BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF
A.L. v. FINLAND
(Application
no. 23220/04)
JUDGMENT
STRASBOURG
27 January 2009
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 A.L. v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Giovanni
Bonello,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
judges,
and Fatoş Aracı,
Deputy Section
Registrar,
Having
deliberated in private on 6 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 23220/04) against the Republic
of Finland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Finnish national, Mr A.L. (“the
applicant”), on 23 June 2004.
- The
applicant, who had been granted legal aid, was represented by Mr L.
Lehtinen, a lawyer practicing in Parkano. The Finnish Government
(“the Government”) were represented by their Agent, Mr
Arto Kosonen of the Ministry for Foreign Affairs.
- The
applicant alleged that the rights of the defence in respect of
witnesses, that is, the child complainant, had not been
respected.
- On
17 March 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 3). Furthermore, the President
of the Fourth Section decided ex officio to grant the
applicant anonymity under Rule 47 § 3 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- On
13 March 2001 a mother contacted the police on account of a suspicion
that her child R., a girl born in December 1986, had some ten days
earlier been sexually abused by a relative, the applicant. On 21
March 2001 the police took a statement from the mother. On 9 July
2001 the police questioned the applicant. R. was interviewed by the
police on 30 July 2001 in the presence of a social worker. No other
person was present at the interview, nor was it recorded.
- The
applicant was subsequently charged before the Tampere District Court
(käräjäoikeus, tingsrätten) with having
sexually abused R., who was 14 years' old at the time, by touching
her sexual organs. The applicant denied the charge. The court
received testimony from R.'s mother and the applicant as well as
three witnesses who testified on the applicant's behalf. The
prosecutor submitted a video recording of two interviews with R.
conducted by a medical expert, H., on 17 and 18 April 2001. H. was
heard as a witness in this connection. The prosecutor also submitted
a medical statement containing an assessment of the interviews in
question and another medical certificate containing findings relating
to R.'s physical examination. The prosecutor further produced a
statement given on 14 March 2001 by a rehabilitation centre for
intellectually disabled persons. From the statement it transpired
that R. had the intelligence level of a child aged 6 to 8½
years. Written evidence of R.'s need for professional help was
submitted on her behalf.
- On
20 November 2001 the District Court convicted the applicant of sexual
abuse of a child and sentenced him to a suspended term of seven
months' imprisonment. As evidence, the court relied firstly on the
testimony of R.'s mother, which it found more credible than that of
the applicant and his witnesses and secondly, on the video recording
along with H.'s testimony. The court noted that R. had given similar
accounts of the events to her mother and to H. It further noted that
during the interviews R. had talked to H. openly and with confidence,
but her behaviour had clearly changed when the issue of the alleged
abuse had been broached. R. had, nevertheless, been able to give an
account of the events in a rather versatile and detailed manner. The
recording gave the court no reason to suspect that R. had been
repeating some other person's words or that she had imagined the
events.
- The
applicant appealed against the judgment to the Turku Court of Appeal
(hovioikeus, hovrätten), arguing, inter alia, that
the District Court should not have decided the case without hearing
R. in person. He had not been given the opportunity to put questions
to R. at any point of the proceedings. Nor had he been given an
opportunity to watch the video recording of her interviews before the
main hearing, yet the recording had been an essential part of the
evidence leading to his conviction. The applicant requested that the
Court of Appeal hold an oral hearing and that R. be heard in person.
- On
9 January 2003 the Court of Appeal refused the applicant's request to
hear R. in person as it might be detrimental to her, taking into
account her level of development and the nature of the issue in
question. The court relied on the principle contained in section
10(1) of the Act on the Publicity of Court Proceedings (laki
oikeudenkäynnin julkisuudesta, lag om offentlighet vid
rättegång, Act No. 945/1984), which provided that a
person below the age of 15 could not attend a hearing if the court
found that this could be detrimental to him or her,
and to section 15(2) of the Child Custody and Right of Access
Act (laki lapsen huollosta ja tapaamisoikeudesta, lag angående
vårdnad om barn och umgängesrätt, Act No.
