SQLite format 3@ 5v*5.0:sUh6-ruGE 3}^J@ѹZ"Q$p|*[7#i!FF{! Q! ? ,Զ ? < < { x   @ g d  ( +( P wP , y   >+    dR T Sx fe !001-206194!001-144678001-84467p{!001-1473261!001-111547!001-104880!001-170360001-58218 t !001-152247+z!001-182852~001-61412c001-76297001-73244v!001-175158 !001-1016824X'001-89424%h?001-91641 t001-574911!001-194451.*!001-107725.w001-70364,k!001-155092R]!001-1278162ni001-58955001-57900 2001-77852!001-173089/c( !001-109550N!001-187922"!001-1584680;#!001-114090 5001-95781!001-185312A!001-1641952G!001-116333[!001-191744+001-60853 _V!001-141197?S~!001-121571 Fz001-68504k001-61947*( 001-80619d001-79225* 7!001-199173x!001-160991X$001-81956' !001-103016 !001-167556001-833371001-87608B001-86105 001-60021%!001-178355 !!001-105748,W!001-201886R3001-93121.)001-90553.001-94225 `Ԩ001-97219 !001-180316)ۆ001-71946'0g001-98349,c!001-203832caa'QECLI:CE:ECHR:2011:0113JUD001944005  sl|vpjd^XRLF@:4.(" ztnhb\VPJD>82,&    x q j c \ U N G @ 9 2 + $      | u n g ` Y R K D = 6 / ( !    o+lijhH)dԁia(^gZŁ%WdS#PLcL"I:aE B]>G:C[52؁Y/*,W($WÚUT S݁߁PO;M݁ QK釁 ƁJ ݉Hg(FҶϲDˣbE CZBcAŁʁ?~<<ҁ{:ہz:yy7v5Ht|Ɓ4y쁖su݁4qXsm\2j rf1b p^/[%nX-TkP)M;hI'EсgA%=\:6IF2{.K0*>OJt 1  * WL+   `^w E U ? vgx { def   z 5  Q l 9 Y& l g B +c>    i 0  } ) n  [ S H D< yR!001-204725Tz001-57781q!001-168773V\A001-86026 A!001-173256&!001-108781A~^001-83456kI!001-116975jS001-93161G !001-102288F001-73265PX001-76507D`001-61272p\001-58076`ڧ!001-1846748[001-71625%zX!001-189764-Wd001-70134^!001-174993$\Hy!001-180288 KQh!001-122886S;!001-118732p&!001-147332!001-87964a5,001-95197!001-154537HW&001-75593H<!001-202427Ng001-59365 <!001-107303/ l!001-103039;:001-58367I001-75239A5!001-195527,!001-112305 þ001-60934i001-686732;6001-67030c:!001-170655E%YG!001-1822165:!001-157968pi 001-79879Yd*001-70583n{001-76995N!001-1271085g0001-84446;;o001-82338Y001-90190/TuR!001-2032970$+!001-1082374[!001-138597d0!001-156252/e!001-183561g.!001-103938:001-71325p!001-1093718001-778233Uf001-67546Z001-57513a;001-81737U 5!001-164954+!001-161809O,!001-113445<R001-59996Q 001-93608"001-90612M?W001-88888'E!001-177219.f!001-196680)"!001-104905Z7!001-69161N!001-105513yCG001-78205WB001-61454/001-61091bg!001-114522^gV!001-159049H8!001-186126Wy001-68178hko001-69636Zz001-78414lzX!001-173772m001-89621&Y=001-86425YT!001-100954e !001-187419)001-57619tYX^!001-111180(>!001-160420WE?001-83068l -001-94218 !001-167094iK001-61660,!001-142402gU!001-101807Q001-80488%001-79293`FW001-57898o0!001-179231C`001-58987?001-58758J!001-1458170N.!001-106553.r001-721468K_!001-1883604001-81128v 001-85308sW001-83824X/001-58004gp(!001-115876i*001-96093)001-91132^B{:!001-192465cq6001-61797v'001-77492C!001-121572l?1!001-150229Q_!001-1407702001-70291P O001-59609_ !!001-199959W001-6049488!001-110452&8"001-72875V!001-200819Q88001-731159k%!001-144997%F!001-178342'n y!001-163358$Ç!001-152655[|001-97860pb$001-58171 t7!001-205140'Dy001-758982z!001-2065221x,i!001-180840f 5001-60736Lw001-61940CP001-91788 ZX!001-169475 + 001-70956a{I!001-17210264!001-193997^001-92429 O001-58261`9j001-96867ŷ001-76175UC001-99214X=001-98405+001-78796@xɜ001-87221001-72549%rT~xr=[rΊ<+ M-_Y(5{hۇ1M}*Iˑ\#~mki0Sԃu@r71x>}ŁA('< u|vpjd^XRLF@:4.(" ztnhb\VPJD=6/(!  y r k d ] V O H A : 3 , %     } v o h a Z S L E > 7 0 ) "    r mnkMgʂ}dn,`肏\\ Z<VkSsPKLqzH*E_YA=Ё7:fh63G/v,&(yU$ 6ЁfׁFv ,% NUbف4ځe^сE؁u﹁$!T肁 5ુdܭ=DոuҀ$ϋTāDZ4~dE:v %TɁʁ4cၻpAOq "ρRҁa1FaO@q| yOu΁qy0m`j~fk?bzo^ꁜ[@OX#TЁ/P]M J<FmC:?LQ*Ot =vbl+uPmua?RcB+DPt>bel*NAr@:i^8V)~Nz*qvs<oTbkgX*cO_u[Wȧ?TcOߤKբ-H'TCy?a:כC6h3= /1+V'Ȓz#CgL p1QV І{h CfG0G/#001-59717W?Z i  ]+ M  I6U A l  ~ h  4 .  #  ) s B  *  Yw 5 d c R | o E M   9zn ]#X`q2,I{ xo"Qg 2*\OF=@ ;?==>{GW+tj{uBKCZ-#t@K}%vhi7^.Fb-WU#/7lv%K'!tF]sg"]3!/yVd9O<o<@e:gYUJ#h:# M_VIKsW Lt;l{0 6a5.TRu\>h @CVG`F>\v?#D4b %BX OP6BsF Al 6h!e!H8?p]k$şN@,r<1/w!GD?NI";oVn|%@  VlzYH%*YhUD3 I&/yj#dGoRHEe,t .)-\n# G!* zb   h 4  W >  ?)u ` S= k .  |>:HL  C R  SNSw * /( f l) zzQ i t   bp | g9d@  Ug =&O B  ,  F  - 3 dQ\ v Y'  xL%001-90813v@001-961955Aj001-78291\!001-204811ql001-89064N#!001-177355p y!001-102837x!001-166964 !001-189954 [K001-58826K=w!001-163814(f!001-187819s001-59338%!001-174111L001-77755p&!001-1085061f001-84339_0m001-83632v001-98344;001-79916u)!|001-67917 A!001-1538018[?001-69457"001-58062KY]001-601567*]001-70729<(>!001-118738NO!001-102235Z>2v!001-1125292$o001-73294.:001-61264 !001-2063555;>t!001-140783'?s!001-155371;<o1001-58251P001-82548,SL_!001-192464 gE001-95564C>q}!001-165751#XQ!001-184655k001-76947´001-77959jp001-61382Ov!001-103354-dَ!001-178350Pp001-91323 D!001-1687806Ox)!001-188993~!001-104886KQ001-89827U%8!001-121777=y 001-788369Bl\!001-202615"]!001-1008930x!001-142407'Oz!001-203562mI001-57548N001-61682F D001-71118]+wX001-67087S6!001-172104$]!001-147034Z001-59720001-59534tL001-58360<k001-58191~:001-58116b5!001-101586[k=Z001-71469XF001-97114:&001-79324I@z!001-161000<-N!001-110722!001-170033#001-86729'T r=001-61555C8\!001-194318edϨ001-68648g-!001-111631 G=!001-180296:"O001-92491$c~001-61959001-75715t þ001-87426. !001-1137194001-80500Zz001-77398g 4001-90464$o001-57476u@p:!001-105788S!001-1486240_@Q001-68155I$!001-173371fg ,!001-1070266001-76124/yX!001-181276-001-88554S>qD001-78418nL!001-196149He!001-175180y<p!001-114767M!001-157372#֦!001-126350G%!001-107653t001-918879 g!001-198760. x001-58594AzW001-578193? i001-60509ZiI!001-158471rq1001-72804z001-69120mj!001-109124 <001-61796vL!001-127402|!001-115871U<!001-182443t L!001-186136ABH001-81789001-81197H]@!001-110184x001-76459I001-75423 4!001-138918Y^!001-187391"001-61888i!001-1041575n001-93256n!001-145780i O#001-58922?h^N!001-200440 p3001-60853!<001-90137]=001-60703GI!001-159764uC!001-193736lY4J!001-117125t!001-179406e !001-201547e#001-57988yAe001-57904/!001-105281001-73114Uo001-70090(G001-60990L<g!001-170663: {!001-152247q5!001-197212t001-71938_001-61121rB!001-144946Ad001-85152/.\001-93953'AHK!001-162200JV001-72239=q!001-205128s!001-183551Hm001-591277x001-94752 '001-57642L.{001-70366Jl001-86030aX001-67442mݕ001-97957Y/001-98827sQX001-72590#-L001-99616!؈001-57771DC001-83256n}ywt(v˃21.F Z i gY|Ȉ ,=>,JVsȑ.U̎G8׍[_wٕ<4^ |hb/XaOBj.#5ShWvV~DuS|vpjd^XRLF@:4.(" ztnhb\VPJD>81*# { t m f _ X Q J C < 5 . '     x q j c \ U N G @ 9 2 + $      | u n g ` Y R K D = 6 / ( !    y r k d ] V O H A : 3 , %     } v o h a Z S L E > 7 0 ) "   zsle^WPIB;4-& ~wpib[TMF?81*#{tmf_XQJC<5.'  xqjc\UNG@92+$|ung`YRKDtTrh q-=oqn&m[l8jDiyg.frbe7cIb-~`0_ȅb^F\K[Z2YeX]VDžLU{T+6RiQ(OͅPN-M=8K녔kJIJPGF5EZfDB҅KA&}?2>le<:L9736g44L36~1_206f.̄-K,{}+[0* c(_'L%$4#gj!T.>qo&Yt ÄBv8+]@ńE 焉qb&˓YIȾB:u1+_…E0z\.caK~N2g!zM#E3e[MEɃ4"iQL7j>R08m~ V =:p#W 6>s?)・^FŃy8-as~0H|˃y{-z]by-w܃Jv|t0s8eqpHNnsm-7kkj}iHQgne탕:dvmc aVT_ ^~<]Ep\&ZZY_ X,?VqTރ"SYUQ PT=NqM%LVJڂ I?HuF(Ei]DLBC@w?T+>_=;ƂB:v96(7ʂ[6&4D3Dw2>,0]/I-G,ny*^0):d'&M%#܂4"g!eL߂5{hMOڂ6낸iTR8 l ! 悭U =qd#X U@u(E[܂Cw.jc񿂒IB|/c6K诂瑂3낅f}N#7zi܉N ؈4iՠ΁Sh<Fr%̒ZɴBZuс)ř]hBҁug(%\сtBQu([Exx,`3G|D/)f+΁M4f\8MÁ62dVMz4쁪gÁNs7;ioRx9bn,!ɁV> >pV$~U}<{=yrx2%vʁYud s?rcsp$nWm}k&i~MhKugeEd2nbaA_j^f]D?[iYX<W[eV Ta6R\QQO0N!YLJ2H[GE.DWBAs)?S=;':P8{7$5N4hu31ټH0q.-C,~l+.(='mg&)$=7#`!֪ 2NZ֥.-ˡVtJ)VSњ|o&Ox$ M uu , 'GmRBlq;pdj&!001-114076&O!001-189625ܚ9001-86978   f ) T&q>?S-indexsqlite_autoindex_decisionbodycase_1decisionbodycase*--tabledecisionbodycasedecisionbodycaseCREATE TABLE "decisionbodycase" ("member_id" INTEGER NOT NULL, "case_id" VARCHAR(255) NOT NULL, PRIMARY KEY ("member_id", "case_id"), FOREIGN KEY ("member_id") REFERENCES "decisionbodymember" ("id"), FOREIGN KEY ("case_id") REFERENCES "case" ("itemid")))11}tabledecisionbodymemberdecisionbodymemberCREATE TABLE "decisionbodymember" ("id" INTEGER NOT NULL PRIMARY KEY, "name" VARCHAR(255) NOT NULL, "role" VARCHAR(255))K/;indexconclusionmention_conclusion_idconclusionmentionCREATE INDEX "conclusionmention_conclusion_id" ON "conclusionmention" ("conclusion_id") E//indexconclusionmention_mention_idconclusionmentionCREATE INDEX "conclusionmention_mention_id" ON "conclusionmention" ("mention_id")*//tableconclusionmentionconclusionmentionCREATE TABLE "conclusionmention" ("id" INTEGER NOT NULL PRIMARY KEY, "mention_id" INTEGER NOT NULL, "conclusion_id" INTEGER NOT NULL, FOREIGN KEY ("mention_id") REFERENCES "mention" ("id"), FOREIGN KEY ("conclusion_id") REFERENCES "conclusion" ("id"))vCtablementionmentionCREATE TABLE "mention" ("id" INTEGER NOT NULL PRIMARY KEY, "mention" VARCHAR(255) NOT NULL)I-7indexconclusiondetail_conclusion_idconclusiondetailCREATE INDEX "conclusiondetail_conclusion_id" ON "conclusiondetail" ("conclusion_id") A-'indexconclusiondetail_detail_idconclusiondetailCREATE INDEX "conclusiondetail_detail_id" ON "conclusiondetail" ("detail_id")$ --{tableconclusiondetailconclusiondetail CREATE TABLE "conclusiondetail" ("id" INTEGER NOT NULL PRIMARY KEY, "detail_id" INTEGER NOT NULL, "conclusion_id" INTEGER NOT NULL, FOREIGN KEY ("detail_id") REFERENCES "detail" ("id"), FOREIGN KEY ("conclusion_id") REFERENCES "conclusion" ("id"))r ?tabledetaildetail CREATE TABLE "detail" ("id" INTEGER NOT NULL PRIMARY KEY, "detail" VARCHAR(255) NOT NULL)v 9)indexconclusioncase_case_idconclusioncase CREATE INDEX "conclusioncase_case_id" ON "conclusioncase" ("case_id") E)/indexconclusioncase_conclusion_idconclusioncase CREATE INDEX "conclusioncase_conclusion_id" ON "conclusioncase" ("conclusion_id")()) tableconclusioncaseconclusioncaseCREATE TABLE "conclusioncase" ("conclusion_id" INTEGER NOT NULL, "case_id" VARCHAR(255) NOT NULL, PRIMARY KEY ("conclusion_id", "case_id"), FOREIGN KEY ("conclusion_id") REFERENCES "conclusion" ("id"), FOREIGN KEY ("case_id") REFERENCES "case" ("itemid"));O)indexsqlite_autoindex_conclusioncase_1conclusioncase R!!otableconclusionconclusionCREATE TABLE "conclusion" ("id" INTEGER NOT NULL PRIMARY KEY, "article" VARCHAR(255), "base_article" VARCHAR(255), "element" VARCHAR(255) NOT NULL, "type" VARCHAR(255) NOT NULL)Y+{indexarticle_case_idarticleCREATE INDEX "article_case_id" ON "article" ("case_id")KmtablearticlearticleCREATE TABLE "article" ("id" INTEGER NOT NULL PRIMARY KEY, "title" VARCHAR(255) NOT NULL, "case_id" VARCHAR(255) NOT NULL, FOREIGN KEY ("case_id") REFERENCES "case" ("itemid"))Kqindexcase_eclicaseCREATE UNIQUE INDEX "case_ecli" ON "case" ("ecli")pCtablecasecaseCREATE TABLE "case" ("itemid" VARCHAR(255) NOT NULL PRIMARY KEY, "docname" VARCHAR(255) NOT NULL, "doctypebranch" VARCHAR(255) NOT NULL, "ecli" VARCHAR(255) NOT NULL, "importance" INTEGER NOT NULL, "applicability" VARCHAR(255) NOT NULL, "appno" VARCHAR(255) NOT NULL, "decisiondate" DATETIME, "introductiondate" DATETIME, "judgementdate" DATETIME, "kpdate" DATETIME, "languageisocode" VARCHAR(255) NOT NULL, "originatingbody_name" VARCHAR(255) NOT NULL, "originatingbody_type" VARCHAR(255) NOT NULL, "rank" VARCHAR(255) NOT NULL, "respondent" VARCHAR(255) NOT NULL, "respondentOrderEng" VARCHAR(255) NOT NULL, "separateopinion" INTEGER NOT NULL, "sharepointid" INTEGER NOT NULL, "typedescription" INTEGER NOT NULL, "judgment" JSON)';indexsqlite_autoindex_case_1case ;",4 IP{o~ T Gsh \ E17p   E vJ     9   s  E g P5 . \ " 2&!g  v 8 j : / ^ R #  X   , j ^K? Q . "    " s f Yd M @ 3 &/   W% G>  q w j ] Q U<{cU>% JbOqu2[B*8 }pc1b4=5*d~ϟ\Fr:0`˒);ZD:CU"{U4f:]_S51B3!-R' (РpCloR:Uj `K6eJZk3OqiJk_J5@A}_Iդ  N 3|v  \k0/t O1%1'$O=?w>!G^!Z/56hAEgt5Jzout-7 NP27eO%`U`JE{alBxY]h/a !llz/u!~#Or,[rMn/y.H _I]} y=[9> "m 8m2;c 9S+ &Z v 0G l#$nlAܳuA6 ] P~ J -/$\2 rP Frp 3qtP=3r~ ddy\`0Wٮ8Ge#s0 >4N Z 8O<d'm < p# Z=IGre4 ; {C'W?KCl _k m7zlb=AG.LpӛVӚI4]I8 98- *xIRHY@Rya3`_>ƵBh2MoC)zQRȑJ < 4Pt28Os. 0"x<q iln[m4\l= :B GT%55kCǓd$?#7F_W7JZ<YQ U1Q ڢ.WQ0VIJP,M\LQ p PD*s4V#! BPAv})F43- %@=q2N/*zCDn:g?:9mY7d=7 JaY6 ef05- 2.0.j&-޽e1,8F6h+21*p%t)<wgEyE 9eg :Qz~ $c F =()@w- BJD j=^* # Oa]2A,TA JY;L`%V 0FGҪl`n ڳYM _,RRvV2~ )a Sy t  # TCT !/5SY0+{indexsclcase_case_idsclcase3CREATE INDEX "sclcase_case_id" ON "sclcase" ("case_id")V/)windexsclcase_scl_idsclcase2CREATE INDEX "sclcase_scl_id" ON "sclcase" ("scl_id")-.Aindexsqlite_autoindex_sclcase_1sclcase1w-Etablesclcasesclcase0CREATE TABLE "sclcase" ("scl_id" INTEGER NOT NULL, "case_id" VARCHAR(255) NOT NULL, PRIMARY KEY ("scl_id", "case_id"), FOREIGN KEY ("scl_id") REFERENCES "scl" ("id"), FOREIGN KEY ("case_id") REFERENCES "case" ("itemid"))g,5tablesclscl/CREATE TABLE "scl" ("id" INTEGER NOT NULL PRIMARY KEY, "name" VARCHAR(255) NOT NULL)+A1'indexrepresentativecase_case_idrepresentativecase.CREATE INDEX "representativecase_case_id" ON "representativecase" ("case_id")$*U1Oindexrepresentativecase_representative_idrepresentativecase-CREATE INDEX "representativecase_representative_id" ON "representativecase" ("representative_id")C)W1indexsqlite_autoindex_representativecase_1representativecase,D(113tablerepresentativecaserepresentativecase+CREATE TABLE "representativecase" ("representative_id" INTEGER NOT NULL, "case_id" VARCHAR(255) NOT NULL, PRIMARY KEY ("representative_id", "case_id"), FOREIGN KEY ("representative_id") REFERENCES "representative" ("id"), FOREIGN KEY ("case_id") REFERENCES "case" ("itemid"))'))Ktablerepresentativerepresentative*CREATE TABLE "representative" ("id" INTEGER NOT NULL PRIMARY KEY, "name" VARCHAR(255) NOT NULL)b&/indexpartycase_case_idpartycase)CREATE INDEX "partycase_case_id" ON "partycase" ("case_id")e%1indexpartycase_party_idpartycase(CREATE INDEX "partycase_party_id" ON "partycase" ("party_id")1$Eindexsqlite_autoindex_partycase_1partycase'#Ytablepartycasepartycase&CREATE TABLE "partycase" ("party_id" INTEGER NOT NULL, "case_id" VARCHAR(255) NOT NULL, PRIMARY KEY ("party_id", "case_id"), FOREIGN KEY ("party_id") REFERENCES "party" ("id"), FOREIGN KEY ("case_id") REFERENCES "case" ("itemid"))m"9tablepartyparty%CREATE TABLE "party" ("id" INTEGER NOT NULL PRIMARY KEY, "name" VARCHAR(255) NOT NULL)j!3# indexkpthesaurus_case_idkpthesaurus$CREATE INDEX "kpthesaurus_case_id" ON "kpthesaurus" ("case_id")V ##stablekpthesauruskpthesaurus#CREATE TABLE "kpthesaurus" ("id" INTEGER NOT NULL PRIMARY KEY, "name" VARCHAR(255) NOT NULL, "case_id" VARCHAR(255) NOT NULL, FOREIGN KEY ("case_id") REFERENCES "case" ("itemid"))Q'sindexissue_case_idissue"CREATE INDEX "issue_case_id" ON "issue" ("case_id")Dgtableissueissue!CREATE TABLE "issue" ("id" INTEGER NOT NULL PRIMARY KEY, "name" VARCHAR(255) NOT NULL, "case_id" VARCHAR(255) NOT NULL, FOREIGN KEY ("case_id") REFERENCES "case" ("itemid"))n5%indexextractedapp_case_idextractedapp CREATE INDEX "extractedapp_case_id" ON "extractedapp" ("case_id")t%%+tableextractedappextractedappCREATE TABLE "extractedapp" ("id" INTEGER NOT NULL PRIMARY KEY, "name" VARCHAR(255) NOT NULL, "isechr" INTEGER NOT NULL, "case_id" VARCHAR(255) NOT NULL, FOREIGN KEY ("case_id") REFERENCES "case" ("itemid"))v9)indexexternalsource_case_idexternalsourceCREATE INDEX "externalsource_case_id" ON "externalsource" ("case_id")_))ytableexternalsourceexternalsourceCREATE TABLE "externalsource" ("id" INTEGER NOT NULL PRIMARY KEY, "name" VARCHAR(255) NOT NULL, "case_id" VARCHAR(255) NOT NULL, FOREIGN KEY ("case_id") REFERENCES "case" ("itemid"))E5/indexdocumentcollectionid_case_iddocumentcollectionidCREATE INDEX "documentcollectionid_case_id" ON "documentcollectionid" ("case_id")q55tabledocumentcollectioniddocumentcollectionidCREATE TABLE "documentcollectionid" ("id" INTEGER NOT NULL PRIMARY KEY, "name" VARCHAR(255) NOT NULL, "case_id" VARCHAR(255) NOT NULL, FOREIGN KEY ("case_id") REFERENCES "case" ("itemid"))~=-indexdecisionbodycase_case_iddecisionbodycaseCREATE INDEX "decisionbodycase_case_id" ON "decisionbodycase" ("case_id")A-'indexdecisionbodycase_member_iddecisionbodycaseCREATE INDEX "decisionbodycase_member_id" ON "decisionbodycase" ("member_id")r001-773909{q!001-176964y]uL|vpjd^XRLF@:4.(" ztnhb\VPJD>82,&   x q j c \ U N G @ 9 2 + $      | u n g ` Y R K D = 6 / ( !    y r k d ] V O H A : 3 , %     } v o h a Z S L E > 7 0 ) "    z s l e ^ W P I B ; 4 - &    ~wpib[TMF?81*#{tmf_XQJC<5.'  sɃIr.pnwm[l&?i$g탥 f5mdŃQb5a*_Y}]c\+GZ,YbWtUXTl=R"PNiMsMK̓1IHVyF\E2@C$A@"l=䃆P<)59̓7|5Ճ`4uD3(1 /~p-T,l8+(؂'/e%I#."x ]AL%s oւT,9 f L 0xhw~[ւ@% ^nR6B~cF*'tXv<d  6hK0Xwׂ[@J$ӞѮlEOέ3̴%|:aUE*ēq䂲U:gyugL0xł\!@e$ȂՂlNQ4y| `.E~)l͂r!W<(ۂhK0łyO^rB%傈 Mm}Q|5zy~wdúHs-qWofxm]kBj&h f@ndJSb17`<^]e[UJY/XDVvTYRa<P NMhKeKJ 0GFPyD]BA@%> =en;́Q:8586R}4}b2E0)/ -hq+}V)k<' &f$qi"N!71d=y^ Cn'? ofT8ҁ  e AI-ˁu쁱ZT>聯#NlP5􈁩򩁧~boG+ŁtCr|0[:  uS01k\I'edC ~\):oixV4&qfN~+|`yhxGFv%trap?nlzjfWh4fe0pcnNaE-_] ]k\hKY)XpVμdTBRPָ}O [M,9KI/wGBUE3CKAp?rN=E-: 8өi7 G5{&32D`0&?.,z+KX(͞6'$r#O!. 3 iH&֓?cAeH}J[ 9 # t Q09mJ( !001-198793f uysmga[UOIC=71+% }wqke_YSMGA;5/)#  mhv`gLW&OH͘`B^=;9q2֗X/'<*"#  %k–H&~ {]aB^`2@yuq`R)k UnǒNܒ3pU2rsZ 8$twVt|9oMgގpbyNYq+USeG@%sR3 kF$/(Ox;(dM001-97689e!001-158137*!001-119229t}001-71671XX001-57429!001-170054*!001-110491T*m001-57508 pV!001-145546V!001-187732 M7" 001-57608#001-84709001-59885Z001-57980'001-902128ZI!,V001-87187s001-61484*3!001-189781gA!001-171087 jp!001-150791ۏp!001-114517h xuM~xrlf`ZTNHB<60*$ |vpjd^XRLF@:4.