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FIFTH
SECTION
CASE OF ZAGORODNIY v. UKRAINE
(Application
no. 27004/06)
JUDGMENT
STRASBOURG
24
November 2011
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 Zagorodniy v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Boštjan M.
Zupančič,
Mark Villiger,
Ann
Power-Forde,
Ganna Yudkivska,
Angelika
Nußberger, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 3 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 27004/06) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Aleksandr
Vladimirovich Zagorodniy (“the applicant”), on 17 June
2006.
- The
applicant was represented by Mr V.M. Mikhalin, a lawyer practising in
Kostyantynivka, Ukraine. The Ukrainian Government (“the
Government”) were represented by their Agent, Mr Y. Zaytsev,
from the Ministry of Justice.
- The
applicant alleged, in particular, that he had been denied a free
choice of defence counsel and that the proceedings against him had
been unfair.
- On
1 July 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).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lives in the town of Dimitrov,
Ukraine.
A. Legal background of the case
- Prior
to November 2000 the legal representation of defendants in criminal
proceedings could be conducted only by a licensed advocate. The
advocate’s rights and obligations, and the required standards
of professional competence and conduct were set forth in a separate
Act of Parliament (see paragraphs 39 to 42 below). Other persons,
including those holding a university law degree, were excluded from
providing legal representation in criminal cases.
- On
16 November 2000 the Constitutional Court found the relevant
provisions of the Code of Criminal Procedure unconstitutional and the
parliament introduced relevant amendments to the Code in June 2001
(see paragraphs 37 and 38 below).
B. The criminal proceedings against the applicant
- On
4 August 2004 the applicant was involved in a traffic accident, in
which his car collided with another car. On the next day, criminal
proceedings concerning the accident were instituted against the
applicant.
- On
9 November 2004 the applicant signed an agreement with Mr M. for
legal representation in the above-mentioned criminal proceedings. The
latter was a lawyer, who held a university degree in law and who had
a private legal practice, but who was not a licensed advocate.
- On
16 November 2004 the investigator allowed Mr M. to act as defence
counsel.
- On
5 August 2005 the Dimitrov Local Court (“the Dimitrov Court”)
held a committal hearing in the case and decided to remit the case
for additional investigation on the grounds that the applicant’s
right to mount a defence had been breached during the pre-trial
investigation. The court noted that, in accordance with Article 44 of
the Code of Criminal Procedure, the right to provide legal assistance
is conferred upon advocates and other legal specialists (the term
used to describe degree-educated practicing lawyers who have not been
called to the Bar), but the right of the latter to act as defence
counsel required to be defined by a specific piece of legislation. As
there was no such law authorising a legal specialist with a private
practice, such as Mr M., to provide legal assistance in criminal
matters, the decision of the investigator to allow such a specialist
to take part in the case had been unlawful and therefore the
applicant’s right to mount a defence had been violated. The
court ordered additional investigation with the participation of an
advocate.
- On
10 August 2005 the applicant appealed against the decision of
5 August 2005, claiming that limiting his right to a free choice
of defence counsel was contrary to the Constitution and the decision
of the Constitutional Court of 16 November 2000 (see paragraph 37
below).
- On
13 January 2006 the court rejected his appeal.
- On
24 March 2006 the investigator decided to allow Mr O., who was a
licensed advocate, to take part in the criminal case as the
applicant’s defence counsel.
- On
26 April 2006 the applicant appealed in cassation against the
decisions of 5 August 2005 and 13 January 2006.
- By
letter of 3 May 2006, in reply to a request by the applicant that
criminal proceedings be instituted against the relevant judge of the
Dimitrov Court for alleged deliberate failure to comply with the
decision of the Constitutional Court concerning the right to a free
choice of defence counsel, the Donetsk Regional Prosecutor’s
Office informed the applicant that the court had rightly decided to
remove Mr M. from the applicant’s case because he was not a
licensed advocate.
- On
11 May 2006 the applicant asked the Dimitrov Court to remit his case
for further investigation on the grounds that his right to mount a
defence had been violated.
- On
the same date the court rejected his request. The court established
that the applicant’s right to mount a defence had been complied
with as a result of the participation of Mr O. in the additional
investigation.
- On
12 May 2006 the applicant notified the court that Mr O. was not his
defence counsel and that he had seen him only once, in April 2006,
when he had pointed out to the investigator that he needed defence
counsel but did not wish to be represented by Mr O. because he had
not been freely chosen by him. Therefore, he contested the court’s
conclusion that his right to mount a defence had been complied with.