361/1983), which provided that a child could be heard in court only
if it was clear that this would not be detrimental to him or her.
This decision was not subject to separate appeal.
- In
the subsequent oral hearing, the Court of Appeal was presented with
the same evidence as had been before the District Court, with the
addition of four photographs and the floor plan of the applicant's
apartment. On 27 February 2003 the court upheld the lower
court's judgment finding no reason to deviate from its assessment of
the evidence.
- The
applicant sought leave to appeal to the Supreme Court (korkein
oikeus, högsta domstolen) maintaining, inter alia,
that his Convention right to examine witnesses against him had been
breached. He requested, inter alia, that the court refer the
case back to the lower courts for re-examination and that he be
granted an opportunity to put questions to R., either in an oral
hearing or by using other arrangements. In the alternative, the
applicant requested that an oral hearing be held in the Supreme Court
and that testimony be obtained from the applicant and the three
witnesses on his behalf.
- On
14 January 2004 the Supreme Court refused leave to appeal.
II. RELEVANT DOMESTIC LAW
A. The
pre-trial investigation
- The
Decree on Criminal Investigations and Coercive Measures (asetus
esitutkinnasta ja pakkokeinoista, förordning om förundersökning
och tvångsmedel; Act No. 575/1988) provides that when
questioned during a pre-trial investigation a child must be treated
with due respect having regard to his or her age and level of
development. Where possible, the interview should be carried out by a
police officer acquainted with that task. If need be, a doctor or an
expert must be consulted before the interview (section 11).
- The
Criminal Investigations Act (esitutkintalaki,
förundersökningslagen, Act No. 449/1987) provides that
the investigator may permit a party and his counsel to be present
during the questioning of another party or witness, provided this
does not hinder the investigation of the offence (section 32(1), Act
no. 692/1997). A party and his or her counsel may, with the
permission of the investigator, put questions to the person being
questioned in order to clear up the case. The investigator may decide
that the questions are to be put through him or her. A party and his
or her counsel have the right to request the investigator to ask the
person being questioned about matters necessary for the clearing up
of the case at other times as well (section 34, Act No. 692/1997).
- As
of 1 January 2004, the Criminal Investigations Act provides also that
the questioning of a victim or a witness (from now on referred to as
a witness) must be recorded on videotape, or by using other
comparable audio-visual means of recording, if there is an intention
to use the statement given in the interview as evidence in court
proceedings, and where it is not possible to hear the witness in
person, due to his or her young age or disturbed mental state,
without causing him or her harm. The special requirements set by the
level of that person's development for the methods used, for the
number of participating persons, and for other conditions, must be
taken into account. The person in charge of the investigation may
also allow other authorities, under supervision of the investigator,
to put questions to the witness. The suspect must be provided with an
opportunity to put questions to the witness. The suspect may also put
the questions through legal counsel or another representative.
However, the investigator may order that the questions be put through
his or her intermediary (section 39a, Act No. 645/2003).
B.
The receipt of evidence in court
- At
the time of the proceedings in question, apart from the leave to
appeal proceedings in the Supreme Court, there were no legal
provisions concerning the use as evidence of a video recording of
testimony given by a child during the pre-trial investigation.
- The
Code of Judicial Procedure (oikeudenkäymiskaari,
rättegångsbalken) lays down the applicable rules on
receiving testimony. The relevant provisions at the time of the
proceedings in question, as regarded the proceedings in the lower
courts, provided as follows.
- A
statement included in a pre-trial investigation report or another
document, or a statement recorded by other means, may, as a rule, not
be admitted as evidence in court. The court may, exceptionally, admit
such a statement as evidence, if the witness in question cannot be
questioned before the court (Chapter 17, sections 11(1)(2) and 11(3),
Act No. 690/1997).