("  z t n h b \ V P J D > 8 2 , &      ~ xqql3ij|e F`^7]Z$XMoS@N]HٹTDH?c;.6_|2K/),&k(+=%!Y [kд48{ ׳Jٳ:[*wbJf쓰.{F⠯gg2Ѯ Tȭ!:t͍89dLia{1{K# o]7tDM~OD"եh-ܤ}rBzͤt[p"'m'qi9eaT\"WߠoT3P٠LUGqCf@6<7L3/c,,'[y$>:_(TwW=@N\dV4V^JӖ邕[ӕ*zΔG8CiЌ6̱njR+!Qp69U!lGhl7͍O)`%*7v~?yuQPqjMhe*a>p\9WRLLχF\B=܅f9 35-|1,G*ׄ'k^ *$s:͂ЁT ρ"q3# X -g  k XT >A+e {Q x0001-57833 _!001-204811001-79887M001-58079:001-58016 {H!001-160425@L!001-111634p!001-189631001-90234R2001-77827"c001-71299S!001-114778j001-58607i001-57923uc!001-126449|S001-82580001-57645 6`!001-153017{!001-144353w001-57988 !001-1803069!001-168066V'001-68423 #!001-1029409L001-59676(001-582376W001-86255I001-69787( 001-966938e001-61195ŵ001-92945.\ 001-76135V$!001-105820k001-70365x*!001-1090466;uA|vpjd^XRLF@:4.(" ztnhb\VPJD>82,&  } v o h a Z S L E > 7 0 ) "    z s l e ^ W P I B ; 4 - &     ~ w p i b [ T M F ? 8 1 * #     { t m f _ X Q J C < 5 . '     x q j c \ U N G @ 9 2 + $     |ung`YRKD=6/(! yrkd]VOHA:3,% }vohaZSLE>70)" zsle^WPIB;sĄrcp,o`vn?l jńRiog̈́ff?/e ycAbj aS_^Rf\/[TxYBX| WVU TmkS94Qm~PGNMXKc!I„kH33F{ECCC脚 BrTA ?Ȅg=0<=z:C8섐 6ㄎV5M4Vh2ׄ010z/ᄇD. -MU,*Zg(^1'9|%C$ "X!%!Nj4@}FsYՃ"Nkƒ4ރ~eH0 o] % mn 7H[ &q;HM_)s|<﯃OcD-уv;?kP⡃aU*ԃtӃ>ۍ;OC胴dm,uҨ>[PΩ b^,ԃv郦@p Uó3g2|aEރY9$ni6NJ+Z჎$$n9JVʃ\^%n9=J^'kq"<L_8'Eq:'K&Ԃ^N'p8@}ׂH|={9\z'xpv;u sbNqp-bnh+mtk>jhQfebc,bYu`>_^Q\[9eY.XzvWc?UT#NREPЂ`Oo*N)sL<K#IPHoFłeE./DxB,A@ ?$U=QЁQJžcĬ,t=1Og크`(4qY;Q#b**t=́fŔf.mw @ Pb,?u?{Rhb,t8=CFDNGLH~}$Iz y)MwvQOtsVOqoPn$lePjNhQg_ezRcaU`n_ Y][]ZX_W#Ue_TR_P3"NdL%JhI4)GaiE+CkB ,@qm>T-n|vpjd^XRLF@:4.(" dm&ZVQ8G?M=Y1=(?q-:XtC}2_ϼJS.}/nZ ;z{4r fg,]ȺiS'IpU?<5̴A+x"0h ĬAWg$౧QϦ͋>ih=fu4;fl<[@ x4nae[zNQHs2>5o4$+^"YEPpJ t|vpjd^XRLF@:4.(" ztnhb\VPJD>81*# { t m f _ X Q J C < 5 . '    pf5ljgacT^KZ=V4rQ'Mh\I DځE@Py:-5b1-`K($4iぶT  >܁s(']恭FG|C0́f wO:8ͽm" WS Av+ā_K}H過|@1聋fP2F:}ꁃnz"uuWoj2e\_[1W%\QL.HWXC>\-:W4/**tT&7!*MT~/( PR|4'Q{~&+Q{ %އOVyi"ϿMw8"LruH4sHr8Eo`CnzhAulpk@f"ia0\>WПiRM=HhCq>6=8h4/x;*f%!Y:yd9 ͆d څ8cr9n " ,wA, skJ Xu  zZO8 C p 8VE IW/n*  d ^ ? An }o *    W  M 9 " + f `6`2  l 1 !  n v " U *X A @̑ 001-76467K!'001-174971Tn'001-85129bS 001-85777C+-001-83470^k-001-58032eD001-72115[!001-117131EZ!001-106766Tp!001-104511rU001-92165001-57712< f001-61759Q#!C001-160318[4001-80647!>H'<001-60001S0001-97254$>001-87229!001-160259'8n!n001-164459V(}001-67150Bs!.s001-57490,001-66723_!}001-127814-Y001-90620yH!U001-162023(2=001-59210D001-79715 ;0001-83460HK! 001-141172F{ M!001-145227Cki001-79488a6001-578574+Z001-73183Q001-99186Cq F!001-167798" 001-58844\yc"! 001-1835848jI!^001-161001k`:F001-686446p!*001-114265[ g)001-84828Yw!001-174422)vv! A001-110866C`!A001-1482842S!001-1728555! 001-183554!001-146404/M %!+T001-175646\H!#001-1144925(001-61309Sn!001-103161!(001-159925Vfp!001-155007-5001-58752!!7001-1449312_!001-1149500)/!001-1991683.!001-181276#hQ 001-97370ch!001-98126G!001-80958El! 001-202992C  !001-191705%f001-77926=001-71339,'(001-71112a"/!001-202695=!L001-1147812_001-83458 )001-80115^KZ!001-1169739Cn!001-1016907kR!Z001-165950"!Z001-111421 X'! 001-158535D"v001-58042H}!001-100944B A001-67693:&U!001-170055 #001-93976K !001-200558bE!001-172652* T!T001-110702: Qt001-98610' B\!001-159050<}؋001-60848&9 g[!)H001-206267Wo!_001-201329? #001-61699Z93N'001-73367  9001-76989ar 001-80050 001-91733!o! 001-187942 w 'e,001-98041^` n001-90585D :5001-67930B!^001-106282 Q !001-144672F {001-57972"3l!001-181838;  001-99616 h!%001-163820P:!001-187512'  001-812227U!001-165369 L!001-106200 [0-001-68175g! 001-193470!#$001-103117Jx!001-181877A]v!J001-1144863u 001-96149Tr!/k001-201865f&] 001-87896)W! 001-109573!di! 001-200866m!001-121570$!!i001-102449#K !!001-204826)!S"$001-95905 d0001-95771i ȿ%0001-93652N;!001-110183<!$001-148277M C#!.001-171091c8!-b001-181602a!!001-204818- K!.001-148227dC!001-126639E!001-103763+! O001-154020jC!R001-198718 @8k)!001-158468`'&001-72100Qo!001-161809C$%001-89733P.(JE gk_  TvT  "1  9& 1 u h $_vH  <j< \ P -  D 1E| M,7~V0BhE*.dl+e9+]h S*xZ0A>2->a6{)W'T@i%zs^Э&-P $M4-L~" G->Ӽ'95  DDs#kJwJA[}c>rQ;_rYZ /15_ l  3>W2c5 1t@68Q /W $&}4)I@;,MԞ&WC B: S &*Uy#opB V+NsFGB# F !YM Bo}8 =>b5 \^p I ; }}] /<JG! 0* c PD ( v  a < b  ; O y   e '  ' y ;? N u Q w y  v d ~  * P N ; f = w c  Od, Q>  kX = ' b1   );Se!001-172913iH!001-115307g~001-58121JJ001-79271!;001-87227[%001-609121 .001-92774X]!001-1029040001-84032G{001-833749001-57443ե001-59424_Y001-72662M!001-158953#001-70113SV\!001-150771+x!001-1057668Z!001-163914 )(>001-75976Aa!001-174109V001-97980/X001-61142h!001-186426\b001-57838-!001-200709!001-193736S,!001-177936G4001-91393"M001-61672.wK!001-153022 "!001-1073969!001-100899}001-78159 uQk!001-182208 Q!001-160086 H!001-140239 +/!001-113539A8!001-202119001-81831.!001-109148aMg!001-156264X*001-92090IYR!001-1624229Y001-94953NNa001-57992Q+ 001-61382=001-58496 Q!001-101684?bC!001-1835409qd!001-1200638001-90214i/!001-147034E!001-144145=t!001-148284nL!001-195537;}$U001-82658w001-68381X!001-103260L~_!001-110961a* k!001-102337D_4!001-196680# ;y!001-170351 9!001-122874Tj001-58199#|001-576091!001-145703sv!001-204270C!001-104359_R@001-93448x!001-175137vG!001-1715293(B!001-127108.Z:001-71123!001-105114LA"001-76699F001-71983!q!001-116333#z001-84824 \e!001-184658UT!001-178954-H>!001-106584&c"s!001-141935e?Q!001-161407Ez8001-60310(Uj001-59621HB(!001-108465L\1!001-179869TMƎ001-60695 j!001-1550928001-95651!001-187477<*a001-672725.6!001-114469a%,!001-110314z$!001-1883834C]!001-166482>j!001-118569K"T001-72987y!001-112283B &!001-189902JB !001-167492eU001-79916YFG!001-138575%K !001-180851%001-619259b!001-168866"s!001-198885#001-88012l001-96264(001-85671-001-77543 `001-75247\L001-69214PYg001-81138j!001-202990-!001-192765;QZ001-864820~001-58915,w!001-205541/Qв001-88941_6!001-158033Zwb2001-89575bt}3001-97213 #!001-177126dDV001-90704!M001-70458aif001-993915001-9850012C001-9411374001-80514&+001-78807*&r|vpjd^XRLF@:4.("a$qN/7al%~#̴U걱DװƇ>4th1ly`2e?lQ5$?W`-ʠQ WP讜ߚ>ǘy`3ݕgL&fyiVR[yL܌K@ċ4;+o%RZ  JM2qc|vpjd^XRLF@:4.(" ztnhb\VPJD>82i~a,ZXSJ4C`: 38,e$f> l PHYu# P}Q)ӯVVF1-_y O8d8=idyEprg>_)LVzMV&FjR>5--cY%Ի4ea :h샱DDrڧ}JxÃ&ɧRe}*[W*0.] y7q001-72976#<uzx001-86945  001-91090;v001-721000T2q001-616294(!3001-202556%ZX!001-109565"7001-89858.Y!001-105460"001-88010'zW001-81944:001-93886+nF$001-78053q!001-105511e= 001-81682Y001-57475/x001-85532(R001-785831!001-1798612,d001-59096&001-58149e001-57835 .j001-60627c001-82038 H001-98454!001-154596[c001-96998g!001-114946f5m001-677569/9001-80455Y!001-193493 ~!001-105823+~!D001-159758/D!001-1930721B0!'001-1144859ni!001-179844#*001-91536/?U! q001-172329-#! 001-100515A`!001-159607;m*!001-115211!001-169475 ^!001-162855* !001-145583!#001-198706*v~001-70354-nŃ!001-178363!1Z !001-1864415n!,001-2031584b!001-1069767e!001-175493,x!J001-116186-! 001-175475Q !"001-159044~ۺ!001-1012290!001-178873- b;001-86439  001-71212l'001-901670u!?001-163815 ]001-842831 Q`001-86088&U *001-94990x u001-823117% 8001-94202z!001-140775' K w001-874289!!t001-203840c!001-204994>T!001-186454=Q!.001-168850*E !001-189086(!001-1006615G4!001-174969e!v001-1630997$24 #w-cpEF}z5<{ i> /q &zN   : & < P < P : v u` ( d x b  t  N L Na d  9 & ) x;  b( 'N !001-146704001-89064>001-953744;001-84131!001-1052266C!001-114520!001-206259S`!001-157763o!001-177227%001-81996ud!001-191701`t001-89879;:3001-78391001-72929-J001-67169+ !001-101438r001-932586D!001-116183;!!001-202427gp!001-164165 2 %  y l _ S F 9 - !  s f; Y L @ 4 '    z m ` S G : - !  w j ^ R E 9 -  sfYL?2% |obUH;.!~pbTF8*tfXJ<. xj\N@2$|n`RD6( rdVH -(m mi ~ke ,hma f^? cX հa7U ԇ^P \[K 1XH* VC T+? κQ: ͑OF6 hL2t =JF- G*l E % B Ƌ?R N=(9 %:M 8G8 5  3_ 4 W/"~ .,  *Ua 'R % #Tu `!. 6   k D~ ֑ lI CϦ {H dk  ë 8 tl J7   M  - }    s{   {A l E  * 5 ޥ | y uT q ~Ԍm j{ C:= g Red ˈaj ɮ] + gYp ĝV N S P} EvM ]JX sӲF }CN xQ~R~vAL}V=|?}8{B6+zEk2ye/0xf,w[h(v]$)uSxt2'sI/WrNRھq(O9p>uon]m/ly kjijhAgfhe9d c <[b%bxaG9`4?__O5]}] |\ [&LZ+w1CYZXut-Wms,ԶVcqрUpHTnYRSLRlʇQjǗPYçP2hO7f}nNRvMcLbKaVK`7JW_.Ir^.Ho\G~,ZFY&EXNpDCU`BT4ARx@QBa@ ?<i>M8=t<R<_e;I:HSg9Gu9<_[8 7Dq6[7C6GQ5Ao>4Jw|73?342l<!y1<1 Άx0=9B/g8j.w<-K6,`8yt+arq+I3)<*-H)sm):0W(/o'nx'z.kd&4g}&Le%a%-+^$|x[`#)xXn#D2c6"'V%"* S}!Ӈ{J %u CFW#"'w X6Yx ZW O:q4J DKOqLMG'LDz%FA@?9T&zs7jP4eMCM  [A =U A P0 z  G p - rJ6\ i;  z#o?Ж2?k&Hx0x+:Y(7"%N.'^\@$! J?U4 c:h*JIQg); C LQ uzt:lm001-72150 !001-163353O5losis lived in the same dormitory. There were only three lavatories (in units 17 and 7), they had no doors and the applicant had no privacy when using them. They were clogged up most of the time owing to the number of people using them. Prisoners were only allowed one shower a week. The applicant had no access to potable water and only one washbasin out of four had worked. There were only two kettles for boiling water and the electricity was switched off during the day and therefore it was not possible to have boiled water. The applicant further submitted that the buildings where his units were located were in a hazardous condition and that the roof and walls were liable to fall in at any time owing to a lack of repairs. Lastly, the applicant adduced written statements from his four co-detainees who confirmed his account of the conditions of detention in IK-8 in Novosibirsk.","elements":[]}]},{"content":"II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE","elements":[{"content":"A.\u00a0\u00a0Legal representation","elements":[{"content":"13.\u00a0\u00a0The Code of Criminal Procedure of the Russian Federation (in force from 1 July 2002) provides:","elements":[]},{"content":"\u201c1.\u00a0\u00a0The participation of legal counsel in criminal proceedings is mandatory if:","elements":[]},{"content":"...","elements":[]},{"content":"3.\u00a0\u00a0In the circumstances as set forth in paragraph 1 above, unless counsel is retained by the suspect or the accused, or his lawful representative, or other persons on the request of, or with the consent of, the suspect or the accused, it is incumbent on the investigator, prosecutor or the court to ensure the participation of legal counsel in the proceedings.\u201d","elements":[]},{"content":"\u201c1.\u00a0\u00a0The suspect or the accused may refuse legal assistance at any stage of criminal proceedings. Such a waiver may only be accepted if made on the suspect or accused\u2019s own initiative. The waiver must be filed in writing and must be recorded in the official record of the relevant procedural act ...\u201d","elements":[]},{"content":"14.\u00a0\u00a0The relevant domestic law and case-law governing the presence of lawyers in appeal proceedings in respect of criminal cases is also summed up in the Court\u2019s judgments in the cases of Sakhnovskiy v. Russia [GC], no.\u00a021272/03, \u00a7\u00a7 31-39, 2 November 2010; Shugayev v. Russia, no.\u00a011020/03, \u00a7\u00a7 38-43, 14 January 2010; Shumikhin v. Russia, no.\u00a07848/06, \u00a7 17, 16 July 2015; Volkov and Adamskiy v. Russia, nos.\u00a07614/09 and 30863/10, \u00a7\u00a7 21-26, 26 March 2015; Eduard Rozhkov v.\u00a0Russia, no.\u00a011469/05, \u00a7\u00a7 11-13, 31 October 2013; and Nefedov v. Russia, no.\u00a040962/04, \u00a7 17, 13 March 2012.","elements":[]}]},{"content":"B.\u00a0\u00a0Conditions of detention in correctional colonies","elements":[{"content":"15.\u00a0\u00a0The relevant domestic law concerning conditions of detention in correctional facilities is summed up in the leading case of Butko v. Russia, no. 32036/10, \u00a7 17, 12 November 2015.","elements":[]}]}]},{"content":"III.\u00a0\u00a0RELEVANT COUNCIL OF EUROPE MATERIAL","elements":[{"content":"16.\u00a0\u00a0The relevant information concerning conditions of detention in correctional facilities in Russia is extracted from reports by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT) in Butko, cited above, \u00a7 20.","elements":[]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7\u00a7 1 AND 3 (c) OF THE CONVENTION","elements":[{"content":"17.\u00a0\u00a0The applicant complained that the authorities had failed to provide him with legal assistance in the first set of appeal proceedings in his case, contrary to Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention, which reads as follows in the relevant part:","elements":[]},{"content":"\u201c1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hear6ing ... by [a] ... tribunal ...","elements":[]},{"content":"3.\u00a0\u00a0Everyone charged with a criminal offence has the following minimum rights:","elements":[]},{"content":"...","elements":[]},{"content":"A.\u00a0\u00a0Admissibility","elements":[{"content":"18.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]}]},{"content":"B.\u00a0\u00a0Merits","elements":[{"content":"1.\u00a0\u00a0Submissions by the parties","elements":[{"content":"19.\u00a0\u00a0The Government submitted that the applicant had waived his right to be represented by a lawyer in his appeal hearing, in accordance with the applicable provisions of the Russian Code of Criminal Procedure. In particular, they submitted that on 12 November 2010, after the text of the judgment in the applicant\u2019s case had been announced, he had signed a written waiver refusing legal representation and indicating that his refusal had not been motivated by financial reasons. On 22 November 2010 the applicant had received a copy of the judgment and had signed another document in which he had stated that he would appeal against his conviction, that he had again refused the services of a lawyer and that the refusal was not for financial reasons. In his statement of appeal the applicant had not requested to have a lawyer appointed for the appeal hearing. The Government submitted copies of the documents of 12 and 22\u00a0November 2010 to the Court. The Government further submitted that on 24 January 2011, when the appeal court had examined the applicant\u2019s case, he had not submitted any requests related to a lack of legal representation. Given the above, the applicant\u2019s rights under Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention had therefore not been breached.","elements":[]},{"content":"20.\u00a0\u00a0The applicant disagreed and explained that he had never seen the documents submitted by the Government, had never signed them and stated that they had been forged. He acknowledged that he had not requested a lawyer during his appeal hearing. However, the appeal court should have enquired whether he wished to retain one and if so, to appoint a lawyer for him. He further submitted that he had not had the financial means to hire a lawyer at any stage of the criminal proceedings against him. In addition, he had needed qualified legal representation for his appeal because his criminal case had been particularly complex as it had involved charges of aggravated theft and robbery and only a practising lawyer could have effectively represented him.","elements":[]}]},{"content":"2.\u00a0\u00a0The Court\u2019s assessment","elements":[{"content":"21.\u00a0\u00a0The Court notes at the outset that the requirements of Article 6 \u00a7 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 \u00a7 1 and therefore the applicant\u2019s complaints under Article 6 \u00a7\u00a7 1 and 3 should be examined together (see Vacher v. France, 17\u00a0December 1996, \u00a7 22, Reports of Judgments and Decisions 1996-VI).","elements":[]},{"content":"22.\u00a0\u00a0The Court further reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. In addition, it must not run counter to any important public interest (see Hermi v. Italy [GC], no.\u00a018114/02, \u00a7 73 in fine, ECHR 2006XII, and Simeonovi v. Bulgaria [GC], no. 21980/04, \u00a7 115, 12 May 2017). The Court has also held in Russian cases that the applicant\u2019s representation on appeal was mandatory under domestic law when the applicant did n7ot waive, explicitly or implicitly and in accordance with Article 51 of the Code of Criminal Procedure, his right to be assisted by counsel on appeal (see Volkov and\u00a0Adamskiy, cited above, \u00a7 53, and Eduard Rozhkov, cited above, \u00a7\u00a7\u00a02324,).","elements":[]},{"content":"23.