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FIFTH
SECTION
CASE OF SMOLIK v. UKRAINE
(Application
no. 11778/05)
JUDGMENT
STRASBOURG
19
January 2012
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 Smolik v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Boštjan M.
Zupančič,
Ann Power-Forde,
Ganna
Yudkivska,
Angelika Nußberger,
André
Potocki, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 13 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11778/05)
against Ukraine lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Ukrainian
national, Mr Vladimir Valentinovich Smolik (“the applicant”),
on 11 March 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
3. The
applicant alleged, in particular, that his initial detention had not
been lawful and that his defence rights had been infringed during
that time.
- On
24 November 2009 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 1989 and is currently serving a
prison sentence.
- In
the afternoon of 12 May 2004 a minor, K., was found dead in his
apartment, with several knife wounds. On the same day the local
prosecutor’s office instituted criminal proceedings in
connection with the murder.
- The
applicant (14 years old at that time) was a school acquaintance of K.
Before the incident, K. had invited the applicant to his home on many
occasions.
- At
5 p.m. on the same day the police visited the applicant’s home.
In the presence of his mother the applicant confessed and the police
took him to the police station.
- The
police did not draw up arrest order and the applicant did not have
his procedural rights explained to him on that day, as required by
Article 106 of the Code of Criminal Procedure. According to the
applicant, he was questioned about the incident and subjected to
ill-treatment by the police.
- At
7.50 p.m. on the same day the applicant was examined by a medical
expert, who reported abrasions on the applicant’s hand, back,
waist and shoulder. The expert opined that the injuries were light
and had been inflicted between twenty-four hours and six hours before
the examination. The applicant remained in police custody.
- At
9.30 a.m. on 13 May 2004 the applicant was given access to a lawyer
he had chosen himself. His procedural rights were explained to him,
including the right to remain silent and not to incriminate himself,
to be informed of the charges against him, to have a meeting with a
lawyer before being questioned, to seek to examine evidence, to seek
withdrawal of an investigator, to participate in investigative
actions, and to lodge complaints.
- Between
11.05 a.m. and 3.40 p.m. that day an investigator from the
prosecutor’s office questioned the applicant in the presence of
the lawyer and a teacher. During that questioning the applicant
stated that he had entered the victim’s apartment, using a key
he and a schoolmate had stolen from K. beforehand; the applicant’s
plan was only to steal money, but when K. arrived unexpectedly and a
fight broke out between them he grabbed a knife and stabbed him
several times; he then took money and left the apartment.
- At
5.10 p.m. on 13 May 2004 an investigator from the prosecutor’s
office drew up an arrest order in respect of the applicant, relying
on Articles 106 and 115 of the Code of Criminal Procedure.
- On
15 May 2004 the applicant was questioned once again. In the presence
of the lawyer the applicant confirmed his previous statements.
- On
16 May 2004 the local court remanded the applicant in custody as a
preventive measure and noted, inter alia, that the applicant
had been arrested as a suspect at 5.10 p.m. on 13 May 2004. At the
court hearing the applicant was represented by the lawyer. They both
submitted, inter alia, that the applicant had acknowledged
guilt.
- On
6 July 2004 the applicant’s father requested that criminal
proceedings be instituted against the police officers, claiming that
after arrest the applicant was subjected to ill-treatment, and that
the lawyer was allowed in only the next morning.
- On
15 July 2004 a forensic medical expert confirmed the conclusions of
the medical expert of 12 May 2004.
- On
the same day the applicant was questioned once again in the presence
of the lawyer. He was clear that it was K. who had initiated the
fight and that all he could remember was when he found himself
holding a knife and K. lying on the floor: he was really scared then.
He further submitted that after he was arrested police officers had
beaten him up, thus making him confess in detail.
- On
17 July 2004 the investigator of the local prosecutor’s office
refused to institute criminal proceedings into the alleged
ill-treatment for lack of corpus delicti.
- On
18 July 2004 the applicant was further questioned in the presence of
the lawyer. The applicant once again stated that he could not
remember what happened during the fight with K. until the moment when
the latter was lying dead on the floor.
- Following
the completion of the investigation the case was referred to court
for the applicant to be tried.
