doubt” (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, § 61). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control while in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.
71. The “cause of Mr Tsonchev's death was the acute loss of blood resulting from the large and deep haematomas on the upper limbs and the left buttock”.
The autopsy disclosed no other ailment or injury which could have led to the fatal outcome (see paragraph 30 above).
72. It is undisputed that Mr Tsonchev had consumed a certain quantity of alcohol prior to his arrest. However, it is also undisputed that, at the moment of his arrest, he was enjoying drinks in the company of others, that he could walk, that there was some verbal communication between him and the police officers and other persons, that in the course of this verbal communication, at the time of the arrest and within the next two hours, Mr Tsonchev did not complain of any ailment, and that none of those having been in contact with him, including the police officers involved, reported any visible sign of such grave injuries as were found later by the autopsy (see paragraphs 14-19 above).
On the basis of the above the Court finds implausible the Government's suggestion that Mr Tsonchev might have received his fatal injuries prior to his arrest.
73. The Government's other supposition, that Mr Tsonchev might have been injured by falling on the ground, when apprehended and later at the police station, as he was allegedly staggering, is equally implausible. The post-mortem report mentioned such a possibility only in respect of the bruises on Mr Tsonchev's face. These bruises were not among the injuries that led to the acute loss of blood and, eventually, to the fatal outcome.
As regards the fatal injuries, the Court notes that according to the prosecutor's decision of 19 March 1996 they had been the result of “deliberate beating” (see paragraph 37 above). Indeed, the acute loss of blood was the result of symmetrical haematomas on the upper limbs, measuring 40 by 18 cm each, and a haematoma on the left buttock, which was 8 to 10 cm long and 1.5 to 2 cm wide. The forensic expert did not mention falling on the ground as a possible means of inflicting injuries of such gravity and of such particular characteristics. According to the post‑mortem report, the injuries on the left buttock “resulted from the impact of a long hard object(s), with a limited narrow surface, longish, approximately 2 cm wide” and, those on the upper limbs, from “the impact of − blows by or collision with
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− a hard blunt object”, the shape of which could not be determined (see paragraph 30 above). The above evidence does not support the Government's contention that Mr Tsonchev could have injured himself by falling on the ground.
74. The Court finds, therefore, that there is sufficient evidence on which it may be concluded beyond reasonable doubt that Mr Tsonchev died as a result of injuries inflicted while he was in the hands of the police. The responsibility of the respondent State is thus engaged.
75. The Court also finds that there is no evidence of Mr Tsonchev having been examined with the care one would expect from a medical professional at any time while in custody, and suffering from severe injuries (see paragraph 22 above).
76. The Court concludes, therefore, that there has been a violation of Article 2 of the Convention in respect of the death of Mr Tsonchev.
2. As to the alleged lack of a meaningful investigation
77. The Court observes at the outset that certain references in the material submitted to it could lead to the supposition that there exist documents concerning the investigation into the death of Mr Tsonchev, copies of which have not been provided by the Government (see, inter alia, paragraphs 22 and 33 above). In this respect the Court recalls that it is of utmost importance for the effective operation of the Convention system of individual petition that States furnish all necessary facilities to enable a proper and effective examination of applications, as required by Article 38 of the Convention (see Çakıcı cited above, § 76).
In the particular circumstances of the case, it is nevertheless not necessary to examine whether the Government have complied with their obligations under Article 38 of the Convention. For the purposes of the applicant's complaint that there has been no effective investigation into the death of Mr Tsonchev, it suffices to note that the Government were requested to submit “copies of all documents contained in the files of all authorities which [had] dealt with the investigation into the death of Mr Tsonchev” and that in reply, on 11 November 1999, the Government submitted “copies of all documents contained in the files” (see paragraphs 6 and 7 above). The Court is thus entitled to draw the inference that the material submitted to it contains all information about the investigation (see the Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-VI, pp. 2439-40, § 103).
78. The Court notes that the investigation into the death of Mr Tsonchev commenced promptly, immediately after he was found dead at the police station in Pleven, with a visit on the site, a questioning of witnesses and an autopsy.
It is observed, however, that there were numerous unexplained omissions from the very beginning and throughout the investigation.
79. In the first hours after the tragic event, when ordering an autopsy, investigator Enchev failed to ask the forensic expert to state his opinion as to the time the fatal injuries occurred, despite the obvious crucial importance of obtaining an answer to that question (see paragraph 29 above). Strikingly, throughout the investigation, no expert was ever asked to comment on the time at which the victim sustained his injuries.
It is also highly significant that the investigation file contains no trace of any attempt by investigator Enchev to identify the members of the medical team who, according to the statements of the police officers involved, visited the Pleven police station twice during the night when Mr Tsonchev died. Copies of the records of the hospital emergency unit, which would normally contain information about the alleged visit, are not to be found in the investigation file (see paragraphs 22, 25 and 38-40 above).
Furthermore, a number of important witnesses were never examined or were not asked certain key questions. Police officer Petranov, who arrested Mr Tsonchev together with his colleague Ivanov, was never questioned. It appears that Mr I.P., who was detained at the Pleven police station during the night in question, and who must have observed Mr Tsonchev's deterioration, was not questioned either. Finally, the investigator did not deem it necessary to obtain the testimony of any of the twenty to thirty persons who had gathered in front of the cattle owners' home and who, according to the police officers involved, “wanted to beat up [Mr Tsonchev]” (see paragraphs 14, 18, 21 and 23 above).
80. The Court recalls that the State's obligation under Article 2 to protect the right to life, read in conjunction with its general duty under Article 1 to “secure to everyone within their jurisdiction the rights and freedoms defined [therein]”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The investigation must be, inter alia, thorough, impartial and careful (see the McCann and Others v. the United Kingdom judgment of 27 September 1995
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, Series A no. 324, p. 49, §§ 161-63, and Çakıcı cited above, § 86).
The Court further considers that the nature and degree of scrutiny which satisfies the minimum threshold of the investigation's effectiveness depends on the circumstances of the particular case. It must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work. It is not possible to reduce the variety of situations which might occur to a bare check-list of acts of investigation or other simplified criteria (see Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 101-10, ECHR 1999-IV; the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, pp. 325-26, §§ 89-91; and the Güleç v. Turkey judgment of 27 July 1998, Reports 1998-IV, pp. 1732-33, §§ 79-81).
81. In the present case the applicant submits that the deficiencies of the investigation were so grave and numerous that the only possible explanation could be that the investigator and the prosecutor were biased and endeavoured to cover up the crime committed against Mr Tsonchev.
82. The Court considers that unexplained failure to undertake indispensable and obvious investigative steps is to be treated with particular vigilance. In such a case, failing a plausible explanation by the Government as to the reasons why indispensable acts of investigation have not been performed, the State's responsibility is engaged for a particularly serious violation of its obligation under Article 2 of the Convention to protect the right to life.
83. The Court observes that there existed obvious means to obtain evidence about the time at which Mr Tsonchev's injuries occurred and further important evidence about the circumstances surrounding his arrest, his state of health and, consequently, about the perpetrators of the grave crime committed against him (see paragraph 79 above). However, the investigator did not proceed to collect such evidence, an omission which was sanctioned through the order of 19 March 1996 and the letter of 3 June 1997 by the regional prosecutor (see paragraphs 37 and 40 above).
Furthermore, the investigation remained dormant, nothing having been done since December 1994 to uncover the truth about the death of Mr Tsonchev. The applicant's numerous complaints of the authorities' inactivity were to no avail (see paragraphs 35-40 above).
No plausible explanation for the reasons of the authorities' failure to collect key evidence was ever provided by the Government.
84. The Court finds, therefore, that there has been a violation of the respondent State's obligation under Article 2 of the Convention to conduct an effective investigation into the death of Mr Tsonchev.
III. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION
85. The applicant alleged that the excessive length of the investigation into the death of Mr Tsonchev amounted to a violation of her right under Article 6 § 1 of the Convention to a determination “within a reasonable time” of her civil right to compensation arising out of the death. She also submitted that there had been violations of Article 13 of the Convention in that the authorities had failed to carry out a thorough, effective and timely investigation into Mr Tsonchev's death and in that Bulgarian law did not provide for an effective remedy against the inactivity of the prosecution authorities.
86. The Court considers that these complaints fall to be examined under Article 13 of the Convention, which provides 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.”
87. The applicant submitted that there had been an inexcusable inactivity on the part of the authorities.
She asserted that the failure to carry out a thorough and effective investigation in this case reflected a broader pattern in Bulgaria, which had been noted by intergovernmental organisations.
She referred to the report of the Special Rapporteur on Torture to the United Nations Commission on Human Rights (UN Document E/CN.4/1997/7 of 10 January 1997), which stated, inter alia, that “[t]he Special Rapporteur [was] concerned by the frequency of allegations of torture or ill-treatment, sometimes followed by death, of persons in police custody. The rarity of any disciplinary measures and of investigations leading to criminal prosecutions, as well as the virtual absence of successful prosecutions of those responsible, can only lead to a climate of impunity. [The Special Rapporteur] believes the government should establish measures to ensure the independent monitoring, on a sustained basis, of the arrest, detention, and interrogation practices of the relevant law enforcement agencies”.
The applicant finally referred to the most recent annual report of the United Nations' Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance (UN Document E/
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CN.4/1999/15 of 15 January 1999), where it was stated that “police abuse of Roma in custody [was] widespread in Bulgaria... Since 1992, at least fourteen Roma men in Bulgaria have died after having last been seen alive in police custody, or as a result of the unlawful use of firearms by law enforcement officers... As a rule investigative and judicial remedies are rare”.
88. The Government submitted that if the applicant had been a legal successor of Mr Tsonchev, she could have applied to be admitted as a party to the criminal proceedings (as a private prosecutor or as a plaintiff claiming damages). As a party to the criminal proceedings, she would have been entitled to request the collection of evidence and would have had access to the case file. In the event of a refusal of a prosecutor to admit the applicant or Mr Tsonchev's heirs as parties to the proceedings, appeals could have been lodged with the higher prosecutor.
The Government also submitted that the applicant could bring a civil action for damages in separate civil proceedings and concluded that Bulgarian law provided for effective legal remedies, which had not been used by the applicant or Mr Tsonchev's heirs.
As to the length of the investigation, the Government maintained that it was justified and not unreasonable in view of the complex factual issues in the case and the time needed for various procedural acts.
Finally, the Government submitted that the criminal investigation had not been terminated and that the authorities were under a legal obligation to act if new evidence came to light.
89. The Court recalls 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 scope of the obligation under Article 13 also 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.
A violation of Article 2 cannot be remedied exclusively through an award of damages (see the Kaya judgment cited above, p. 329, § 105). Given the fundamental importance of the right to protection of life, Article 13 imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation likely to lead to those responsible being identified and punished, and in which the complainant has effective access to the investigation proceedings (see Çakıcı cited above, §§ 112-13).
90. In the instant case, having regard to paragraphs 78 to 84 above, the Court finds that the respondent State has failed to comply with its obligation to carry out an effective investigation into the death of Mr Tsonchev. This failure undermined the effectiveness of any other remedies which might have existed. Therefore, the question about the applicant's status in the criminal investigation does not call for a separate examination.
There has been, therefore, a violation of Article 13 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
91. The applicant claimed that there had been discrimination contrary to Article 14 of the Convention on the basis of Mr Tsonchev's Roma (Gypsy) ethnic origin. Article 14 of the Convention provides as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
92. The applicant submitted that popular prejudice against the Roma people in Bulgaria was widespread and frequently manifested itself in acts of racially motivated violence against Roma, to which the authorities reacted by inadequate investigation leading to practical impunity. The applicant stated that this phenomenon had been documented by human rights monitoring organisations and had been acknowledged by the Bulgarian government. She referred, inter alia, to the 14th Periodic Report of States Parties (Addendum – Republic of Bulgaria) of 26 June 1996, issued by the United Nations Committee on the Elimination of Racial Discrimination; to the reports of 25 January and 24 December 1996 (E/CN.4/1996/4 and E/CN.4/1997/60) by Mr Bacre Waly Ndiaye, Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, commissioned by the United Nations Commission on Human Rights; to the report of the European Committee for the Prevention of Torture of 6 March 1997; and to reports of non-governmental organisations.
The applicant maintained that Mr Tsonchev's ethnic origin had been known to the police officers who had apprehended him and held him in custody and that the officers' perception thereof had been so strong that at least one of them, Sergeant Ivanov, in testimony
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during the investigation, had made explicit references to his ethnic origin. The remark of investigator Enchev that no injuries were visible on Mr Tsonchev's body due to the “dark colour of the skin” was also an expression of bias. In the applicant's view, based on her experience over many years with law enforcement and investigation authorities in Bulgaria, the police officers' perception of Mr Tsonchev's ethnicity was a decisive factor in contributing to his ill‑treatment and murder. Prejudice was also the reason for the refusal to investigate.
93. The Government replied that there was nothing to indicate that the police acted on the basis of Mr Tsonchev's ethnic origin. He was arrested on the suspicion of having committed a serious crime. Mentioning the word “Gypsy” was not discriminatory because his ethnic origin was indeed that of a “Gypsy”.
The Government further submitted that they were actively working on the better integration in society of persons of Gypsy origin. A National Council on Ethnic and Demographic Issues, whose members are representatives of non-governmental organisations and State officials, was created in 1997. There exist in the country a number of non-governmental organisations defending the interests of persons of Gypsy origin. In April 1999, following an extensive dialogue with representatives of the community, the National Council adopted a programme on the integration of Gypsies in society. The Government are thus actively working on maintaining a climate of ethnic tolerance and social cohesion.
94. The Court observes that the applicant's complaint under Article 14 is grounded on a number of serious arguments. It also notes that the respondent State failed to provide a plausible explanation as to the circumstances of Mr Tsonchev's death and as to the reasons why the investigation omitted certain fundamental and indispensable steps which could have shed light on the events (see paragraphs 69-76 and 81-84 above).
The Court recalls, however, that the standard of proof required under the Convention is “proof beyond reasonable doubt”. The material before it does not enable the Court to conclude beyond reasonable doubt that Mr Tsonchev's death and the lack of a meaningful investigation into it were motivated by racial prejudice, as claimed by the applicant.
It follows that no violation of Article 14 has been established.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
95. 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. Non-pecuniary damage
96. The applicant claimed 100,000 French francs (FRF) in compensation for the pain and suffering resulting from the violations of the Convention and an order of the Court that this amount be paid directly to her in full, free of taxes or of any claim or attachment by the government or by third persons. The applicant also requested the Court to order that there should be no negative consequences for her, such as reduction in social benefits due to her, as a result of the receipt of the above amount.
The applicant stated that Mr Tsonchev was the person with whom she had been living for twelve years and who was the father of her three children. The pain experienced at the loss of someone so close was aggravated by the failure of the competent authorities to investigate the tragic events and to render justice. The applicant further stated that she still cared for their children and that any amount awarded in damages would also benefit them.
97. The Government submitted that the amount was excessive, referring to the case of Assenov and Others v. Bulgaria (judgment of 28 October 1998, Reports 1998-VIII). They argued that the standard of living in Bulgaria should be taken into account and that the finding of a violation of the Convention would be sufficient just satisfaction.
98. The Court considers that the applicant must have suffered gravely as a result of the serious violations, found in the present case, of the most fundamental human rights enshrined in the Convention. The Court notes, inter alia, that the case concerns the death of the applicant's partner and father of three of her children.
The Court considers, in the light of its case-law (see Oğur v. Turkey [GC], no. 21594/93, § 98, ECHR 1999-III, and the following judgments cited previously: Kaya, p. 333, § 122; Ergi, p. 1785, § 110; Yaşa, pp. 2444-45, § 124; Çakıcı, § 130; Tanrıkulu, § 138; and Güleç, p. 1734, § 88), that the applicant's claim is not excessive and, accordingly, awards it in full.
99. In respect
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of the applicant's request for an order that there be no attachment of the above amount, the Court considers that the compensation fixed pursuant to Article 41 and due by virtue of a judgment of the Court should be exempt from attachment. It would be incongruous to award the applicant an amount in compensation for, inter alia, deprivation of life constituting a violation of Article 2 of the Convention if the State itself were then allowed to attach this amount. The purpose of compensation for non‑pecuniary damage would inevitably be frustrated and the Article 41 system perverted, if such a situation were to be deemed satisfactory. However, the Court has no jurisdiction to make an order exempting compensation from attachment (see, among other authorities, the Philis v. Greece (no. 1) judgment of 27 August 1991, Series A no. 209, p. 27, § 79; the Allenet de Ribemont v. France judgment of 7 August 1996, Reports 1996-III, p. 910, §§ 18-19; and Selmouni cited above, § 133). It must therefore leave this point to the discretion of the Bulgarian authorities.
B. Pecuniary damage
100. The applicant claimed FRF 39,047.55 (being 11,295.85 new Bulgarian levs (BGN)) for pecuniary damage. She stated that Mr Tsonchev had been the main support of the family and that his death had resulted in a significant loss of income for herself and their three children.
The applicant was unable to present documentary proof of Mr Tsonchev's income. She claimed that its source was mainly petty trade of services for goods or food. This activity was never documented, as in the case of most Romanies in Bulgaria, the majority of whom are unemployed and for whom irregular, unofficial and low-paid work in the shadow economy remains the only viable supplement to what the applicant described as the inadequate social-welfare payments.
The applicant submitted that in these circumstances strict adherence to the requirement of supporting documents would make impossible any award of pecuniary compensation to Romanies or other persons who live in a strictly cash economy. That, in turn, would be incompatible with the purpose of Article 41.
The applicant, therefore, proposed to calculate the pecuniary damage suffered by her on the basis of the average life expectancy for men in Bulgaria and the minimum monthly salary in the country, with a 20% reduction for the deceased person's own living expenses.
101. The Government stated that the applicant was not entitled to a survivor's pension as she was never married to Mr Tsonchev. They further noted that no documentary proof had been submitted in respect of his income. Furthermore, it was unclear whether he would have lived to the average life expectancy. The Government also noted that the minimum monthly salary of BGN[2] 67 (the equivalent of FRF 225), which was used by the applicant in her calculation, was in force since July 1999, whereas at the time of Mr Tsonchev's death it was 2,143 old Bulgarian levs (BGL) (about FRF 190 at that time) and had always been fluctuating.
102. The Court finds that the applicant must have suffered pecuniary damage in the form of loss of income resulting from the death of Mr Tsonchev. However, the method used by her in calculating the loss of income for the family is far from precise. The applicant has not presented an actuarial report. The Court is therefore obliged to deal with the claim on an equitable basis.
As regards the Government's arguments, the Court notes that the applicant's claim is based on the fact that she was living with Mr Tsonchev and that, as alleged by her, he was providing for the family, and would have continued to do so if he were alive. The question whether the applicant was entitled to a survivor's pension is therefore irrelevant.
Deciding on an equitable basis, the Court awards BGN 8,000.
C. Costs and expenses
103. The applicant claimed 5,081 United States dollars (USD) and FRF 6,304 in respect of 103 hours of work on the domestic proceedings and the Strasbourg proceedings performed by her counsel, Mr Dimitrov and Mr Grozev, out-of-pocket expenses, as well as air fares and expenses related to the appearance of the applicant and Mr Grozev at the hearing before the Court in Strasbourg. The amount claimed by the applicant is the equivalent of about BGN 12,000.
The Government objected that the lawyers' claim for fees at the rate of USD 40 per hour was excessive, regard being had to the fact that a judge of high rank in Bulgaria earned the equivalent of about USD 3 per hour. The Government submitted that there was an alarming tendency of transforming cases before the Court into a business intended to benefit not the applicants, who were seeking their own rights, but their lawyers. The Government maintained that
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, once a case came to an advanced stage, lawyers had little difficulty in obtaining the signature of an applicant under any agreement on legal fees, with the expectation that the State would be paying.
The Government accepted as reasonable the claims related to the costs and expenses for the hearing in Strasbourg.
104. The Court considers that, as a whole, the sums claimed by the applicant are not excessive, regard being had to its case-law and, in particular, the sums awarded in the case of Nikolova v. Bulgaria ([GC], no. 31195/96, § 79, ECHR 1999-II).
Deciding on an equitable basis, the Court awards under the head of costs and expenses BGN 10,000, together with any value-added tax that may be chargeable, less FRF 14,693 received by the applicant by way of legal aid, to be converted into Bulgarian levs at the rate applicable on the date of settlement.
D. Default interest
105. According to the information available to the Court, the statutory rate of interest applicable in Bulgaria at the date of adoption of the present judgment is 13.23% per annum and in France 2.74% per annum.
FOR THESE REASONS, THE COURT unanimously
1. Dismisses the Government's preliminary objections;
2. Holds that there has been a violation of Article 2 of the Convention in respect of the death of Mr Tsonchev;
3. Holds that there has been a violation of Article 2 of the Convention in respect of the respondent State's obligation to conduct an effective investigation;
4. Holds that there has been a violation of Article 13 of the Convention;
5. Holds that there has been no violation of Article 14 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 according to Article 44 § 2 of the Convention, the following amounts:
(i) for non-pecuniary damage, FRF 100,000 (one hundred thousand French francs);
(ii) for pecuniary damage, BGN 8,000 (eight thousand Bulgarian levs);
(iii) for costs and expenses, BGN 10,000 (ten thousand Bulgarian levs), plus any value-added tax that may be chargeable, less FRF 14,693 (fourteen thousand six hundred and ninety three French francs) to be converted into Bulgarian levs at the rate applicable on the date of settlement;
(b) that simple interest shall be payable from the expiry of the above‑mentioned three months until settlement at an annual rate of 13.23% in respect of the amounts in Bulgarian levs and at annual rate of 2.74% in respect of the amounts in French francs;
7. Dismisses the remainder of the applicant's claims for just satisfaction.
Done in English, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 18 May 2000.