\u00a0\u00a0The Court has examined the two identical documents dated 12 and 22 November 2010 submitted by the Government. Each of them reads as follows in the relevant part:","elements":[]},{"content":"\u201c... (typed) I, Sklyar Sergey Viktorovich, hereby acknowledge that I have been notified of","elements":[]},{"content":"1.\u00a0\u00a0the right to participate in the appeal hearing of [my] criminal case through a legal representative. In case of the non-attendance of a lawyer of [my] own choosing, the court can propose within five days ... to ask another lawyer, and in case of refusal \u2013 to take steps to appoint a lawyer on its own initiative.","elements":[]},{"content":"2.\u00a0\u00a0the right to refuse legal representation.","elements":[]},{"content":"The refusal of legal representation ... does not forfeit the right to subsequently ask for the appointment of a lawyer for representation in the criminal proceedings.","elements":[]},{"content":"3.\u00a0\u00a0the right to request a lawyer, including one who is free of charge, in cases provided for by the [Russian Code of Criminal Procedure]","elements":[]},{"content":"(applicant\u2019s handwritten signature)","elements":[]},{"content":"The convicted person\u2019s petition","elements":[]},{"content":"(handwritten by applicant) [\u201cI wish to appeal\u201d, in the document of 12\u00a0November\u00a02010; \u201cI will appeal in accordance with the prescribed time-limits\u201d, in the document of 22 November 2010.]","elements":[]},{"content":"[typed] in the appeal court:","elements":[]},{"content":"1)\u00a0\u00a0I wish to ask a lawyer of my own choosing;","elements":[]},{"content":"2)\u00a0\u00a0I would like the court to appoint a lawyer;","elements":[]},{"content":"(circled) 3) I refuse legal representation but my refusal is not motivated by financial reasons ...","elements":[]},{"content":"(applicant\u2019s handwritten signature)","elements":[]},{"content":"...\u201d","elements":[]},{"content":"24.\u00a0\u00a0In the Court\u2019s view, both documents appear to be authentic. They bear the original handwriting and signature of the applicant which are the same on his application to the Court, express his acknowledgment of the contents of the documents and contain his unequivocal waiver of legal aid. Both waivers are marked by the clerk of the [Kalininskiy District] Court of Novosibirsk. The waiver of 22 November 2010 also bears an incoming correspondence number and the stamp of the court in question. Given the above, the Court therefore has no reason to question the authenticity and lawfulness of the two waivers and holds that they were established in a manner compatible with the requirements of domestic law and the Convention reiterated above (see, a contrario, Volkov and Adamskiy, cited above, \u00a7 57-59).","elements":[]},{"content":"25.\u00a0\u00a0The Court further notes that the applicant himself stated that he did not ask the appeal court to appoint a lawyer, despite his assertion that legal representation at the appeal stage was paramount to his defence (see paragraph 20 above). The applicant had been duly notified of his rights and, in particular, of the right to request the appeal court to appoint a lawyer for him after signing the waiver. However, he failed to exercise that right. In those circumstances, the Court does not consider that the domestic court was under an obligation to appoint a lawyer for the applicant (see, for similar reasoning, Aleksandr Dementyev v. Russia, no. 43095/05, \u00a7 48-50, 28\u00a0November 2013, where the applicant was advised, inter alia, of his right to legal representation and did not at any point alert the authorities to any need for further legal advice or clarification, the Court held that the domestic authorities had not been oblig8ed to intervene or take steps to ensure that the applicant was adequately represented). In that regard, the Court observes that nothing in the case file suggests that such a request would have been unduly burdensome for the applicant or required special steps to be taken by him (ibid., \u00a7 50).","elements":[]},{"content":"26.\u00a0\u00a0The foregoing considerations are sufficient to enable the Court to conclude that the applicant lawfully and unequivocally waived his right to be represented by a lawyer in his appeal hearing. There has accordingly been no violation of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention.","elements":[]}]}]}]},{"content":"II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION","elements":[{"content":"27.\u00a0\u00a0The applicant further complained that the conditions of his detention in IK-8 in Novosibirsk were incompatible with Article 3 of the Convention, which reads as follows:","elements":[]},{"content":"\u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Admissibility","elements":[{"content":"28.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]}]},{"content":"B.\u00a0\u00a0Merits","elements":[{"content":"29.\u00a0\u00a0The Government submitted that the conditions of the applicant\u2019s detention in IK-8 Novosibirsk had been in full compliance with Article 3 of the Convention.","elements":[]},{"content":"30.\u00a0\u00a0The applicant\u2019s submissions regarding the conditions of his detention on in IK-8 in Novosibirsk are presented in paragraph 12 above.","elements":[]},{"content":"31.\u00a0\u00a0The Court notes at the outset that at any given period the applicant had little more than two square metres of floor space at his disposal. In that regard, the Court reiterates that an extreme lack of space in a prison cell or overcrowding weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were \u201cdegrading\u201d from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (Mur\u0161i\u0107 v.\u00a0Croatia [GC], no. 7334/13, \u00a7\u00a7 136-37, ECHR 2016, and Ananyev and\u00a0Others v. Russia, nos. 42525/07 and 60800/08, \u00a7 139, 10\u00a0January 2012).","elements":[]},{"content":"32.\u00a0\u00a0The Court considers that the personal space available to the applicant was insufficient, given the number of detainees occupying the same unit (see paragraph 10 above). Furthermore, the Court also notes the inevitable lack of privacy endured by the applicant for a prolonged period in such cramped conditions, the inadequate number of sanitary installations (as confirmed even by the Government\u2019s account) and their poor condition, which was plausibly described by the applicant. The Court has already found a violation in respect of issues similar to those in the present case, in the leading case of Butko (cited above). Moreover, the Government did not present any arguments that would rebut the strong presumption of violation of Article 3 when the personal space available to the applicant in multioccupancy accommodation falls below 3 square metres (see Mur\u0161i\u0107, cited above, \u00a7 138).","elements":[]},{"content":"33.\u00a0\u00a0In the light of the material submitted to it by the parties and having regard to its case-law on the subject cited above, the Court finds that the applicant was detained in conditions which were inhuman and degrading.","elements":[]},{"content":"34.\u00a0\u00a0There has accordingly been violation of Article 3 of the Convention.","elements":[]}]}]},{"content":"III.\u00a0\u00a0OTHER ALLEGED VIOLATIONS OF THE CONVENTION","elements":[{"content":"35.\u00a0\u00a0Lastly, the applicant raised additional complaints with reference to various Articles of the Convention, which the Court has also examined. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, it 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 applications is manifestly illfounded and must be rejected in accordance with Article 35 \u00a7\u00a7 3 (a) and\u00a04 of the Convention.","elements":[]}]},{"content":"IV.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION","elements":[{"content":"36.\u00a0\u00a0Article 41 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Damage","elements":[{"content":"37.\u00a0\u00a0The applicant claimed 500,000 euros (EUR) in respect of nonpecuniary damage.","elements":[]},{"content":"38.\u00a0\u00a0The Government contested that amount as excessive.","elements":[]},{"content":"39.\u00a0\u00a0Making its assessment on an equitable basis, the Court awards EUR\u00a08,000 to the applicant in respect of non-pecuniary damage for violation of Article 3 of the Convention, plus any tax that may be chargeable on that amount.","elements":[]}]},{"content":"B.\u00a0\u00a0Costs and expenses","elements":[{"content":"40.\u00a0\u00a0The applicant also claimed EUR 1,320 for the costs and expenses incurred in the proceedings before the Court.","elements":[]},{"content":"41.\u00a0\u00a0The Government submitted that the claims should be reduced or denied as manifestly wrong.","elements":[]},{"content":"42.\u00a0\u00a0Regard being had to the documents in its possession and to its caselaw and to the fact that the applicant was granted legal aid from the Court (see paragraph 2 above), the Court awards EUR 470 to the applicant in respect of costs and expenses for the proceedings before it.","elements":[]}]},{"content":"C.\u00a0\u00a0Default interest","elements":[{"content":"43.\u00a0\u00a0The 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.","elements":[]}]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT, UNANIMOUSLY,","elements":[{"content":"1.\u00a0\u00a0Declares the complaints concerning the absence of a lawyer from the appeal proceedings and the conditions of detention admissible and the remainder of the application inadmissible;","elements":[]},{"content":"2.\u00a0\u00a0Holds that there has been no violation of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention;","elements":[]},{"content":"3.\u00a0\u00a0Holds that there has been a violation of Article 3 of the Convention;","elements":[]},{"content":"4.\u00a0\u00a0Holds","elements":[]},{"content":"(a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:","elements":[]},{"content":"(b)\u00a0\u00a0that 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;","elements":[]},{"content":"5.\u00a0\u00a0Dismisses the remainder of the applicant\u2019s claim for just satisfaction.","elements":[]},{"content":"Done in English, and notified in writing on 18 July 2017, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.","elements":[]}],"section_name":"conclusion"}]:h applicants\u201d).","elements":[]},{"content":"2.\u00a0\u00a0The applicants were represented by Mr D.P. Holiner, a lawyer practising in London. The Russian Government (\u201cthe Government\u201d) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.","elements":[]},{"content":"3.\u00a0\u00a0The applicants alleged that the decision to cancel the registration of the Yabloko lists for elections in Karelia had been in breach of Article 3 of Protocol No. 1 to the Convention.","elements":[]},{"content":"4.\u00a0\u00a0On 7 September 2012 the application was communicated to the Government.","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE","elements":[{"content":"A.\u00a0\u00a0Background information","elements":[{"content":"5.\u00a0\u00a0The Republic of Karelia (\u201cKarelia\u201d) is a subject (constituent region) of the Russian Federation. Under Article 73 of the Constitution of the Russian Federation, subjects of the Federation possess the full authority of the Russian State in all matters other than those that come within the sole jurisdiction of the federal government or within the shared jurisdiction of federal subjects and the federal government to the degree of the latter\u2019s scope of authority.","elements":[]},{"content":"6.\u00a0\u00a0At the relevant time, the Legislative Assembly of Karelia (hereinafter \u201cthe LA\u201d) had fifty members elected by universal direct suffrage for a five-year term. Twenty-five seats were allocated on a proportional representation basis to registered party lists receiving at least 7% of the region-wide vote, while the remaining seats were allocated to the winners of twenty-five single-mandate constituencies, determined by majority vote. There was no minimum turnout for the election to be valid, and each voter could only vote for one party and one candidate in the electoral constituency in which he or she resided.","elements":[]},{"content":"7.\u00a0\u00a0The regional branch of the Yabloko political party was registered by a competent State authority (at that time the regional department of the Ministry of Justice) in 2002.","elements":[]}]},{"content":"B.\u00a0\u00a0Decision to take part in the election to the regional legislature","elements":[{"content":"8.\u00a0\u00a0On 26 April 2006 the regional council of the applicant party called for a regional party conference to be held in two sessions on 27 May and 12\u00a0August 2006, respectively. The aim was to prepare for the LA elections that were to take place in autumn 2006.","elements":[]},{"content":"9.\u00a0\u00a0Between 27 April 2006 and 26 May 2006 local party branches throughout Karelia held assemblies and conferences in accordance with the Yabloko party\u2019s articles of association (hereinafter, \u201cthe charter\u201d) and selected delegates to attend the regional party conference. At the time, the regional party had over 3,800 members, of whom 474 were so-called \u201cregistered party members\u201d, that is, members who had specifically asked to be registered with the local party bodies in order to participate more actively in the party\u2019s work, such as regional conferences. As a result, the 474 registered members elected forty-seven delegates to the regional conference.","elements":[]},{"content":"10.\u00a0\u00a0On 27 May 2006 thirty-seven delegates present at the conference expressed their desire to participate in the upcoming LA elections. The nomination of candidates to the party list and electoral circuits was left to the second session scheduled for 12 August 2006.","elements":[]},{"content":"11.\u00a0\u00a0On 10 and 11 June 2006 the Yabloko party at national level held its Thirteenth Party Congress, which adopted several amendments to the party\u2019s charter. The charter maintained the division between party members and registered party members. In accordance with paragraph 9.1.14 of both versions the right to elect and be elected to the party\u2019s govern;ing and controlling bodies was reserved to registered members. The 2006 version specified, additionally, that party members who did not register automatically delegated the right to elect and be elected within the party to the registered party members of the relevant local branch.","elements":[]},{"content":"12.\u00a0\u00a0On 4 July 2006 the LA set an election date of 8 October 2006.","elements":[]},{"content":"13.\u00a0\u00a0On 27 July 2006 the amendments to the Yabloko national party charter were registered with the Federal Registration Service, upon which date they came into force.","elements":[]},{"content":"14.\u00a0\u00a0On 12 August 2006 the regional party conference resumed. Thirty-seven of the forty-seven party delegates were present, and a quorum was declared. In accordance with the party\u2019s charter, the conference nominated a 25-member party list and candidates for three electoral constituencies by secret ballot. The second and third applicants were chosen to run for office in two single-mandate constituencies.","elements":[]},{"content":"15.\u00a0\u00a0The conference was attended by two representatives from the Karelia Directorate of the Federal Registration Service of the Ministry of Justice, and two members of the Central Electoral Commission of the Republic of Karelia (\u201cthe Electoral Commission\u201d). At that time they did not report any irregularities in the conduct of the regional party conference.","elements":[]},{"content":"16.\u00a0\u00a0On 16 August 2006 the applicant party submitted documents to the Electoral Commission in order to participate in the forthcoming election. On 21 August 2006 it paid the requisite deposits (150,000 Russian roubles (RUB) in respect of the party list and RUB 60,000 in respect of each of the three single-mandate candidates).","elements":[]},{"content":"17.\u00a0\u00a0On 17 and 22 August 2006, after reviewing the documents, the Electoral Commission issued Orders nos. 65/343-3 and 66/352-3, by which it registered the applicant party\u2019s three candidates, including the second and third applicants, and the party list.","elements":[]}]},{"content":"C.