- On
5 November 2004 the Mykolayiv Region Court of Appeal (“the
trial court”), having regard to the applicant’s
complaints of ill-treatment, ordered additional inquiries in relation
to those allegations.
- On
12 November 2004 the local prosecutor once again refused to institute
criminal proceedings into the alleged ill-treatment for lack of
corpus delicti.
- When
questioned by the trial court, the applicant admitted that he had
entered K.’s apartment and stolen the money. He could not
explain how the murder was committed, as he could not remember what
had happened.
- On
26 November 2004 the trial court found the applicant guilty of
aggravated murder and robbery and sentenced him to fifteen years’
imprisonment. The judgment was based on the self-incriminatory
statements made by the applicant on 13 May 2004 and later and other
documentary, oral and material evidence. In the operative part of the
judgment the trial court ordered that the term of imprisonment be
counted from 12 May 2004.
- The
applicant and his representative appealed against that judgment,
alleging, inter alia, that the applicant had committed the
murder when mentally disturbed and in a fight with the victim. They
further insisted that the applicant’s procedural rights had
been infringed, as he had been subjected to ill-treatment and his
status as an arrested person had not been formalised straight after
the arrest.
- On
24 February 2005 the Supreme Court held a hearing in the case and the
applicant submitted that there had been an accomplice, A., in K.’s
apartment who had committed the murder. He alleged that he had been
afraid to tell the truth earlier because he had been threatened by
the accomplice, who was much older than him.
- The
Supreme Court rejected the applicant’s submissions, finding
that the applicant’s guilt had been well established by the
evidence in the case file and there had been no indication that the
applicant’s rights had been violated in the course of the
investigation. However, it changed the applicant’s sentence for
robbery, reclassifying it as theft.
- On
17 June 2005 the prosecutor’s office instituted an
investigation of the applicant’s allegations concerning
involvement of the accomplice A. in the crimes.
- On
10 February 2006 the investigation was terminated as no evidence of
A.’s involvement had been obtained.
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine
- The
relevant part of Article 29 of the Constitution reads as follows:
“... In the event of an urgent necessity to
prevent or stop a crime, bodies authorised by law may hold a person
in custody as a temporary preventive measure, the reasonable grounds
for which shall be verified by a court within seventy-two hours. The
detained person shall be released immediately if he or she has not
been provided, within seventy-two hours of the moment of detention,
with a reasoned court decision in respect of the holding in custody.
...
Everyone who has been detained has the right to
challenge his or her detention in court at any time. ...”
B. Code of Criminal Procedure of 28 December 1960
- The
relevant provisions of the Code read as follows:
Article 43-1. The suspect
“A person shall be considered a suspect if:
1) he/she has been arrested on suspicion of
having committed a crime;
2) in his/her respect a preventive measure
has been applied until a decision has been made to bring that person
to the proceedings as an accused.
A suspect is entitled to know what he/she is suspected
of; to give evidence or refuse to give evidence and answer questions;
to have defence counsel and a meeting with him before the first
questioning; to challenge the lawfulness of his/her arrest before the
court ...
It shall be stated in the arrest order or the decision
to apply a preventive measure that the suspect has had his or her
rights explained.”
Article 45. Obligatory participation of defence
counsel
“The participation of defence counsel during the
inquiry and the preliminary investigation and during consideration of
the criminal case in the first-instance court is obligatory:
1) in the cases concerning a person who is
suspected of or charged with a crime committed at the age of less
than eighteen years, – from the moment when such a person is
considered a suspect or when such a person has been charged with the
crime; ...”
Article 106. Arrest of a suspect by the body of
inquiry
“The body of inquiry shall be entitled to arrest a
person suspected of a criminal offence for which a penalty in the
form of deprivation of liberty may be imposed only on one of the
following grounds:
1. if the person is discovered whilst or
immediately after committing an offence;
2. if eyewitnesses, including victims,
directly identify this person as the one who committed the offence;
3. if clear traces of the offence are found
either on the body of the suspect, or on his clothing, or with him,
or in his home.