- On
22 May 2006 the Supreme Court rejected his appeal on the grounds that
decisions as to the remittal of a criminal case were not subject to
appeal in cassation.
- On
17 July 2006 the Dimitrov Court rejected a request by the applicant
that Mr M. be allowed to represent him as his defence counsel because
the law did not provide that a private practice lawyer could act as
defence counsel in a criminal case. At the same time, the court
accepted the refusal by the applicant to have Mr O. appointed as
his defence counsel.
- In
July 2006 the same court returned the applicant’s appeal
against the decision of 17 July 2006 without consideration on the
grounds that the contested decision was not subject to a separate
appeal.
- By
a decision of 6 September 2006, following another request by the
applicant to institute criminal proceedings against the judge of the
Dimitrov Court for alleged failure to comply with the decision of the
Constitutional Court, the Dimitrov Prosecutor’s Office again
refused to institute criminal proceedings.
- On
12 March 2007 the Krasnoarmeysk Local Court rejected an appeal by the
applicant against the prosecutor’s decision of 6 September
2006. The decision of 12 March 2007 was upheld by the Donestk
Regional Court of Appeal on 14 August 2007.
- During
a court hearing on 13 March 2007 the Dimitrov Court examined a
request from the applicant asking it to accept his dismissal of a
lawyer, Mr K., who had been appointed by the court to represent him
after the decision of 17 July 2006, and to appoint his wife as his
representative. The court allowed his request in part. It allowed the
applicant’s wife to be his defence counsel but rejected the
applicant’s dismissal of Mr K. on the grounds that the
applicant had complained on numerous occasions about a violation of
his right to mount a defence and therefore determined that he should
be legally represented.
- On
10 April 2007 the applicant wrote a letter dismissing Mr K. He
claimed that the appointed advocates, Mr O. and Mr K., had only
formally represented him and had not properly defended him. He noted,
however, that he did need defence counsel, although not a formally
admitted one.
- On
the same date the court rejected the applicant’s dismissal
letter, stating that he had claimed that he needed defence counsel.
- On
21 March 2008 the court rejected the applicant’s request to
remit the case for additional investigation. It also rejected the
applicant’s dismissal of Mr K. and the applicant’s
request asking that Mr M. be allowed to take part in the case again.
- On
27 March 2008 the applicant was found guilty of a breach of traffic
rules which had caused medium bodily injury and sentenced to three
years’ restraint of liberty (обмеження
волі). However, he was discharged
from serving his sentence owing to the expiry of the statutory
time-limit for the prosecution. He was also ordered to pay
compensation for pecuniary and non-pecuniary damage caused to the
victims.
- The
applicant appealed against that judgment, claiming, inter alia,
that his right to a free choice of defence counsel had been violated.
- On
13 June 2008 the Donetsk Regional Court of Appeal upheld the judgment
of 27 March 2008 in part. The court noted that there had been no
procedural violations that would require the judgment to be quashed.
At the same time, the quantum of damages had not been substantiated
and therefore the court remitted this part of the case for fresh
consideration in separate civil proceedings.
- The
applicant appealed in cassation to the Supreme Court, claiming, inter
alia, that his right to a free choice of defence counsel had been
violated.
- On
24 February 2009 the Supreme Court upheld the decision of the Court
of Appeal. In reply to the applicant’s complaint of a violation
of his right to mount a defence, the court noted:
“It is not worth paying attention to the arguments
[submitted in] the cassation appeal by the convict that his right to
mount a defence was violated, because, in rejecting the request of
the convict, the court reasonably noted that, in accordance with
Article 44 of the Code of Criminal Procedure of Ukraine, only a
person who is the bearer of an advocate’s licence for practice
in Ukraine is allowed to act as defence counsel and M. is not the
bearer of such a licence.”
- By
a judgment of 5 February 2009 of the Dimitrov Court, the applicant
was ordered to pay compensation to the victims of the traffic
accident for pecuniary and non-pecuniary damage caused to them.
- On
29 April and 30 June 2009 respectively the Donetsk Regional Court of
Appeal and the Supreme Court upheld the judgment of 5 February 2009.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of Ukraine
- Relevant
provisions of the Constitution read as follows:
Article 22
“Human and citizens’ rights and freedoms
affirmed by this Constitution are not exhaustive.
Constitutional rights and freedoms are guaranteed and
shall not be abolished.
The content and scope of existing rights and freedoms
shall not be diminished in the adoption of new laws or in the
amendment of laws that are in force.”
Article 59
“Everyone has the right to legal assistance. Such
assistance is provided free of charge in cases envisaged by law.