\u00a0\u00a0Proceedings to annul the applicant party\u2019s registration","elements":[{"content":"18.\u00a0\u00a0On 31 August 2006 the Karelia Directorate of the Federal Registration Service wrote to the Electoral Commission and informed it that the party conference of 12 August 2006 had been based on the participation of registered party members, and not party members in general. It referred to the provisions of the legislation on political parties (see below) which guaranteed equal rights of participation in party activities for all members. It argued that the party could not make a distinction between registered and other party members for the purposes of internal activities. As such, the conference of 12 August 2006 had been held in breach of the applicable legislation.","elements":[]},{"content":"19.\u00a0\u00a0On 8 September 2006 the Electoral Commission applied to the Supreme Court of the Republic of Karelia (hereinafter the Karelia Supreme Court) to annul its own decision to register the party list and single-mandate candidates. Referring to the letter of 31 August 2006, the Commission referred to the provision of the Basic Guarantees Act allowing the judicial annulment of the registration of individual candidates and party lists where \u201cnew facts\u201d had come to light showing a violation of federal or regional law regulating the nomination of candidates.","elements":[]},{"content":"20.\u00a0\u00a0In the meantime, on 11 September 2006 the Electoral Commission wrote to the head of the Federal Registration Service and informed him of the application lodged with the court. It also enquired which version of the charter should be applicable to the party conference of 12 August 2006 since the party had submitted the 2004 version to the Commission.","elements":[]},{"content":"21.\u00a0\u00a0On 12 September 2006 the Federal Registration Service replied to the Electoral Commission that the new charter had bee8 October 2006. Seven parties competed for places in the regional assembly: the Karelia branch of the Communist Party of the Russian Federation (KPRF) (obtained 12.77% of the votes cast), the Party of National Resurrection \u201cPeople\u2019s Will\u201d (1.58%), the regional branch of the Patriots of Russia party (4.39%), the regional branch of United Russia (38.92%), the regional branch of the Liberal-Democratic Party of Russia (LDPR) (8.86%), the regional branch of the Russian Party for Life (16.19%) and the regional branch of the Russian Pensioners\u2019 Party (12.06%). The total number of people who voted in the elections was 183,503, or 32.98% of the electorate.","elements":[]},{"content":"31.\u00a0\u00a0The Government also presented information about the subsequent election to the Karelia LA, in which Yabloko candidates had participated. That election took place on 4 December 2011 and had five parties competing. Yabloko obtained 7.13% of the votes and had deputies elected to the LA. A total of 50.03% of voters took part.","elements":[]}]}]},{"content":"II.\u00a0\u00a0RELEVANT DOMESTIC LAW","elements":[{"content":"A.\u00a0\u00a0The Political Parties Act","elements":[{"content":"32.\u00a0\u00a0The status and activities of political parties were governed by the Political Parties Act (Federal Law no. 95-FZ of 11 July 2001), as in force at the relevant time. Section 8 laid down the basic rules for political party activity and that their functioning should be based on the principles of voluntary participation, equality, self-government, lawfulness and transparency. Political parties were free in the choice of their internal structure, aims, forms and methods of functioning, within the limits of the Act. Their activity was not to breach the rights and freedoms guaranteed by the Constitution. Political parties were to be transparent, and information about their charters and programmes was to be freely available. Section 8(4) required that political parties should allow equal opportunities for men and women and for Russian nationals of different ethnic backgrounds to be represented in their governing bodies and in the lists of candidates for external posts and positions.","elements":[]},{"content":"33.\u00a0\u00a0Section 21 set requirements for the articles of association (charters) of a political party. Among other requirements, charters were to regulate questions of membership, the rights and obligations of members, the setting up of the party\u2019s governing bodies, and the internal procedure for submitting lists of candidates for elections. They could contain other provisions, which were not to contradict the applicable legislation. The charters and any changes to it had to be registered with the competent State authority.","elements":[]},{"content":"34.\u00a0\u00a0Membership of a political party was to be voluntary and individual. Citizens of the Russian Federation who had attained the age of eighteen could be members of a political party. Admission to membership of a political party was to be decided on the basis of a written application by a citizen of the Russian Federation, in accordance with the procedure set out in the party\u2019s charters. Members of the party were to participate in its work, and had rights and obligations in line with the charters of the party. Members of the party had the right to elect and be elected to its governing bodies, its regional branches and other units, to get information about the work of the party and its governing bodies, and to challenge the actions and decisions of its bodies in line with the party\u2019s charters. A citizen of the Russian Federation was to hold membership of only one political party at once. A member of a political party could be registered in only one regional branch in the region where he was permanently or predominantly resident. Membership of a political party could not be restricted on the grounds of someone\u2019s profession, social group, race, ethnic or religious denomination, nor on the grounds of gender, origin, property status, or place of res?idence (relevant parts of section 23(1)-(6) and (10) of the Political Parties Act).","elements":[]},{"content":"35.\u00a0\u00a0A political party\u2019s governing regional bodies were to be re-elected at least every two years (section 24(4)). Management bodies at all levels had to be elected by secret ballot. The election had to be conducted in accordance with the procedure established by the party\u2019s charters and the decision was to be taken by a majority of voting delegates present, members of the regional conference, or members of a permanent collegial governing body. The charters of a party could provide for additional conditions for adopting decisions on the composition of governing bodies and compiling the list of candidates for elections. All other decisions had to be taken in accordance with the party\u2019s charters (relevant parts of section 25(1), (4) and (6)-(8)).","elements":[]},{"content":"36.\u00a0\u00a0Section 27 set out that a party was obliged to allow officials from the competent authorities to attend its public meetings. The party should inform the relevant electoral commissions in advance when holding conferences where it intended to draw up lists of candidates for elections and to allow them to attend ((1)-(2)).","elements":[]}]},{"content":"B.\u00a0\u00a0The Basic Guarantees Act","elements":[{"content":"37.\u00a0\u00a0Elections in general were governed by Federal Law no.\u00a067FZ on the basic principles of elections and referendums of 12 June 2002 (the Basic Guarantees Act), as in force at the relevant time. Section 35(2) and (14) stated that political parties had to draw up lists of candidates for elections at their conferences and assemblies, in line with the applicable legislation, in particular the Law on Political Parties. The party submitted a list of candidates for elections to the competent electoral commission, which had three days to approve it.","elements":[]},{"content":"38.\u00a0\u00a0Section 38(24) and (25) provided reasons which would justify a refusal to register candidates. The electoral commission would refuse to register the candidates submitted by a political party if the procedure by which they had been chosen had been in breach of the relevant provisions of the Political Parties Act. An absence of the necessary documents could also be a reason for such a refusal.","elements":[]},{"content":"39.\u00a0\u00a0Section 76(5) empowered the courts to annul the registration of lists of candidates upon requests from the competent electoral commissions if, inter alia, new circumstances had been discovered that could serve as the basis for denying registration under the relevant paragraphs of section 38.","elements":[]}]}]},{"content":"III.\u00a0\u00a0RELEVANT INTERNATIONAL DOCUMENTS","elements":[{"content":"A.\u00a0\u00a0Code Of Good Practice in the Field of Political Parties","elements":[{"content":"40.\u00a0\u00a0The European Commission for Democracy through Law (\u201cthe Venice Commission\u201d) has adopted a Code Of Good Practice in the Field of Political Parties (document CDL-AD(2009)002, adopted at its 77th Plenary Session) that reads, in so far as relevant:","elements":[]},{"content":"\u201cIII.\u00a0\u00a0Internal organisation of political parties","elements":[]},{"content":"1.\u00a0\u00a0Membership","elements":[]},{"content":"...","elements":[]},{"content":"20. Everyone must be free to choose to be a member of a political party or not and to choose which party to join. Whilst this principle is universally acknowledged, it is also very common among European parties that they have specific admission procedures. This serves to secure the necessary congruence between the views of the would-be member and the party. Best practices are those that clearly establish in party statutes the procedures and requirements for joining and which clearly state the criteria to be fulfilled to be members...","elements":[]},{"content":"...","elements":[]},{"content":"24. It is not unusual for parties to establish different forms of involvement of individuals in their activities such as membe@rs, recognised sympathisers, collaborators, campaigners, etc. These statuses mark different thresholds of personal commitment. Hence, in order to identify the kind of commitments and to respect personal choices, a good practice is for party statutes to clearly spell out the different rights and duties of each situation. Any person must be able to define freely his or her personal form of relationship with a party...","elements":[]},{"content":"...","elements":[]},{"content":"2.\u00a0\u00a0Organisation","elements":[]},{"content":"...","elements":[]},{"content":"28. The general principles that inspire this Code also apply to the organisation of a political party. In particular:","elements":[]},{"content":"\u2212 Representativeness and receptiveness. Applied within a party, these principles mean that the structure of the party and its procedures should represent the opinion of the members and they should be receptive towards these. Although this commitment may not entail a legally expressed obligation, their breach runs against the basic intuitive concept of democratic organisation.","elements":[]},{"content":"\u2212 Responsibility and accountability. Organs (both collective and individual) should be held accountable and responsible to party members. Procedures should secure internal (and external) responsibility and rendering account of actions and policies. Although this commitment may not entail a legally expressed obligation, their breach runs against the basic intuitive concept of democratic organisation.","elements":[]},{"content":"\u2212 Transparency. Parties should make public their statutes and their programme. Publishing financial reports improves transparency and public confidence in political parties. Even though this commitment may not entail a legally expressed obligation, [its] breach runs against the basic intuitive concept of democratic organisation.","elements":[]},{"content":"29. The existence of party statutes is a legal requirement for recognising and/or registering them in several countries of the Council of Europe. Statutes must comply with constitutional and legal regulations and reflect the international rules contained in the ECHR. The lack of compliance with party statutes constitutes, in some legal systems, a violation that can be legally challenged in extra-party jurisdictions. To the extent that compliance may be legally required, legal force may be deduced from party statutes.","elements":[]},{"content":"30. Party statutes normally regulate the rights and duties of their members, and the organs, organisation and procedures for decision making of the parties. In certain national legal systems, there is a legal requirement that party statutes must establish a procedure for changing them. When this legal requirement is further enriched with the explicit involvement of members aimed at seeking their support through voting procedures, it comes closer to being a paradigm of good practice.","elements":[]},{"content":"...","elements":[]},{"content":"32. Wherever required by law, parties must define their national, regional or local organisation in their statutes. Wherever this is not required by law, these specifications contribute to enhance the good governance principles identified above. At each of these levels, bodies involving all members or their representatives, meeting on regular basis, must take the major decisions. Ideally, the supreme body (National congress or assembly) should meet at least once for each legislative term. In the interim periods the governing boards are usually responsible for decision-making. These boards, which are usually made up of members elected by the party membership, must be elected in accordance with the procedures set out in the party statutes.","elements":[]},{"content":"33. The procedures for decision-making should be clearly specified in the statutes. When possible (i.e. on the local level), members should take decisions directly; otherwise, decisions should be taken on the basis of democratic delegation.","elements":[]},{"content":"34. Party operational pArocedures should enable the opinions of grassroot members to be heard by party leaders.","elements":[]},{"content":"3. Appointment of leaders and candidates for election","elements":[]},{"content":"...","elements":[]},{"content":"35. Whether directly or indirectly, party leaders must be democratically chosen at any given level (local, regional, national and European). This means that members must be able to vote for their selection. Bottom-up practices for the selection of nominees and candidates are a healthy expression of internal democracy which is very positively perceived by citizens.","elements":[]},{"content":"36. Equally, whether directly or indirectly, candidates must be democratically chosen for elections at any level (local, regional, national and European).\u201d","elements":[]}]},{"content":"B.\u00a0\u00a0Other relevant documents and opinions","elements":[{"content":"41.\u00a0\u00a0The Venice Commission also made the following recommendations in its Guidelines and explanatory report on legislation on political parties: some specific issues (document CDL-AD(2004)007rev, adopted at its 58th Plenary Session on 15 April 2004):","elements":[]},{"content":"\u201cB.\u00a0\u00a0Registration as a necessary step for recognition of an association as a political party, for a party\u2019s participation in general elections or for public financing of a party does not per se amount to a violation of rights protected under Articles 11 and 10 of the European Convention on Human Rights. Any requirements in relation to registration, however, must be such as are \u2018necessary in a democratic society\u2019 and proportionate to the objective sought to be achieved by the measures in question. Countries applying registration procedures to political parties should refrain from imposing excessive requirements for territorial representation of political parties as well as for minimum membership. The democratic or non-democratic character of the party organization should not in principle be a ground for denying registration of a political party. Registration of political parties should be denied only in cases clearly indicated in the Guidelines on prohibition of political parties and analogous measures, i.e. when the use of violence is advocated or used as a political means to overthrow the democratic constitutional order, thereby undermining the rights and freedoms guaranteed by the constitution. The fact alone that a peaceful change of the Constitution is advocated should not be sufficient for denial of registration.","elements":[]},{"content":"C.