Vincent BergerMatti Pellonpää RegistrarPresident
[1]1. Note by the Registry. See Velikova v. Bulgaria (dec.), no. 41488/98, ECHR 1999-V (extracts) The full text of the Court’s decision is obtainable from the Registry.
[1]1. Under Bulgarian law, driving with a blood alcohol level of over 0.5 per thousand is an administrative offence (section 174 of the Road Traffic Law as in force since 1 September 1999).
[2]1. As of July 1999, 1,000 old Bulgarian levs (BGL) became 1 new Bulgarian lev (BGN).
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THIRD SECTION
CASE OF BUGARIĆ v. SERBIA
(Application no. 62208/13)
JUDGMENT
STRASBOURG
19 April 2016
This judgment is final but it may be subject to editorial revision.
In the case of Bugarić v. Serbia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Helena Jäderblom, President,Dmitry Dedov,Branko Lubarda, judges,and Stephen Philips, Section Registrar,
Having deliberated in private on 22 March 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 62208/13) against the Republic of Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Serbian national, Ms Zorica Bugarić (“the applicant”), on 25 September 2013.
2. The applicant was represented by Mr R. Marinković, a lawyer practising in Novi Pazar. The Serbian Government (“the Government”) were represented by their Agent, Ms V. Rodić.
3. On 16 September 2014 the application was communicated to the Government.
4. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1957 and lives in Novi Pazar.
6. She was employed by DP “Raška Holding Kompanija” AD, a socially-owned company based in Novi Pazar (hereinafter “the debtor”).
A. Civil proceedings brought by the applicant
7. On 30 June 2004, 25 September 2009 and 21 December 2009 respectively, the Novi Pazar Municipal Court ordered the debtor to pay the applicant certain amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. These judgments became final on 15 September 2004, 20 October 2009 and 5 October 2010 respectively.
8. On 5 October 2004 and 11 July 2011 respectively, upon the applicant’s request to that effect, the Novi Pazar Municipal Court ordered the enforcement of the said judgments; it further ordered the debtor to pay the applicant the enforcement costs.
B. The debtor’s status
9. On 11 September 2013 the Kraljevo Commercial Court opened preliminary insolvency proceedings against the debtor.
10. On 25 October 2013 the same court opened insolvency proceedings against the debtor.
11. The insolvency proceedings are still ongoing.
II. RELEVANT DOMESTIC LAW AND PRACTICE
12. The relevant domestic law concerning the status of socially-owned companies, as well as the enforcement and insolvency proceedings, is outlined in the cases of R. Kačapor and Others v. Serbia, nos. 2269/06 et al., §§ 57-64 and 71-76, 15 January 2008 and Jovičić and Others v. Serbia (dec.), no. 37270/11, §§ 88-93, 15 October 2013. Furthermore, the case-law of the Constitutional Court in respect of socially-owned companies, together with the relevant provisions concerning constitutional redress are outlined in the admissibility decision in Marinković v. Serbia (dec.), no. 5353/11, §§ 26 -29 and 31-44, 29 January 2013, the judgment in Marinković v. Serbia, no. 5353/11, §§ 29-31, 22 October 2013, and the decision in Ferizović v. Serbia (dec.), no. 65713/13, §§ 12-17, 26 November 2013.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
13. The applicant complained of the respondent State’s failure to enforce final court judgments rendered in her favour and of the lack of an effective remedy in that connection. She relied on Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1, which, in so far as relevant, read as follows:
Article 6 § 1
“In the determination
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of his civil rights and obligations..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. Admissibility
14. The Government submitted that the application should be declared inadmissible due to the applicant’s failure to exhaust effective domestic remedies. They relied on Court’s case law, namely on the case of Marinković, cited above, and pointed out that since the insolvency proceedings against the debtor were opened on 11 September 2013 the applicant should have lodged a constitutional appeal before bringing her application to the Court.
15. The applicant disagreed.
16. The Court has already ruled that as regards the non-enforcement of final judgments rendered against socially-owned companies undergoing insolvency proceedings and/or those which have ceased to exist, a constitutional appeal should, in principle, be considered as an effective remedy in respect of all applications lodged from 22 June 2012 onwards (see Marinković (dec.), cited above, § 59).
17. In the present case, the Court notes that the applicant submitted her application on 25 September 2013, namely before the insolvency proceedings were formally opened against the debtor (see paragraph 10 above).
18. The Court considers that the applicant had indeed had no obligation to use constitutional redress before turning to the Court. The Court, therefore, rejects the Government’s objection in this regard.
19. Since the applicant’s complaint is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds, it must be declared admissible.
B. Merits
20. The Court notes that the final judgments rendered in the applicant’s favour remain unenforced to the present date.
21. The Court observes that it has frequently found violations of Article 6 § 1 of the Convention and/or Article 1 of Protocol No. 1 to the Convention in cases raising issues similar to those raised in the present case (see R. Kačapor and Others, cited above, §§ 115-116 and 120; Crnišanin and Others v. Serbia, nos. 35835/05, 43548/05, 43569/05 and 36986/06, §§ 123-124 and 133-134, 13 January 2009; Rašković and Milunović v. Serbia, nos. 1789/07 and 28058/07, §§ 74 and 79, 31 May 2011; and Adamović v. Serbia, no. 41703/06, § 41, 2 October 2012).
22. 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. There have, accordingly, been violations of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention.
23. Having reached this conclusion, the Court does not find it necessary to examine essentially the same complaint under Article 13 of the Convention (see mutatis mutandis, Kin-Stib and Majkić v. Serbia, no. 12312/05, § 90, 20 April 2010).
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, costs and expenses
25. The applicant requested that the State be ordered to pay, from its own funds: (i) the sums awarded by the final judgments rendered in her favour; (ii) 5,500 euros (EUR) in respect of non-pecuniary damage; (iii) an unspecified amount for the costs and expenses incurred before the Court.
26. The Government contested these claims.
27. Having regard to the violations
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found in the present case and its own case-law (see R. Kačapor and Others, cited above, §§ 123-126, and Crnišanin and Others, cited above, § 139), the Court considers that the applicant’s claims for pecuniary damage concerning the payment of the outstanding judgment debt must be accepted. The Government shall therefore pay the applicant the sums awarded in the final domestic judgments adopted on 30 June 2004, 25 September 2009 and 21 December 2009 as well as the costs of the enforcement proceedings, less any amounts which may have already been paid in respect of the said judgments.
28. The Court further 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 finding of a violation alone (see Radovanović, cited above, § 39). Having regard to its case-law (Stošić v. Serbia, no. 64931/10, §§ 66-68, 1 October 2013), the Court awards EUR 2,000 to the applicant. This sum is to cover non-pecuniary damage, costs and expenses.
B. Default interest
29. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there have been violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention;
3. Holds that there is no need to examine separately the complaint under Article 13 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicant, from its own funds and within three months, the sums awarded in the court judgments rendered in her favour, less any amounts which may have already been paid in this regard;
(b) that the respondent State is to pay the applicant, within the same period, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, costs and expenses, plus any tax that may be chargeable to the applicant, which is to be converted into the 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 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 19 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen PhilipsHelena JäderblomRegistrarPresident
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SECOND SECTION
CASE OF AYHAN ERDOĞAN v. TURKEY
(Application no. 39656/03)
JUDGMENT
STRASBOURG
13 January 2009
FINAL
13/04/2009
This judgment may be subject to editorial revision.
In the case of Ayhan Erdoğan v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Françoise Tulkens, President,Ireneu Cabral Barreto,Vladimiro Zagrebelsky,Danutė Jočienė,Dragoljub Popović,Nona Tsotsoria,Işıl Karakaş, judges,and Sally Dollé, Section Registrar,
Having deliberated in private on 9 December 2008,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 39656/03) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Ayhan Erdoğan (“the applicant”), on 17 September 2003.
2. The applicant was represented by Ms Ş. Özdemir, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
3. On 11 September 2007 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the alleged interference with the applicant’s freedom of expression to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1952. He is a practising lawyer and lives in Istanbul.
5. On an unspecified date the applicant, on behalf of his client Mr O.M., filed an action with the Istanbul Administrative Court seeking the annulment and suspension of execution of a competition to fill 49 posts announced in the Akit newspaper on 10 December 1997 by the office of the mayor of the Ümraniye district in Istanbul. In his petition, the applicant stated, inter alia, that 111 out of 137 workers who had been dismissed on 13 June 1994 had won their cases before the Administrative Courts but despite this fact they had not been reinstated. In this regard, the applicant submitted that the municipality had refused to reinstate 20 of the workers on the ground that there were no available posts. As to the other 91, they had been reinstated for a day before being dismissed again. The applicant complained that pending another set of administrative proceedings against the Municipality regarding a competition announced in the same newspaper on 30 March 1997 for 49 posts, the Municipality had announced this new competition, through which it was aiming to fill the available posts, rendering impossible the enforcement of the court judgments in favour of the dismissed employees, including his client. He further claimed that the vacancy notice had been published only in the editions of Akit which were distributed to various associations affiliated with the Refah party and not in the normal edition of Akit as distributed in Istanbul that same day.
6. In one paragraph of his petition, the applicant made the following remark:
“As stated by political historians, the most dangerous cruel [person] (zalim) in the world is the one who considers himself and his acts as fair or who presents himself as such. The elected head of the accused administration, who has placed my clients in their current situation, is such a cruel [person](zalim) and a bigot (yobaz) with no regard for the rule of law (hukuk tanımaz).”
7. On 24 April 1998 Mr Bingöl, mayor of Ümraniye and member of the Refah party, brought an action against the applicant claiming compensation for the damage he had incurred as a result of the applicant’s serious attack on his honour and integrity.
8. In the course of the proceedings before the Üsküdar Civil Court of First Instance (hereafter the “Üsküdar Court”), the applicant unsuccessfully asked the court to appoint expert witnesses to analyse the impugned words and to hear a number of witnesses. In his written observations, the applicant maintained, inter alia, that his statements had not been an attack against Mr Bingöl but mere observations, since there were documents proving to what degree the latter had
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acted in accordance with the laws, the Constitution and ethics over the previous five years. He made a number of accusations regarding Mr Bingöl’s actions as mayor and referred to the fact that the latter and his administration had been the subject of media attention many times. The applicant stated that he had used the impugned words in the course of his defence duties; it had not been his aim to insult Mr Bingöl. He had referred to the plaintiff as “cruel” because the dismissals had had serious adverse effects on the lives of his 137 clients. He had used the word “bigot” as a reference to an intolerant person. In this connection, the applicant also referred to the reasons voiced by the Constitutional Court when it decided to ban the Refah party. The applicant also accused the plaintiff of misleading and lying to the domestic courts.
9. In his written observations Mr Bingöl claimed, inter alia, that the applicant’s accusations were false and unfounded, that he had repeated his insulting remarks before the Üsküdar Court and that this attack on his personality had transgressed the standards and boundaries of objective debate.
10. On 27 September 1999 the Üsküdar Court ordered the applicant to pay compensation to Mr Bingöl in the amount of 2,500,000,000 Turkish liras (TRL - approximately 5,200 euros [EUR]) plus interest at the statutory rate applicable at the date of the court’s decision. The Üsküdar Court considered that the word yobaz used by the applicant meant a person “whose religious beliefs were so extreme as to cause discomfort to other persons” and a person who was “provocative, vulgar and unsophisticated”. The word was used in daily life to describe an “unlikeable, ignorant and vulgar” person. In any event, the applicant’s written submission, when read as a whole, had employed “sharp and harsh” language. According to the Üsküdar Court, whether or not the applicant had had the intention to insult the mayor was irrelevant; what was important was how the public would interpret those words. After all, Mr Bingöl was the elected mayor of a district where one million people lived. The applicant appealed.
11. On 22 February 2000 the 4th Chamber of the Court of Cassation’s Civil Division held a hearing and, by a majority, quashed the Üsküdar Court’s decision of 27 September 1999 on the ground, inter alia, that the applicant’s witnesses had not been heard. The president of the Chamber dissented.
12. On 14 December 2000 the Üsküdar Court, considering that hearing the applicant’s witnesses and examining the administrative court’s case file would not have changed the outcome, insisted on its decision of 27 September 1999. The applicant appealed again.
13. On 20 March 2002 the Grand Chamber of the Court of Cassation’s Civil Division rejected the appeal and upheld the Üsküdar Court’s decision of 27 September 1999. The court noted that there was no dispute that, inter alia, the municipality headed by Mr Bingöl had failed to execute certain court judgments. However, it remained to be determined whether the words used by the applicant in the course of the administrative proceedings had a valid basis and whether these words constituted an attack against Mr Bingöl’s personal rights. In this connection, it considered that the applicant had overstepped the standards and boundaries of objective debate by using the terms “bigot”, “cruel” and “no regard for the rule of law”. The applicant had attacked Mr Bingöl’s personal rights. It also considered that the sanctions for the non-execution of a court decision – of which the mayor had been accused – were provided for by statute and that this could not be considered to be a valid reason for the applicant to cross the legally permissible boundaries and use the words he had. Finally, it held that listening to witnesses or examining the case file before the administrative courts would not have changed the outcome. The Grand Chamber of the Court of Cassation’s Civil Division also decided to remit the case to the 4th Chamber of the Court of Cassation’s Civil Division for an examination of the applicant’s complaints concerning the excessive amount of compensation. A request by the applicant for the review of that decision was rejected on 25 September 2002.
14. On 16 January 2003 the 4th Chamber of the Court of Cassation’s Civil Division rejected the applicant’s appeal concerning the amount of compensation, which he considered excessive when account was taken of his resources, and upheld the decision of the Üsküdar Court. A request by the applicant for the review of that decision was rejected on 24 April 2003.
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15. The applicant paid the due amount of TRL 9,627,000,000 (approximately EUR 5,637[1]), in three instalments, on 27 February 2003, 20 March 2003 and 8 May 2003 respectively.
II. RELEVANT DOMESTIC LAW AND PRACTICE
16. The relevant domestic law and practice in force at the material time are outlined in the following judgments: Saygılı and Others v. Turkey (no. 19353/03, §§ 16-17, 8 January 2008), and Turhan v. Turkey (no. 48176/99, § 20, 19 May 2005).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
17. The applicant complained that he had been ordered to pay damages on account of statements made in his capacity as a lawyer, in breach of Article 10 of the Convention, which, in so far as relevant, reads:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society,... for the protection of the reputation or rights of others,...”
A. Admissibility
18. The Court notes that the remainder of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
19. The Government submitted that the interference with the applicant’s right to freedom of expression had been based on Article 49 of the Code of Obligations and Article 24 of the Civil Code, and was thus “prescribed by law”. Moreover, it had pursued the legitimate aim of protecting the rights and reputation of others. The Government maintained that the interference had also been necessary. In this connection, they considered, with reference to the State’s margin of appreciation, that the domestic courts, having examined the facts of the case, had struck a proper balance between protecting Mr Bingöl’s reputation and the applicant’s freedom of expression. The Government pointed out that no criminal proceedings had been brought against the applicant.
20. The applicant disputed the Government’s arguments. In particular, he maintained that the impugned statements had not been intended to insult Mr Bingöl but had been made in the course of judicial proceedings as part of defence submissions. The applicant submitted that the words highlighted by the Government had not been chosen in vain. In this connection, he pointed out that Mr Bingöl had refused to comply with court judgments, thus having no regard for the rule of law. The word “cruel” had been intended to highlight the difficult situation in which Mr Bingöl had put his clients and the word “bigot” to mean conservative. In this connection, the applicant noted that Mr Bingöl had belonged to a party which had subsequently been dissolved by the Constitutional Court for its reactionary actions. Finally, he emphasised that his petition, which contained the impugned statements, had not been disseminated in the press but was in a file in the domestic courts.
2. The Court’s assessment
21. It is not in dispute that there has been an interference with the applicant’s freedom of expression, prescribed by law and intended to protect “the reputation or rights of others”. The Court sees no reason to conclude otherwise.
22. It remains to be established whether the interference was necessary in a democratic society. On this point, the Court relies on the basic principles laid down in its judgments concerning Article 10 (see, in particular, Nikula v. Finland, no. 31611/96, §§ 44-46, ECHR 2002‑II, Pakdemirli v. Turkey, no. 35839/97, §§ 32-33, 22 February 2005, Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 88-91, ECHR 2004-XI, Steur v. the Netherlands, no. 39657/98, § 38, ECHR 2003-XI, and Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, §§ 45-46, ECHR 2007‑...). It will examine the present case in the light of these principles.
23. The Court reiterates that in exercising its supervisory
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jurisdiction it must look at the interference with the applicant’s right to freedom of expression in the light of the case as a whole, including the statements concerned, the context in which they were made and also the particular circumstances of those involved (see Feldek v. Slovakia, no. 29032/95, § 77, ECHR 2001-VIII). It must ascertain whether on the facts of the case a fair balance was struck between, on the one hand, the need to protect the reputation and rights of Mr Bingöl and, on the other hand, the protection of the applicant’s freedom of expression in his capacity as a lawyer (see, mutatis mutandis, Kyprianou v. Cyprus [GC], no. 73797/01, § 177, ECHR 2005‑...).
24. One factor of particular importance for the Court’s determination in the present case is the distinction between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. However, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive (see Turhan v. Turkey, cited above, § 24).
25. Moreover, the Court reiterates that while limits of critical comment are wider if a public figure is involved, as he or she is inevitably and knowingly exposed to public scrutiny and must therefore display a particularly high degree of tolerance (see Kuliś v. Poland, no. 15601/02, § 47, 18 March 2008), the reputation of a politician, even a controversial one, must benefit from the protection afforded by the Convention (see Lindon, Otczakovsky-Laurnes and July v. France, [GC], cited above, § 57, ECHR 2007-...).
26. However, as the Court has previously pointed out, the special nature of the profession practised by members of the Bar must be considered. In their capacity as officers of the court, they are subject to restrictions on their conduct, which must be discreet, honest and dignified, but they also benefit from exclusive rights and privileges that may vary from one jurisdiction to another – among them a certain latitude regarding arguments used in court (see Steur v. the Netherlands, cited above, § 38).
27. In the present case the applicant filed a petition with the administrative court, on behalf of his client, against the municipality in order to annul a vacancy notice. In that petition, he made a number of accusations as regards the manner in which the vacancy notice had been published and the reasons behind it. The applicant also likened Mr Bingöl to a cruel person (zalim) and a bigot (yobaz) with no regard for the rule of law (hukuk tanımaz) (see paragraph 6 above). The domestic courts considered that the applicant’s statements, particularly the use of the term “bigot”, amounted to an insult against the personal integrity of Mr Bingöl, and awarded the latter compensation.
28. The Court has examined the petition in question and the reasons given in the domestic courts’ decisions to justify the interference with the applicant’s right to freedom of expression. It has carefully weighed the applicant’s professional interest in pleading his client’s case and in voicing his criticism against Mr Bingöl’s interests, a politician, in being protected against personal insult. In this connection, the Court considers that the language and expressions used in the impugned petition, particularly those highlighted by the domestic authorities, were provocative and inelegant and could legitimately be qualified as offensive. They were, however, value judgments which were made in the context of judicial proceedings by the applicant, who was acting in his capacity of a legal representative, and were set against a particular context connected to those proceedings. As such, the Court considers that they could not be construed as a gratuitous personal attack against Mr Bingöl. It is clear that the applicant’s statements, coloured by emotion, were of a nature to discredit the mayor. However, the Court reiterates in this context that the limits of acceptable criticism are wider as regards a politician than as regards a private individual.
29. Moreover, the applicant’s value judgments were conveyed in a petition, a medium where his client’s rights were naturally to be vigorously vindicated. Hence they were confined to the courtroom, unlike criticism against a third-party voiced in the media, for instance. In this connection, the Court observes that there is no indication in the case file that there was a real risk that the contents of the petition in question would have appeared in the media. In such circumstances the Court finds that the negative impact, if any, of the applicant
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’s words on Mr Bingöl’s reputation was therefore quite limited.
30. The Court considers, therefore, that the domestic courts, in their examination of the case, only had regard to the dictionary definition of these words and omitted to set these remarks within the context and the form in which they were expressed.
31. In view of the above, the Court finds that the interference with the applicant’s freedom of expression was not based on sufficient reasons to show that the interference complained of was “necessary in a democratic society”. This finding makes it unnecessary for the Court to pursue its examination in order to determine whether the amount awarded in the applicant’s case was proportionate to the aim pursued.
32. There has therefore been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
33. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
34. The applicant claimed, in total, EUR 25,500 in respect of pecuniary damage. This sum corresponded to the current value, together with interest, of the amount he had had to pay to the plaintiff in the defamation proceedings, which he assessed at EUR 25,000, and the costs and expenses incurred in those proceedings. He also claimed EUR 20,000 for the non-pecuniary damage suffered as a result of distress and frustration caused by the proceedings.
35. The Government contested the amounts.
36. The Court finds that in the circumstances of the case there is a causal link between the violation found and the alleged pecuniary damage in so far as the applicant refers to the amount which he was ordered to pay by the domestic courts (see Busuioc v. Moldova, no. 61513/00, § 101, 21 December 2004). However, it finds the overall amount requested by the applicant excessive. Accordingly, the Court awards the sum of EUR 8,300 by way of pecuniary damage in respect of the amount which the applicant was ordered to pay to the complainant in compensation.
37. With regard to the costs of the domestic proceedings, the Court notes that the applicant’s claim concerns court fees which he had to pay in the course of the compensation proceedings, and that he submitted the corresponding receipts, amounting to EUR 500. The Court considers that this sum sought should be awarded in full since the costs to which the applicant referred were incurred in an attempt to prevent the violation established by the Court.
38. In total, the Court awards the applicant EUR 8,800 in respect of pecuniary damage.
39. As to the claim for non-pecuniary damage, the Court considers that the applicant may be taken to have suffered a certain amount of distress in the circumstances of the case. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards him EUR 1,000 under this head.