If there is other information giving ground to suspect a
person of a criminal offence, a body of inquiry may arrest such a
person if the latter attempted to flee, or does not have a permanent
place of residence, or the identity of that person has not been
established.
For each case of a suspect’s arrest, the body of
inquiry shall be required to draw up an arrest order (протокол
затримання)
outlining the grounds, the motives, the day, time, year and month,
the place of arrest, the explanations of the person detained and the
time when it was recorded that the suspect had been informed of his
right to have a meeting with defence counsel as from the moment of
his arrest, in accordance with the procedure provided for in
paragraph 2 of Article 21 of the present Code. The arrest order shall
be signed by the person who drew it up and by the detainee.
A copy of the arrest order with a list of his rights and
obligations shall immediately be handed to the detainee and sent to
the prosecutor. At the request of the prosecutor, the material which
served as a ground for the arrest shall be sent to him as well. ...
Within seventy-two hours of the arrest, the body of
inquiry shall:
(1) release the detainee if the suspicion
that he committed the crime has not been confirmed, if the term of
the preliminary detention established by law has expired or if the
arrest has been effected in violation of the requirements of
paragraphs 1 and 2 of the present Article;
(2) release the detainee and select a
non-custodial preventive measure;
(3) bring the detainee before a judge with a
request to impose a custodial preventive measure on him or her.
If the arrest is appealed against to a court, the
detainee’s complaint shall be immediately sent by the head of
the detention facility to the court. The judge shall consider the
complaint together with the request by the investigating body for
application of the preventive measure. If the complaint is received
after the preventive measure was applied, the judge shall examine it
within three days of receiving it. If the request has not been
received or if the complaint has been received after the term of
seventy-two hours of detention, the complaint shall be considered by
the judge within five days after receiving it.
The complaint shall be considered in accordance with the
requirements of Article 165-2 of this Code. Following its
examination, the judge shall give a ruling, either declaring that the
arrest is lawful or allowing the complaint and finding the arrest to
be unlawful.
The ruling of the judge may be appealed against within
seven days from the date of its adoption by the prosecutor, the
person concerned, or his or her defence counsel or legal
representative. Lodging such an appeal does not suspend the execution
of the court’s ruling.
Preliminary detention of a suspect shall not last for
more than seventy-two hours.
If, within the terms established by law, the ruling of
the judge on the application of a custodial preventive measure or on
the release of the detainee has not arrived at the pre-trial
detention facility, the head of the pre-trial detention facility
shall release the person concerned, drawing up the order to that
effect, and shall inform the official or body that carried out the
arrest accordingly.”
Article 115. Arrest of a suspect by an investigator
“An investigator may arrest and question a person
suspected of a crime according to procedure envisaged by Articles
106, 106-1, and 107 of the Code.
Article 438. Introducing charges against a minor and
questioning him
“... If a minor has not attained the age of
sixteen ... a pedagogue ... may be invited ... to be present during
the introduction of charges against a minor and his questioning ...”
C. The Act “On procedure for compensation for
damage caused to citizens by the unlawful acts of bodies of inquiry,
pre-trial investigation authorities, prosecutor’s offices and
courts” of 1 December 1994 (“the Compensation Act”)
- The
relevant provisions of the Compensation Act (as worded at the
relevant time) can be found in the judgment of Afanasyev v.
Ukraine (no. 38722/02, § 52, 5 April 2005).
III. RELEVANT INTERNATIONAL MATERIAL
Report to the Ukrainian Government on the visit to Ukraine carried
out by the European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (“the CPT”)
from 9 to 21 October 2005
- The
relevant extracts from the report read as follows:
“38. It appears from the information
gathered during the 2005 visit that the prompt and accurate
recording of a person’s detention (i.e. from the moment
he/she is obliged to remain with the Internal Affairs staff) remains
a considerable area of concern. The delegation’s findings
revealed that, in many instances, periods of detention (from several
hours up to one day) went unrecorded in the protocols of detention.
At the same time, custody registers often contained incorrect data,
and on occasion, misleading information. By way of illustration, the
register of a district police station indicated that a person was
detained there for two hours while it was subsequently established
that the person in question was in fact held at the police station
concerned for three days. Resolute action is required on the part of
the Ukrainian authorities to put an end to this state of affairs.