\u00a0\u00a0Any activity requirements for political parties, as a prerequisite for maintaining the status as a political party and their control and supervision, have to be assessed by the same yardstick of what is \u2018necessary in a democratic society\u2019. Public authorities should refrain from any political or other excessive control over activities of political parties, such as membership, number and frequency of party congresses and meetings, operation of territorial branches and subdivisions.","elements":[]},{"content":"...","elements":[]},{"content":"EXPLANATORY REPORT","elements":[]},{"content":"b)\u00a0\u00a0Activity requirements for political parties and their control and supervision","elements":[]},{"content":"...","elements":[]},{"content":"11.\u00a0\u00a0Similar caution must be applied when it comes to activity requirements for political parties as a prerequisite for maintaining their status as a political party and their control and supervision. Far-reaching autonomy of political parties is a cornerstone of the freedoms of assembly and association and the freedom of expression as protected by the European Convention on Human Rights. ... In particular, control over the statute or statute of a party should be primarily internal, i.e. should be exercised by the members of the party. As regards external control, the members of a party should have access to a court in case they consider that a decision of a party organ violates its statute. In general, judicial control overB the parties should be preferred over executive control.\u201d","elements":[]},{"content":"42.\u00a0\u00a0In their joint Guidelines on Political Party Regulation (document CDL-AD(2010)024, adopted by the Venice Commission at its 84th Plenary Session (Venice, 15-16 October 2010)) OSCE/ODIHR and Venice Commission recommended:","elements":[]},{"content":"\u201c98. However, as parties contribute to the expression of political opinion and are instruments for the presentation of candidates in elections, some regulation of internal party activities can be considered necessary to ensure the proper functioning of a democratic society. The most commonly accepted regulations are limited to requirements for parties to be transparent concerning their decision making and to seek input from membership when determining party constitutions and candidates.\u201d","elements":[]},{"content":"43.\u00a0\u00a0The Venice Commission Report on the Participation of Political Parties in Elections (document CDL-AD(2006)025, adopted by the Venice Commission at its 67th plenary session (Venice, 9-10 June 2006))","elements":[]},{"content":"\u201c12. In any case, there are other conditions, derived from the importance of political parties in modern democracies. This implies that the individual right to stand for election may be affected by two different sets of rules: first, by the general rules and requirements adopted by a State to allow parties to run in an election. And, second, by the rules adopted by the parties for nominating their candidates in a given election. The former rules have to be analysed especially with the perspective of pluralism: if, as the European Court of Human Rights has said, \u201cthere can be no democracy without pluralism\u201d, the main point is to ascertain that additional requirements imposed on parties are not so heavy that may hurt the expression of social pluralism. The latter rules, which may be fixed by the parties themselves, or imposed by legislation, may affect the idea of intra-party democracy, or to the right of the members of a given (in this case, political) association, to participate in the basic decisions of the association (party).","elements":[]},{"content":"...","elements":[]},{"content":"b) Procedures adopted by parties for nominating candidates","elements":[]},{"content":"...","elements":[]},{"content":"17. Parties are a specific kind of association. Their status is thus guaranteed under the right of freedom of association, and they can only be subject to restrictions prescribed by law. Therefore, internal party procedures for decision-making should be presided by the principle of self-governing, and in many countries these rules are only set in the Party Statutes. Nevertheless, their relevance for the working of the whole system implies that, as has been previously pointed out, the Constitution or the law may set up some rules, usually requiring parties to respect democratic principles in their internal organisation and working.","elements":[]},{"content":"18. However rules may go further: the French Constitution had to be recently reformed to allow the law to impose the principle of equal access of men and women to elective offices, so limiting the free choice of candidates by party organs. In some countries, the Electoral Law contains a procedure of nomination of party candidates, which has logically be respected by the party statutes. This is, for instance, the case in Germany (art. 21) or Ukraine (art. 40). In this respect, it could be asked what is the scope of autonomy and self-governing that should be respected by the law or, in other words, what degree of external \u2013and general constraints are compatible with the very idea of free association. In any case, it seems that the very respect of the democratic principle should suffice to exclude any possibility of changing the order of candidates within a list after voters have cast their ballots, as for instance seems to be possible in some specific countries.\u201d","elements":[]},{"content":"44.\u00a0\u00a0Another Venice Commission documCent, Report on the Method of Nomination of Candidates within Political Parties (document CDLD(2015)020, adopted by the Venice Commission at its 103rd Plenary Session (Venice, 19-20 June 2015)), says, where relevant:","elements":[]},{"content":"\u201c5. In contemporary democracies, two main principles are central to the internal functioning of political parties. The first one is the principle of party autonomy, under which political parties are granted associational autonomy in their internal and external functioning. According to this principle, political parties should be free to establish their own organisation and the rules for selecting party leaders and candidates, since this is regarded as integral to the concept of associational autonomy. The second element is the principle of internal democracy, the argument being that because political parties are essential for political participation, they should respect democratic requirements within their internal organisation.","elements":[]},{"content":"6. There can be tensions between the principle of party autonomy on the one hand and the principle requiring internal democracy on the other. It is not surprising that the influence of each principle differs in each system. ... What system prevails in a particular country is basically shaped by its history and current circumstances. Much also depends on more detailed specification of the two principal factors set out above and the weight attached to them. Thus, it cannot be assumed that attachment to the principle of associational autonomy precludes per se any regulation of internal party procedure, since such a conclusion is dependent on contestable normative assumptions as to the degree of autonomy that flows from freedom of association. The same is true in relation to the principle of democracy. It is not self-evident what demands flow from attachment to this principle without further inquiry as to the more particular precepts that constitute the democratic principle and the way in which they might be applicable to the nomination of candidates by political parties. ...","elements":[]},{"content":"II. Regulating political parties: the state of the art","elements":[]},{"content":"...","elements":[]},{"content":"11. The European Court of Human Rights has held in its case-law that political parties are a form of association essential to the proper functioning of democracy and that, in view of the importance of democracy in the European Convention on Human Rights system, an association, including a political party, is not excluded from the protection afforded by the Convention.","elements":[]},{"content":"12. The Venice Commission Guidelines on Political Party Regulation view political parties as private associations that play a critical role as political actors in the public sphere. Although the document considers that \u201csome regulation of internal party activities can be considered necessary to ensure the proper functioning of a democratic society\u201d, such legislation must be \u201cwell\u2013crafted and narrowly tailored\u201d in order not to interfere with the freedom of association. However, the Guidelines recognise that:","elements":[]},{"content":"\u201cAs parties contribute to the expression of political opinion and are instruments for the presentation of candidates in elections, some regulation of internal party activities can be considered necessary to ensure the proper functioning of a democratic society. The most commonly accepted regulations are limited to requirements for parties to be transparent concerning their decision making and to seek input from membership when determining party constitutions and candidates\u201d.","elements":[]},{"content":"...","elements":[]},{"content":"26. The requirements for candidate nomination are, in most cases, not specifically stated in the laws on political parties. However, they can be deduced from the general rules stated by the legislation on party organisation and proceedings and from the principles that the constitution proclaims, such as the principle of internaDl democracy, non-discrimination and the recognition of universal suffrage. In other cases, the requirements are stated in the electoral law...","elements":[]},{"content":"C.\u00a0\u00a0Requirements concerning party members\u2019 rights","elements":[]},{"content":"...","elements":[]},{"content":"38. Finally, the party members\u2019 rights recognised by the laws are also applicable to the nomination procedure; rights such as equality, the right to participate in the activities and organs of the party, the right to vote and the right to run for party offices. ...","elements":[]},{"content":"39. Some of the laws analysed above establish several requirements for internal democracy. In general, laws on political parties are quite respectful of their freedom. For this reason, these laws refer to the statutes of political parties in order to set out in detail the principles and requirements established by the laws themselves.","elements":[]},{"content":"...","elements":[]},{"content":"VI. Conclusions:","elements":[]},{"content":"...","elements":[]},{"content":"81. The possibility of adopting legal measures to foster respect for democratic principles in the selection of candidates is consistent with international standards and principles stated by the Venice Commission. However, legal intervention in the selection of candidates is not always required or suitable. On the one hand, long-established democracies with deep-rooted political parties favour associational freedom, since internal democracy is guaranteed by the political parties themselves. On the other hand, state interference in the selection of candidates in new or transitional democracies might jeopardise political pluralism. There is an increased risk where legal intervention constitutes an imposition of the majority over the minority.\u201d","elements":[]}]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0THE GOVERNMENT\u2019S OBJECTION TO THE ADMISSIBILITY OF THE SECOND APPLICANT\u2019S COMPLAINT","elements":[{"content":"45.\u00a0\u00a0The Government noted that the second applicant (Mrs Petelyayeva) had failed to submit a valid power of attorney to authorise Mr Holiner to represent her before the Court. They argued that this situation should be considered by the Court as a ground to declare her application inadmissible.","elements":[]},{"content":".\u00a0\u00a0On 23 April 2013 Mr Holiner informed the Court that he had been unable to obtain a power of attorney from the second applicant.","elements":[]},{"content":"47.\u00a0\u00a0The Court notes that where applicants choose to be represented under Rule 36 \u00a7 1 of the Rules of Court rather than lodging the application themselves, Rule 45 \u00a7 3 requires them to produce a written authority to act, duly signed. It is essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim within the meaning of Article 34 on whose behalf they purport to act before the Court (see N. and M. v. Russia (dec.), nos. 39496/14 and 39727/14, \u00a7 53, 26 April 2016; Centre for Legal Resources on behalf of Valentin C\u00e2mpeanu v.\u00a0Romania [GC], no. 47848/08, \u00a7 102, ECHR 2014; and Post v. the Netherlands (dec.), no. 21727/08, 20 January 2009). What is important for the Court is that the written authority to act should clearly indicate that the applicant has entrusted his or her representation before the Court to a representative and that the representative has accepted that commission (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, \u00a7 53, ECHR 2012, and Ryabov v. Russia, no. 3896/04, \u00a7 40, 31 January 2008). Failure to do so would result in a finding that the complaint is inadmissible for want of an \u201capplicant\u201d for the purposes of Article 34 of the Convention (see N.Z. v.\u00a0Croatia (dec.), no.\u00a02140/13, 2 June 2015).","elements":[]},{"content":"48.\u00a0\u00a0In the present case, the second applicant has never been in contact with the Court directly and the application was lodged througEh her alleged representative, Mr Holiner. Despite reminders to do so, no written authority from her has been submitted to the Court and the application form was not signed. Consequently, the application lodged on behalf of the second applicant must be rejected for being incompatible ratione personae, pursuant to Article 35 \u00a7\u00a7 3 and 4 of the Convention.","elements":[]}]},{"content":"II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1 TO THE CONVENTION","elements":[{"content":"49.\u00a0\u00a0The applicants complained under Article 3 of Protocol No. 1 to the Convention that the annulment order had arbitrarily excluded them from participation in the election to the Karelia LA, and frustrated the free expression of the opinion of the fourth applicant in her choice of a representative legislature. The Article reads as follows:","elements":[]},{"content":"\u201cThe High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.\u201d","elements":[]},{"content":"50.\u00a0\u00a0The Government contested that argument.","elements":[]},{"content":"A.\u00a0\u00a0Admissibility","elements":[{"content":"51.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]}]},{"content":"B.\u00a0\u00a0Merits","elements":[{"content":"1.\u00a0\u00a0The first and third applicants","elements":[{"content":"52.\u00a0\u00a0The first applicant (the Yabloko Karelia branch) and the third applicant complained that the disqualification of the party list and the individual candidates approved by the regional conference on 12 August 2006 and accepted by the Registration Service on 17 and 22 August 2006 had constituted a breach of the right to free elections. They put forward the following arguments.","elements":[]},{"content":"53.