B. Costs and expenses
40. The applicant also claimed EUR 3,111 for costs and expenses incurred before the Court. In support of his claims, the applicant submitted the fee agreement concluded between him and his legal representative, the Istanbul Bar Association’s recommended minimum fees list for 2008 and a receipt regarding translation costs.
41. The Government contested the amount considering it excessive.
42. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession, the complexity of the case and the above criteria, the Court considers it reasonable to award the sum of EUR 2,111 for the proceedings before the Court.
C. Default interest
43. 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 10 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts to be converted into new Turkish liras at the rate applicable at the date of settlement:
(i) EUR 8,800 (
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eight thousand eight hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 2,111 (two thousand one hundred and eleven euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 13 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally DolléFrançoise TulkensRegistrarPresident
[1] This amount now corresponds, given the intervening inflation, to approximately EUR 8,300 at the time of the adoption of the judgment.
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FIRST SECTION
CASE OF TRIFKOVIĆ v. CROATIA
(Application no. 36653/09)
JUDGMENT
STRASBOURG
6 November 2012
FINAL
18/03/2013
This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision.
In the case of Trifković v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Anatoly Kovler, President,Nina Vajić,Peer Lorenzen,Elisabeth Steiner,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Julia Laffranque, judges,and Søren Nielsen, Section Registrar,
Having deliberated in private on 16 October 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 36653/09) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Milan Trifković (“the applicant”), on 12 June 2009.
2. The applicant was represented by Mr T. Vukičević, a lawyer practising in Split. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3. On 10 November 2010 complaints concerning the lawfulness and length of the applicant’s detention and alleged flaws in the procedure of challenging his pre-trial detention were communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1976 and lives in Split.
A. Criminal proceedings against the applicant
5. An investigation was opened against the applicant and twenty other individuals on 24 November 2006 by an investigating judge of the Split County Court (Županijski sud u Splitu) in connection with a suspicion that between 2003 and November 2006 they had organised distribution of heroin in Dubrovnik and on the island of Korčula.
6. During the investigation, the investigating judge heard evidence from a number of witnesses, ordered searches, seizures and freezing of assets, and commissioned psychiatric, telecommunications and financial expert reports.
7. Following an order by the investigating judge, on 24 November 2006 the police carried out a search of the applicant’s flat and on 5 February 2007 the psychiatrist submitted his report in respect of the applicant. He found that the applicant had used drugs for a relatively short period of time and had not developed an addiction.
8. On 15 May, 15 June, 8 August and 5 October 2007 the investigating judge established that all the necessary evidence had not been obtained and asked the president of the Split County Court to extend the investigation. The president of the Split County Court granted the requests and the investigation was extended on each of those occasions.
9. The State Attorney’s Office for the Suppression of Corruption and Organised Crime (Državno odvjetništvo, Ured za suzbijanje korupcije i organiziranog kriminaliteta; hereinafter: “the State Attorney’s Office”) indicted the applicant and sixteen others on 15 November 2007 in the Split County Court on charges of conspiracy to supply heroin in Dubrovnik and on the island of Korčula between 2003 and November 2006.
10. The applicant lodged an objection against the indictment on 7 December 2007, arguing that it had numerous substantive and procedural flaws. On 7 February 2008 the Split County Court sent the indictment back to the State Attorney’s Office on the ground that it needed further clarification.
11. The State Attorney’s Office submitted an amended indictment against the applicant and sixteen others before the Split County Court on 22 February 2008, reiterating the same charges of conspiracy to supply heroin. On 5 March 2008 the applicant lodged an objection against the above amended indictment, arguing that it had numerous substantive and procedural flaws. A three-judge panel of the Split County Court dismissed the applicant’s objection on 14 March 2008 as ill-founded.
12. At a hearing on 13 November 2008 the applicant pleaded not guilty to the charges against him.
13. At hearings
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held on 17 and 18 December 2008 the trial court heard evidence from two witnesses. Further hearings scheduled for 11 and 12 February 2009 were adjourned indefinitely as one of the defendants had broken his leg and could not attend.
14. A hearing scheduled for 29 June 2009 was also adjourned because the first accused had asked for members to be removed from the trial panel.
15. Further hearings were held on 28 August, 8, 15, 16 and 28 September, 20, 21 and 22 October, 2, 3, 4, 17 and 18 November and 21 December 2009, 27 and 29 January, 15, 17, 18 and 19 February, and 15, 29 and 30 March 2010.
16. At a hearing on 13 May 2010 the applicant gave oral evidence denying all the charges. At hearings held on 14, 17, 21 and 24 May 2010 the other accused gave oral evidence and the parties made their closing statements.
17. On 24 May 2010 the Split County Court found the applicant guilty as charged and sentenced him to three years and six months’ imprisonment.
18. The applicant lodged an appeal with the Supreme Court (Vrhovni sud Republike Hrvatske) against the first-instance judgment on 31 January 2011.
19. The appeal proceedings are still pending.
B. Decisions on the applicant’s detention
20. On 22 November 2006 the applicant was arrested on suspicion of supplying heroin.
21. The investigating judge of the Split County Court heard the applicant on 23 November 2006 and remanded him in custody for a further forty-eight hours under Article 98 § 2 of the Code of Criminal Procedure. The applicant appealed against this decision, arguing, inter alia, that he was permanently employed by company K.-V. and had not been engaging in any criminal activity. To support his arguments he submitted his employment contract with company K.-V. On 24 November 2006 a three-judge panel of the Split County Court dismissed his appeal.
22. On 24 November 2006 the investigating judge remanded the applicant in custody under Article 102 § 1(3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). The relevant part of the decision reads:
“The pre-trial detention was ordered in respect of the defendants listed under [heading] II of this decision under Article 102 § 1(4) of the Code of Criminal Procedure, because it is possible to order pre-trial detention on this ground for the offence at issue and because [the charges] concern a large quantity of heroin, which the defendants supplied to a larger number of people and for a longer period of time, therefore probably damaging the health of a significant number of people, which all contributes to the particularly grave circumstances of the offence...
The pre-trial detention was ordered under Article 102 § 1(3) of the Code of Criminal Procedure in respect of defendants... Milan Trifković,... and... since they have already been convicted of similar or other offences they now have no permanent income, so there is justified fear that they will reoffend.”
23. The applicant lodged an appeal on 6 December 2006, arguing that the charges against him suggested that he had had only a minor role in the alleged organisation of supply of heroin. As to the risk of reoffending, he argued that it was not true that he had no permanent income, as he was employed by company K.-V. In this connection he indicated his employment contract and submitted further documents as evidence of his income. The applicant also asked that the detention be replaced by another preventive measure that the court deemed appropriate.
24. The appeal was dismissed on 8 December 2006 by a three-judge panel of the Split County Court. The relevant part of the decision reads:
“In view of the offence [the accused] are charged with, this panel finds that there are particularly grave circumstances justifying their detention under Article 102 § 1(4) of the Code of Criminal Procedure given that..., Milan Trifković and... have already been convicted of similar or other offences, so that for them the detention under Article 102 § 1(3) of the Code of Criminal Procedure is also justified.”
25. The investigating judge extended the applicant’s detention on 20 December 2006, under Article 102 § 1(3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges), reiterating the arguments in his decision of 24 November 2006.
26. The applicant appealed on 29 December 2006, pointing out that according to the charges held against him he had had only a minor role in the alleged organisation of heroin supplying. He also argued that nothing suggested that he might reoffend, since he was not a drug addict and his previous conviction for the possession of a small quantity of drugs could not in any respect be associated with the charges against him in the present
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case. He again asked that the detention be replaced by another preventive measure that the court deemed appropriate.
27. That appeal was dismissed on 17 January 2007 by a three-judge panel of the Split County Court. They reiterated their previous arguments. As to the risk of reoffending they added:
“...and since [the defendants] are users of illegal drugs and do not have a permanent income, the investigating judge properly extended their detention under Article 102 § 1(3) of the Code of Criminal Procedure.”
28. On 19 January 2007 the investigating judge extended the applicant’s detention under Article 102 § 1(3) and (4) of the Code of Criminal Procedure, reiterating the arguments in his previous decisions.
29. The applicant appealed on 23 January 2007, again stating that he had had only a minor role in the organisation of the supply of heroin and argued that the finding that he had no permanent income was not true, because he was employed. The applicant again asked for his detention to be replaced with another preventive measure.
30. The appeal was dismissed on 8 February 2007 by a three-judge panel of the Split County Court which reiterated its previous arguments.
31. On 20 February and 20 March 2007 the investigating judge extended the applicant’s detention under Article 102 § 1(3) and (4) of the Code of Criminal Procedure, using the same formulation as before.
32. The applicant lodged an appeal on 21 March 2007 where he argued, relying on the Court’s case-law, that the investigating judge had failed to provide sufficient reasons for extending his detention and that he had failed to consider the possibility of applying another preventive measure.
33. The appeal was dismissed on 4 April 2007 by a three-judge panel of the Split County Court which reiterated that the gravity of the charges and the fact that the applicant had already been convicted of similar offences and that he was a drug user, justified his detention under Article 102 § 1(3) and (4) of the Code of Criminal Procedure.
34. On 20 April 2007 the investigating judge extended the applicant’s detention under Article 102 § 1(3) and (4) of the Code of Criminal Procedure, using the same formulation as in his previous decisions.
35. The applicant appealed on 23 April 2007, arguing, inter alia, that the investigating judge had insisted that he had no permanent income, which was not true, because he was employed, and in that respect he had provided sufficient evidence. He also asked that the detention be replaced with another preventive measure. The appeal was dismissed on 4 May 2007 by a three-judge panel of the Split County Court, which endorsed the reasoning of the investigating judge.
36. On 18 May 2007 the investigating judge extended the applicant’s detention under Article 102 § 1(3) and (4) of the Code of Criminal Procedure, using the same formulation as in his previous decisions.
37. The applicant appealed on 21 May 2007, reiterating his arguments that there were no grounds for his continued detention. He again asked for the detention to be replaced with another preventive measure. On 30 May 2007 a three-judge panel of the Split County Court dismissed the applicant’s appeal, reiterating its previous arguments.
38. The investigating judge extended the applicant’s detention on 20 June 2007 again under Article 102 § 1(3) and (4) of the Code of Criminal Procedure, using identical phrases as in his previous decisions.
39. The applicant lodged an appeal on 21 June 2007 against the above decision, reiterating his previous arguments and asking for his detention to be replaced with another preventive measure: on 27 June 2007 a three-judge panel of the Split County Court dismissed his appeal, on the same grounds as before.
40. On 19 July 2007 the investigating judge extended the applicant’s detention under Article 102 § 1(3) and (4) of the Code of Criminal Procedure, using the same formulation as in his previous decisions.
41. The applicant lodged an appeal on 25 July 2007, reiterating his previous arguments and asking for his detention to be replaced with another preventive measure, but on 31 July 2007 a three-judge panel of the Split County Court dismissed the applicant’s appeal, using identical phrases to those in its previous decision.
42. On 20 August 2007 the investigating judge extended the applicant’s detention under Article 102 § 1(3) and (4) of the Code of Criminal Procedure, again using identical reasoning.
43. The applicant lodged an appeal on 21 August 2007 and on 28 August 2007 a three-judge panel of the Split County Court dismissed it, using the same formulation as in its previous decisions.
44. The investigating judge extended the applicant’s detention on 20 September 2007 under Article 102 § 1(3) and (4) of the
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Code of Criminal Procedure, using identical phrases as in his previous decisions.
45. The applicant lodged an appeal on 25 September 2007. He again pointed out that the same effect of extending his detention could be achieved by ordering another preventive measure. On 3 October 2007 a three-judge panel of the Split County Court dismissed the appeal, using the same formulation as in its previous decisions.
46. On 19 October 2007 the investigating judge extended the applicant’s detention under Article 102 § 1(3) and (4) of the Code of Criminal Procedure, reiterating his previous reasoning.
47. The applicant lodged an appeal on 23 October 2007, reiterating his previous arguments, but it was dismissed by a three-judge panel of the Split County Court on 26 October 2007.
48. On 16 November 2007, after the applicant had been indicted in the Split County Court, a three-judge panel of that court extended the applicant’s detention, again under Article 102 § 1(3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). The relevant part of the decision reads:
“The criminal record... shows that the accused... Milan Trifković... [has] already been convicted of a criminal offence of the same type as the one concerned in these proceedings...
Furthermore, the report drawn up by a neuropsychiatrist... shows that the defendant... Milan Trifković... [is a] drug user...
Therefore since the accused... Milan Trifković... [are] drug users... there is a risk that they might reoffend.
Also, since the accused are charged [with having] organised a group with the aim of trafficking in illegal drugs on the island of Korčula, and were engaged [in that activity for] a long period of time, together with J.C., who was the leader of the group and of all [the criminal] activities, and particularly having in mind the gravity [ of the offences at issue] and the danger to society, as well the prevalence of such offences, this panel considers that in the case at issue there are particularly grave circumstances which significantly differ from the usual manner in which the offence at issue is committed.”
49. Against that decision the applicant lodged an appeal with the Supreme Court on 28 November 2007. As to his previous conviction, he argued that he had been convicted only of possession of illegal drugs for his personal use, which could not in any respect be associated with the charges against him in the present case. Moreover, the psychiatric report showed that he had no addiction to drugs and that there was no risk that he would reoffend. He also pointed out that he was permanently employed and that he had a regular source of income. As to the gravity of the charges, the applicant argued that the charges against him suggested that he had had only a minor role in the alleged organisation of the supply of heroin. The applicant also asked for the detention to be replaced with any preventive measure that the court deemed appropriate.
50. On 7 December 2007 the Supreme Court dismissed the applicant’s appeal, endorsing the reasoning of the Split County Court. It made no reference to the applicant’s request that his detention be replaced with another preventive measure.
51. The applicant’s detention was further extended on 7 February 2008 by a three-judge panel of the Split County Court under Article 102 § 1(3) and (4) of the Code of Criminal Procedure, reiterating its previous arguments.
52. On 12 February 2008 the applicant lodged an appeal against the above decision, reiterating his previous arguments and asking for his detention to be replaced with another preventive measure. The Supreme Court dismissed the applicant’s appeal on 29 February 2008 in the following terms:
“According to the indictment, the activities with which the accused are charged took place between the beginning of 2003 and mid-2006, and the accused J.C., in the broader area of Dubrovnik and Korčula, organised a criminal group in which he recruited... Milan Trifković... all in order to supply heroin.
Since all the accused were engaged in a criminal activity for a longer period of time, between the beginning of 2003 and mid-2006, in the broader area of Dubrovnik and Korčula, and since they showed a high degree of criminal resolve by organising continuous [criminal] activity, which shows a particular degree of persistence and criminal resolve, and taking this together with the fact that the accused... Milan Trifković... were on more occasions convicted of, [inter alia], the same or similar offences, and... since the accused... Milan Trifković are users of illegal drugs, there is a fear that they might reoffend...
Also, since the subject of the alleged [criminal] activity was distribution of the illegal drug heroin in large quantities, and since
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it could have been used for a large number of small packages for individual use, which, if sold on the illegal drug market, could endanger a large number of mostly young people, suggests... that there are particularly grave circumstances surrounding the offence...
The preventive measures under Article 90 of the CCP in respect of the accused Milan Trifković would not have the same effect as detention on the basis of Article 102 § 1(3) and (4) of the Code of Criminal Procedure.”
53. A three-judge panel of the Split County Court on 29 April 2008 extended the applicant’s detention under Article 102 § 1(3) and (4) of the Code of Criminal Procedure, on the same grounds as before.
54. The applicant lodged an appeal on 6 May 2008, reiterating his previous arguments, but on 30 May 2008 the Supreme Court dismissed it.
55. On 24 July 2008 a three-judge panel of the Split County Court extended the applicant’s detention under Article 102 § 1(3) and (4) of the Code of Criminal Procedure, reiterating the same reasons as in its previous decisions.
56. The applicant lodged an appeal against the above decision on 29 July 2008. He argued that the evidence from the case file showed that he had not been a member of the alleged criminal organisation. As to the risk of reoffending, he pointed out that his previous conviction had concerned small amounts of drugs, for his personal use only, and that he was not a drug addict. He also argued that he was employed and had a regular source of income. On 10 September 2008 the Supreme Court dismissed the appeal, reiterating the same arguments as in its previous decisions.
57. On 10 November 2008 a three-judge panel of the Split County Court extended the applicant’s detention, again under Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure. The relevant part of the decision reads:
“The criminal record... shows that the defendant... Milan Trifković... [has] already been convicted of a criminal offence of the same type as the one concerned in these proceedings...
Furthermore, the report drawn up by a neuropsychiatrist... shows that the defendant... Milan Trifković... [is a] drug user...
Also, the defendants are charged with organising a group with the aim of trafficking in illegal drugs on the island of Korčula, that they had been engaging [in that activity for] a long period of time, together with J.C., who was the leader of the group and of all [the criminal] activities.
The above-mentioned circumstances, together with the fact that the defendants were allegedly members of a group which was continually [and for a long] period of time engaged in trafficking in illegal drugs, namely heroin, one of the hardest drugs, and that they thus put at risk the health of a large number of people, justify the extension of detention in respect of the defendants... [including] Milan Trifković... under Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure. These circumstances justify the fear of reoffending and also amount to particularly grave circumstances [in which] the offence [is alleged to have taken place].”
58. The applicant lodged an appeal on 13 November 2008, in which he argued that the evidence thus far obtained had not implicated him in the offences in question, save for a statement given by a witness, Ž.T. However, he claimed that her statement was unreliable because it was both contradictory and hearsay evidence, and also contradicted the evidence given by other witnesses. The transcripts of telephone conversations of his which had been taped did not show that he had discussed details of drug trafficking with anyone. Furthermore, no material evidence which could connect him with trafficking in illegal drugs had been found on him. As regards the risk of reoffending, the applicant argued that, even if he had been a drug addict before being detained, during the period of his detention he would surely stop being one because he would not be able to take any drugs during his detention. As regards the argument that he had already been convicted of the same type of offence, he argued that his previous conviction concerned the possession of a small amount of drugs for his personal use, and that he was permanently employed. Against that background, he argued that there was no need for him to remain in detention and asked that his detention be replaced by another preventive measure.
59. A three-judge panel of the Split County Court on 13 January 2009 again extended the applicant’s detention, under Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure, and with the same reasoning as it had previously given. On 19 January 2009 the applicant lodged an appeal against this decision, reiterating his previous arguments.
60. On 13 February 2009 the Supreme Court dismissed the
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applicant’s appeal against the decision of 10 November 2008. The relevant part of the decision reads:
“The circumstances which show that there is a risk of reoffending... are that the defendants are charged [with having been]... members of a criminal organisation organised by the defendant J.C. in the period between the beginning of 2003 and November 2006, [operating in] the broader area of Dubrovnik and Korčula, and in which sixteen individuals were involved and mutually connected, among whom [were] the defendants Milan Trifković and..., all [having the] aim of purchasing, storing, transferring and selling the drug heroin in order to obtain significant material gain. They delivered heroin previously bought by the defendant J.C. in Serbia, Bosnia and Herzegovina, and Montenegro for the needs of drug addicts on the island of Korčula, in daily amounts of at least 32 grams.
Furthermore, the defendants Milan Trifković and... have already been convicted several times of criminal offences of the same type – abuse of illegal drugs... This shows that their previous life was not in conformity with the law and that their previous conviction has not taught them about the peril of committing criminal offences. Also, the documents in the file show that the defendants Milan Trifković and... are users of illegal drugs...
Therefore, the long period of engaging in such criminal activity, which shows their determination, high level of organisation and criminal resolve..., together with the fact that they are users of illegal drugs,... and previous conviction, amount in the view of the Supreme Court... to specific circumstances which justify the fear that the defendants Milan Trifković and..., if at large, would continue to commit new criminal offences of the same type...
The decision to extend the defendants’ detention on the basis of Article 102 paragraph 1(4) of the Code of Criminal Procedure is justified and lawful in view of the fact that the... charges concern a significant amount of the illegal drug heroin. The fact that there was such a large amount of this drug, which could be divided into a large number of individual doses and thus put at risk the health of a large number of people, especially youngsters, [together with] the international elements of the offence, surpasses by far the usual gravity of such offences.
The defendants’ arguments pointing to the lack of evidence that they had committed the criminal offences at issue... have no bearing on the decision [on their detention]. When deciding upon an appeal against a decision on detention, the appeal court has no competence to assess the factual background of the case or the defendants’ criminal responsibility. For detention to be ordered it suffices that the indictment and the documents in the case file indicate that there is reasonable suspicion. Neither has the principle of proportionality been infringed, because the defendant Milan Trifković has so far spent less than two years and three months in pre-trial detention... When applying that principle, the relevant factors to be taken into account are not only the time already spent in detention but also the gravity of the criminal charges brought against the defendants and the severity of the sentence faced, as well as the need to order and extend detention.
The statement of the defendant Milan Trifković that he is not a drug addict... is also irrelevant, because drug addiction and drug use are not the decisive motives for committing such criminal offences, and they cannot put into question the importance of all the other above-mentioned points which show at the risk of reoffending... “
61. On the same day, the Supreme Court dismissed the applicant’s appeal against the Split County Court’s decision extending his detention of 13 January 2009, using the same arguments.
62. On 5 March 2009 the applicant lodged two constitutional complaints with the Constitutional Court (Ustavni sud Republike Hrvatske) against the decision of the Supreme Court of 13 February 2009 dismissing his appeal against the Split County Court’s decision of 10 November 2008 and the decision of the Supreme Court of 13 February 2009 dismissing his appeal against the Split County Court’s decision of 13 January 2009.
63. The applicant’s detention was again extended on 9 April 2009 by a three-judge panel of the Split County Court under Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure, using the same reasons as in its previous decisions.