- If
a person called as a witness is less than 15 years old, is mentally
ill or mentally retarded, or his or her mental capacities have
otherwise been impaired, the court shall, taking into consideration
the circumstances, assess whether or not he or she may be heard as a
witness (Chapter 17, section 21, Act No. 571/1948).
- The
Code of Judicial Procedure was amended with effect from
1 October 2003.
- According
to the current provisions, the testimony of a person under 15 years
old, or a mentally disturbed person, recorded on audio or videotape
during the pre-trial investigation, may be used as evidence if the
accused has been provided with an opportunity to have questions put
to the person giving the testimony (Chapter 17, section 11(2), Act
No. 360/2003). According to the explanatory report to the relevant
Government Bill (No. 190/2002), this new provision places
emphasis on both the idea that giving testimony before the court may
be detrimental to, inter alia, a child and on the importance
of respecting the rights of the defence.
- As
to hearing a child under the age of 15, or a mentally disturbed
person, Chapter 17, section 21 (Act No. 360/2003) provides that he or
she may be heard as a witness, or for the purpose of obtaining
evidence, if the court finds it appropriate, and if the hearing in
person is of significant relevance for the establishment of the facts
of the case, and the hearing is not likely to cause such suffering or
other harm as could be detrimental to the person concerned (from now
on referred to as the witness) or to his or her development. Where
necessary, the court shall designate a support person for the
witness. The witness shall be questioned by the court, unless it
finds particular reason to entrust the questioning to the parties.
The parties shall be provided with an opportunity to put questions to
the witness through the intermediary of the court or, if the court
finds it appropriate, directly to the witness. Where necessary, the
hearing may take place on premises other than the court room.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained, under Article 6 § 3 (d) of the Convention,
that his right to a fair trial had been breached in that he was
denied the opportunity to put questions to R., although her account,
recorded on videotape, had been treated as decisive evidence against
him.
Given that the guarantees in paragraph 3 of Article 6 are specific
aspects of the right to a fair trial set forth in paragraph 1, it is
appropriate to examine the complaint under the two provisions taken
together (see, among other authorities, Asch v. Austria, 26
April 1991, § 25, Series A no. 203, and A.H.
v. Finland, no. 46602/99, § 30, 10 May 2007).
Article
6 reads, in so far as relevant:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] tribunal ...
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
Submissions
of the parties
- The
Government submitted that, in the domestic practice, forensic
psychiatric interviews of a child recorded on videotape and
statements obtained from a child included in the pre-trial
investigation reports have been admitted as evidence, especially if
hearing the child in person before the court was not possible. As a
rule, children under ten years of age were not heard as witnesses.
- The
Government referred to the Supreme Court's precedent (voting) No. KKO
2006:107 in another case concerning sexual abuse of a child, where
the court had taken into account the proceedings as a whole. The
general part of the court's reasons read:
“...
When considering admissibility of the video recording as
evidence in the Supreme Court, the court firstly notes that absolute
prohibitions on testifying are exceptional in the Finnish legal
system. The main rule is the principle of free production of
evidence, which largely leaves it up to the parties to decide what
circumstances and evidence they want to invoke in their case. It is
at the court's discretion to decide what evidentiary value it
attributes to each piece of evidence.
The prohibition on testifying laid down in Chapter 17,
section 11(1)(2) of the Code of Judicial Procedure, concerning
recorded statements, is ultimately aimed to ensure a fair trial for
suspects. Therefore, in interpreting the extent of this prohibition,
attention must be paid to the proceedings as a whole. Chapter 17,
section 11(3) of the Code of Judicial Procedure, in turn, lays down
the principle that, if a witness cannot be heard before the court in
person, the court may admit as evidence his or her recorded statement
even if it is, according to the main rule, otherwise inadmissible as
evidence.
...”