\u00a0\u00a0Firstly, they disputed the suggestion that that the reasons advanced by the Karelia branch of the Federal Registration Service and accepted by the Karelia Electoral Commission and the courts, had constituted \u201cnewly discovered circumstances\u201d. The fact that the delegates for the regional party conference held on 12 August 2006 had been elected by only registered party members and that an amended version of the party charter had entered into force on 9 August 2006 had been known to the Federal Registration Service. Both the 2004 and the 2006 versions of the party charter, deposited with the registration bodies, conferred the right on members to participate in internal decision-making by voting from the moment of their registration with one of the local branches. They stated that there was \u201cno reasonable basis to contend that the [Electoral] Commission did not know or could not have known that the delegates to the applicant party\u2019s regional conference had been elected only by those members who had registered to exercise their right to vote under the applicant party\u2019s charter\u201d. As to the registration of the new charter, the applicants stressed that it had been duly registered with the relevant bodies in August 2006, and thus could not have been regarded in September 2006 as a newly discovered fact. In any event, no provisions of either the old or new version had been breached by the procedure in question.","elements":[]},{"content":"54.\u00a0\u00a0Secondly, in so far as the authorities argued that the very procedure under which the candidates had been selected was contrary to the relevant legislation, the applicants submitted that neither the party\u2019s charter nor the practice in question had been in breach of any provisions of the legislation relied upon. Section 8(4) of the Political Parties Act mandated equal opportunities for members, independent of their gender and ethnic background. The right of all members Fto be registered with the party\u2019s local branches had been guaranteed by the charter and thus the provision allowing members to do so was of a merely procedural character, creating no substantive distinction between members. The remaining legal acts cited had no bearing on the procedure in question.","elements":[]},{"content":"55.\u00a0\u00a0Next, the applicants stressed that no member of the party had ever raised any complaints or challenges to the procedure for electing governing bodies or selecting candidates. The applicants noted that the Government had referred to two complaints lodged with the Electoral Commission by two candidates from the United Russia party. They argued that that supported their suspicion of discrimination against the opposition in favour of the competing ruling party candidates.","elements":[]},{"content":"56.\u00a0\u00a0Summing up their complaints, the two applicants argued that the cancellation of the registration of the applicant party\u2019s candidates\u2019 list had been outside the wide margin of appreciation accorded to States in electoral matters. That measure had been not only \u201cwholly without merit as a matter of domestic law, but ... also appeared to have pursued the illegitimate aim of restricting voter choice at the polls in favour of the ruling party\u201d. They described the authorities\u2019 reference to the submission of the wrong version of the charter with the candidates\u2019 list as a \u201csanction ... wholly out of proportion to any professed legitimate aim.\u201d They stressed that a new version of the charter had been submitted to the authorities by the time of the hearing at the Karelia Supreme Court and that, in any event, no provision of the new charter had been breached by the proceedings in question (the applicants relied, mutatis mutandis, on the Court\u2019s judgments in The United Macedonian Organisation Ilinden and Others v. Bulgaria, no.\u00a059491/00, \u00a7\u00a7 67-68, 19 January 2006, and Tsonev v. Bulgaria, no.\u00a045963/99, \u00a7 55, 13 April 2006).","elements":[]},{"content":"57.\u00a0\u00a0The Government stated that the elections of 8 October 2006 to the Karelia LA had been free, carried out by secret ballot and had respected the free expression of the voters\u2019 will. The dismissal of the applicant party\u2019s list of candidates had been carried out by a court, and had been based on serious breaches of electoral legislation by the applicant party.","elements":[]},{"content":"58.\u00a0\u00a0Firstly, the applicant party had submitted an invalid version of its charter to the Karelia Electoral Commission. That fact had been discovered on 7 September 2006 and had been considered by the Karelia Supreme Court as constituting a newly discovered fact which had justified cancelling the registration of the list of candidates, in line with section 38(24) of the Basic Guarantees Act (and the corresponding provisions of Karelia\u2019s regional legislation). The Government further explained that the Electoral Commission had not been tasked with checking the validity of the documents submitted, but that it had been the regional department of the Federal Registration Service that had drawn its attention to the problem in their letter of 31 August 2006 (received by the Electoral Commission on 4\u00a0September 2006).","elements":[]},{"content":"59.\u00a0\u00a0As a separate breach of electoral legislation committed by the applicant party, the Government pointed to the procedure for nominating delegates for the regional party conference and compiling the list of candidates at that meeting. Referring to section 38(25) of the Basic Guarantees Act and sections 8(4), 21(2) and 23(4) and (5) of the Political Parties Act (and the corresponding provisions of the Karelia regional legislation), the Government submitted that the applicable legislation did not allow for a distinction to be made between members of the party on the basis of their \u201cregistration\u201d with one of the local branches. Such an approach violated the principle of the equality of party mGembers. The Government stated that the Yabloko party charter, before it had been changed in August 2006 had not per se contained such a violation. However, the practice followed by the applicant party in Karelia in the process of convening the party conference and compiling the list of candidates had infringed the rights of the majority of the regional party\u2019s members. In the Government\u2019s view, over 87% of the regional party\u2019s members had not taken part in the procedure. The conference of 12 August 2006 had been carried out with several violations of the applicable legislation.","elements":[]},{"content":"60.\u00a0\u00a0Pointing to section 38(25)(a) of the Basic Guarantees Act, the Government noted that failure to comply with the provisions of the Law on Political Parties in the course of drawing up lists of candidates constituted a valid ground to dismiss such a list and, in the case of newly discovered facts constituting such an infraction, to annul previously taken registration decisions. The Government referred to complaints lodged by two candidates who had been registered to run in the two constituencies where the second and the third candidates had also been registered.","elements":[]},{"content":"61.\u00a0\u00a0It also stated that the newly discovered fact which had justified the cancellation of the applicants\u2019 registration for the election had been the Karelia Supreme Court\u2019s judgment of 15 September 2006, as upheld on appeal on 29 September 2006 by the Karelia Supreme Court. The courts had established two reasons for the cancellation: (i) breaches of section 8(1) and\u00a0(4) and section 23(4) and (5) of the Law on Political Parties by the manner in which the regional party assembly had been formed through the participation of only 15% of the regional party\u2019s members; and (ii) the submission of the invalid version of the party charter to the Karelia Electoral Commission, which had become known to the competent authorities only on 4 September 2006.","elements":[]},{"content":"62.\u00a0\u00a0In addition to the arguments made by the courts in that respect, the Government also relied on the provisions of the Law On Public Associations (No. 82-FZ of 19 May 1995, as in force at the relevant time), concerning non-profit NGOs, which provided that the physical individuals and legal entities constituting a public association should enjoy equal rights and obligations and have the right to elect and be elected to the association\u2019s governing bodies in line with its charter. They further pointed to other provisions of the Law on Political Parties, which in its preamble guaranteed the equality of political parties before the law and which in section 32(1)(c) obliged the State authorities to ensure them equality when participating in elections and referendums. The Basic Guarantees Act, in sections 3 and 5, stated that the equality of all the citizens of the Russian Federation was one of the principles of elections.","elements":[]},{"content":"63.\u00a0\u00a0As to the presence of Electoral Commission officials at the regional party conference in August 2006, the Government submitted that their attendance had been based on the relevant legislative provisions and had not brought about any immediate legal consequences, for example by influencing the decision-making process or its outcome.","elements":[]},{"content":"64.\u00a0\u00a0The Government also referred to the Venice Commission\u2019s documents CDL-AD(2004)007rev and CDL-AD(2006)025 (see paragraphs 41 and 43 above). Those documents stated that the principles of necessity in a democratic society guided the procedure for registering political parties and that legislation on the nomination of candidates for election within parties could require ensuring democratic principles within them. They then noted the Court\u2019s position in respect of the regulatory regime governing the creation of political parties (the Government cited The United Macedonian Organisation Ilinden \u2013 PIRIN and Others v. Bulgaria (no. 2), nos. 41561/07 and 20972/0H8, \u00a7 72, 18 October 2011, with further references). In the case at hand, they argued, the decision to cancel the registration of the list of candidates had pursued aims that were compatible with the principle of the rule of law and the general objectives of the Convention, in particular the protection of democracy (they cited Etxeberria and Others v. Spain, nos.\u00a035579/03, 35613/03, 35626/03 and 35634/03, \u00a7 52, 30 June 2009). The restriction had also been proportionate since the measure in question had not been as far-reaching as the dissolution of the political party in question and it had been open to the applicant party to re-apply for registration, provided that it complied with all the formal requirements of the law (the Government referred to The United Macedonian Organisation Ilinden \u2013 PIRIN and Others, cited above, \u00a7 94).","elements":[]},{"content":"65.\u00a0\u00a0To start with, the Court reiterates that Article 3 of Protocol No. 1 to the Convention differs from other rights guaranteed by the Convention and its Protocols as it is phrased in terms of the obligation of the High Contracting Party to hold elections which ensure the free expression of the opinion of the people, rather than in terms of a particular right or freedom. However, having regard to the preparatory work to Article 3 of Protocol No.\u00a01 to the Convention and the interpretation of the provision in the context of the Convention as a whole, the Court has established that this provision also implies individual rights, including the right to vote and to stand for election (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, \u00a7\u00a7 46-51, Series A no. 113, and \u017ddanoka v. Latvia [GC], no.\u00a058278/00, \u00a7 102, ECHR 2006-IV).","elements":[]},{"content":".\u00a0\u00a0The words \u201cfree expression of the opinion of the people\u201d mean that elections cannot be conducted under any form of pressure in the choice of one or more candidates, and that in this choice the elector must not be unduly induced to vote for one party or another. The word \u201cchoice\u201d means that the different political parties must be ensured a reasonable opportunity to present their candidates at elections (see Yumak and Sadak v. Turkey [GC], no. 10226/03, \u00a7 108, ECHR 2008). The Court reiterates that, under its case-law, the notion of \u201cindividual rights\u201d to stand for election under Article\u00a03 of Protocol No. 1 to the Convention is applicable to the party, independently of its candidates, where it presents a list in order to participate in the elections (see Georgian Labour Party v. Georgia, no.\u00a09103/04, \u00a7\u00a7 72-74, ECHR 2008).","elements":[]},{"content":"67.\u00a0\u00a0As noted in the Preamble to the Convention, the rights guaranteed under Article 3 of Protocol No. 1 to the Convention are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law. Nonetheless, these rights are not absolute. There is room for \u201cimplied limitations\u201d, and Contracting States must be given a margin of appreciation in this sphere. The Court reaffirms that the margin in this area is wide (see Mathieu-Mohin and Clerfayt, cited above, \u00a7 52; Podkolzina v. Latvia, no. 46726/99, \u00a7 33, ECHR 2002-II; and Yumak and Sadak, cited above, \u00a7 109 (ii)). There are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe, which it is for each Contracting State to mould into its own democratic vision (see Hirst v. the United Kingdom (no. 2) [GC], no.\u00a074025/01, \u00a7 61, ECHR 2005IX, and Scoppola v. Italy (no. 3) [GC], no.\u00a0126/05, \u00a7 83, 22 May 2012).","elements":[]},{"content":"68.\u00a0\u00a0The concept of \u201cimplied limitations\u201d under Article 3 of Protocol No.\u00a01 to the Convention is of major importance for the determination of the relevance of the aims pursued by restrictions on the rights guarIanteed by this provision. Given that Article 3 of Protocol No.\u00a01 to the Convention is not limited by a specific list of \u201clegitimate aims\u201d such as those enumerated in Articles 8 to 11 of the Convention, the Contracting States are therefore free to rely on an aim not contained in that list to justify a restriction, provided that the compatibility of that aim with the principle of the rule of law and the general objectives of the Convention is proved in the particular circumstances of a case. It also means that the Court does not apply the traditional tests of \u201cnecessity\u201d or \u201cpressing social need\u201d which are used in the context of Articles 8 to 11 of the Convention. In examining compliance with Article 3 of Protocol No. 1 to the Convention, the Court has focused mainly on two criteria: whether there has been arbitrariness or a lack of proportionality, and whether the restriction has interfered with the free expression of the opinion of the people (see Yumak and Sadak, cited above, \u00a7\u00a0109 (iii), and Sitaropoulos and Giakoumopoulos v. Greece [GC], no.\u00a042202/07, \u00a7\u00a7 63-64, ECHR 2012).","elements":[]},{"content":".\u00a0\u00a0It is, however, for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 of the Convention have been complied with. It has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see Mathieu-Mohin and Clerfayt, loc. cit.). In particular, any conditions imposed must not thwart the free expression of the people in the choice of the legislature \u2013 in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage (see Hirst, cited above, \u00a7 62; Yumak and Sadak, cited above, \u00a7 109 (iv); and Scoppola, cited above, \u00a7 84).","elements":[]},{"content":"70.\u00a0\u00a0The Court has also emphasised that it is important for the authorities in charge of electoral administration to function in a transparent manner and to maintain impartiality and independence from political manipulation (see Georgian Labour Party, cited above, \u00a7 101) and that their decisions must be sufficiently reasoned (see Namat Aliyev v. Azerbaijan, no. 18705/06, \u00a7\u00a7\u00a08190, 8 April 2010).","elements":[]},{"content":"71.