64. The applicant lodged an appeal against the above decision on 16 April 2009. He argued that for several years his detention had been repeatedly extended, always using the same reasoning as to the gravity of the charges, without any assessment of his individual position in the alleged criminal organisation. He also pointed out that his previous conviction was minor and that he was employed, with a regular source of income. He further argued that the trial had been adjourned indefinitely and that there was a real risk that his detention was becoming a penalty.
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Finally, he pointed out, relying on the Court’s case-law, that the reasons justifying his detention were no longer relevant and sufficient, and that the domestic courts had never examined the possibility of applying another preventive measure.
65. On 29 April 2009 the Constitutional Court declared the applicant’s constitutional complaint against the decision of the Supreme Court dismissing his appeal against the Split County Court’s decision of 10 November 2008 inadmissible on the ground that the impugned decisions were no longer in effect, because in the meantime the Split County Court had adopted a fresh decision on his detention on 13 January 2009.
66. On 6 May 2009 the Supreme Court dismissed the applicant’s appeal against the decision extending his detention of 9 April 2009, reiterating its previous arguments. It also found that the purpose of the detention could not be achieved with any other preventive measure.
67. On 27 May 2009 the Constitutional Court declared the applicant’s constitutional complaint against the decision of the Supreme Court dismissing his appeal against the Split County Court’s decision of 13 January 2009 inadmissible on the ground that that the impugned decisions were no longer in effect, because in the meantime the Split County Court had adopted a fresh decision on his detention, on 9 April 2009.
68. A three-judge panel of the Split County Court on 6 July 2009 again extended the applicant’s detention under Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure, using the same formulation as in its previous decisions.
69. The applicant lodged an appeal against the above decision on 9 July 2009, pointing out that he had no addiction to drugs and that he was employed and therefore had a regular source of income. He also asked that the detention be replaced by another preventive measure. On 4 August 2009 the Supreme Court dismissed the appeal, reiterating its previous arguments. It added that the fact that the applicant had been detained and therefore had not had any opportunity to obtain drugs was not of a decisive influence on the conclusion that he might reoffend. As to his arguments that he was employed and had a regular source of income, the Supreme Court held that it also had no decisive effect, since the proceeds of the offence at issue were significantly higher than his personal income.
70. On 1 October 2009 a three-judge panel of the Split County Court again extended the applicant’s detention under Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure, using the same formulation as in its previous decision.
71. The applicant lodged an appeal on 5 October 2009 in which he argued that the principle of proportionality had been infringed with his continuous detention but on 14 October 2009 the Supreme Court dismissed it, reiterating its previous arguments. As to the proportionality of the detention, the Supreme Court held that this principle had not been infringed, since the charges concerned the most serious offences, for which there was also a possibility of extending the detention for an additional six months under section 28 paragraph 3 of the Act on the Office for the Suppression of Corruption and Organised Crime (hereinafter “the AOSCOC”).
72. On 20 November 2009 a three-judge panel of the Split County Court extended the applicant’s detention for a further six months. The relevant part of the decision reads:
“... since the maximum limits for detention under Article 109 of the Code of Criminal Procedure were about to expire, [this panel] has examined whether there are grounds for extending the accused’s detention or for his release.
In the situation at issue, in view of the sentence that the offence at issue carries, the maximum statutory limit under Article 109 § 1(5) of the Code of Criminal Procedure is three years, and therefore this period would expire in respect of... the accused Milan Trifković... on 22 November 2009.
However, under section 28 § 2 of the [AOSCOC] the maximum time-limit of detention during an investigation, if the investigation has been extended, can be twelve months, while paragraph 3 of the same section provides that the maximum period of detention under Article 109 of the Code of Criminal Procedure shall be extended for a further six months if the detention during the investigation has been extended under paragraph 2 of [Section 28 of the AOSCOC].
Since in this particular case the investigation was extended so that it lasted more than the maximum six months, the conditions for extending the maximum period of the pre-trial detention for a further six months under section 28 paragraph 3 of the [AOSCOC] have been met.
Therefore, since all the circumstances on which the detention was extended under Article 102 paragraph 1 (1), (3) and (4) of the CCP have not changed, the detention in respect of the accused... Milan Trifković and... had to be extended for a further six months...“
73
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. The applicant lodged an appeal with the Supreme Court against the above decision on 24 November 2009. He argued that the evidence adduced during the trial did not support the suspicion that he was an important member of the criminal group and that no drugs, objects usually used to sell drugs, or any proceeds of crime had ever been found on or seized from him. The applicant further argued that the Split County Court had been using the same stereotyped formula when extending his detention for three years, and that there were no grounds for extending his detention. He also argued that the proceedings had been unreasonably long and that during that period he had been detained in inhuman and degrading conditions. Finally, he pointed out, relying on the Court’s case-law, that the possibility of replacing his detention with another preventive measure had never been examined. On 27 November 2009 he also submitted to the Supreme Court a statement from company K.-V. confirming that he was permanently employed by that company; he asked again to be released.
74. The Supreme Court dismissed the applicant’s appeal on 11 December 2009. It limited its assessment only to the question of whether further extension would exceed the maximum statutory limit. As to the other arguments put forward by the applicant, the Supreme Court noted:
“As to the arguments put forward by all three accused in which they complain about the conditions of their detention and challenge the grounds and purpose of their detention on account of its length, it is to be noted that it does not put in any doubt the impugned decision. Namely, the [Split County Court’s] decision did not address the grounds for their detention, since it only concerned examination of statutory conditions for extending the maximum detention under Article 109 of the Code of Criminal Procedure, in respect of which the arguments in the appeal are irrelevant.”
75. On an unspecified date in 2010 the applicant lodged a constitutional complaint against the above decision of the Supreme Court, reiterating the same arguments from his appeal.
76. A three-judge panel of the Split County Court on 12 February 2010 extended the applicant’s detention under Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure, reiterating arguments from its previous decisions as to the risk of reoffending and the gravity of the charges.
77. The applicant lodged an appeal against the above decision on 18 February 2010, reiterating his previous arguments and asking that the detention be replaced by another preventive measure, if one was necessary.
78. On 25 February 2010 the Constitutional Court dismissed the applicant’s constitutional complaint against the decision of the Supreme Court of 11 December 2009. The relevant part of the Constitutional Court’s decision reads:
“It appears from the constitutional complaint, which is identical to the appeal lodged with the Supreme Court, that [the applicant] is complaining about the grounds for his detention, which was not the subject of the impugned decisions. The statutory grounds for his detention are under Article 107 paragraph 2 of the CCP, within the competence of the panel from Article 18 paragraph 3 and Article 20 paragraph 2 of [the CCP], which is obliged to examine the grounds for detention every two months...
However, in the case at issue, the impugned decisions do not examine the grounds for [the applicant’s] detention, but only whether the conditions for extending the detention under Article 109 of the Code of Criminal Procedure have been met.... “
79. On 17 March 2010 the Supreme Court dismissed the applicant’s appeal against the Split County Court’s decision of 12 February 2010 on the ground that the same reasons warranting the applicant’s detention under Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure still existed. It also found that the principle of proportionality had not been infringed and that there were no grounds to replace the detention with another preventive measure.
80. On an unspecified date in 2010 the applicant lodged a constitutional complaint with the Constitutional Court against the above decision of the Supreme Court, again complaining about the extension of his detention and about the conditions in detention.
81. The applicant’s detention was again extended by a three-judge panel of the Split County Court on 17 May 2010 on the basis of Article 102 paragraph 1(3) and (4) of the Code of Criminal Procedure, reiterating its previous arguments.
82. On 22 May 2010 the maximum statutory time-limit of the applicant’s extended detention expired and the applicant was released.
II. RELEVANT DOMESTIC LAW
83. The relevant part of the Criminal Code (Kazneni zakon, Official Gazette no. 110/1997, 27/1998, 129/2000, 51/2001, 105/2004, 84/2005) provides:
Abuse of Narcotic Drugs
Article 173
“...(2) Whoever, without authorisation, manufactures,
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processes, sells or offers for sale or buys for the purpose of reselling, keeps, distributes or brokers the sale and purchase of, or, in some other way and without authorisation, puts into circulation, substances or preparations which are by regulation proclaimed to be narcotic drugs, shall be punished by imprisonment for one to twelve years.
(3) If the criminal offence referred to in paragraph 2 of this Article is committed while the perpetrator is part of a group or a criminal organisation, or if he has set up a network for selling drugs, he shall be punished by imprisonment for not less than three years or by long-term imprisonment.”
84. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provide as follows:
Preventive Measures
Article 90
“(1) Where the conditions for ordering detention under Article 102 of this Code have been fulfilled, and where the same purpose may be achieved by other preventive measures under this Article, the court shall order that one or more preventive measures are to be applied...
(2) Preventive measures are:
1) prohibition on leaving one’s place of residence;
2) prohibition on being in a certain place or area;
3) obligation on the defendant to report periodically to a certain person or a State body;
4) prohibition on contact with a certain person or on establishing or maintaining contact with a certain person;
5) prohibition on undertaking a certain business activity;
6) temporary seizure of a passport or other document necessary for crossing the State border;
7) temporary seizure of a driving licence...”
8. General Provisions on Detention
Section 101
“(1) Detention may be imposed only if the same purpose cannot be achieved by another [preventive] measure.
(2) Detention shall be lifted and the detainee released as soon as the grounds for detention cease to exist.
(3) When deciding on detention, in particular its duration, a court shall take into consideration the proportionality between the gravity of the offence, the sentence which... may be expected to be imposed, and the need to order and determine the duration of detention.
(4) Judicial authorities conducting criminal proceedings shall proceed with particular urgency when the defendant is in detention and shall review of their own motion whether the grounds and legal conditions for detention have ceased to exist, in which case detention shall immediately be lifted.”
9. Grounds for Ordering Detention
Section 102
“(1) Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention:
1. where there are circumstances which show that there is a risk that [the defendant] will abscond [is in hiding or his or her identity cannot be established, and so on);
2. if there is a risk that he or she might destroy, hide, alter or forge evidence or traces relevant for the criminal proceedings or might suborn witnesses, or where there is a risk of collusion;
3. special circumstances justify the suspicion that the person concerned might reoffend;
4. where the charges relate to murder, robbery, rape, terrorism, kidnapping, abuse of narcotic drugs, extortion or any other offence carrying a sentence of at least twelve years’ imprisonment, or where detention is justified by the modus operandi or other especially grave circumstances of the offence.”
Article 109
“(1) Until the adoption of a first-instance judgment, pre-trial detention may last for a maximum of:
1. six months for offences carrying a statutory maximum sentence of three years’ imprisonment;
2. one year for offences carrying a statutory maximum sentence of five years’ imprisonment;
3. eighteen months for offences carrying a statutory maximum sentence of eight years’ imprisonment;
4. two years for offences carrying a sentence of more than eight years’ imprisonment;
5. three years for offences carrying a sentence of long-term imprisonment...”
Appeal against a decision ordering, lifting or extending a custodial measure
Article 110
“(1) A defendant, defence counsel or the State Attorney may lodge an appeal against a decision ordering, extending or lifting a custodial measure, within two days thereof..”.
Article 204
“(1) If the investigation cannot be completed within six months, the investigating judge shall inform the president of the court why the investigation is not finished.
(2) The president of the court shall, if necessary, take appropriate measures to enable the investigation to be completed.”
85. The relevant provision of the Act on the Office for the Suppression of Corruption and Organised Crime (hereinafter the “AOSCOC” - Zakon
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o Uredu za suzbijanje korupcije i organiziranog kriminaliteta (ZUSKOK), Official Gazette nos. 88/2001, 12/2002, 33/2005, 48/2005, 76/2007) provides as follows:
Section 28
“(1) Custody under section 98 of the Criminal Procedure Act shall be extended to 48 hours.
(2) The total duration of the pre-trial detention in the above proceedings, if the investigation is lengthy (Article 204, paragraph 1 of the Code of Criminal Procedure) may be twelve months.
(3) If the pre-trial detention during the investigation has been extended under paragraph 2 above, the total duration of the pre-trial detention under Article 109 of the Code of Criminal Procedure shall be extended for six months.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
86. The applicant complained that his pre-trial detention after 20 November 2009, when the maximum statutory period for his detention expired, had been unlawful. He relied on Article 5 § 1 of the Convention, which, in so far as relevant, reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:..
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so...”
A. The parties’ arguments
87. The applicant submitted that his detention after 20 November 2009, when the maximum statutory limit for his detention provided in the Code of Criminal Procedure expired, had not been lawful within the meaning of Article 5 § 1 of the Convention. He argued that he had been legally represented and aware of the relevant domestic law which provided for the possibility that the maximum period of the detention be extended but that the domestic courts had never provided sufficient arguments why this law should be applied.
88. The Government argued that the applicant’s detention after 20 November 2009 had been in compliance with the relevant domestic law, namely section 28 of the AOSCOC. When the applicant’s detention had been extended the domestic courts provided relevant and sufficient reasons why this provision should be applied and also examined the grounds on which the applicant had been detained. Moreover, the applicant had had an opportunity to appeal before the Supreme Court which had duly examined the lawfulness of his continued detention and explained all the grounds on which his detention had been based.
B. The Court’s assessment
89. The Court reiterates that Article 5 of the Convention guarantees the fundamental right to liberty and security. That right is of primary importance in a “democratic society” within the meaning of the Convention (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 65, Series A no. 12, and Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33). Its key purpose is to prevent arbitrary or unjustified deprivations of liberty (see McKay v. the United Kingdom [GC], no. 543/03, § 30, ECHR 2006-X, and Ladent v. Poland, no. 11036/03, § 45, 18 March 2008).
90. Everyone is entitled to the protection of that right, that is to say the right not to be deprived or to continue to be deprived of their liberty (see Weeks v. the United Kingdom, 2 March 1987, § 40, Series A no. 114), save in accordance with the conditions specified in paragraph 1 of Article 5. The list of exceptions set out in Article 5 § 1 is an exhaustive one, and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his or her liberty (see Amuur v. France, 25 June 1996, § 42, Reports of Judgments and Decisions 1996-III; Labita v. Italy [GC], no. 26772/95, § 170, ECHR 2000-IV; and Assanidze v. Georgia [GC], no. 71503/01, § 170, ECHR 2004-II).
91. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and enshrine the obligation to conform to substantive and procedural rules thereof. Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the
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Court can and should review whether domestic law has been complied with (see, among many other authorities, Benham v. the United Kingdom, 10 June 1996, § 41, Reports 1996-III, and Assanidze, cited above, § 171).
92. This primarily requires any arrest or detention to have a legal basis in domestic law, but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see Stafford v. the United Kingdom [GC], no. 46295/99, § 63, ECHR 2002‑IV, and Kafkaris v. Cyprus [GC], no. 21906/04, § 116, ECHR 2008). “Quality of the law” in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness (see Amuur, § 50, cited above; Nasrulloyev v. Russia, no. 656/06, § 71, 11 October 2007; and Mooren v. Germany [GC], no. 11364/03, § 76, 9 July 2009). The standard of “lawfulness” set by the Convention thus requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Steel and Others v. the United Kingdom, 23 September 1998, § 54, Reports 1998-VII, and Baranowski v. Poland, no. 28358/95, § 52, ECHR 2000-III).
93. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see, among many other authorities, Winterwerp, cited above, § 37; Amuur, cited above, § 50; and Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000-III). It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1. The notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see Saadi v. the United Kingdom [GC], no. 13229/03, § 67, ECHR 2008).
94. The Court notes that Article 109 of the Code of Criminal Procedure prescribes the maximum duration of detention allowed before a conviction becomes final and enforceable. Paragraph 1 in particular prescribes the period of maximum detention before the adoption of a first-instance judgment, which in the case at issue is three years.
95. Under Article 204 paragraph 1 of the Code of Criminal Procedure the investigation has to be completed within six months. However, it is possible to extend that period in respect of crimes covered by the AOSCOC for a further six months.
96. In such cases, where the investigation is extended, section 28 of the AOSCOC allows the otherwise maximum statutory limit on pre-trial detention, under Article 109 of the Code of Criminal Procedure, to be extended for a further six months. In the case at issue this means that the maximum period of detention allowed before a conviction becomes final and enforceable was three years and six months.
97. The Court considers that the wording of section 28 of the AOSCOC was sufficiently clear and precise to allow the applicant to foresee situations in which his pre-trial detention could have been extended beyond the general statutory maximum limit for detention under Article 109, paragraph 1, of the Code of Criminal Procedure.
98. The Court notes that the applicant was arrested on 22 November 2006 and that the general maximum period of his detention, under Article 109 paragraph 1 of the Code of Criminal Procedure, would accordingly have expired on 22 November 2009.
99. However, in the applicant’s case, which concerned crimes covered by the AOSCOC, the investigation was opened on 24 November 2006 and was therefore supposed to be completed by 24 May 2007. On 15 May 2007, and then on 15 June, 8 August and 5 October 2007 the investigating judge established that all the necessary evidence had not been obtained and asked the president of the Split County Court to extend the investigation which was granted and the investigation was extended on four occasions. The indictment was sent to the trial court on 15 November 2007. The Court notes that with the extension of the investigation the applicant’s pre-trial detention was also extended and the applicant remained in detention throughout the investigation.
100. Therefore, when the investigation was extended under the AOSCOC, the general maximum period
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of the applicant’s detention, under Article 109 paragraph 1 of the Code of Criminal Procedure, was also extended for further six months under section 28 of the AOSCOC on 20 November 2009.
101. The Court considers that when extending the applicant’s detention over the general maximum period, the Split County Court sufficiently explained the grounds for application of section 28 of the AOSCOC (see paragraph 72) and that such extension of the maximum period of the applicant’s pre-trial detention for a further six months was in any respect in conformity with the relevant domestic law.
102. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
103. The applicant complained of the length of his pre-trial detention and in particular that the reasons put forward by the national courts when extending his pre-trial detention were not relevant and sufficient. 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.”
A. Admissibility
1. The parties’ arguments
104. The Government submitted that the applicant had failed to lodge appeals against the decisions extending his detention on 20 February 2007 and 17 May 2010. As to the other domestic courts’ decisions extending his detention, the Government argued that the applicant had failed to address the same issues raised before the Court in his constitutional complaints. Instead he had lodged his constitutional complaints as extraordinary remedies against the decisions of the Supreme Court, although the Constitutional Court had made it clear in its case-law that it was not a court of third instance.
105. The applicant contested that view, arguing that he had properly exhausted all available domestic remedies.
2. The Court’s assessment
106. 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. The purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-IV). The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances.
107. As to the alleged violations of Article 5 § 3 of the Convention, the Court has already held that if a person alleging a violation of this provision on account of the length of his detention in circumstances such as those prevailing in the present case, he complains of a continuing situation, which should be considered as a whole and not divided into separate periods (see Popov and Vorobyev v. Russia, no. 1606/02, § 71, 23 April 2009). In this respect the Court considers that if the applicant made the domestic courts sufficiently aware of his situation and gave them an opportunity to assess whether his detention was compatible with his Convention right to a trial within a reasonable time or release pending trial, it cannot be held that the applicant failed to comply with his obligation to exhaust domestic remedies (see Popov and Vorobyev, cited above, § 71, and Šuput v. Croatia, no. 49905/07, § 86, 31 May 2011).
108. The Court notes that in the present case the applicant’s pre-trial detention was ordered under Article 102 § 1(3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) and on the same grounds it was extended eleven times during the investigation and twelve times during the trial stage of the proceedings.
109. The Court further notes that during the period of his detention the applicant lodged twenty-three appeals before the domestic courts and in addition he lodged four constitutional complaints before the Constitutional Court complaining, inter alia, that his detention was unlawful, and pointing out in particular that there were no relevant and sufficient grounds for his continued detention and that it had lasted an excessively long time.
110. Against the above background, the Court considers that the applicant gave the domestic authorities an adequate opportunity to assess whether his detention had been lawful, based on relevant and sufficient grounds, and whether its length had been excessive. The Court therefore concludes that the applicant has complied with his obligation to exhaust domestic remedies and that the Government’s objection must be rejected.
111. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article
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35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ arguments
112. The applicant submitted that his detention had been extended throughout the proceedings without relevant and sufficient grounds. He argued that his detention on the ground of gravity of charges had been based only on an abstract examination of the charges against him. As to the risk of reoffending, he pointed out that the domestic courts had failed to give any consideration to the fact that he was in permanent employment and that he had not been a drug addict but had only used drugs in a shorter period of time. In his view, they had overestimated the fact that he had been previously convicted since his conviction had concerned only possession of drugs for personal use which had not been comparable with the charges in the present case. Finally, he argued that the domestic authorities had never examined the possibility to replace his detention with the preventive measures, but had only noted that there had been no ground for that.
113. The Government, reiterating the reasons put forward by the national courts, argued that the grounds for the applicant’s detention had been relevant and sufficient throughout his detention. In the Government’s view the charges against the applicant represented particularly grave circumstances which had justified the applicant’s detention throughout the proceedings. They also pointed out that there was a reasonable risk of reoffending, since the applicant was unemployed and had previously been sentenced for an offence of drug abuse. Finally, the Government argued that the grounds for the applicant’s detention had never been taken in abstracto but always with the clear, precise, adequate and valid reasoning of the domestic courts.
2. The Court’s assessment
(a) General principles
114. The Court reiterates that under its constant case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case. Continued detention can be justified only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, W. v. Switzerland, 26 January 1993, Series A no. 254‑A, and Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‑XI).
115. The presumption is in favour of release. As the Court has consistently held, the second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require him to be released provisionally once his continuing detention ceases to be reasonable (see Vlasov v. Russia, no. 78146/01, § 104, 12 June 2008, with further references).
116. It falls in the first place to the national judicial authorities to ensure that in a given case the pre-trial detention of an accused person does not exceed a reasonable time. To this end, they must examine all the evidence for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty, and must set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and the facts cited 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 Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000‑IV).