The
Government concluded that, if a defendant had not been afforded an
opportunity to put questions to a complainant child, a recorded
account from the child in question could be assessed by weighing its
value as evidence and that the use of such evidence could not be
categorically prohibited.
- The
Government also submitted that there was a marked difference between
the present case and the case of F. and M. v. Finland
(no. 22508/02, § 60, 17 July 2007), where the
Court found a violation of the applicant's rights of defence. In the
said case, not a single interview between the psychologist and the
complainant child had been recorded on audio or videotape.
- The
Government maintained that the applicant had not asked for an
opportunity to put questions to R. in the District Court. It was only
at the appellate stage that the applicant had argued that he had not
been given that opportunity and requested that R. be heard in person.
Taking into account R.'s level of development, the time elapsed since
the alleged offence and the fact that R. had already been interviewed
concerning the events, hearing her in person before the court would
most likely have caused her suffering. In the Government's view, the
Court of Appeal's decision not to hear R. in person was, therefore,
justified.
- The
Government further maintained that, in the proceedings before the
District Court, the prosecutor had presented the video recording of
R.'s interviews as evidence and it had been played back before the
court. Medical expert H., who had conducted the interviews, had been
heard as a witness in that connection. At that stage it had been open
to both parties to submit to the court whatever arguments they wished
to make with regard to the video-recorded evidence, that is, to
contest it and to comment on it. The Government referred in this
connection to the case of B. v. Finland (no. 17122/02,
§ 47, 24 April 2007).
- The
Government emphasised that the applicant's conviction had not been
based solely on R.'s account, recorded on video tape, but also on
other supporting evidence. It had been up to the District Court to
assess the evidentiary value of the recording, which it had done in
an appropriate manner. The testimony of H., in particular, had
considerably increased the evidentiary value of the recording. In
cases concerning alleged child abuse, in general, the most fruitful
period for putting questions to a witness child was lost with time.
For the purpose of obtaining the most reliable statement, it was
preferable to interview the child shortly after the incident. In the
present case R.'s mother had been the first person whom R. had told
about the alleged acts. The former was subsequently heard in court
for the production of evidence. The interviews with the medical
expert had also been arranged very soon after the incident. In the
Government's view, the use of that evidence in these circumstances
did not disclose any failure by the Finnish authorities to afford the
applicant a fair hearing for the purposes of Article 6 §§ 1
and 3 (d) of the Convention.
- The
applicant contested the Government's conclusion and pointed out that
the procedural safeguards set out in Article 6 § 3 (d)
could not be overruled by domestic law and practice. At no stage of
the proceedings had he been afforded the opportunity to put questions
to the main witness against him, namely the child complainant.
- The
applicant claimed that it would have been possible, without any
difficulty, to arrange for the applicant and his counsel to put
questions to R. during the proceedings. It had been the duty of the
authorities, under Article 6 § 3 (d) of the Convention, to
provide him with that opportunity, if not in the oral hearing before
the court, then by some other means. As to the Government's
submission that he had not requested an opportunity to put questions
to R. in the District Court, the applicant found it irrelevant, as he
had made a request to that end in the appellate proceedings.
- The
applicant contended that other witnesses heard during the proceedings
had not been able to testify about the alleged events. Their
testimonies could only be characterised as supporting evidence, as
submitted by the Government. The opportunity to put questions to R.
would have been essential to the applicant's defence, as the video
recording had, in fact, been treated as the main evidence against
him.
The
Court's assessment
- The
Court reiterates that the admissibility of evidence is primarily a
matter for regulation by national law and as a general rule it is for
the national courts to assess the evidence before them. The Court's
task under the Convention is not to give a ruling as to whether
statements of witnesses were properly admitted as evidence, but
rather to ascertain whether the proceedings as a whole, including the
way in which evidence was taken, were fair (see, among many other
authorities, W.S. v. Poland, no. 21508/02, § 53,
19 June 2007).
- All
the evidence must normally be produced at a public hearing, in the
presence of the accused, with a view to adversarial argument. There
are exceptions to this principle, however. As a general rule,
paragraphs 1 and 3 (d) of Article 6 cannot be interpreted as
requiring in all cases that questions be put directly by the accused
or his lawyer, whether by means of cross-examination or by any other
means, but rather that the accused must be given an adequate and
proper opportunity to challenge and question a witness against him,
either when he makes his statements or at a later stage (see W.S.
v. Poland, cited above, § 55 with further references).