\u00a0\u00a0The Court has also confirmed on a number of occasions the essential role played in a democratic regime by political parties enjoying the rights and freedoms enshrined in Article 11 and also in Article 10 of the Convention. Political parties are a form of association essential to the proper functioning of democracy. In view of the role played by political parties, any measure taken against them affects both freedom of association and, consequently, democracy in the State concerned (see Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, \u00a7\u00a087, ECHR 2003II, and United Communist Party of Turkey and Others v. Turkey, 30 January 1998, \u00a7 25, Reports of Judgments and Decisions 1998I). At the same time, the Court accepts that, in certain cases, the States\u2019 margin of appreciation may include a right to interfere \u2013 subject to the condition of proportionality \u2013 with an association\u2019s internal organisation and functioning in the event of non-compliance with reasonable legal formalities applying to its establishment, functioning or internal organisational structure (see, for example, Ertan and Others v.\u00a0Turkey (dec.), no. 57898/00, 21 March 2006) or in the event of a serious and prolonged internal conflict within the association (see Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v.\u00a0Bulgaria, nos. 412/03 and 3J5677/04, \u00a7 131, 22 January 2009).","elements":[]},{"content":"72.\u00a0\u00a0The first and third applicants\u2019 arguments can be summed up as follows: (i) no new facts were discovered after the decisions of the Electoral Commission of 17 and 22 August 2006 that could warrant their revision; (ii) the procedure for the selection of candidates was not in breach of any legal provisions; and (iii) the sanction of cancelling the decisions to register candidates was out of proportion to the breaches alleged.","elements":[]},{"content":"73.\u00a0\u00a0The Government disputed each of those arguments.","elements":[]},{"content":"74.\u00a0\u00a0The Court first observes that cancelling the registration of the party list and its individual candidates constituted a restriction of the first and third applicants\u2019 rights guaranteed by Article 3 of Protocol No. 1 to the Convention. As to the aim of that restriction, the Court must ensure its compatibility with the principle of the rule of law and the general objectives of the Convention in the particular circumstances of the case (see paragraph 68 above).","elements":[]},{"content":"75.\u00a0\u00a0The Court notes that, unlike other provisions of the Convention, such as Article 5, Articles 8 to 11 of the Convention, or Article 1 of Protocol No.\u00a01 to the Convention, the text of Article 3 of Protocol No. 1 to the Convention does not contain an express reference to the \u201clawfulness\u201d of any measures taken by the State. However, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention and its Protocols (see, among many other authorities, Amuur v. France, 25 June 1996, \u00a7 50, Reports 1996III). This principle entails a duty on the part of the State to put in place a framework of legislation and, as appropriate, subordinate legislation, for securing its obligations under the Convention in general and Article 3 of Protocol No. 1 to the Convention in particular. The interpretation of this legislative framework by the competent national authorities \u2013 in the first place, the courts \u2013 should not be arbitrary or marked by a lack of proportionality; such decisions must be sufficiently reasoned (see paragraphs 68 in fine and 70 above).","elements":[]},{"content":"76.\u00a0\u00a0The first and third applicants\u2019 registration to run for elections was cancelled by the Karelia Supreme Court\u2019s judgment of 15 September 2006 (upheld by the Supreme Court). The judgment was based on two main propositions. First, the Karelia Supreme Court concluded that the procedure for the selection of candidates for the regional party\u2019s assembly had violated the ground rules of democratic representation and majority rule, and second, that the party had submitted invalid version of its charter. Concerning the first conclusion, the Karelia Supreme Court could not rely directly on any provision of domestic legislation since the domestic legislation did not govern internal party procedures to such an extent. Rather, it interpreted the provisions of the Political Parties Act and the Basic Guarantees Act as seen in their entirety. It applied the general principles of electoral legislation, such as the characteristics of a democratic regime, the will of the majority and the general principles of elections, to an internal party procedure. That procedure had conferred the right to participate in the selection of the party\u2019s governing bodies only to those members who had chosen to register with the local bodies (see paragraph 24 above). Even though the court acknowledged that the practice had been based on the party\u2019s charter, which had provided for similar rules in both the 2004 and 2006 versions, it failed to respond to the party\u2019s argument that that fact could not be considered a new fact since the procedure had been known to the Electoral Commission on 17 and 22 August 2006, when it had ruled to register the lists. The Court agrees that such an interpretation of the law, both in respect of the coKntents of the applicable legislation and whether new facts had arisen, did not appear to be foreseeable.","elements":[]},{"content":"77.\u00a0\u00a0Moreover, such an interpretation directly affected the internal organisation of the applicant party and thus interfered with its autonomy. The Court has previously held in cases brought under Article 11 of the Convention that State authorities should not interfere with associations\u2019 internal matters too much: it should be up to an association itself to determine the manner in which its conferences are organised. Likewise, it should primarily be up to the association itself and its members, and not the public authorities, to ensure that detailed formalities are observed in the manner specified in its articles of association (see Tebieti M\u00fchafize Cemiyyeti and Israfilov v. Azerbaijan, no. 37083/03, \u00a7\u00a078, ECHR 2009, and Republican Party of Russia v. Russia, no. 12976/07, \u00a7 88, 12 April 2011).","elements":[]},{"content":"78.\u00a0\u00a0Having said that, the Court does not question the obligation per se for political parties to comply with existing legislative requirements for their internal organisation and the selection of candidates for elections. Nor does it question the corresponding powers of the authorities \u2013 in the present case, the competent electoral commissions \u2013 to ensure such compliance in practice (see the relevant provisions of the Basic Guarantees Act, cited above in paragraphs 38-40). The existence and enforcement of such requirements are not incompatible with the State\u2019s obligations under the Convention and the Contracting States enjoy a wide margin of appreciation in setting the \u201cimplied limitations\u201d, determined by their \u201cown democratic vision\u201d (see the case-law cited above in paragraph 67). The question that remains is where the boundaries of those limitations lie, so that they do not become arbitrary and disproportionate.","elements":[]},{"content":"79.\u00a0\u00a0Helpful guidance can be obtained from the research codified by the Venice Commission, an expert body in matters of democratic governance (see, on the interpretative role of non-binding Council of Europe instruments, Demir and Baykara v. Turkey [GC], no. 34503/97, \u00a7\u00a7 74-75, ECHR 2008; and Sitaropoulos and Giakoumopoulos, cited above, \u00a7 71). The Commission acknowledges a certain dichotomy between the principles of party autonomy and that of internal democracy within the parties (see paragraph 5 of the Report on the Method of Nomination of Candidates within Political Parties, cited above in paragraph 44). The Guidelines on Political Party Regulation set the limit for State interference with the internal party activities as \u201cthe requirements for parties to be transparent concerning their decision-making and to seek input from membership when determining party constitutions and candidates\u201d (see paragraph 98 of the Guidelines on Political Party Regulation, cited above in paragraph 42). In its other documents, the Venice Commission recognises the difficulties of regulating questions of internal party democracy too closely (see, for example, paragraph 6 of the Report on the Method of Nomination of Candidates within Political Parties, paragraph 44 above). Nevertheless, it is apparent from those documents that the Venice Commission recognises that both \u201cdirect and indirect decision-making\u201d are permissible for members of political parties in issues of internal organisation and the nomination of candidates for elections, so long as the parties guarantee some form of representation for grass-roots party members, responsibility and accountability towards them and transparency in those procedures (see paragraphs 28, 33 and 35 of the Code of Good Practice in the Field of Political Parties, cited above in paragraph 40). The same Code in paragraph\u00a024 speaks of a \u201cnot uncommon\u201d practice to establish \u201cdifferent forms of involvement of individuals in [parties\u2019] activities such as members, recognisedL sympathisers, collaborators, campaigners etc.,\u201d and accepts it, as long as the party charter clearly spells out the rights and duties of each situation (ibid.).","elements":[]},{"content":"80.\u00a0\u00a0Concerning this second argument of the Karelia Supreme Court, that the party had relied on an invalid version of its charter, the Court notes that in the present case the difference in the rights and obligations between members and registered members in so far as it concerned their participation in the party\u2019s internal organisation and the nomination of candidates for elections was clearly spelled out in the applicant party\u2019s charter, both in its 2004 and 2006 versions (see paragraph 11 above). The procedure was sufficiently transparent to ensure that every party member could determine the scope of his or her participation in its work by choosing whether or not to register with the local offices. The party charter was applicable at the time of the selection procedure; the applicant party has been registered with the Karelia Registration Service since 2002 and both versions of the charter had been deposited with and accepted by the Federal Registration Authority (see paragraphs 7, 9, 11, 13 and 21 above). Lastly, no complaints have been made by members of the party, and the authorities acted upon their own initiative (compare with Republican Party of Russia, cited above, \u00a7 88). As a consequence, taking into account the similar regulations in both versions of the charter of the rules of candidates\u2019 nomination, as well as the fact that the new version had been known to the authorities before the submission of the relevant documents to the Electoral Commission, the decision to annul the Party list of candidates and the individual candidacies for a formalistic reason appears clearly disproportionate.","elements":[]},{"content":"81.\u00a0\u00a0Summing up the above arguments, the Court finds that the decision of the Karelia Supreme Court to annul the lists of candidates, as confirmed by the Supreme Court, resulted in an unforeseeable interpretation of the applicable law, both as regards the alleged breach of the legislation in question and the reference to a newly discovered fact. Moreover, it interfered disproportionately with the party\u2019s own internal organisation, which followed the principles of transparency and representation, and resulted in its inability to participate in the regional elections. In those circumstances, the Court finds that there has been a violation of Article 3 of Protocol No. 1 to the Convention in respect of the first and third applicants by the authorities\u2019 decision to annul the lists of candidates.","elements":[]}]},{"content":"2.\u00a0\u00a0The fourth applicant","elements":[{"content":"82.\u00a0\u00a0The fourth applicant submitted that \u201cthe free expression of the opinion of the people is inconceivable without the participation of a plurality of political parties representing the different shades of opinion to be found within a country\u2019s population, and therefore regard must be had to the broader context in which the right to vote is exercised\u201d (citing the Russian Conservative Party of Entrepreneurs and Others v. Russia, nos. \u00a055066/00 and 55638/00, \u00a7 79, 11 January 2007). She pointed to the significant level of support for the applicant party (one poll result had placed Yabloko second after United Russia, with 14% of respondents intending to vote for them) and the absence of any other genuine democratic alternative in the election of October 2006. She stressed that the other parties running for elections had either supported President Vladimir Putin or were hard-line communists and nationalists. The removal from the race of Yabloko \u2013 one of the strongest regional parties \u2013 one month before the elections had made it impossible to have any viable democratic alternative to take its place. The situation had been aggravated by the set-up of the election system which: (i) did not allow voters to add a party or a candidate to the liMst; (ii) did not permit a vote against all candidates; and (iii) had no requirement for a minimum turnout, so abstention of even a large part of the electorate would have had no impact on the election results. By way of comparison, the applicant pointed to a low turnout in the 2006 elections to the LA and noted that in 2011, when Yabloko had been allowed to run, it had increased significantly (see paragraphs 30 and 31 above).","elements":[]},{"content":"83.\u00a0\u00a0Summing up her arguments, the fourth applicant asked the Court to conclude that, \u201cin the light of the broader context, the removal of the applicant party from the elections, notwithstanding evidence of its strong support among the electorate, as well as a legislative framework that only permitted voting for parties that either supported the ruling regime or which were at the extreme margins of the political spectrum, when all taken together, demonstrate that the Karelian elections of 2006 lacked sufficient conditions to ensure the free expression of the opinion of the people, in breach of Article 3 of Protocol No. 1\u201d.","elements":[]},{"content":"84.\u00a0\u00a0The Government were of the opinion that the fourth applicant had had the possibility to exercise her active right to free elections without any hindrance. The fact that it had not been possible to add new names to the electoral bulletin or to vote against all the candidates could not be regarded as a failure by the State to guarantee free and fair elections, and such requirements were absent in many European countries. The Government observed that the legislation and the Constitutional Court\u2019s practice established that members of the legislature were representatives of the people, and that therefore people who had not voted or had voted for another candidate could not be seen as having been deprived of representation in elected bodies. The Government referred to the position expressed by the Court in the Russian Conservative Party of Entrepreneurs and Others (cited above, \u00a7\u00a7\u00a075-79), essentially emphasising that \u201cthe right to vote cannot be construed as laying down a general guarantee that every voter should be able to find on the ballot paper the candidate or the party he had intended to vote for\u201d. Lastly, the Government noted that the fourth applicant had never appealed to any authority about the alleged violation of her right to free elections and had thus failed to take any steps to obtain a remedy for the violations alleged at the national level.","elements":[]},{"content":"85.\u00a0\u00a0As to the general context of the elections, the Government pointed to the fact that seven political parties had taken part in the elections of 2006, and that voters could have chosen to vote for any of them. Voters had also been able to make their ballot invalid, as the fourth applicant stated she had done, by leaving all the lines blank, or by other means. Such a ballot would not have been attributed to any candidate. Subsequent regional elections in 2011 had proven the absence of prejudice towards any party: the applicant party had complied with all the procedural requirements and had successfully competed for mandates in the LA.","elements":[]},{"content":"86.