The CPT recommends that steps be taken immediately to
ensure that whenever a person is deprived of liberty by the Militia,
for whatever reason, this fact is formally recorded without delay.
Further, once a detained person has been placed in a cell, all
instances of his/her subsequent removal from the cell should be
recorded; that record should state the date and time the detained
person is removed from the cell, the location to which he/she is
taken and the officers responsible for taking him/her, the purpose
for which he/she has been removed from the cell, and the date and
time of his/her return.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained that his initial detention
was unlawful, as it had not been conducted with necessary safeguards
as to the documentation of the detention and the suspect’s
rights.
- Article
5 § 1 of the Convention provides, in so far as relevant, 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. Admissibility
- The
Government maintained that in its judgment of 24 November 2004 the
trial court had in fact recognised that the applicant’s right
to liberty had been violated after stating that the term of
imprisonment should be counted from 12 May 2004. Furthermore, given
this statement of the trial court, the applicant could have claimed
damages for the unlawful detention. He failed however to make use of
this remedy. Therefore the Government submitted that the complaint
was out of the Court’s competence ratione personae and,
besides, that it was inadmissible for non-exhaustion of domestic
remedies.
- The
applicant contended that the trial court order, that his prison
sentence should be calculated as starting from 12 May 2004, had not
been an acknowledgement of the alleged violation. Moreover, there had
been no prospect of success in seeking damages for the allegedly
unlawful detention, as under the domestic legislation then in force
the right to claim damages inflicted by a body of inquiry or
preliminary investigation arose only in limited cases, namely where
the relevant proceedings were terminated on exonerative grounds or
ended with acquittal.
- The
Court reiterates that a decision or measure favourable to the
applicant is not in principle sufficient to deprive him of his status
as a “victim” for the purposes of Article 34 of the
Convention, unless the national authorities have acknowledged, either
expressly or in substance, and then afforded redress for, a breach of
the Convention (see, inter alia, Dalban v. Romania
[GC], no. 28114/95, § 44, ECHR 1999-VI, and Siliadin v.
France, no. 73316/01, § 62, ECHR 2005-VII).
- It
is true that the trial court ordered that the applicant’s
prison sentence be calculated as starting from 12 May 2004. However,
in doing so it did not make any assessment as to whether the
applicant’s initial detention was lawful. In particular, the
trial court did not examine whether the applicant’s arrest was
documented and whether his procedural rights were ensured to him in
due time. These issues constituted the substance of the applicant’s
complaint under Article 5 § 1 of the Convention, but were not
addressed by the trial court in any way. There has therefore been no
acknowledgment of the alleged violation for the purpose of the
Convention and the applicant can still claim to be a victim in this
respect.
- As
to the alleged non-compliance with the rule of exhaustion of domestic
remedies, the applicant’s arrest was carried out in the course
of investigation of a criminal case and thus a claim for damages, if
submitted, would fall within the ambit of the Compensation Act. Under
that Act, as worded at the relevant time, the applicant could claim
compensation provided that the relevant criminal case was terminated
on exonerative grounds or resulted in his acquittal. This, however,
did not happen in the applicant’s case. It follows that his
claim for damages would have had no prospect of success.
- The
Court therefore rejects the Government’s objections as to the
admissibility of the present complaint. It notes that the 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
- The
applicant argued that his arrest order had been
drawn up belatedly. For the first twenty-four hours his detention had
not been documented and his rights had not been explained and
provided to him. The overall period of his detention without judicial
authorisation in fact exceeded seventy-two hours, which was contrary
to domestic legislation.
- The
Government maintained that the applicant’s complaint was
unsubstantiated, referring essentially to their submissions as to the
inadmissibility of the complaint.