- A
conviction should not be based either solely or to a decisive extent
on statements which the defence has not been able to challenge (see,
among other authorities, mutatis mutandis, Doorson v. the
Netherlands, 26 March 1996, § 76, Reports
of Judgments and Decisions 1996 II; W. v. Finland,
no. 14151/02, § 43, 24 April 2007; A.H. v. Finland,
cited above, § 40). Article 6 does not grant the accused an
unlimited right to secure the appearance of witnesses in court. It is
normally for the national courts to decide whether it is necessary or
advisable to hear a witness (see, inter alia, Bricmont v.
Belgium, 7 July 1989, § 89, Series A no. 158;
W. v. Finland, no. 14151/02, § 43, 24 April
2007; A.H. v. Finland, cited above, § 40).
- The
child complainant in this case should, for the purposes of Article 6
§ 3 (d), be regarded as a “witness”, a term to be
given an autonomous interpretation (see, among other authorities,
Asch v. Austria, § 25; W. v. Finland, § 44;
and A.H. v. Finland, § 41; all cited above), because
her account given during the interview with the medical expert, as
recorded on videotape, was played back in court and used in evidence
against the applicant.
- Criminal
proceedings concerning sexual offences are often perceived as an
ordeal by the victim, in particular when the latter is unwillingly
confronted with the defendant. These features are even more prominent
in a case involving a minor. In the assessment of the question of
whether or not in such proceedings an accused received a fair trial,
account must be taken of the right to respect for the private life of
the alleged victim. Therefore, the Court accepts that in criminal
proceedings concerning sexual abuse, certain measures may be taken
for the purpose of protecting the victim, provided that such measures
can be reconciled with an adequate and effective exercise of the
rights of the defence. In securing the rights of the defence, the
judicial authorities may be required to take measures which
counterbalance the handicaps under which the defence labours (see,
inter alia, Baegen v. the Netherlands, 27 October 1995,
§ 77, Series A no. 327 B; P.S. v.
Germany, no. 33900/96, § 23, 20 December 2001; W.
v. Finland, cited above, § 45; A.H. v. Finland,
cited above, § 42; and F. and M. v. Finland,
cited above, § 58).
- Turning
to the present case, the Court observes that the courts based their
decisions on the witness testimonies of R.'s mother and medical
expert H., who had interviewed R. twice after the alleged incident,
and on the video-recording of those interviews. The said two
testimonies were, however, only indirect evidence, as neither the
mother nor H. had witnessed the alleged acts. Both of those witnesses
were only able to give an account of what R. had told them and of
their observation of her behaviour. H. had also testified on the
methods used in conducting the interview and the credibility of R.'s
account.
- The
Court further observes that by way of viewing the videotape the
courts, as well as the applicant, were able to listen to R.'s own
account of the alleged events. The recording also enabled them to
observe the manner in which the interviews were conducted and to
assess for themselves, at least to a certain degree, the credibility
of R.'s account. It was open to the applicant to contest and comment
on the evidence produced before the trial courts. While the Court
acknowledges the significance of such a recording as evidence (see,
mutatis mutandis, the following judgments: Bocos-Cuesta v.
the Netherlands, no. 54789/00, § 71, 10 November
2005; W.S. v. Poland, cited above, § 61 in fine; and
F. and M. v. Finland, cited above, § 60), it cannot
alone be regarded as sufficiently safeguarding the rights of the
defence where no opportunity to put questions to a person giving the
account has been afforded by the authorities.