117. The arguments for and against release must not be “general and abstract” (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 63, ECHR 2003-IX). Where the law provides for a presumption in respect of factors relevant to the grounds for continued detention, the existence of the specific facts outweighing the rule of respect for individual liberty must be convincingly demonstrated (see Ilijkov, cited above, § 84 in fine, 26 July 2001).
118. The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of
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the proceedings (see Contrada v. Italy, 24 August 1998, § 54, Reports 1998-V; I.A. v. France, 23 September 1998, § 102, Reports 1998-VII; Toth v. Austria, 12 December 1991, § 67, Series A no. 224; and B. v. Austria, 28 March 1990, § 42, Series A no. 175).
(b) Application of these principles to the present case
119. As to the period be taken into account in the present case, the Court reiterates that according to its well-established case-law, in determining the length of detention under Article 5 § 3 of the Convention, the period to be taken into consideration begins on the day the accused is taken into custody and ends on the day when he is released (see, for example, Fešar v. the Czech Republic, no. 76576/01, § 44, 13 November 2008).
120. It follows that the period of the applicant’s detention to be taken into consideration began on 22 November 2006, the date of the arrest, and ended on 22 May 2010, when the applicant was released, which in total amounts to three years and six months.
121. The Court notes at the outset that the inordinate length of the applicant’s pre-trial detention – more than three years – is a matter of great concern. The national authorities must put forward very weighty reasons for keeping the applicant in detention for such a long time (see Tsarenko v. Russia, no. 5235/09, § 68, 3 March 2011).
122. The Court notes that in the present case the applicant had been detained on two different grounds: (1) risk of reoffending and (2) gravity of charges.
123. As to the risk of reoffending, the domestic authorities relied on the fact that the applicant had previously been convicted of drug abuse, that he was a drug user and that he was charged with having participated in a criminal group organised to supply heroin. In addition, during the investigation the domestic courts relied on the fact that the applicant did not have a permanent source of income.
124. As regards the latter point, the Court notes, however, that as soon as he had been arrested and detained the applicant submitted to the domestic authorities a contract of permanent employment, and throughout the investigation argued that he was employed and had a permanent source of income. Moreover, at the trial stage of the proceedings the applicant submitted a statement from his employer confirming that he still had permanent employment.
125. Therefore, the Court must conclude that the domestic authorities failed, throughout almost one year of the applicant’s detention during the investigating stage of the proceedings, to assess the relevant evidence concerning the applicant’s employment. As a result they continued to extend his detention, arbitrarily relying on the assertion that he had no permanent source of income, using the same stereotyped phrases and in some cases even identical wording. In this respect the Court reiterates that it has found a violation of Article 5 § 3 of the Convention in many other cases in which the domestic authorities were using stereotyped formulae without addressing specific facts of the case (see Tsarenko, cited above, § 70, and cases cited therein).
126. As to the applicant’s previous conviction for drug abuse as a reason for justifying the detention on the ground of the fear of reoffending, the Court considers that the domestic authorities were obliged to assess whether the previous facts and charges were comparable, either in nature or in the degree of seriousness, to the charges in the pending proceedings (see Popkov v. Russia, no. 32327/06, § 60, 15 May 2008, and Romanova v. Russia, no. 23215/02, § 130, 11 October 2011).
127. In this respect the Court notes that the domestic authorities found that the applicant had been convicted of drug abuse, but never went beyond these findings. They never assessed the facts of the previous charges and never compared the nature and the degree of seriousness of the previous conviction with the charges in the present case. Nor did they respond to the applicant’s arguments that the previous conviction had concerned only possession of small quantities of drugs for personal use which was not comparable either in nature or in degree of seriousness with the charges of participation in organised supply of heroin (see, mutatis mutandis, Constantin and Stoian v. Romania, nos. 23782/06 and 46629/06, § 55, 29 September 2009).
128. The domestic courts also relied on the fact that the applicant was a drug user when justifying the detention on the ground of the risk of reoffending. The Court, however, notes that the psychiatric report commissioned during the investigation indicated that the applicant had used drugs for only a short period of time and that he had not developed an addiction. In such circumstances the Court does not consider
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the previous period of the applicant’s use of drugs sufficient to justify the risk that the applicant would reoffend, particularly having in mind that he had been detained for a longer period of time (see Shenoyev v. Russia, no. 2563/06, § 51, 10 June 2010).
129. As regards the domestic courts’ reliance on the gravity of the charges when extending the applicant’s detention, the Court reiterates that it has repeatedly held that this reason cannot by itself serve to justify long periods of detention (see, among many other authorities, Ilijkov v. Bulgaria, no. 33977/96, §§ 80-81, 26 July 2001; Michta v. Poland, no. 13425/02, § 49, 4 May 2006; and Gultyayeva v. Russia, no. 67413/01, § 186, 1 April 2010). The Court also notes that the total period of the applicant’s pre-trial detention of three years and six months corresponds to the prison term imposed on him by the first-instance judgment, which suggests that the domestic authorities failed to assess the proportionality of the gravity of the specific charges against the applicant and the period of his pre-trial detention.
130. Against the above background the Court concludes, even taking into account the particular difficulty in dealing with a case concerning an organised criminal group, that the grounds given by the domestic authorities were not “sufficient” or “relevant” to justify the applicant’s being kept in detention for three and a half years (see Celejewski v. Poland, no. 17584/04, § 40, 4 May 2006).
131. There has accordingly been a violation of Article 5 § 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
132. The applicant complained that the procedure by which he sought to challenge the lawfulness of his detention was not in conformity with Article 5 of the Convention. The Court considers that these complaints shall be examined under Article 5 § 4 of the Convention, which reads as follows:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
A. Admissibility
133. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ arguments
134. The applicant complained that the Constitutional Court had refused to examine the merits of his complaints concerning the grounds and length of his pre-trial detention on the ground that a new decision extending his detention had been issued in the meantime. He also complained that the Supreme Court and the Constitutional Court had refused to examine his complaints concerning the existence of the concrete grounds for extending his pre-trial detention after 20 November 2009, when the maximum statutory time-limit for his detention had expired. In his view this practice of the domestic courts deprived him of an effective remedy in respect of his complaints about the lawfulness and grounds for his continued detention.
135. The Government argued that the domestic legal system had provided an effective procedure for the applicant to contest the grounds and duration of his detention. They pointed out that the applicant had been able to lodge his appeals against the decisions extending his detention and that all his arguments had been duly taken into consideration by the appeal court. In the Government’s view, the State had complied with its obligation under Article 5 § 4 of the Convention by setting up the appellate procedure in which the competent courts had provided detailed reasons upon every appeal of the applicant. They also argued that, although the applicant had lodged the constitutional complaints in respect of the decisions extending his detention, there had been no right under the Convention to lodge further remedies against the decisions ordering and extending the detention by the competent courts. This had been moreover so concerning the constitutional complaints, since the procedure before the Constitutional Court had represented a specific procedure, namely the procedure for the protection of human rights in the domestic legal system and not an extraordinary legal remedies procedure, as conceived by the applicant.
2. The Court’s assessment
(a) General principles
136. The Court reiterates that the purpose of Article 5 § 4 is to assure to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected (see, mutatis mutandis, De Wilde, Ooms and Versyp, cited above, § 76, and Ismoilov and Others v. Russia, no. 2947/06, § 145, 24 April 2008). A remedy must be made
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available during a person’s detention to allow that person to obtain speedy judicial review of the lawfulness of the detention, capable of leading where appropriate to his or her release. The existence of the remedy required by Article 5 § 4 must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see, mutatis mutandis, Stoichkov v. Bulgaria, no. 9808/02, § 66 in fine, 24 March 2005, and Vachev v. Bulgaria, no. 42987/98, § 71, ECHR 2004‑VIII).
137. The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (see, mutatis mutandis, Čonka v. Belgium, no. 51564/99, §§ 46 and 55, ECHR 2002‑I).
(b) Application of these principles to the present case
138. The Court notes that the applicant’s constitutional complaint against the decisions extending his detention was declared inadmissible by the Constitutional Court, on the ground that a fresh decision extending his detention had been adopted in the meantime.
139. The Court has already examined in other Croatian cases the practice of the Constitutional Court of declaring inadmissible each constitutional complaint where, before it has given its decision, a fresh decision extending detention has been adopted in the meantime. In this respect the Court has found a violation of Article 5 § 4 of the Convention in that the Constitutional Court’s failure to decide on the applicant’s constitutional complaints on the merits made it impossible to ensure the proper and meaningful functioning of the system for the review of his detention, as provided for by the national law. By declaring the applicant’s constitutional complaints inadmissible simply because a fresh decision extending his detention had been adopted in the meantime, the Constitutional Court did not satisfy the requirement “that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy” (see Peša v. Croatia, no. 40523/08, § 126, 8 April 2010; Hađi v. Croatia, no. 42998/08, § 47, 1 July 2010; Bernobić v. Croatia, no. 57180/09, § 93, 21 June 2011; and Šebalj v. Croatia, no. 4429/09, § 223, 28 June 2011).
140. Since the circumstances of the present case do not differ in any respect, the Court sees no reason to depart from its previous findings.
141. There has accordingly been a violation of Article 5 § 4 of the Convention as regards the failure of the Constitutional Court to decide the applicant’s complaints on the merits.
142. In view of these conclusions and finding of a violation of Article 5 § 3 of the Convention (see paragraph 131), the Court considers that there is no need to examine separately under Article 5 § 4 of the Convention the applicant’s complaint concerning the alleged lack of response of the domestic authorities to his complaints against the decisions extending the maximum statutory time-limit for his detention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
143. The applicant complained under Article 3 of the Convention about the conditions of his detention. He also complained under Article 6 § 2 of the Convention that his right to be presumed innocent had been violated in the decisions ordering and extending his detention. He further complained under Article 13 of the Convention that he had no effective remedy in respect of his Convention complaints. Finally he complained under Article 14 of the Convention that he had been discriminated against in comparison with other defendants.
144. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded, and must be rejected pursuant to Article 35 § 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
145. 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.”
146. The Court notes that the applicant failed to submit any claim for just satisfaction and for cost and expenses as provided under Rule 60 of the Rules of Court and as requested by the Court. Accordingly, the Court considers that there is no call to award him any sum on that account.
FOR THESE REASONS
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, THE COURT UNANIMOUSLY
1. Declares the complaints under Article 5 § 3 of the Convention concerning the length of and reasons for the applicant’s pre-trial detention and complaints under Article 5 § 4 of the Convention concerning the failure of the Constitutional Court to decide the applicant’s complaints on the merits and the alleged lack of answer to the applicant’s complaints concerning the grounds for extending his detention over the maximum statutory time-limit admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 5 § 3 of the Convention concerning the lack of relevant and sufficient reasons and length of the applicant’s pre-trial detention;
3. Holds that there has been a violation of Article 5 § 4 of the Convention concerning the failure of the Constitutional Court to decide the applicant’s complaints on the merits;
4. Holds that there is no separate issue to be examined under Article 5 § 4 of the Convention concerning the complaint about the alleged lack of answer to the applicant’s complaints about the grounds for extending the maximum statutory time-limit for his detention;
5. Holds that there is no call to award the applicant just satisfaction.
Done in English, and notified in writing on 6 November 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren NielsenAnatoly KovlerRegistrarPresident
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SECOND SECTION
CASE OF ROMANKEVIČ v. LITHUANIA
(Application no. 25747/07)
JUDGMENT
STRASBOURG
2 December 2014
FINAL
02/03/2015
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Romankevič v. Lithuania,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Guido Raimondi, President,Işıl Karakaş,András Sajó,Nebojša Vučinić,Helen Keller,Egidijus Kūris,Jon Fridrik Kjølbro, judges,and Stanley Naismith, Section Registrar,
Having deliberated in private on 13 November 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 25747/07) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Juljan Romankevič (“the applicant”), on 15 June 2007.
2. The applicant, born in 1934, passed away on 27 January 2008. His daughter and heir, Helena Česlauskienė, who lives in the Vilnius Region, stated that she wished to maintain the application. For practical reasons, Mr Romankevič will continue to be called “the applicant” in this judgment. The applicant’s heir was represented before the Court by Mr R. Mištautas, a lawyer practising in Kaunas.
3. The Lithuanian Government (“the Government”) were initially represented by their former Agent, Ms E. Baltutytė, and subsequently by their Acting Agent, Ms K. Bubnytė.
4. The applicant alleged that he had been deprived of his property by a decision of a domestic court and had not received adequate compensation, in breach of Article 1 of Protocol No. 1 to the Convention.
5. On 29 June 2012 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. In 1998 the applicant’s property rights to a previously nationalised part of his late father’s land near Vilnius were restored. On 5 June 2002 the Vilnius Region Administration restored his rights – restitution in natura – to the remainder of the land measuring 0.53 hectares, situated in the village of Gineitiškės. This plot of land was then entered in the land registry in the applicant’s name.
7. In January 2005, having discovered that the decision of 5 June 2002 was based on erroneous data prepared by a State-hired land surveyor and had possibly breached the rights of other former landowners, the General Prosecutor’s Office instituted administrative proceedings to have the applicant’s title to the plot annulled. The applicant was a third party to those proceedings and argued that the restoration process had been lawful, without, however, raising the question of an adequate compensation in the event that his title to the plot was extinguished. Shortly before the initiation of the case, the Vilnius Region Administration had admitted that its decision had been unlawful and had informed the applicant that it needed to rectify the error; however, it appears that the latter had disagreed.
8. On 8 September 2005 the Vilnius Regional Administrative Court dismissed the prosecutor’s complaint. However, on 12 December 2005 the Supreme Administrative Court remitted the case for re-examination.
9. On 20 April 2006 the Vilnius Regional Administrative Court granted the claim and annulled the decision of 5 June 2002. Finally, on 15 January 2007 the Supreme Administrative Court upheld the decision of the lower court. The courts established that the original plot of land to which the applicant had ownership rights was actually situated in another, albeit nearby, area of Gilužiai village. Thus, the return of the plot in 2002 was declared unlawful as it breached the Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property.
10. Following the courts’ decisions, the plot of land was taken away from the applicant and returned to the State. No compensation was awarded to the applicant. However, he reserved the right
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to have his ownership rights restored.
11. By a decision of 2 February 2009 the Vilnius Region Administration restored the applicant’s ownership rights in natura by granting a new plot of land measuring 0.53 hectares in Gilužiai village.
II. RELEVANT DOMESTIC LAW AND PRACTICE
12. For the relevant domestic law and practice see Pyrantienė v. Lithuania (no. 45092/07, §§ 16-22, 12 November 2013), and Albergas and Arlauskas v. Lithuania (no. 17978/05, §§ 21-33, 27 May 2014).
13. Under the Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property (Piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atkūrimo įstatymas) (hereinafter “the Law on Restitution”) as in force at the material time, land had to be returned to citizens in natura in its former location, with the exception of land which could not be returned in natura and had to be bought out by the State while the former owners had to be compensated by other means provided for by the Law on Restitution, and land that citizens were not willing to get back in its former location (Article 4 § 2).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
14. The applicant complained that he had been deprived of his property in violation of Article 1 of Protocol No. 1 to the Convention. He also argued that he had not been sufficiently compensated. Article 1 of Protocol No. 1 provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
15. First of all, the Court takes note of the death of Mr Juljan Romankevič on 27 January 2008 and of the wish expressed by his daughter and official heir to continue the application before the Court in her father’s name. In January 2013 she submitted to the Court her request to that end and an official certificate of inheritance.
16. The Court notes that in several cases in which the applicant died after having lodged the application, it has taken into account the intention of the applicant’s heirs or close members of his or her family to pursue the proceedings (see, for example, Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII, and Kovačić and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, §§ 189-192, 3 October 2008).
17. In accordance with its case-law, the Court finds that Mrs Česlauskienė has standing to continue the proceedings in the applicant’s stead.
A. Admissibility
18. The Government submitted that the applicant had failed to exhaust all effective domestic remedies by not instituting new separate judicial proceedings against the State under Article 6.271 of the Civil Code for damages in view of the alleged violations of his property rights.
19. The applicant submitted that the remedy suggested by the Government had not been effective at the time when his application had been submitted to the Court.
20. The Court refers to its findings in the cases of Pyrantienė (cited above, § 27) and Albergas and Arlauskas (cited above, §§ 43-44) in which it considered that it had not been demonstrated that at the time when the present application was submitted to the Court, a claim under Article 6.271 of the Civil Code would have been an effective remedy and would have had any prospect of success (see, mutatis mutandis, Beshiri and Others v. Albania, no. 7352/03, § 55, 22 August 2006).
21. As a result, the Court dismisses the Government’s objection that the applicant failed to exhaust domestic remedies.
22. The Government further contended that the applicant should not be considered to be a victim of the alleged violation because the interference had already been fully and justly redressed by the State in 2009 when, on receiving a new plot of land, his ownership rights had been
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restored.
23. The applicant submitted that the new plot assigned to him was less valuable than the plot of land to which his ownership rights had first been restored in 2002.
24. The Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive him or her of his or her status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for example, Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI).
25. After the authorities’ first unsuccessful attempt to restore the applicant’s property rights in 2002, they were finally restored in 2009. However, the authorities’ decision did not involve any acknowledgment of the alleged violation, although they had admitted the error committed (see paragraph 7 above).
26. In these circumstances, the Court considers that the applicant may still claim to be a victim of a violation of Article 1 of Protocol No. 1 to the Convention (see Burdov v. Russia, no. 59498/00, § 31, ECHR 2002‑III).
27. 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
28. Relying on the Law on Restitution, the legal acts of the Vilnius Region Administration and the data prepared by the State-hired land surveyor, the applicant maintained that he had obtained the disputed plot lawfully. He also argued that the prosecutor had not been defending the public interest when he had applied to the courts with a civil claim protecting the rights of third persons. Lastly, the applicant claimed that he had not been afforded just satisfaction for the deprivation of his property.
29. The Government submitted that the interference had been lawful and justified: it was in the public interest to protect the rights of other citizens to the disputed land, which had previously been assigned to the applicant by mistake. They also observed that the applicant had made no major investments in or improvements to the plot before it was taken away by the State. As a result, the interference was proportionate.
30. The applicant emphasised that even though his property rights had been restored in 2009 through the granting of a new plot of land of the same size, its value, as assessed by an independent expert, was more than ten times less than that of the original plot (580,000 Lithuanian litai (LTL) (approximately 170,000 euros (EUR)) because of its different location.
31. The Government argued that the applicant had not suffered any pecuniary damage because from the outset he had not been entitled to any other plot but the original one situated in the village of Gilužiai, which he subsequently obtained ex gratia from the State in 2009. The above-mentioned errors by the domestic authorities had occurred in the context of land reform, which was linked to the process of restoring former owners’ rights to property that had previously been nationalised by the Soviet regime. In their view, in the context of central and eastern European States, the circumstances concerning the transition from a totalitarian regime to a democracy and the specific circumstances of each case had to be taken into account. They emphasised that public authorities should not be prevented from correcting their mistakes, even those resulting from their own negligence.
1. The Court’s assessment
(a) General principles
32. The relevant general principles are set out in paragraphs 37-40 of Pyrantienė, cited above.
(b) Application of the above principles in the present case
33. In the present case, it is not in dispute that there has been an interference with the applicant’s property rights when his title was annulled and the plot of land was returned to the State. The decision of the domestic courts to annul the applicant’s title had clearly the effect of depriving the applicant of his property within the meaning of the second sentence of Article 1 of Protocol No. 1 (see, mutatis mutandis, Doğrusöz and Aslan v. Turkey, no. 1262/02, § 29, 30 May 2006). The Court must therefore ascertain whether the impugned deprivation was justified.
(i) Lawfulness of the interference
34. The decision of the courts to annul the restoration of the applicant’s ownership rights of 5 June 2002 was prescribed by law, as it was based on the provisions of the Law on Restitution after the domestic courts had established
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that the administrative authority had attributed a plot of land to the applicant in the wrong location. The Court therefore finds that the deprivation was in accordance with the conditions provided for by law, as required by Article 1 of Protocol No. 1 to the Convention.
(ii) “In the public interest”
35. As in the Pyrantienė and Albergas and Arlauskas cases, the measures complained of were designed to correct the authorities’ mistakes and to defend the interests of the former owners by restoring their ownership rights to the plot of land in question. The Court thus considers that the interference was in the public interest (see Pyrantienė, cited above, §§ 44-48, and also Bečvář and Bečvářová v. the Czech Republic, no. 58358/00, § 67, 14 December 2004).
(iii) Proportionality
36. The Court reiterates that any interference with property rights, in addition to being lawful and pursuing a legitimate aim, must also satisfy the requirement of proportionality. A fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights, the search for such a fair balance being inherent in the whole of the Convention. The requisite balance will not be struck where the person concerned bears an individual and excessive burden (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74, Series A no. 52, and Brumărescu v. Romania [GC], no. 28342/95, § 78, ECHR 1999-VII).
37. In the context of revoking ownership of a property transferred erroneously, the good governance principle may not only impose on the authorities an obligation to act promptly in correcting their mistake (see, for example, Moskal v. Poland, no. 10373/05, § 69, 15 September 2009), but may also necessitate the payment of adequate compensation or another type of appropriate reparation to the former bona fide holder of the property (see Bogdel v. Lithuania, no. 41248/06, § 66, 26 November 2013, and Maksymenko and Gerasymenko v. Ukraine, no. 49317/07, § 64, 16 May 2013).
38. The Court recalls that the good governance principle should not, as a general rule, prevent the authorities from correcting occasional mistakes, even those resulting from their own negligence. Holding otherwise may lead to a situation which runs contrary to the public interest (see Moskal, cited above, § 73, and Rysovskyy v. Ukraine, no. 29979/04, § 71, 20 October 2011).