- The
Court reiterates that the unacknowledged detention of an individual
is a complete negation of the fundamentally important guarantees
contained in Article 5 of the Convention, and discloses a most grave
violation of that provision. Failure to make a record of such matters
as the date, time and location of detention, the name of the
detainee, the reasons for the detention and the name of the person
carrying it out must be seen as incompatible with the requirement of
lawfulness and with the very purpose of Article 5 of the Convention
(see Menesheva v. Russia, no. 59261/00, § 87, ECHR
2006 III with further references).
- In
the present case the Government have not suggested that there were
any records of the applicant’s detention from the moment of his
actual arrest (5 p.m. on 12 May 2004) to the moment when the arrest
order was drawn up (5.10 p.m. on 13 May 2004). The fact that the
trial court subsequently and implicitly admitted that the applicant
was detained on 12 May 2004 is of little relevance. The
principal issue of concern is that at the time of the impugned
detention there were no appropriate custody records and the
applicant’s status as a suspect was formalised only the next
day, with a twenty-four-hour delay. There is no evidence that until
the morning of 13 May 2004 any of the procedural rights he could
exercise at the relevant time had been explained to him. In these
circumstances the applicant could not make effective use of a variety
of procedural safeguards enshrined in the Convention and the domestic
legislation. These shortcomings eventually resulted, inter alia,
in the applicant being detained without a court order longer than the
seventy-two-hour time-limit, contrary to domestic-law requirements.
- In
this regard the Court cannot overlook the CPT’s findings, which
suggest that there is no established practice of keeping proper
records of detentions by Ukrainian police (see paragraph 34). The
Court considers that the failure of the police to document the
applicant’s detention in the present case stems from a lack of
sufficient safeguards ensuring that any involuntary retention of a
person by the authorities is recorded properly and in sufficient
detail, these records are publicly available, the status of the
person is formalised straight after he or she has been taken in by
the authorities, and all the person’s rights are immediately
and clearly explained to him or her.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the applicant’s initial detention had not been
lawful in the meaning of Article 5 § 1 (c) of the Convention.
There has accordingly been a violation of that provision of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained of a violation of his right
to a fair trial, claiming that from 12 to 13 May 2004 he was
questioned without being explained of and provided with defence
rights.
- The
relevant parts of Article 6 provide 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; ...”
Admissibility
1. The parties’ submissions
- The
Government stated that there were no documents suggesting that the
applicant was questioned on 12 May 2004. In their opinion the first
questioning was conducted on 13 May 2004. It was carried out in the
presence of the lawyer, chosen by the applicant. The Government
pointed out that as the applicant was a minor the participation of a
lawyer was obligatory under the domestic law. A teacher was also
present during the first questioning, thus providing an additional
guarantee of the objectivity of the investigation. Before that
questioning the applicant had had his rights explained to him in
detail. The Government further submitted that the applicant had
subsequently confirmed his initial self-incriminatory statements and
his guilt had been well established by the other evidence available
in the case file.
- In
reply, the applicant insisted that on 12 May 2004 he had been
questioned without a lawyer and his rights of defence had not been
explained and provided to him that day.
2. The Court’s assessment
(a) As to the first interview
- The
Court reiterates that Article 6 § 1 requires that, as a rule,
access to a lawyer should be provided from the first time a suspect
is questioned by the police, unless it is demonstrated in the light
of the particular circumstances of each case that there are
compelling reasons to restrict this right. Even where compelling
reasons may exceptionally justify denial of access to a lawyer, such
a restriction - whatever its justification - must not unduly
prejudice the rights of the accused under Article 6. The rights of
the defence will in principle be irretrievably prejudiced when
incriminating statements made during questioning by police without
access to a lawyer are used for a conviction (see Salduz v. Turkey
[GC], no. 36391/02, § 55, 27 November 2008).
- In
the present case the first time the applicant had any communication
with the police in relation to the incident was at his home in the
presence of his mother. It appears that the police went to interview
the applicant, as they did with others connected with the victim,
trying to collect any information that could be useful for the
investigation. There are no grounds to hold that when they visited
the applicant’s home the police had already decided that the
applicant was a suspect. At the same time, it appears that the
applicant volunteered his confession of his own motion and it was
only after his confession that the police must have considered him a
suspect. Moreover, the statements made by the applicant during that
initial interview were not used by the courts for his conviction and
there is no indication that his defence rights were unduly prejudiced
on account of that interview in any other way.