Everyone is free to choose his or her own defence counsel.
In Ukraine, advocacy acts to ensure the right to mount a
defence against an accusation and to provide legal assistance during
the determination of cases by the courts and other State bodies.”
Article 63
“... A suspect, an accused or a defendant has the
right to mount a defence ...”
Article 92
“The following are determined exclusively by the
laws of Ukraine:
(1) human and citizens’ rights and
freedoms, the guarantees of these rights and freedoms; the main
duties of a citizen ...
(14) the judicial system, judicial
proceedings, the status of judges, the principle of judicial
expertise, the organisation and operation of the prosecution service,
bodies of inquiry and investigation, the [status of] notaries, bodies
and institutions [pertaining to] the execution of punishments, the
fundamentals of the organisation and activities of the Bar ...”
B. Decision of the Constitutional Court of Ukraine of
16 November 2000 regarding the free choice of defence counsel
- In
this case, the Constitutional Court decided that:
“1. The provisions of Article 59 of the
Constitution of Ukraine, that "everyone is free to choose his or
her own defence counsel”, in terms of the constitutional
application of citizen G.I. S. shall be understood as the
constitutional right of a suspect, an accused or a defendant in their
defence from an accusation ... in order to obtain legal aid, to
choose, as his or her defence counsel, anyone who is a legal
specialist and who is entitled by law to provide legal assistance [on
his or her own account] or on behalf of a legal person.
2. The provisions of part 2 of Article 59 of
the Constitution of Ukraine that "in Ukraine, advocacy acts to
ensure the right to mount a defence against an accusation ..."
shall be understood as one of the constitutional guarantees, giving a
suspect, an accused or a defendant the opportunity to exercise his or
her right to freely choose, as defence counsel in criminal
proceedings, an advocate, that is, a person who has the right to
provide advocacy.
3. The following shall be considered not to
be in conformity with the Constitution of Ukraine (unconstitutional):
- a provision of part 1 of Article 44 of the
Code of Criminal Procedure of Ukraine which limits the right for a
suspect, an accused or a defendant to freely choose as his or her own
defence counsel, apart from an advocate, another legal specialist,
who, in accordance with the law, is entitled to provide legal
assistance [as a sole practitioner] or on behalf of a legal person;
...
4. The provisions of part 1 of Article 44 of
the Code of Criminal Procedure of Ukraine ... deemed to be
unconstitutional, lose their force from the day that this decision by
the Constitutional Court has been rendered.
C. The Code of Criminal Procedure (as amended in June
2001)
- Relevant
provisions of the Code read as follows:
Article 44
Defence counsel
“Defence counsel is the person who, in accordance
with the procedure prescribed by law, shall be authorised to protect
the rights and legitimate interests of a suspect, an accused, a
defendant, a convict or an acquitted person, and to provide them with
necessary legal assistance in criminal proceedings.
Persons bearing a licence to exercise the right of
advocacy in Ukraine and other legal specialists, who are entitled by
law to provide legal assistance [as a sole practitioner] or on behalf
of a legal person shall be allowed to act as defence counsel ...
The powers of defence counsel to participate in a case
shall be confirmed:
...
(2) for an advocate who is not a member of
the Bar Association by an agreement, for other legal specialists who
are entitled by law to provide legal assistance [as a sole
practitioner] or on behalf of a legal person by an agreement or by
the authority of the legal person ...”
D. The Bar Act of 19 December 1992
- Section
2 of the Act provides that, in addition to having a university degree
in law, an advocate must pass special qualification exams, obtain an
advocate’s licence and be sworn in as an advocate of Ukraine.
- Sections
6 and 7 set forth the professional rights and obligations of the
lawyer, including those in respect of evidence gathering and
restrictions on representation.
- Section
9 of the Act sets out the provisions for advocate-client
confidentiality and section 10 sets forth the privileges enjoyed by
the advocate in carrying out his professional activities, including
the prohibition on the search and seizure of the advocate’s
professional papers without his consent and the special procedure for
instituting criminal proceedings against him.
- Section
13 of the Act provides for special qualifications and disciplinary
boards that assess the professional competence of advocates and deal
with any disciplinary matters in the event of a breach of the
requirements of the Act or other relevant legislation.
E. Resolution no. 8 of the Plenary Supreme Court of
Ukraine of 24 October 2003 on the application of legislation
that ensures the right to mount a defence in criminal proceedings
- The
relevant extracts from the Resolution of the Plenary Supreme Court
read as follows:
“In order to ensure the correct and uniformed
application by the courts of the legislation that ensures the right
of a suspect, an accused, a defendant, a convict or an acquitted
person to mount a defence, the Plenary Supreme Court decides:
5. The powers of defence counsel to
participate in the case should be confirmed:
...