39. The Court reiterates that the risk of any mistake made by a State authority must be borne by the State itself and the errors must not be remedied at the expense of the individuals concerned (see, among other authorities, Albergas and Arlauskas, cited above, § 59, Rysovskyy, cited above, § 71, and Gashi v. Croatia, no. 32457/05, § 40, 13 December 2007).
40. In the circumstances of the present case the Court observes that some two and a half years after the allocation of the plot of the land to the applicant in 2002, the authorities discovered that a mistake had been made, as the plot of land allocated to the applicant had not belonged to the applicant’s father and therefore the applicant was not entitled to that land. Once the error in the decision of 5 June 2002 was discovered, the Vilnius Region Administration admitted the mistake and court proceedings for annulment of the applicant’s title were instituted without undue delay by the public prosecutor (see, for comparison, Yavashev and Others v. Bulgaria, no. 41661/05, § 65, 6 November 2012).
41. In the present case the applicant’s title was invalidated by a final court decision on 15 January 2007 after it was established that the authorities had allocated the wrong plot to him in 2002. The procedures for restoration of ownership rights were conducted by official bodies exercising the authority of the State (see paragraph 6 above). It was therefore the responsibility of the authorities to verify the applicant’s eligibility to be allocated the land and the conformity of their decision with the procedures and laws in force.
42. The Court is of the opinion that the applicant could not reasonably have anticipated the annulment of the decision of the Vilnius Region Administration of 2002. Nor was it proven that he had acted in bad faith, as it was not until 20 April 2006 when the Vilnius Regional Administrative Court judgment was adopted that the unlawfulness of the authorities’ decision was determined for the first time. Following that decision and the final one of 15 January 2007, the applicant
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remained in an unfavourable situation for more than two years until a new plot of land of the same size was attributed to him by the authorities in February 2009.
43. While it is true that it took two years (and, in total, a bit more than four years after the mistake had been detected) for the authorities to grant a new plot of land to the applicant in place of the one that had been taken away by a final decision of the Supreme Administrative Court on 15 January 2007, the State authorities cannot be blamed for not putting more effort into finding a solution to the situation which had occurred as a result of inconsistencies of a technical nature in 2002.
44. Having regard to the foregoing and the circumstances of the present case, the Court finds that the term of two years for correcting the authorities’ mistake cannot be regarded as unacceptable for the purposes of Article 1 to the Protocol No. 1 of the Convention.
45. As concerns the applicant’s argument about the lower market value of the new plot of land (see paragraph 30 above), the Court observes that under the domestic law he had no right to claim that a new plot should be of the same market value as the one that had been allocated to him by mistake in 2002. The original plot of land that had belonged to his father was situated elsewhere. As a result, the applicant neither had a legitimate expectation nor could he claim to continue to enjoy property rights to any land but his father’s (see Gratzinger and Gratzingerova v. the Czech Republic (dec.), no. 39794/98, § 74, ECHR 2002‑VII).
46. On the question of the burden borne by the applicant in the case, the Court considers that the efforts by the authorities seemed to have brought the desired results without undue delay and the award of a new plot of the same size compensated the applicant for the loss that he had incurred two years earlier, in particular, given that he had not tried to raise the question of the pecuniary compensation before the domestic authorities. Moreover, no negative consequences which could be related to the late reattribution of the plot or to the uncertainty during the period when the applicant’s title was challenged have been proven (see, by converse implication, Pyrantienė, cited above, §§ 62-72).
47. Having regard to all the circumstances of the case, the Court therefore finds that the domestic authorities struck a fair balance between the protection of the applicant’s possessions and the requirements of the public interest and that the applicant thus did not have to bear an individual and excessive burden.
48. The Court holds, accordingly, that there has been no violation of Article 1 of Protocol No. 1 to the Convention.
II. OTHER ALLEGED VIOLATIONS
49. The applicant complained under Article 6 § 1 of the Convention that the civil proceedings had lasted too long.
50. It should be noted that the proceedings in question lasted from January 2005 until 15 January 2007 when the final decision was adopted by the Supreme Administrative Court. Therefore, the proceedings lasted two years at two levels of jurisdiction. The Court considers that such a duration does not raise any issue and is compatible with Article 6 § 1 of the Convention. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
51. The applicant further complained that the domestic courts had erred in evaluating the evidence and applying the law when declaring unlawful the authorities’ decision of 5 June 2002.
52. The Court reiterates that it is not a court of appeal for the decisions of domestic courts and that, as a general rule, it is for those courts to interpret domestic law and assess the evidence before them (see Kern v. Austria, no. 4206/02, § 61, 4 February 2005, and Wittek v. Germany, no. 37290/97, § 49, ECHR 2000-XI). On the basis of the material in its possession, the Court observes that the complaint at hand is essentially of a “fourth instance” nature. As a result, this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint concerning Article 1 of Protocol No. 1 to the Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been no violation of Article 1 of Protocol No. 1 to the Convention;
3. Rejects the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 2 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of
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Court.
Stanley NaismithGuido RaimondiRegistrarPresident
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Kjølbro is annexed to this judgment.
G.R.A.S.H.N.
CONCURRING OPINION OF JUDGE KJØLBRO
1. I would like to clarify the reasons why I voted for finding no violation of Article 1 of Protocol No. 1 to the Convention.
2. Some two and a half years after the allocation of the plot of the land, the authorities discovered that a mistake had been made. Once the error was discovered, the authorities took the initiative to rectify the mistake. However, as the applicant objected to the rectification, the initiation of court proceedings was rendered necessary.
3. The court proceedings at two levels of jurisdiction were concluded within two years. Thus, the court proceedings to correct the mistake were initiated promptly and completed without undue delay.
4. Furthermore, some two years after the final decision in the court proceedings, the applicant was allocated a new plot of land. Thus, the mistake made by the authorities was redressed and the applicant received the plot of land he was entitled to, that is, the land that had belonged to his father.
5. The authorities cannot be blamed for not having corrected the mistake earlier, as they could not take the initiative to allocate another plot of land to the applicant as long as he objected to the rectification of the original allocation of land and the court proceedings were still pending.
6. The applicant cannot argue that he suffered a pecuniary loss on account of the lower market value of the plot of land that had belonged to his father compared with the market value of the plot of land which had been allocated to him by mistake.
7. Furthermore, as regards the applicant’s claim that he was not afforded just satisfaction at domestic level, it should be noted that he did not seek any compensation for pecuniary or non-pecuniary damage as a result of the mistake made by the authorities, either in the annulment proceedings or in separate court proceedings.
8. Therefore, having regard in particular to the factors mentioned, I agree that there has been no violation of Article 1 of Protocol No. 1 to the Convention.
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FOURTH SECTION
CASE OF KARBOWNICZEK v. POLAND
(Application no. 22339/08)
JUDGMENT
STRASBOURG
27 September 2011
FINAL
27/12/2011
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Karbowniczek v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,Lech Garlicki,Ljiljana Mijović,George Nicolaou,Zdravka Kalaydjieva,Nebojša Vučinić,Vincent A. De Gaetano, judges,and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 6 September 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 22339/08) 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 Jarosław Karbowniczek (“the applicant”), on 28 April 2008.
2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3. The applicant alleged, in particular, a violation of Article 3 of the Convention on account of ill-treatment by the police.
4. The applicant and the Government each filed observations on the merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1979 and lives in Wałbrzych.
A. The applicant’s detention and criminal proceedings against him
6. On 27 July 2005 the applicant was arrested by the police on suspicion of having committed battery, uttered threats and intimidated a witness.
7. On 28 July 2005 the Wałbrzych District Court (Sąd Rejonowy) decided to remand the applicant in custody. The court relied on a reasonable suspicion that the applicant had committed the offences in question and the high probability that a heavy sentence would be imposed on him. The court further considered that there was a risk that the applicant might interfere with the course of the proceedings and bring pressure to bear on witnesses, particularly in the light of the fact that he had previous convictions.
8. On 27 October 2005 the applicant’s detention was extended. The court relied on the grounds given previously. The applicant’s appeal against this decision was dismissed on 3 November 2005.
9. On 23 December 2005 the District Court further extended the pre-trial detention in respect of the applicant and his two co-accused, considering it necessary in order to ensure the proper course of the proceedings. An appeal by the applicant was dismissed on 5 January 2006.
10. On 9 March 2006 the applicant and the two co-accused were indicted before the Wałbrzych District Court.
11. On 21 March 19 June, 12 September and 7 December 2006 the trial court further extended the applicant’s detention, finding that the original grounds for it remained valid. The court also considered that there was a risk that the accused would interfere with the proper course of the proceedings.
12. At a hearing held on 2 March 2007 the Wałbrzych District Court extended the applicant’s detention, reiterating the grounds invoked previously.
13. The applicant appealed against this decision.
14. On 21 March 2007 the Świdnica Regional Court (Sąd Okręgowy) dismissed the appeal. The court noted that the applicant had already “tried to influence the course of the proceedings”, had tried to abscond while being transported to the court and that he had already been convicted of offences similar to those with which he was charged in the present set of proceedings. The court also considered that the applicant might try to influence the testimony of his sister, who was accused in the same proceedings but who was not detained. The court concluded that detention on remand was the only preventive measure capable of ensuring the proper course of the proceedings.
15. Subsequently, on 30 May 2007, the applicant’s detention was extended on the grounds given previously.
16. Between 22 June 2006 and 3 July
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2007 the applicant was serving a prison sentence imposed on him in a different set of proceedings.
17. On 3 July 2007 the Wałbrzych District Court convicted the applicant and sentenced him to eight years’ imprisonment. Together with two accomplices, the applicant was found guilty of, inter alia, forgery, battery, robbery and uttering threats. However he was not charged or convicted of membership of an organised criminal group.
18. The applicant lodged an appeal against the judgment.
19. On 21 December 2007 the Świdnica Regional Court quashed the first-instance judgment and remitted the case. On the same day the court extended the applicant’s detention, finding that the grounds previously given remained valid.
20. On 25 June 2008 the applicant’s detention was further extended. An appeal by the applicant against that decision was dismissed on 10 July 2008.
21. On 25 July 2008 the Wałbrzych District Court extended the applicant’s pre-trial detention; however, the court decided that the applicant could be released, under police supervision, on bail in the amount of 10,000 Polish zlotys (PLN) (approximately EUR 3,000 at that time). The court observed that the majority of the witnesses had been heard, so the risk that the applicant would try to bring pressure to bear on them was no longer justified.
22. The applicant submitted that he had no means to pay the bail.
23. On 14 August 2008 the applicant was released from detention although he had failed to pay the full sum specified in the bail decision.
24. On 18 October 2010 the Wałbrzych District Court convicted the applicant and sentenced him to six years’ imprisonment.
25. On 22 March 2011 the Świdnica Regional Court partly amended and partly quashed the judgment and remitted the case. The applicant was sentenced to seven years’ imprisonment.
26. On 19 April 2011 the applicant’s legal-aid counsel refused to lodge a cassation appeal against the judgment.
B. The events of 21 November 2006 as presented by the applicant
27. On 21 November 2006 the applicant was transferred from the Detention Centre to the Walbrzych District Court to attend a hearing. He was escorted by police officers, who left the door of the police van open thereby enabling him to escape. After several minutes he was stopped and brutally beaten up by the police officers. The applicant was brought back to the court building where he was handcuffed to a radiator, stripped naked, and again hit, kicked, strangled and hit with a gun by the police officers.
28. The applicant was then brought back to the courtroom, where he complained to the presiding judge about what had happened to him. An ambulance was called and the applicant was taken to a hospital where he was examined by a doctor. A medical certificate (which is hardly legible) issued by a doctor from the emergency room of the Wałbrzych Hospital, confirm abrasions to the applicant’s head.
29. Upon his return to the court building the applicant was again beaten up by police officers. Afterwards, he was transferred back to the Detention Centre, where he requested an examination by a doctor.
The following is an extract from a note in the “Health book of a detainee” (Książka Zdrowia Osadzonego”):
“21.11. 2006
[The applicant] submits that he was arrested by force by police officers. On his body can be seen: skin abrasion on the left side of his forehead measuring 5 cm by 3 cm, an abrasion on the lower part of his chin 3 cm long, two scratches on the right shoulder blade 10 cm long, a scratch on the right arm 6 cm long, an abrasion on the left side of his chest 15 cm long, abrasions on the knee, above the ankle, a blue mark under the right eye, a red mark on the neck and right knee.”
30. A note in the book dated 22 November 2006 confirmed that a forensic medical examination had been carried out confirming the injuries as previously described.
C. The investigation concerning the applicant’s alleged ill-treatment and facts as established by the domestic authorities
31. On 12 February 2007 the Wałbrzych District Prosecutor opened an investigation into the applicant’s allegations.
32. On 12 June 2007 an expert medical opinion was prepared.
33. On 15 June 2007 the Wałbrzych District Prosecutor decided to discontinue the investigation, finding that there was insufficient evidence that an offence had been committed. In the course of the investigation an expert was appointed. The testimony of T.G., who had been transported with the applicant to the court and was later present in the court building, was also heard.
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T.G. testified that he could not see what happened when the applicant had run out of the van, but he saw him later in the court, when waiting for his hearing. T.G. testified that he heard the applicant screaming in pain, as if he had been beaten.
The prosecutor gave the following reasons for her decision:
“In the course of the investigation the following course of events was established.
On 21 November 2006 [the police officers P.G., D.P. and R.G.] escorted [the applicant] from the Wałbrzych Police Station to the Wałbrzych District Court...
Next to the building of the Wałbrzych District Court [the applicant], having removed his hand from the handcuffs, pushed open the van door and ran off in the direction of [other] buildings. The action undertaken [by the police officers] led to the arrest of the applicant, who took fright at a warning shot fired by P.G. and lay down on the ground. He was handcuffed and led to the van and brought to the detainees’ room of the Walbrzych District Court. P.G. and R.G. took part in the pursuit of [the applicant]. [The third police officer] stayed in the van to watch over the other detainee. For their own safety, the police officers searched the applicant and confiscated money and other small items from him. The applicant was alone in the detainees’ room.
After having been searched, the applicant was handcuffed. At that moment he started hitting his head against the floor and walls and shouting that the police officers had beaten him up and that it was their fault. Since P.G. had left for Wałbrzych Police Station, in order to transmit the information about [the applicant’s] attempt to flee, the remaining [police officers], seeing [the applicant’s] behaviour, laid him on the floor and held his hands and legs to prevent him from injuring himself further. During that time the applicant tried to free himself, rubbed his head against the floor and shouted at the police officers that he would inform the prosecuting authorities of the fact that they had beaten him up. He also threatened to kill them. After about 30 minutes an ambulance came to give him something to calm him down, but the doctor decided to take [the applicant] to the hospital.
[Three police officers] went with [the applicant] to the hospital. In the hospital the applicant underwent the necessary examinations; then, since he was allowed to participate in the trial, the police officers took him to the Wałbrzych District Court. The applicant was then transported to the prison because the hearing had been adjourned.
The injuries sustained by [the applicant] on 21 November 2006 qualified as injuries that could happen in the circumstances described by both the victim and the police officers. However, the court expert established categorically that they could not have happened as a consequence of repeated kicking or beating with substantial force, as described by the victim.
On the basis of all the material collected in the case it can be unambiguously established that there is not enough evidence substantiating the allegations that the police officers escorting [the applicant] on 21 November 2006 committed an offence. It should be said that the possibility that the applicant was beaten up by the police officers cannot be totally ruled out. However, the evidence collected lends credence to the version of events given by the police, which differs completely from the one given by [the applicant] because there were no other witnesses to the event who could confirm [the applicant’s] version, and it is impossible to identify any such witnesses.
T.G., who was transported with the applicant, does not have any information concerning the incident, as from the moment the applicant escaped, he lost all contact with him.
As a side note it is to be pointed out that, judging from life experience, it is rather unlikely that the police officers, after having informed their superiors about the applicant’s running off, beat him up and subsequently, having brought the applicant from the hospital back to the court building and knowing that D.G., their supervisor, was already present in the court building, ill-treated the applicant yet again.
Since the version of the events given by the applicant was not confirmed by the evidence collected, his statements in this respect should be considered as untrue. It is therefore justified to discontinue the proceedings under Article 17 § 1 of the Code of Criminal Procedure on the grounds that there is no evidence sufficiently justifying the suspicion that an offence was committed.”
34. The applicant lodged an appeal against that decision.
35. On 15 June 2007 the prosecutor requested an expert to enlarge on [his] opinion by answering the question whether the injuries described below could have occurred in the circumstances as described by the police officers. The prosecutor stated as follows:
“On 12 June 2007 an expert opinion in forensic medicine was prepared which established
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that some of the injuries [sustained by the applicant], in particular an abrasion on the forehead, a bruise on the mandible, bruises on the shoulder blade, on the chest, and on the right thigh could be the result of hitting or kicking with minor force. When preparing the opinion, the expert was unaware of the testimonies given by the witnesses D.P. and R.G., the police officers...”
36. On 31 January 2008 the Wałbrzych District Court dismissed the appeal. The court entirely agreed with the prosecutor’s findings after having allowed the new evidence requested by the applicant in his appeal, namely the testimony of K.K., a witness who was present at the Wałbrzych District Court on 21 November 2006 and who allegedly saw the applicant being beaten by the police officers, and the additional testimony of T.G., who was transported with the applicant to a court hearing and was likewise present in the court building at the time the applicant was ill-treated.
K.K. submitted that he saw the applicant when he had been waiting for a hearing in the holding room at the court building. The holding room led to two cells. K.K. further submitted that there had been another woman in the room, who had also been transported to the court building for a hearing. According to K.K., the applicant had been placed in one of the cells; the door to the cell was left open. He could see the applicant, partly undressed (without a shirt and trousers) and handcuffed to a radiator. He saw the police officers entering the cell and insulting the applicant. He further submitted that, when leaning out, he had seen one of the police officers kicking the applicant. Subsequently, K.K. stated that he had seen some two to four police officers kicking the applicant.
In his additional testimony, T.G. submitted that at the court building, through a peep-hole in the door of his cell, he could see the applicant being pulled about by the police officers. He could not see whether the applicant had been beaten, but he heard him calling out in pain, which he associated with the applicant having been hit.
37. The court did not explain why K.K.’s testimony and the additional testimony of T.G. had been disregarded. The court did not refer either to the alleged stripping of the applicant. However, the court mentioned that the evidence obtained by the prosecutor was sufficient to establish the circumstances of the case. The court also took into account the supplementary expert opinion and concluded:
“[From the supplementary expert opinion upholding the conclusions of the original opinion, and after having examined other evidence requested by the applicant] it is clear that although the applicant sustained injuries, they do not indicate that he was repeatedly hit and kicked, and could have occurred when the applicant forcibly pushed the police van door open, fell, or lay down after fleeing, or when he struggled with the police officers while in a lying position and was held down by force; the abrasion on the forehead could have happened when he was rubbing his head against the ground, and [all these injuries] were slight and minor in nature.
In the light of the above and after all possible investigative actions have been carried out, it is impossible in the circumstances to establish the existence of evidence to prove that the offence was committed. Having analysed the material collected in the case, the court agreed with the prosecutor’s findings in full and decided as in the operative part.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Use of force by the police
38. The regulations on the permissible use of direct coercive measures by the police are laid down in section 16 of the Police Act, which provides that in situations in which a police order is not obeyed, such measures can be resorted to only in so far as they correspond to the requirements of the particular situation and in so far as they are necessary to obtain compliance with that order.
39. Article 5 § 1 of the Ordinance of 17 September 1990 on the use of coercive measures by the police provides that direct physical force can be used to overpower a person, to counter an attack and to ensure compliance with an order. When such force is being used, it is forbidden to strike the person against whom the action is being carried out, except in self-defence or to counter an attack against another person’s life, health or property.
B. As regards detention on remand
40. The relevant domestic law and practice concerning the imposition of detention on remand (tymczasowe aresztowanie), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v
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. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
41. For the latest amendments of the provisions concerning detention on remand, see the Court’s judgment in the case of Kauczor v. Poland, no. 45219/06, § 25-33, 3 February 2009.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
42. The applicant complained under Article 3 of the Convention that he had been kicked and beaten up by police officers while being transported to the Wałbrzych District Court to attend a hearing and, afterwards, in the court building itself.
43. Article 3 of the Convention provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
44. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. Alleged ill-treatment by the police
(a) The applicant’s submissions
45. The applicant submitted in general terms that Article 3 had been violated by the police officers who had treated him brutally on the day when he was transported to attend the hearing in the District Court.
(b) The Government’s submissions
46. The Government submitted that it was undisputed that, on 21 November 2006, the applicant had attempted to escape from a police vehicle. They considered that the use of force had been made necessary by the applicant’s own conduct; the applicant must have been aware that his attempt to escape would have led the police to react. According to the Government, the injuries sustained by the applicant might have occurred when the applicant forcibly opened the door of the police van and when the applicant fell to the ground after one of the police officers had fired a warning shot. They considered that the measures undertaken by the police officers following the applicant’s attempt to escape had been lawful, proportionate and had not exceeded the minimum level of severity required to fall within the ambit of Article 3 of the Convention.
47. As regards the course of events in the detainees’ room in the building of the Wałbrzych District Court, the Government submitted that the applicant’s injuries had been largely self-inflicted. The applicant had behaved aggressively and the police officers had had to react by using physical force to stop him from hurting himself. The Government described as completely unreliable the applicant’s submissions that he had been beaten up by the police officers in the detainees’ room. According to the Government, this was impossible especially since the police officers’ supervisor, D.G., had been present.
48. The Government produced a copy of the minutes of the hearing of 21 November 2006 from which it emerges that the applicant, having been brought back from hospital to the court building, declared that he felt well enough to participate in the hearing. However, the court decided to adjourn the hearing “due to the applicant’s emotional state”.
49. Finally, the Government submitted that the medical experts who had examined the applicant’s injuries ruled out the possibility that the injuries had been caused by kicking and beating.