- In
the present case, unlike in the cases of S.N. v. Sweden
(no. 34209/96, § 49-50, ECHR 2002 V) and B.
v. Finland (no. 17122/02, § 44, 24 April 2007),
the applicant was not afforded an opportunity to put questions to R.
at any stage of the proceedings. His request to hear R. before the
Court of Appeal was refused. His further request to hear R. before a
court, or by some other means, was to no avail, as the Supreme Court
refused leave to appeal.
- As
to the Government's argument that during the proceedings before the
first-instance court the applicant had not requested that the victim
be questioned, and had only complained of this on appeal, the Court
notes that under domestic law the Court of Appeal was empowered to
consider questions of both fact and law, and it was still open to the
applicant to make such a request at that stage. As to the appellate
court's refusal to hear R., the Court further notes that apparently
no expert opinion was obtained on whether R. could be heard before
the court or by other, less intrusive means.
- The
Court notes that the present case is similar to the cases of W. v.
Finland and A.H. v. Finland (both cited above), where the
Court found a violation of the applicant's defence rights. In those
cases, as in the case at hand, the video recording of the child
complainant, played back before the trial courts, constituted the
only direct evidence against the applicant (W. v. Finland,
§ 47; and A.H. v. Finland, § 44).
- In
these circumstances, the use of this evidence involved such
limitations on the rights of the defence that the applicant cannot be
said to have received a fair trial.
Therefore,
there has been a violation of Article 6 § 1 taken together with
Article 6 § 3 (d).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- Under
the head of pecuniary damage the applicant claimed 1,062.41 euros
(EUR) for the amount levied in execution following his conviction. He
also claimed compensation for non-pecuniary damage due to suffering,
without specifying the amount.
- The
Government considered that there was no causal link between the
alleged violation and the pecuniary damages claimed. In the event
that the Court were to find a violation of Article 6 of the
Convention, compensation for non-pecuniary damage should not exceed
EUR 3,000.
- The
Court cannot speculate about the outcome of the proceedings had they
been in conformity with Article 6. The Court has found a violation of
the applicant's right to a fair trial but finds no sufficient causal
link between that violation and the pecuniary damage allegedly
suffered. This claim must therefore be rejected.
The
Court accepts that the lack of the guarantees of Article 6 has caused
the applicant non-pecuniary damage, which cannot be made good by the
mere finding of a violation. The Court, making its assessment on an
equitable basis, awards the applicant EUR 3,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant claimed costs and expenses in the Strasbourg proceedings in
the amount of EUR 1,252.72 (inclusive of value-added tax). The legal
aid granted by the Council of Europe amounting to EUR 850 had not
been deducted from that amount.
- The
Government submitted that the applicant had not specified the
measures taken and the hourly rate charged by his counsel. In the
event that the Court were to consider the documents submitted in
support of this claim sufficient, the amount of costs and expenses
was reasonable.
- The
Court reiterates that an award under this head may be made only
insofar as the costs and expenses were actually and necessarily
incurred in order to avoid, or obtain redress for, the violation
found (see, among other authorities, Hertel v. Switzerland, 25
August 1998, § 63, Reports of Judgments and Decisions
1998 VI).
The
Court finds that, taking into account the total amount of counsel's
fee of EUR 1,000 (without value-added tax), the documents submitted
by the applicant in support of his claim are sufficient for the
purpose of assessing the amount of the award under this head. Taking
into account also all the other circumstances, and having regard to
the amount received by way of legal aid from the Council of Europe,
the Court awards the applicant EUR 402 (inclusive of value-added tax)
in respect of costs and expenses.
C. Default interest
- 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
- Declares the application admissible;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention taken together with Article
6 § 3 (d) of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
3,000 (three thousand euros) in respect of non-pecuniary damage;
(ii) EUR
402 (four hundred and two euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 27 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