- Accordingly,
the fact that the applicant confessed to police immediately at that
initial interview does not suggest of itself that the applicant’s
rights under Article 6 were infringed.
(b) As to the delay in access to a lawyer
and explanation of rights
- The
Court further observes that after the interview the applicant was
taken as a suspect to the police station, and was provided with a
lawyer the next morning. In this regard the Court notes that in the
case of Dayanan v. Turkey (no. 7377/03, §§
31-33, ECHR 2009-...) it found that it is problematic to deprive a
pre-trial detainee of legal representation, even if during the
relevant period he or she does not make any statements that are later
used to convict him or her. However, in contrast to Dayanan case,
there is no evidence that the applicant was questioned during the
time at issue, or that any other investigative action had been
carried out with his participation. Regard should also be had to the
fact that the conclusions in Dayanan case were made in view of
the legislative restrictions on access to a lawyer at that stage of
the proceedings (see also, mutatis mutandis, Hovanesian v.
Bulgaria, no. 31814/03, § 37, 21 December
2010 and Zdravko Petrov v. Bulgaria, no.
20024/04, § 47, 23 June 2011). No such
legislative restrictions existed in the present case. Furthermore,
under Article 45 of the Code of Criminal Procedure the presence of
defence counsel for minor suspects was obligatory. Moreover, the case
file does not suggest that the delay in the applicant’s gaining
access to a lawyer of his own choosing was caused by the authorities.
To the extent that this delay might have been attributable to the
authorities’ failure to document the applicant’s arrest,
this issue has been addressed by the above finding of a violation of
Article 5 § 1 (c) of the Convention.
- It
follows, therefore, that the absence of a lawyer until the morning of
13 May 2004 did not affect the applicant’s rights under Article
6 of the Convention and the fairness of the proceedings against him.
- The
Court further observes that the applicant’s rights were
explained to him on the morning of 13 May 2004, before his first
questioning as a suspect. However, the issue of delay in explaining
his rights to him has been discussed under Article 5 § 1
of the Convention and does not require a separate examination.
© Conclusion
- It
follows that this part of the application is manifestly ill-founded
and should be dismissed as inadmissible pursuant to Article 35 §§ 3
(a) and 4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 3 of the
Convention that he had been ill-treated by police officers after the
arrest and that there had been no effective investigation in that
respect. He further complained that the courts convicted him relying
on the self-incriminatory statements obtained from him by the
investigating authorities through ill-treatment. Lastly, the
applicant complained under Article 6 § 1 of the Convention,
Articles 2 and 4 of Protocol No. 7 that the court had
misinterpreted the facts and wrongly applied the law in his case.
- Having
considered the applicant’s submissions in the light of all the
material in its possession, the Court finds that, in so far as the
matters complained of are within its competence, they do not disclose
any appearance of a violation of the rights and freedoms set out in
the Convention.
- It
follows that this part of the application must be declared
inadmissible as manifestly ill-founded, pursuant to Article 35 §§
3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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 250,000 euros (EUR) in respect
of non pecuniary damage.
- The
Government considered that claim excessive and unsubstantiated.
- The
Court considers that the applicant must have
suffered distress and anxiety on account of the violations found.
Ruling on an equitable basis, as required by Article 41 of the
Convention, it awards the applicant EUR 6,000 in respect
of non-pecuniary damage.
B. Costs and expenses
- The
applicant did not submit any claim under this head. The Court
therefore makes no award.
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
- Declares unanimously the
complaint under Article 5 § 1 (c) of the Convention admissible;
- Declares by a majority the
complaints under Article 6 relating to the lack of access to a lawyer
at the initial stage of the proceedings inadmissible;
- Declares unanimously the
remainder of the application inadmissible;
- Holds unanimously that
there has been a violation of Article 5 § 1 (c) of the
Convention;
- Holds unanimously
(a) that
the respondent State is to pay the applicant,
within three months of the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, EUR 6,000 (six thousand euros) plus any tax that
may be chargeable, in respect of non-pecuniary damage, to be
converted into the national currency of the respondent State at the
rate applicable on 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 unanimously the
remainder of the applicant’s claim for
just satisfaction.
Done in English, and notified in writing on 19 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann
Registrar President