50. The Government concluded that the facts of the case did not disclose a violation of Article 3 of the Convention.
(c) The Court’s assessment
51. The Court reiterates that where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see, among other authorities, Selmouni v. France [GC], cited above, § 87). The same principle applies to alleged ill-treatment resulting in injury which takes place in the course of an applicant’s arrest (see Klaas v. Germany, 22 September 1993, §§ 23-24, Series A no. 269, and Rehbock v. Slovenia, no. 29462/95, §§ 68-78, ECHR 2000-XII).
52. According to the Court’s case-law, Article 3 does not prohibit the use of force for the purposes of effecting an arrest. However, such force may be used only if indispensable and must not be excessive (see, among others, Rehbock, cited above; Altay v. Turkey, no. 22279/93, § 54, 22 May 2001; and Ivan Vasilev v. Bulgaria, no
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. 48130/99, § 63, 12 April 2007). In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336).
53. The Court further recalls that Article 3 of the Convention prohibits, in absolute terms, torture and inhuman or degrading treatment. However, ill‑treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the ill‑treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and to be “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a legitimate form of given treatment or punishment. The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account, but the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see Labita v. Italy [GC], no. 26772/95, 6.4.2000, §§ 119-120, ECHR 2000-IV). Allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (loc. cit., § 121).
54. The Court observes that the parties have not disputed that, on 21 November 2006, the applicant absconded from the police van while being transported to the Wałbrzych District Court. Two of the three police officers who escorted the applicant started chasing him. One of them fired a warning shot in the air and the applicant fell to the ground. He was then apprehended by the police officers and handcuffed. The applicant submitted that he had been beaten up and kicked by the police officers immediately afterwards. The Government submitted in turn that the applicant had been transferred to the detainees’ room of the Wałbrzych District Court. The parties likewise disagree as regards the course of events in the detention room. The applicant submitted that he had again been beaten up and kicked. According to the Government, the applicant had behaved aggressively and tried to injure himself and the intervention of the police officers had been indispensable. The Government’s version was confirmed by the domestic authorities in their investigation and by the subsequent judicial proceedings.
55. While the Court is not bound by the findings of the domestic authorities as to facts alleged to be in breach of the Convention, on the basis of the parties’ observations and the material in its possession, it finds it impossible to establish whether any ill-treatment occurred in the street immediately after the applicant’s apprehension and, subsequently, in the court building.
56. The Court observes that the applicant was apprehended in the course of an operation giving rise to unexpected developments to which the police were called upon to react. The Court considers that the applicant’s apprehension must have resulted in the applicant having sustained some minor injuries. The Court further considers that the applicant must have been aware that the police would chase him and try to apprehend him and that physical force might have to be used against him if he resisted arrest.
57. The Court notes in addition that the applicant’s injuries were not very serious. It further observes that although the first expert’s report suggested that they could not have been caused by repeated kicking and beating with substantial force the second report stated that they could have resulted from kicking and beating with minor force (see paragraphs 33 and 35 above). Furthermore, the applicant’s wounds were dressed in the hospital and he was transported back to the court. As reported by the prosecutor in her decision of 15 June 2007 (see paragraph 33 above) and confirmed in the minutes of the hearing of 21 November 2006 (see paragraph 48 above) after the events on that day the applicant was able to participate in the hearing, which was adjourned because the court considered that the applicant should not be heard in a state of emotional distress.
58.
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Taking into consideration the findings made in the course of the domestic proceedings, the Court for its part finds it impossible to establish on the basis of the evidence before it whether or not the applicant’s injuries were caused as alleged. However, it would observe at the same time that the difficulty in determining whether there was a plausible explanation for the applicant’s injuries or whether there was any substance to his allegations of ill-treatment must be assessed against the background of the adequacy of the investigation carried out in respect of the applicant’s allegations (see Veznedaroğlu v. Turkey, no. 32357/96, § 31, 11 April 2000). The Court will now examine this matter further.
2. Adequacy of the investigation
(a) The applicant’s submissions
59. The applicant did not refer to this matter.
(b) The Government’s submissions
60. The Government contended that the investigation and judicial proceedings in the present case had complied with Article 3 requirements. They argued that the proceedings had been prompt and thorough. There was no other evidence that the prosecuting authorities should have taken into account in order to establish the facts of the alleged ill-treatment. The circumstances of the case had been examined by the Wałbrzych District Prosecutor and, subsequently, in the course of independent judicial proceedings conducted by the Wałbrzych District Court. All the relevant witnesses had been heard and a forensic report and a supplementary report had been commissioned.
(c) The Court’s assessment
61. The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in... [the] Convention”, requires by implication that there should be an effective official investigation. This investigation should be capable of leading to the identification and punishment of those responsible (see, among other authorities, Labita v. Italy, cited above, § 131). The investigation into arguable allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions (see Assenov and Others, cited above, § 103 et seq).
62. In the Labita case cited above, the Court found a violation of Article 3 on the ground that the authorities had not investigated the alleged numerous acts of violence, humiliation, and other forms of torture inflicted on an applicant. It must be noted however that in that case the Court’s conclusion was reached on account of the manifest inactivity of the authorities regarding the investigation of that applicant’s complaints (loc. cit., §§ 117-136).
63. In the present case, a number of persons were questioned, including T.G., who, on 21 November 2006, was transported together with the applicant to the Wałbrzych District Court and was present in the court building at the time the applicant was allegedly beaten-up, the police officers involved and D.G. - the police officers’ supervisor, who was likewise present in the court building at the time of the alleged ill-treatment. Furthermore, expert opinions as well as a supplementary expert opinion were produced in the context of the investigation into the applicant’s allegations of ill-treatment on 21 November 2006 (see paragraph 35 above). Also, at the request of the applicant submitted in his appeal against the decision of 15 June 2008, K.K., a witness who allegedly saw the applicant being ill-treated in the court building, was heard. It was apparent thought that this evidence did not reveal any new relevant circumstances, because the District Court considered on the basis of the investigation carried out by the prosecutor, that the facts and circumstances of the case had been properly established and examined (see paragraph 37 above).
64. The prosecution decided not to charge the policemen and to discontinue the investigation because of the lack of unequivocal evidence of the officers’ guilt. It is true that the investigation of the district prosecutor did not exceed a reasonable time: it was completed on 15 June 2007 - i.e. some seven months after the impugned events and four months after the opening of the criminal proceedings (see paragraphs 34-37 above; see also, by contrast, the above-mentioned Labita case, loc. cit., § 133 where only photographs of the alleged perpetrators had been taken during a period of fourteen months). The Court is not, however, persuaded that this investigation was sufficiently thorough and effective to meet the requirements of Article 3.
65. The Court finds it particularly unsatisfactory that the domestic court failed to give reasons as to why it had not found the testimonies given
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by K.K. and T.G. to be credible. Furthermore, it failed to explain convincingly the reasons for accepting the version of the events submitted by the police officers involved. In particular, the Court does not find convincing the argument that the police officers would not have beaten the applicant up in the court building, knowing that their superiors had been informed about the applicant’s escape and that their supervisor D. G. - was present in the building. The prosecution authorities and the court embraced the statements of the police officers without taking any note of the fact that they had obviously had an interest in the outcome of the case and in diminishing their responsibility. In that respect the Court would underline the importance of critical assessment of police officers’ testimonies (see Dzwonkowski v. Poland, no. 46702/99, § 65, 12 April 2007).
66. The Court further notes that in the light of the expert opinions, in particular according to the first expert opinion, the injuries sustained by the applicant qualified as injuries that could have occurred in the circumstances described by both the victim and the police officers. The court expert had categorically ruled out any possibility that the injuries happened as a consequence of repeated kicking or beating with substantial force – that is in the manner the applicant had alleged to have been ill-treated by the police officers. However, the authorities did not to give any plausible explanation as to how the applicant could have sustained his injuries in the circumstances described by him, if they were not caused by some form of ill-treatment by the authorities.
67. The Court also notes that according to K.K., another woman, a potential witness, was present in the court building at the time of the alleged ill‑treatment of the applicant. It appears that no effort was ever made to confirm K.K.’s submission, or to identify the woman.
68. Regard being had to the above findings, the Court concludes that there has been a violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
69. The applicant complained that the length of his pre-trial detention had been excessive. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
70. The Government contested that argument.
A. Period to be taken into consideration
71. The applicant’s detention started on 27 July 2005, when he was arrested on suspicion of having committed battery, uttered threats and intimidated a witness. Between 22 June 2006 and 3 July 2007 the applicant was serving a prison sentence imposed on him in another set of proceedings (see paragraph 16 above). Subsequently, on 3 July 2007 the Wałbrzych District Court convicted the applicant and sentenced him to eight years’ imprisonment. On 21 December 2007 the Świdnica Regional Court quashed the first-instance judgment and remitted the case. Thus, between 22 June 2006 and 21 December 2007 the applicant was “convicted by a competent court” within the meaning of Article 5 § 1 (a) of the Convention. The applicant was released from detention on 14 August 2008.
72. The term between 22 June 2006 and 21 December 2007, being covered by Article 5 § 1 (a), must therefore be subtracted from the period of the applicant’s detention pending trial for the purposes of Article 5 § 3.
73. Accordingly, the period to be taken into consideration amounts to one year, six months and nineteen days.
B. The parties’ submissions
1. The applicant
74. The applicant submitted that the length of his detention had clearly been unreasonable and that it could not be justified on the grounds relied on by the authorities.
2. The Government
75. The Government submitted that the length of the applicant’s detention had been justified throughout its entire period. They relied on the gravity of the charges against the applicant, on the fact that the applicant already had a criminal record and on the risk that he might abscond.
C. The Court’s assessment
76. The Court observes 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 have been stated in a number of its previous judgements (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110 et seq, ECHR 2000‑XI).
77. In their decisions regarding the applicant’s detention, the authorities, in addition to the reasonable
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suspicion against the applicant, relied principally on four grounds, namely (1) the serious nature of the offences with which he had been charged, (2) the severity of the penalty to which he was liable; (3) the need to secure the proper conduct of the proceedings; (4) the risk that the applicant, having previous convictions, might tamper with the evidence and the risk that he might abscond.
78. The Court accepts that the reasonable suspicion against the applicant of having committed serious offences could initially warrant his detention.
79. Furthermore, according to the authorities, the serious nature of the offences in question and the likelihood of a severe sentence being imposed on the applicant created a presumption that the applicant would obstruct the proceedings. 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 Michta v. Poland, no. 13425/02, §§ 49, 4 May 2006).
80. The Court would reiterate that, with the passage of time, those grounds became less and less relevant. The Court must then establish whether the other ground adduced by the courts – namely, the risk of the applicant’s going into hiding – was “relevant” and “sufficient” (see, Kudła cited above, § 111).
In this connection the Court notes that on 21 November 2006 the applicant made an attempt to abscond while being transported to the court hearing. The Court considers that, from that date on, this fact, taken together with the other grounds for the applicant’s detention relied on by the domestic authorities, especially the risk of tampering with evidence resulting from the applicant’s previous criminal convictions, constituted grounds for a reasonable fear that the applicant might try to abscond again.
81. The Court also notes that, on 25 July 2008, the domestic court, having examined the reasons for the applicant’s continued detention, found some of them no longer valid and considered that the applicant could be released on bail (see paragraph 21 above). The applicant was released three weeks later although he had not paid the amount ordered by the court by way of bail.
82. The foregoing considerations are sufficient for the Court to conclude that the grounds given for the applicant’s pre-trial detention were “relevant” and “sufficient” to justify holding him in custody for the entire relevant period.
83. The Court has considered whether the authorities, when examining the case, showed the diligence required in cases in which the accused is detained. It is to be noted that the applicant was indicted on 9 March 2006 which is some seven months after his arrest. The first-instance judgment was given on 3 July 2007− that is sixteen months after the indictment. The appellate proceedings lasted about five months (see paragraph 19 above). The Court notes that the proceedings involved three co-accused and a number of witnesses had to be heard. It should not be overlooked that, while an accused person in detention is entitled to have his case given priority and conducted with particular expedition, this must not stand in the way of the efforts of the judges to clarify fully the facts in issue, to provide both the defence and the prosecution with all necessary facilities for putting forward their evidence and stating their case and to give judgment only after careful reflection on whether the offences were in fact committed and on the sentence to be imposed.
84. The Court concludes that the Polish authorities showed the diligence required in cases concerning a detained person.
85. It follows that this part of the application must be rejected as being manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
86. The applicant further complained under Article 6 § 1 of a violation of his right to have his case heard within a reasonable time and under Article 6 § 2 of a breach of the principle of presumption of innocence. Lastly, the applicant invoked Article 13 of the Convention, maintaining that his right to an effective remedy had been violated.
87. As regards the complaints concerning the excessive length of the criminal proceedings the Court notes that, by virtue of section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki), it is open to persons such as the applicant in the present case to lodge a complaint about the unreasonable length of the proceedings with the relevant domestic court. The applicant failed to make use of that domestic remedy.
88. Accordingly
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, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
89. The Court has examined the remaining complaints. However, having regard to all the material in its possession, it finds that the applicant has failed to substantiate them. It follows that this part of the application must be rejected as being manifestly ill-founded in accordance with Article 35 §§ 3 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 10,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.
92. The Government considered this sum unreasonable.
93. The Court considers that the applicant has suffered non-pecuniary damage 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 5,000 under this head.
B. Costs and expenses
94. The applicant did not specify his claim for costs and expenses.
C. Default interest
95. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning Article 3 of the Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 3 of the Convention;
3. Holds unanimously
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable 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 27 September 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş AracıNicolas Bratza Deputy RegistrarPresident
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FOURTH SECTION
CASE OF WALDEMAR NOWAKOWSKI v. POLAND
(Application no. 55167/11)
JUDGMENT
(merits)
STRASBOURG
24 July 2012
FINAL
17/12/2012
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Waldemar Nowakowski v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
David Thór Björgvinsson, President,Lech Garlicki,Päivi Hirvelä,George Nicolaou,Ledi Bianku,Zdravka Kalaydjieva,Vincent A. De Gaetano, judges,and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 3 July 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 55167/11) 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 Waldemar Nowakowski (“the applicant”), on 22 August 2011.
2. The applicant, who had been granted legal aid, was represented by Mr M. Heleniak, a lawyer practising in Warszawa. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3. The applicant complained about an alleged breach of his right to the peaceful enjoyment of his possessions guaranteed by Article 1 of Protocol No. 1 to the Convention.
4. On 17 November 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1933 and lives in Warsaw.
6. The applicant is a veteran of the Polish Resistance during the Second World War and a former professional officer of the Polish Army. His veteran status on the grounds of his involvement in the underground Scouts movement during that war was recognised by an administrative decision given on an unspecified date by the Director of the Veterans’ Office.
7. For the last fifty years the applicant collected antique arms and weapons from the period of the Second World War and earlier.
8. On 7 and 8 July 2008 the police searched the applicant’s home and summer cottage. They confiscated the applicant’s collection which at that time numbered 199 pieces.
9. On 16 July 2008 the Director of the Warsaw Uprising Museum (“the Museum”) in Warsaw issued a statement for the purposes of an investigation against the applicant which had been instituted immediately after the search and seizure. He stated that the applicant had been co‑operating with the Museum as a specialist in old weaponry and that on a number of occasions he had lent certain pieces of his collection for the purposes of their being exhibited at the Museum. He stated that the applicant’s expertise was highly valued by the Museum.
10. On 8 July and 29 August 2008 the prosecuting authorities ordered that an expert opinion be prepared as to whether the confiscated pieces were to be regarded as arms within the meaning of the legislation governing the licensing of possession of arms.
11. On 18 October 2010 the Director of the Veterans’ Office sent a letter to the Warszawa Wola District Court. He stated that the applicant’s integrity and the fact that he was a law-abiding citizen were well‑known. He had been decorated on a number of occasions for his involvement in the Polish Resistance during the Second World War. By accumulating a unique collection of historical weapons, uniforms and military equipment he had rendered outstanding services in the dissemination of knowledge about the history of Poland. He had financed this collection himself, at considerable personal sacrifice. The fact that criminal proceedings had been instituted against him had met with general disbelief. It had been universally considered among persons interested in military history that his collection could not possibly be regarded as posing any threat to public order. On the contrary, it had played a significant role in teaching younger generations about the history of Poland and about the fight for the country’s independence. The applicant’s services not only merited recognition but should also be taken into consideration by the court in the assessment of his guilt and any sentence to be
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imposed on him.
12. On 16 July 2010 the prosecution ordered that 24 pieces of the collection should be returned to the applicant, relying on an expert opinion prepared for the purposes of the investigation. The expert concluded that these items were only parts of weapons and therefore a licence to possess them was not necessary. On 20 July 2010 a bill of indictment against the applicant on charges of illegal possession of arms was filed with the Warszawa Wola District Court.
13. On 18 November 2010 the Warszawa Wola District Court discontinued the criminal proceedings against the applicant concerning charges of illegal possession of arms, contrary to Article 263 § 2 of the Criminal Code.
14. The court first listed 171 pieces of the applicant’s collection, the oldest of them produced in 1889.
15. The court noted that the applicant had explained that he had been collecting old arms, mostly memorabilia of the Second World War as well as other older pieces, for almost fifty years. He had previously on numerous occasions made parts of his collection available on loan to various museums. He had been collaborating as an expert in old weaponry with the Warsaw Uprising Museum. The court noted that the applicant had explained that in order to prevent unauthorised third parties from having access to the collection he had kept it in his apartment which was secured with three locks and equipped with an alarm. He had also taken the necessary technical measures to make it impossible to use most of the weapons in his possession as arms. He declared his willingness to take such measures also in respect of the remaining pieces.
16. The court acknowledged that no criminal intent to use the arms to anyone’s detriment could reasonably be ascribed to the applicant. However, he must have known that the possession of arms without a permit was unlawful. He had not availed himself of the possibility of legalising his collection by having recourse to the 2005 Arms Legalisation Act, devised specifically with a view to making it possible for Second World War veterans and other persons having fought for the independence of Poland to regularise arms acquired in the past and in connection with their involvement in the Polish Resistance.
17. The court acknowledged that there had been no evidence whatsoever that the applicant had ever used the arms with any criminal intent. It emphasised that the applicant was, at that time, 77 years old, a war veteran who had fought in the Warsaw Uprising and who was a retired professional officer of the Polish Army with no criminal record. He was a law‑abiding citizen.
18. The court observed that the applicant’s submissions as to the part of the collection which had been put out of action had been partly confirmed by the experts. The experts had found that it was impossible to use most of the pieces as weapons, but that some of them could be made to work again (“ze znacznej większości egzemplarzy broni nie było możliwe oddanie strzalu, niemniej jednak z części egzemplarzy broni możliwym było oddanie strzału, jak również możliwym było przywrócenie cech użytkowych broni”).
19. The court concluded that the offence was minor in nature and discontinued the criminal proceedings against the applicant, referring to Article 17 paragraph 1 (3) of the Criminal Code. At the same time, the court decided to apply Article 100 of the Criminal Code in conjunction with its Article 39 and to confiscate 171 pieces of the collection.
20. The court, explaining why it decided to avail itself of its discretionary power to confiscate the entire collection, stated that dividing up the collection by returning to the applicant those pieces which had already been put out of action would seriously diminish its value. It noted that the collection should, because of its historical interest, be handed over to an institution capable of securing appropriate storage and display conditions for it.
21. The applicant and the prosecution appealed. The applicant essentially challenged the confiscation measure.
22. By a decision of 22 February 2011 the Warsaw Regional Court upheld the first-instance decision. It fully endorsed the reasoning of the lower court. It further noted that the confiscation of the collection should not lead to its destruction. The State authorities should be well aware of the historical value of the collection (“organy państwa winny zdawać sobie sprawę z... wartości historycznej zabezpieczonych przedmiotów”).
23. On 16 March 2011 the Warszawa Wola District Court invited the Warsaw Uprising Museum to indicate whether they would be interested in the applicant’s collection. On 28 June 2011 the Director of the
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Museum replied, indicating that the Museum wished to take certain pieces selected by P.B., the Museum’s expert. On 16 September 2011 the court authorised the transfer of these pieces to the Museum and on 17 October 2011 they were transferred.
24. On 16 September 2011 the same court requested the Office for the Protection of Monuments in Warsaw, the Regional Curator for Monuments (Urząd Ochrony Zabytków w Warszawie, Mazowiecki Wojewódzki Konserwator Zabytków), to indicate the name of a cultural institution which would accept the remainder of the collection. A number of cultural institutions expressed their interest, including the Warsaw Uprising Museum. The Warsaw Uprising Museum also expressed interest in the remainder of the collection covered by the forfeiture decision. The Regional Curator for Monuments gave a positive opinion in this regard. This part of the collection is currently being transferred to the Museum.
II. RELEVANT DOMESTIC LAW
25. Article 21 of the Constitution provides:
“1. The Republic of Poland shall protect property and a right to inherit.
2. Expropriation is allowed only in the public interest and against payment of just compensation.”
26. Article 31of the Constitution reads:
“Freedom of the person shall be legally protected.
Everyone shall respect the freedoms and rights of others. No one shall be compelled to do anything which is not required by law.
Any limitation upon the exercise of constitutional freedoms and rights may by imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”
27. Article 79 § 1 of the Constitution provides as follows:
“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”
28. Under its settled case-law, the Constitutional Court has jurisdiction only to examine the compatibility of legal provisions with the Constitution and is not competent to examine the way in which courts interpreted applicable legal provisions in individual cases (e.g. SK 4/99, 19 October 1999; Ts 9/98, 6 April 1998; Ts 56/99, 21 June 1999).
29. Article 17 paragraph 1(3) of the Code of Criminal Procedure provides that criminal proceedings shall be discontinued if the seriousness of a criminal offence is negligible.