(c) for any other legal specialist, who, in
accordance with the law, is entitled to provide legal assistance [as
a sole practitioner] or on behalf of a legal person – by the
documents specified in the specific legislation which confers on
these persons the right to participate in criminal proceedings as
defence counsel, as well as by a contract or through the authority of
the legal person;
...
In deciding whether a legal specialist has the authority
to conduct the defence in a criminal case, it should also be
established by exactly what law the right to participate in criminal
proceedings as defence counsel was conferred on him or her. This
should be recognised as the proper practice of the courts, which, in
the absence of a specific piece of legislation, do not allow such
specialists to conduct the defence in criminal cases ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the domestic authorities had unlawfully
denied him the right to a free choice of defence counsel and
therefore that the trial against him had been unfair, contrary to
Article 6 §§ 1 and 3 (c) of the Convention, which
reads insofar as relevant as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal ...
...
3. Everyone charged with a criminal offence
has the following minimum rights:
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require; ...”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant maintained that the decision of the Constitutional Court
had clearly indicated that a private practice lawyer could act as
counsel in criminal proceedings. The lawyer of his choice had had a
law degree and had been registered as a private entrepreneur;
therefore, he had satisfied the requirements of the law. The
applicant considered that the lack of disciplinary liability for
private practice lawyers could not be a valid obstacle for the
performance of their activities. The applicant also pointed out that
the Resolutions of the Supreme Court could not serve as a legal basis
for restricting his right to choose a lawyer.
- The
applicant further maintained that the lawyers appointed in his case
had proved to be ineffective. He noted that the domestic authorities
had allowed his wife, who had not had a law degree, to act as his
second defence counsel, but had not allowed a lawyer, M., to act in
his defence.
- The
Government noted that under the Court’s case-law the right to
legal assistance of one’s own choosing was not absolute and
could be subject to restrictions. They maintained that the
Constitutional Court had found unconstitutional the provisions of the
Code of Criminal Procedure concerning the choice of defence counsel
being limited to a member of the Bar and that Parliament had
accordingly amended the relevant provisions of the aforementioned
Code. The new provisions of the Code, however, had required a further
legislative act, which had not been adopted. The Government observed
that the applicant had disagreed with the Resolution of the Supreme
Court, which meant that he had misunderstood domestic law, given that
the Resolution of the Supreme Court had been a logical continuation
of the interpretation of the Constitutional Court. Therefore, they
considered that the refusal to allow Mr M. to act as the applicant’s
defence counsel had not been contrary to the provisions of domestic
law and that there had been no violation of Article 6 § 3 (c) of
the Convention.
- The
Government maintained that allowing a legal specialist to conduct the
defence in the applicant’s case would not have provided the
applicant with sufficient legal assistance. Given that the legal
status of a specialist, in other words a lawyer who is not a licensed
advocate, had not been determined by law, such a specialist was not
subject to the Rules of Advocate’s Ethics and to qualification
requirements established for advocates. Furthermore, such a
specialist was not disciplinarily liable.
- The
Government finally maintained that the interests of justice had not
required the applicant’s representation by Mr M. and that the
domestic authorities had provided the applicant with legal assistance
by other counsel. Moreover, the applicant had not been prevented from
defending himself or presenting his version of events.
2. The Court’s assessment
- As
the requirements of Article 6 § 3 are to be seen as particular
aspects of the right to a fair trial guaranteed by Article 6 §
1, the Court will examine the complaints under those two provisions
taken together (see, among many other authorities, Van Mechelen
and Others v. the Netherlands, 23 April 1997, § 49, Reports
of Judgments and Decisions 1997-III, p. 711).
- The Court reiterates that, although not absolute, the
right of everyone charged with a criminal offence to be effectively
defended by a lawyer is one of the fundamental features of a fair
trial (see Krombach v. France, no. 29731/96, § 89,
ECHR 2001-II). A person charged with a criminal offence who does not
wish to defend himself in person must be able to have recourse to
legal assistance of his own choosing (see HanZevački v.
Croatia, no. 17182/07, § 21, 16 April 2009, with further
references). However, this latter right cannot be considered to be
absolute either and, consequently, the national courts may override
that person’s choice when there are relevant and sufficient
grounds for holding that this is necessary in the interests of
justice (see Croissant v. Germany, 25 September 1992, §
29, Series A no. 237 B). Furthermore, the legal requirement
for defence counsel to hold a law degree is not in violation of the
above provision (see Shabelnik v. Ukraine, no. 16404/03,
§ 39, 19 February 2009).