30. Article 100 of the Criminal Code provides that where the seriousness of a criminal offence is negligible, the court may order confiscation, within the meaning of Article 39 of that Code, of objects connected with the offence.
31. Article 263 paragraph 2 of the Criminal Code penalises possession of weapons or ammunition without a licence.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
32. The applicant complained that the confiscation of his collection had breached his right to the peaceful enjoyment of his possessions within the meaning of Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
A. Admissibility
33. The Government submitted that the applicant had failed to exhaust relevant domestic remedies in respect of his complaint. He should have lodged a constitutional complaint with the Constitutional Court under Article 79 of the Constitution of Poland.
34. The applicant disagreed and argued that he had exhausted all relevant remedies. He submitted that he had no objections as regards the compatibility of Articles 39 and 100 of the Criminal Code as such with the Constitution, but solely the manner in which they had been interpreted and applied by the criminal courts to the circumstances of his case.
35. The Court considers that in the circumstances of the present case the alleged breach of the applicant’s right cannot be said to have originated from the direct application of Articles 39 or 100 of the Criminal Code. Rather, the alleged violation resulted from the manner in which these provisions were interpreted and applied by the courts in the applicant’s case
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. However, the established jurisprudence of the Constitutional Court indicated that constitutional complaints based solely on the allegedly wrongful interpretation of a legal provision were excluded from its jurisdiction. The Court has already examined on many occasions the Government’s objections based on the alleged failure to exhaust domestic remedies by way of constitutional complaints and rejected them (see, among many other authorities, Długołęcki v. Poland, no. 23806/03, § 25, 24 February 2009; and R.R. v. Poland, no. 27617/04, § 116, 26 May 2011). It sees no grounds on which to depart from this approach in the present case.
36. It follows that the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed.
37. The Court notes that the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
38. The applicant submitted that the domestic courts had found that he had not committed a crime and had therefore discontinued the criminal proceedings. Nonetheless, they had decided to confiscate his collection in its entirety. This decision was not in compliance with the proportionality principle. The courts had failed to examine properly whether the confiscation was indeed necessary in the public interest. In any event, the vast majority of pieces constituting the collection could no longer be used as weapons and the courts were well aware of this.
39. The applicant further argued that it had not been open to him to have recourse to the provisions of the June 2005 Act referred to by the domestic court with a view to obtaining a licence for his collection. This Act had merely made it possible to obtain an amnesty in respect of arms personally acquired during the Second World War or afterwards by the resistance fighters in connection with or for the purposes of fighting for Poland’s independence. The procedure foreseen under the provisions of that Act could not reasonably be used in respect of an arms collection consisting of 199 pieces.
40. The applicant further submitted that the collection represented a substantial pecuniary value. Furthermore, it had considerable sentimental value for him.
41. The applicant concluded that the forfeiture order made in respect of an entire collection of historical arms which could no longer be used as weapons constituted an excessive individual burden and was in breach of Article 1 of Protocol No. 1 to the Convention.
42. The Government argued that under the Constitution of the Republic of Poland and Article 1 of Protocol No. 1 to the Convention ownership was not ius infinitum. A State had the right to enact such laws as it deemed necessary to control the use of property in accordance with the general interest. The forfeiture of the arms held without a licence had amounted to an interference with the applicant’s right to the peaceful enjoyment of his possessions. It had served the public interest as it had been ordered in order to safeguard public safety and to control the possession of arms by individuals. All States were entitled to control access to weapons as a fundamental power vested in them on the strength of their sovereignty. They were also under a positive obligation to ensure safety by way of licensing the possession of weapons. The States enjoyed a margin of appreciation in this regard. Under the Court’s case-law the scope of this margin varied depending on the issue concerned in a case. The State’s margin of appreciation in issues concerning arms control was particularly wide. A requirement to obtain a licence to possess weapons fell within the State’s margin of appreciation and could not be regarded as imposing an excessive individual burden on the applicant. The licensing system would be illusory if it was not attended by criminal sanctions or by the possibility to order forfeiture of illegally possessed arms.
43. The Government stressed that in the present case the courts had decided not to find the applicant guilty of a criminal offence of illegal possession of arms. They had decided to discontinue the proceedings against him, finding that the offence was minor in nature. However, the mere fact that the applicant had possessed weapons without a licence amounted to a criminal offence. The courts had had no choice but to order forfeiture, it being the only possible way to eliminate the unlawfulness created by the applicant’s possession of weapons without a licence. Although most of the weapons constituting the collection could no longer be fired, the experts commissioned by the prosecuting authorities had found that it was technically possible to reverse that.
2. The Court’s assessment
44. Article 1 of Protocol No. 1 to the Convention comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the
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same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, among other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, must be construed in the light of the general principle laid down in the first rule (see, among many authorities, Immobiliare Saffi v. Italy [GC], no. 22774/93, § 44, ECHR 1999‑V; Barbara Wiśniewska v. Poland, no. 9072/02, § 93, 29 November 2011).
45. It is not in dispute between the parties that the confiscation order amounted to an interference with the applicant’s right to peaceful enjoyment of his possessions. It remains to be determined whether the measure was covered by the first or second paragraph of that Convention provision.
46. The Court has usually held in its case-law that a confiscation measure given in the context of criminal proceedings, although it involves deprivation of possessions, nevertheless constitutes a control of use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1 (see Riela and Others v. Italy (dec.), no. 52439/99, 4 September 2001; Arcuri and Others v. Italy (dec.), no. 52024/99, 5 July 2001; C.M. v. France (dec.), no. 28078/95, 26 June 2001; and Sun v. Russia, no. 31004/02, § 25, 5 February 2009). However, in the present case the court discontinued the criminal proceedings, finding that the seriousness of the alleged offence was negligible. The court had regard to the applicant’s character and to the lack of criminal intent on his part (see paragraph 17 above). The circumstances of the case were therefore fundamentally different from cases where confiscation orders were made in the context of criminal proceedings concerning charges of serious or organised crime and where there was a strong suspicion or certainty confirmed by a judicial decision that the confiscated assets were the proceeds of an offence (see Phillips v. the United Kingdom, no. 41087/98, §§ 9-18, ECHR 2001-VII), which were deemed to have been unlawfully acquired (see Riela and Arcuri, both cited above, and Raimondo v. Italy, 22 February 1994, § 29, Series A no. 281-A) or were intended for use in illegal activities (see Butler v. the United Kingdom (dec.), no. 41661/98, 27 June 2002). Furthermore, the confiscation order concerned the entire collection, with no distinction being made between objects which could still be qualified as weapons within the meaning of the arms control legislation and those which, as the court acknowledged, had been disabled (see paragraph 18 above). The Court is of the view that in these circumstances the confiscation order covering the entire collection should be regarded as a deprivation of property.
47. As the Court has held on many occasions, interference with property rights must be prescribed by law and pursue one or more legitimate aims. In addition, there must be a reasonable relationship of proportionality between the means employed and the aims sought to be realised. In other words, the Court must determine whether a fair balance was struck between the demands of the general interest and the interest of the individuals concerned. The requisite balance will not be found if the person or persons concerned have had to bear an individual and excessive burden (see James and Others v. the United Kingdom, 21 February 1986, § 50, Series A no. 98; Schirmer v. Poland, no. 68880/01, § 35, 21 September 2004; Wieczorek v. Poland, no. 18176/05, § 59-60, 8 December 2009; compare and contrast Ian Edgar (Liverpool) Limited v. the United Kingdom (dec.), no. 37683/97, 25 January 2000).
48. In that connection, the Court notes that the confiscation of the applicant’s property was ordered pursuant to Article 100 of the Criminal Code in conjunction with its Article 39. It therefore accepts that that interference was prescribed by law.
49. Furthermore, assuming that the interference complained of pursued a legitimate aim in the general interest, within the meaning of Article 1 of Protocol No. 1 to the Convention, the Court has to examine whether a proper balance had been struck between that aim and the applicant’s rights.
50. In this connection, the Court reiterates that, where possessions are confiscated, the fair balance depends on many factors, including the owner’s behaviour. It must therefore determine whether the Polish courts had regard to the applicant’s degree of fault or care (see AGOSI, cited above, § 54; Silickienė
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v. Lithuania, no. 20496/02, § 66, 10 April 2012).
51. Turning to the circumstances of the present case, the Court notes the Government’s argument that the authorities decided to discontinue the criminal proceedings against the applicant, having regard to the minor nature of the offence. However, it is not the decision to discontinue the proceedings, but the decision to order forfeiture of the applicant’s collection which is the subject of the Court’s scrutiny in the present case.
The Court notes that Article 100 of the Criminal Code did not oblige the courts to order the forfeiture of the collection. It only conferred on them a discretionary power to do so when discontinuing criminal proceedings. The courts decided to avail themselves of that power. In the absence of a legal obligation to order the forfeiture, it is relevant to consider, in the context of the examination of whether the fair balance has been struck in the present case, how the authorities exercised their discretion. In this connection, the Court will have regard to the grounds on which the domestic authorities relied when ordering the forfeiture.
52. The first-instance court noted that the applicant was a 77‑year‑old war veteran, had fought in the Warsaw Uprising, was a retired professional officer of the Polish Army and was a law-abiding citizen with no criminal record. Furthermore, it has not been shown or even argued before the Court that his possession of the collection of arms was regarded by the domestic authorities as posing any risk of inappropriate use on his part. Nor was it argued, let alone shown, that he had gathered the arms in any other capacity than an amateur collector (compare and contrast with Silickienė v. Lithuania, referred to above, where the applicant had directly participated in payments for smuggled goods and must have known that the confiscated property could only have been purchased with the proceeds of crime).
53. The Court further stresses that the domestic courts were aware of these circumstances (see paragraphs 15-16 above). However, they still decided to confiscate the collection. The applicant’s personal circumstances did not therefore have any practical impact on the confiscation order. The Court is therefore of the view that the domestic courts failed to take into account the applicant’s personal situation and characteristics (see, Pincová and Pinc v. the Czech Republic, no. 36548/97, § 61, ECHR 2002‑VIII, mutatis mutandis).
54. Furthermore, the Court cannot but note that the applicant started his collection approximately fifty years ago. The domestic court acknowledged this fact in its decision. The authorities had never taken any interest in the collection before July 2008 when they searched the applicant’s home and summer cottage. Moreover, it was not in dispute, either before the domestic courts or before the Court, that there had ever been any incident involving improper use of the collection by third parties which could indicate that the applicant had failed to take appropriate measures in order to prevent unauthorised persons from having access to the collection.
55. The Court further observes that the domestic court was aware that not all the pieces of the collection could still be used as weapons as the applicant had taken measures to disable them. The Court notes that the court failed to identify the pieces still in working order and those which had been disabled. Nonetheless, the court decided to order confiscation of the collection in its entirety. When doing so, the court had regard to the historical value that the collection represented. It was further of the view that the division of the collection by returning certain pieces to the applicant would seriously diminish its historical value. It therefore chose to confiscate the entire collection essentially in order to maintain its value.
56. In the Court’s view, it can be reasonably accepted that the collection of old weapons, accumulated by an acknowledged specialist, has a significant pecuniary value. However, no thought had been given by the courts to whether the confiscation of the collection in its entirety imposed an excessive burden on the applicant, either as regards the pecuniary or sentimental value the collection had for him. Likewise, the court failed to consider any alternative measures which could have been taken in order to alleviate the burden imposed on the applicant, including by way of seeking registration of the collection.
57. The Court notes that subsequently the domestic court contacted a number of public institutions asking them whether they would be interested in acquiring the collection. As a result, part of the applicant’s collection was transferred to the Warsaw Uprising Museum in October 2011. Furthermore, that museum expressed interest in obtaining the remainder of the collection. The Court notes that the judicial authorities took measures in order to make the applicant’s collection available to the public. However, it cannot overlook the fact that the applicant was deprived of his property and lost a collection of considerable historical and presumably also financial value, while ultimately a public museum acquired it for free.
58. The foregoing considerations are sufficient
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to enable the Court to conclude that there has been a violation of Article 1 of Protocol No. 1 to the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
59. 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
60. The applicant wished to have his collection returned to him. In the alternative, he claimed 300,000 Polish zlotys (PLN) for pecuniary damage. He submitted that he was unable to submit an estimate of the value of the confiscated collection as it was no longer in his possession. He further claimed PLN 50,000 in respect of non‑pecuniary damage suffered as a result of the circumstances of the case.
61. The Government contested this claim.
62. The Court notes that the applicant first and foremost wishes to have the collection returned to him and that its value is disputed by the parties. In these circumstances the Court considers that the question of pecuniary damage is not yet ready for decision. It should therefore be reserved to enable the parties to reach an agreement (Rule 75 §§ 1 and 4 of the Rules of Court). In this connection, the Court is of the view that in the circumstances of the case the most appropriate form of redress of the violation found would be the restitution to the applicant of those elements of the collection which could be lawfully restored to him.
63. Moreover, the Court accepts that the applicant undoubtedly suffered distress and anxiety (see Luczak v. Poland, no. 77782/01, § 64, 27 November 2007). It therefore awards him EUR 4,000 in respect of non‑pecuniary damage.
B. Costs and expenses
64. The applicant did not submit a claim in respect of costs and expenses.
C. Default interest
65. 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 1 of Protocol No. 1 to the Convention;
3. Holds that, as regards pecuniary damage resulting from the violation found, the question of just satisfaction is not ready for decision and accordingly
(a) reserves this question;
(b) invites the Government and the applicant to submit, within three months from the date of notification of this judgment, their written observations on this question and, in particular, to notify the Court of any agreement that they may reach;
(c) reserves the further procedure and delegates to the President of the Chamber the power to fix it if need be;
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 4,000 (four thousand euros) in respect of non‑pecuniary damage, plus any tax that may be chargeable to the applicant, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 24 July 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş AracıDavid Thór Björgvinsson Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge De Gaetano is annexed to this judgment.
D.T.B.F.A.
CONCURRING OPINION OF JUDGE DE GAETANO
1. Although I agree that in this case there has been a violation of Article 1 of Protocol No. 1, I cannot fully subscribe to some of the reasoning and arguments leading up to this conclusion.
2. The violation in this case depends to an appreciable extent on the peculiar nature of three provisions of Polish law –
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Articles 17 paragraph 1(3), 39 and 100 of the Criminal Code (§§ 29 and 30, above) – which, when applied in combination to the facts of the case, create a manifest imbalance between the public interest and the rights of the applicant. To be sure, in principle there appears to be nothing objectionable if a provision of law provides for the confiscation, or indeed, for the removal or the destruction, of an object the existence or possession of which is in breach of some provision of law even if the person concerned is acquitted of the criminal charge of illegal possession of that object. This was the general approach taken by the Court in Saliba v. Malta (no. 4251/02, 8 November 2005). This point is only very vaguely reflected in the last sentence of § 62 of the present judgment. In the instant case, however, we have neither an acquittal nor a conviction, but a discontinuation of the proceedings coupled with a judicial acknowledgment that the offence was of a “negligible” nature in terms of seriousness – de minimis non curat praetor. In the present case this suffices for a finding of disproportionality, and this is where the Court’s reasoning should, in my view, have stopped. In many jurisdictions trifling offences are dealt with, upon conviction, by a simple reprimand or admonition; on the contrary in this case the applicant had the benefit of not being found guilty annihilated for all practical purposes by the confiscation of a priceless collection. The domestic court’s views on the character of the applicant and on “the lack of criminal intent on his part” (§§ 46 and 17) are irrelevant (apart from the fact that it is not clear whether by criminal intent that court was referring to a specific intent or to motive; as the respondent Government rightly observed, the applicant, as a retired army commissioned officer and an expert on weapons, could not but have known that at least some of the weapons required licensing). The reasons contained in §§ 52 to 57 are irrelevant to a finding of a breach of the Convention on the facts of the instant case.
3. On the positive side, however, the decision in the instant case clearly departs from the case-law of the Court which, as a rule, has considered – wrongly in my view – confiscation pursuant to proceedings of a criminal nature as a measure of control of use of property rather than of deprivation (§ 46, and the cases there referred to; see, more recently, Milosavljev v. Serbia, no. 15112/07, 12 June 2012, § 53). I have always been perplexed
by the elliptical reasoning in the last two sentences of § 51 of AGOSI v. the United Kingdom (no. 9118/80, 24 October 1986) and by the lack of proper distinction between the attachment stage and the disposal stage (as provided for in the relevant domestic law) in Riela et autres c. l’Italie (dec.) no. 52439/99, 4 September 2001.
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SECOND SECTION
CASE OF CHERNYAYEV v. UKRAINE
(Application no. 15366/03)
JUDGMENT
STRASBOURG
26 July 2005
FINAL
30/11/2005
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 Chernyayev v. Ukraine,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
MrJ.-P. Costa, President,MrI. Cabral Barreto,MrK. Jungwiert,MrV. Butkevych,MrM. Ugrekhelidze,MrsA. Mularoni,MrsE. Fura-Sandström, judges,and Mr S. Naismith, Deputy Section Registrar,
Having deliberated in private on 28 June 2005,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 15366/03) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Vladimir Ilyich Chernyayev (“the applicant”), on 16 April 2003.
2. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mrs Z. Bortnovska.
3. On 19 January 2004 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 1938 and lives in the town of Nova Kakhovka, Kherson region, Ukraine.
5. On 4 August 2000 the Nova Kakhovka Town Court awarded the applicant UAH 3,150.00[1] in salary arrears against his former employer – the Southern Machinery Construction factory (the majority share of which – 70% – was owned by the State). The judgment was not appealed and became final.
6. On 3 July 2001 the Nova Kakhovka Town Court awarded the applicant UAH 1,180.00[2] in compensation for moral damage against the same factory.
7. By letter of 14 February 2003, the Head of the Kherson Regional Department of Justice of Ukraine informed the applicant that the enforcement proceedings against the factory had been stayed due to the opening of bankruptcy proceedings against the debtor.
8. On 17 May 2004 the Nova Kakhovka Town Court awarded the applicant UAH 13,460.72[3] in compensation for the delay in payment of the salary arrears against the same debtor. The enforcement proceedings in respect of this judgment were initiated on 24 June 2004.
9. The judgments remain unenforced.
II. RELEVANT DOMESTIC LAW
10. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
THE LAW
11. The applicant complained of an alleged failure by the State authorities to execute the court decisions of 4 August 2000 and 3 July 2001 given in his favour. He invoked Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which provide, insofar as relevant, as follows:
Article 6 § 1
“In the determination of his civil rights and obligations... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law....”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest....”
I. ADMISSIBILITY
A. The Government’s preliminary objections
12. The Government contended that the applicant had not exhausted domestic remedies regarding the Bailiffs’ Service and the expedition of proceedings.
13. The applicant did not make any comments.
14. The Court notes
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that similar points have already been dismissed in a number of Court judgments (see the aforementioned Romashov judgment, § 41). In such cases the Court has found that applicants were absolved from pursuing the remedies invoked by the Government. It finds no reason to reach different conclusions in the present case and, therefore, rejects the Government’s objections.
B. Conclusion
15. 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 complaints 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
16. The Government maintained that the Bailiffs performed all necessary actions to enforce the judgment and could not be liable for the delays in the enforcement proceedings. They further suggested that there was no infringement of Article 6 § 1 of the Convention.
17. The applicant did not elaborate his original complaint.
18. The Court notes that the decisions of 4 August 2000 and 3 July 2001 remain unenforced for well over four and three years respectively.
19. The Court considers that by delaying for so long the enforcement of the judgments in the applicant’s case, the authorities deprived the provisions of Article 6 § 1 of the Convention of much of their useful effect. The Court finds that the Government have not advanced any justification for this delay (see Shmalko v. Ukraine, no. 60750/00, judgment of 20 July 2004, § 45).
20. 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.
21. The Government in their submissions confirmed that the amounts awarded to the applicant by the domestic court 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 he was not deprived of his property. The Government further noted that the delay in payment was due to the difficult economic situation of the debtor and the bankruptcy proceedings against it.
22. The applicant did not make any further comments in addition to his original complaint.
23. 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).
24. In the instant case the Court is of the opinion that the impossibility for the applicant to obtain execution of his judgments of 4 August 2000 and 3 July 2001 for so long constitutes an interference with his right to the peaceful enjoyment of his possessions, within the meaning of the first paragraph of Article 1 of Protocol No. 1.
25. By failing to comply with the judgments of the Nova Kakhovka Town Court, the national authorities have prevented, and still prevent, the applicant, for a considerable period of time, from receiving in full the money to which he was entitled. The Government have not advanced any justification for this interference, and the Court considers that economic difficulties cannot justify such an omission. Furthermore, having regard to the compensation proceedings instituted by the applicant against the debtor, and even assuming that the compensation for the delay in payment awarded by the decision of 17 May 2004 could be considered in the circumstances of the instant case as having de facto some remedial effect, at least with respect to the delays in the recovery of judgment debt under the decision of 4 August 2000, the Court notes that it also remains unenforced, and the prospects of its execution are as remote as those of the original judgments.
26. Accordingly there has also been a violation of Article 1 of Protocol No. 1.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
27. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
28. The Court notes that the applicant failed to submit a detailed claim for just satisfaction when invited to do so by the registry
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. However, in previous correspondence the applicant had claimed non-pecuniary damages in the amount of 50,000 Ukrainian hryvnas and in his reply to the registry’s request he stated that he wished to maintain his application. 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 merely by the Court’s finding of a violation. The particular amount claimed is, however, excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of 1,000 euros.
29. Moreover, it is undisputed that the State still has an outstanding obligation to enforce the judgments at issue. Accordingly, the applicant remains entitled to recover the principal amount of the debts, as well as the compensation awarded to him in the course of the domestic proceedings.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds that there has been a violation of Article 1 of Protocol No. 1;
4. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) for 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 26 July 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. NaismithJ.-P. Costa Deputy RegistrarPresident
[1]. Around EUR 485
[2]. Around EUR 180
[3]. Around EUR 2,070
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