- In
the present case, the applicant’s right to freely choose his
defence counsel was restricted, as the representative of his choice
was a lawyer, but not a licensed advocate. In the Court’s
opinion, such a restriction on the free choice of defence counsel may
not in itself raise an issue under Article 6 § 3 (c)
of the Convention, since the particular legal qualifications can be
required to ensure the efficient defence of a person (see Mayzit
v. Russia, no. 63378/00, § 68, 20 January 2005) and the
smooth operation of the justice system (see Meftah and Others v.
France [GC], nos. 32911/96, 35237/97 and 34595/97, § 45,
ECHR 2002 VII). However, as the applicant argued such
restriction had been found unconstitutional as early as November 2000
(see paragraph 37 above), the relevant domestic legislation had to be
brought in compliance with the Constitutional Court’s decision.
The legislative amendments to this end had been introduced in June
2001, but, according to the Government, further legislative actions
were required (see paragraph 48 above). On this latter point, the
applicant had disagreed with the Government, considering that the
existing legislation did not provide for the restriction on his
choice of a lawyer and his choice had been restricted due to wrong
interpretation of the criminal procedural law by the Supreme Court.
On this point, the Court notes that it is not its task to decide
whether the restriction of the applicant’s choice of a lawyer
resulted from a lack of further legislative amendments, as suggested
by the Government, or from inconsistent practice in interpretation of
the decision of the Constitutional Court, as maintained by the
applicant.
- The
Court notes that it was not suggested by the domestic authorities
that the interests of justice were a justification for this
restriction on the applicant’s choice of counsel. The Court
considers that, even assuming that the restriction results, as the
Government suggested, from a yet to be completed process of bringing
the criminal procedural legislation in line with the decision of the
Constitutional Court, such situation of continuous uncertainty in the
relevant domestic legislation presently remains. The Resolution of
the Plenary Supreme Court adopted in 2003 did not bring about
consistent and uniform application of the law. The Court previously
held that an interference with the Convention rights cannot be
considered lawful merely because of the absence of any legal
provision with which it may conflict. The interference itself must
have sufficient basis in domestic law to avoid being arbitrary (see,
mutatis mutandis, Svershov v. Ukraine, no. 35231/02, §
48, 27 November 2008, and Garkavyy v. Ukraine, no. 25978/07,
§ 74, 18 February 2010).
- In
the Court’s opinion, leaving the issue of curtailment on the
free choice of a defence counsel unsettled for a long period of time,
the State authorities created a situation incompatible with the
principle of legal certainty which is implied in the Convention and
constitutes one of the basic elements of the rule of law (see,
mutatis mutandis, Ştefănică and Others v. Romania,
no. 38155/02, § 31, 2 November 2010).
Accordingly, the applicant’s right to a free choice of counsel
had been restricted in a manner incompatible with the requirements of
Article 6 §§ 1 and 3 of the Convention
- Thus there has been a violation of these provisions.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained about the length of the criminal proceedings
against him. He also referred to Article 8 of the Universal
Declaration of Human Rights. In his later submissions he further
complained that one of the witnesses for prosecution had not been
examined in court.
- Having
carefully examined the applicant’s submissions in the light of
all the material in its possession, and in so far as the matters
complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention. It follows that this part of the
application must be declared inadmissible as being manifestly
ill-founded, pursuant to Article 35 §§ 1, 3 (a) and 4
of the Convention.
III. 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
- The
applicant claimed 2,375.27 United States dollars (USD) in respect of
pecuniary damage and 25,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government considered that there was no causal link between the
alleged violation and the damages claimed.
- The
Court considers that the finding of a violation constitutes in itself
sufficient just satisfaction in the circumstances of the present
case.
B. Costs and expenses
- The
applicant also claimed 12,361 Ukrainian hryvnias (UAH) (around EUR
1,082) for costs and expenses incurred before the domestic courts and
before this Court.
- The
Government maintained that not all of the claimed costs and expenses
had been documented and proved to be relevant to the present case.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and to the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 250 for the
proceedings before the Court.
C. Default interest
- 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
- Declares the complaint concerning denial of the
applicant’s right to a free choice of defence counsel and
unfairness of the proceedings against him admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 §§ 1 and 3 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, EUR 250 (two hundred and
fifty euros), plus any tax that may be chargeable to the applicant,
in respect of costs and expenses, to be converted into Ukrainian
hryvnias 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 24 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