\u00a0\u00a0The Court recalls its findings on a similar complaint in the Russian Conservative Party of Entrepreneurs and Others case (cited above):","elements":[]},{"content":"\u201c75. ... The thrust of [the third applicant\u2019s] grievance was not that his right to vote had been taken away but rather that it had been impossible for him to cast his vote for a party of his choosing \u2013 the applicant party \u2013 which had been denied registration for the election.","elements":[]},{"content":"76. The Court, however, does not consider that an allegedly frustrated voting intention is capable, by itself, of grounding an arguable claim of a violation of the right to vote. It notes, firstly, the obvious problem of laying down a sufficient evidentiary basis for demonstrating the nature and seriousness of such an inNtention. An intention to vote for a specific party is essentially a thought confined to the forum internum of an individual. Its existence cannot be proved or disproved until and unless it has manifested itself through the act of voting or handing in a blank or spoiled paper (see X v. Austria, Commission decision of 22 March 1972, Yearbook 15, p. 474). Moreover, a voter\u2019s preference is not static but may evolve in time, influenced by political events and electoral campaigning. A sudden and sweeping change in voters\u2019 intentions is a well-documented political and social phenomenon.","elements":[]},{"content":"77. The Court reiterates that an individual applicant should be able to claim to be actually affected by the measure of which he complains and that Article 34 may not be used to found an action in the nature of an actio popularis (see, among other authorities, Norris v. Ireland, judgment of 26 October 1988, Series A no. 142, \u00a7 30)...","elements":[]},{"content":"78. On a more general level, the Court is mindful of the ramifications of accepting the claim of a frustrated voting intention as an indication of an interference with the right to vote. Such acceptance would confer standing on a virtually unlimited number of individuals to claim that their right to vote had been interfered with solely because they had not voted in accordance with their initial voting intention.","elements":[]},{"content":"79. In the light of the above considerations, the Court finds that the right to vote cannot be construed as laying down a general guarantee that every voter should be able to find on the ballot paper the candidate or the party he had intended to vote for. It reiterates, nevertheless, that the free expression of the opinion of the people is inconceivable without the participation of a plurality of political parties representing the different shades of opinion to be found within a country\u2019s population (see Federaci\u00f3n Nacionalista Canaria v. Spain (dec.), no. 56618/00, ECHR 2001-VI). Accordingly, it must have regard to the broader context in which the right to vote could be exercised by the third applicant.\u201d","elements":[]},{"content":"87.\u00a0\u00a0For the same reasons as summarised above, the Court confirms the general rule that the absence of a particular party or name on a voting ballot cannot by itself lead to a finding of a violation of Article 3 of Protocol No.\u00a01 to the Convention for an allegedly frustrated voter, even where the procedure for the disqualification raises issues under this provision. In other words, a breach of the right to stand for elections for a political party or a candidate does not necessarily result in a violation of the rights of a voter who had intended to cast his ballot for that political actor. A situation such as the fourth applicant complains of could give rise to a finding of a violation of Article 3 of Protocol No. 1 to the Convention only if the restrictions on the free expression of the will of the people had been so serious as to have effectively curbed the very essence of the right in question.","elements":[]},{"content":"88.\u00a0\u00a0It is inevitable that by placing barriers aimed at excluding certain parties or candidates from elections the State limits the range of choices for the voter. However, that in itself does not necessarily lead to a finding of a violation of the provision in question. Given the wide margin of appreciation accorded to the States in moulding their democratic institutions, various restrictions of that kind have been found to be permissible, even though as a result they limited voters\u2019 choice. By means of comparison, the Court has previously rejected complaints about alleged violations of the right to free elections resulting from restrictions on the voting of nationals residing abroad for independent candidates, while in-country nationals could vote both for parties and for independents (see Oran v. Turkey, nos.\u00a028881/07 and 37920/07, \u00a7\u00a7 66-67, 15 April 2014); refusing to lower the registration criteria for minority parties (see Partei Die Friesen v. Germany, no. 65480/10, \u00a7 43, 28 January 2016), or excluding certain candidates on account of their political affiliation or other status (see \u017ddanoka, cited above).","elements":[]},{"content":"89.\u00a0\u00a0In so far as the fourth applicant claims that the political spectrum of the parties present during the elections of October 2006 was so narrow that it had the effect of denying her the possibility to express her electoral will altogether, the Court notes that the elections were contested by seven parties. They pursued a number of different political programs and enjoyed a varying rate of success among the voters. Without any particularly weighty evidence to the contrary, that appears to be sufficient grounds to accept the view that the applicant had a reasonable possibility to give her vote to one of the political forces present at the elections, or to choose an available means of expressing her dissatisfaction with the choice, as she claimed she did by rendering her ballot paper invalid. The absence of a formal possibility to vote against all candidates or to add candidates to the ballot could also not be seen as an absence of an electoral choice.","elements":[]},{"content":"90.\u00a0\u00a0In those circumstances, the Court finds that there has been no violation of the fourth applicant\u2019s right guaranteed under Article 3 of Protocol No. 1 to the Convention.","elements":[]}]}]}]},{"content":"III.\u00a0\u00a0ALLEGED VIOLATIONS OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 3 OF PROTOCOL No. 1 AND OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION","elements":[{"content":"91.\u00a0\u00a0The applicants complained of a violation of Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention in that they had been discriminated against in comparison with other political parties. They also alleged that the lack of a refund of the electoral deposit constituted a breach of Article 1 of Protocol No. 1 to the Convention.","elements":[]},{"content":"92.\u00a0\u00a0However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.","elements":[]}]},{"content":"IV.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION","elements":[{"content":"93.\u00a0\u00a0Article 41 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"94.\u00a0\u00a0The applicants did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award them any sum on that account.","elements":[]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT, UNANIMOUSLY,","elements":[{"content":"1.\u00a0\u00a0Declares the complaints lodged by the first, third and fourth applicants under Article 3 of Protocol No. 1 to the Convention admissible and the remainder of the application inadmissible;","elements":[]},{"content":"2.\u00a0\u00a0Holds that there has been a violation of Article 3 of Protocol No. 1 to the Convention in respect of the first and the third applicants;","elements":[]},{"content":"3.\u00a0\u00a0Holds that there has been no violation of Article 3 of Protocol No. 1 to the Convention in respect of the fourth applicant.","elements":[]},{"content":"Done in English, and notified in writing on 8 November 2016, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.","elements":[]}],"section_name":"conclusion"}] !=Q 33'- 001-175680CASE OF SKLYAR v. RUSSIACHAMBERECLI:CE:ECHR:2017:0718JUD00454981145498/112017-07-18 00:00:002017-07-18 00:00:00ENGThird SectionCourt1949.88940429688RUS38[[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in an application (no. 45498/11) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Russian national, Mr Sergey Viktorovich Sklyar, on 13 June 2011.","elements":[]},{"content":"2.\u00a0\u00a0The applicant was represented by Ms. E. Efremova, a lawyer practising in Moscow. On 4 June 2013 the applicant was granted legal aid.","elements":[]},{"content":"3.\u00a0\u00a0The Russian Government (\"the Government\") were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.","elements":[]},{"content":"4.\u00a0\u00a0The applicant complained that he had not been provided with a legalaid lawyer during the appeal proceedings in his criminal case and that the conditions of his detention in the correctional colony where he was serving his sentence were inhuman and degrading.","elements":[]},{"content":"5.\u00a0\u00a0On 20 November 2012 the application was communicated to the Government.","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE","elements":[{"content":"6.\u00a0\u00a0The applicant was born in 1975 and lived in Novosibirsk before his arrest.","elements":[]},{"content":"7.\u00a0\u00a0On 12 November 2010 the Kalininskiy District Court of Novosibirsk convicted the applicant of aggravated theft and armed robbery and sentenced him to nine years\u2019 imprisonment. The applicant was represented by a lawyer in these proceedings.","elements":[]},{"content":"8.\u00a0\u00a0On 24 January 2011 an appeal brought by the applicant himself was examined by the Novosibirsk Regional Court in the absence of counsel. The appeal court upheld the applicant\u2019s conviction.","elements":[]},{"content":"9.\u00a0\u00a0The applicant has been serving his sentence in IK-8 in Novosibirsk since 10 February 2011.","elements":[]},{"content":"10.\u00a0\u00a0As regards the conditions of the applicant\u2019s detention in the IK-8 facility, the Government submitted information which can be summarised as follows:","elements":[]},{"content":"11.\u00a0\u00a0The Government also submitted that all the units where the applicant had been detained had had a sufficient number of sleeping places for all the detainees, they had been ventilated through openings in the windows and had had access to cold water in accordance with up to date sanitary standards. The units were equipped with ten to fifteen kettles to boil water and tanks containing potable water. All the lavatories had individual cabins with doors that were one and a half metres high, opening to the outside. They submitted photographs of the washbasins and lavatories.","elements":[]},{"content":"12.\u00a0\u00a0The applicant acknowledged that he had an individual sleeping place. However, he underlined that the conditions he had to live in were cramped. He further submitted that the units had no access to natural light or had poor artificial lighting, that the ventilation did not work and that the air was damp. The food he was provided was not in accordance with the special diet prescribed for him. Furthermore, inmates with tubercu4  ?IQ 33'- 001-79133CASE OF OBERWALDER v. SLOVENIACHAMBERECLI:CE:ECHR:2007:0118JUD00755670175567/012007-01-18 00:00:002007-01-18 00:00:00ENGThird SectionCourt571.727294921875SVN431s[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in an application (no. 75567/01) against the lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by three Slovenian nationals, Mr Jo\u017ee Oberwalder, Mr\u00a0Jo\u017ee Oberwalder junior (\u201cjr.\u201d) and Mr Andrej Oberwalder (\u201cthe applicants\u201d), on 10 February 2000.","elements":[]},{"content":"2.\u00a0\u00a0The Slovenian Government (\u201cthe Government\u201d) were represented by their Agent, Mr L. Bembi\u010d, State Attorney-General.","elements":[]},{"content":"3.\u00a0\u00a0The applicants alleged inter alia under Article 6 \u00a7 1 of the Convention that the length of the civil proceedings before the domestic courts to which they were a party was excessive.","elements":[]},{"content":"4.\u00a0\u00a0On 24 March 2005 the Court decided to communicate the complaint concerning the length of the second set of proceedings to the Government and to declare the remainder of the application inadmissible. Under Article\u00a029 \u00a7 3 of the Convention, it decided to examine the merits of the remaining complaint at the same time as its admissibility.","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"5.\u00a0\u00a0The applicants were born in 1931, 1959 and 1967 respectively and live in Dom\u017eale.","elements":[]},{"content":"6.\u00a0\u00a0The facts of the case, as submitted by the parties, may bQM!Q 33'+ O001-168352CASE OF YABLOKO RUSSIAN UNITED DEMOCRATIC PARTY AND OTHERS v. RUSSIACHAMBERECLI:CE:ECHR:2016:1108JUD00188600718860/072016-11-08 00:00:002016-11-08 00:00:00ENGThird SectionCourt1677.8408203125RUS38S[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in an application (no. 18860/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by the Karelian regional division of the Yabloko Russian United Democratic Party, a political party registered under the laws of the Russian Federation (\u201cthe applicant party\u201d) and three Russian nationals residing in the Republic of Karelia: Ms Irina Vladimirovna Petelyayeva (born in 1959), the chairwoman of the applicant party (\u201cthe second applicant\u201d), Mr Aleksandr Ilyich Klimchuk (born in 1949) and Ms Kseniya Vladimirovna Fillipenkova (born in 1981), members of the applicant party (\u201cthe third and fourt9Re summarised as follows.","elements":[]},{"content":"7.\u00a0\u00a0On 8 July 1970 and 11 March 1971 respectively, four plots of land were sold to the Municipality by H.O., the late wife of the first applicant J.O. and the mother of the second and third applicants, J.O. jr. and A.O.","elements":[]},{"content":"8.\u00a0\u00a0On 5 July 1973 and 4 June 1974, respectively, three plots of land were sold to the Municipality by the second applicant (J.O. jr.) and his brother (A.O.), the third applicant.","elements":[]},{"content":"9.\u00a0\u00a0On 23 November 1973 and 10 September 1976 two plots of land were sold to the Municipality by J.O.","elements":[]},{"content":"10.\u00a0\u00a0On 6 May 1992 the applicants lodged a request for the return of nine plots of land with the Dom\u017eale Administrative Unit on the basis of the 1991\u00a0Denationalisation Act, claiming that they had signed the contracts of sale under duress which was tantamount to expropriation.","elements":[]},{"content":"11.\u00a0\u00a0On 7 June 1993 the Administrative Unit transferred their request to the (Okrajno sodi\u0161\u010de v Dom\u017ealah) as the competent authority.","elements":[]},{"content":"12.\u00a0\u00a0On 13 July 1994 a hearing was held. The court requested the applicants to complete their request and submit further documents.","elements":[]},{"content":"13.\u00a0\u00a0On 28 September and 29 November 1994, 16 February 1995, 23\u00a0March, 23 May and 17 July 1995 the court sent a letter to the applicants' lawyer, reiterating its request. The court also informed the new lawyer representing the applicants that it had received no reply.","elements":[]},{"content":"14.\u00a0\u00a0On 18 September 1997 the court summoned the applicants to complete their request within 30 days, or else it would reject it or consider it withdrawn.","elements":[]},{"content":"15.\u00a0\u00a0On 3 November 1997 the applicants filed the requested document through their representative and enlarged their claim, directing it also against the Slovenian Compensation Corporation (the \u201cSCC\u201d). On 20\u00a0January 1998 the latter replied to the applicants.","elements":[]},{"content":"16.\u00a0\u00a0Further to their reply, on 10 December 1998, 11 February and 26\u00a0April 1999 the court requested the lawyer to submit further documents.","elements":[]},{"content":"17.\u00a0\u00a0On 14 May 1999 the applicants through their representative filed the requested documents which were forwarded to the SCC. The latter replied on 5 July 1999.","elements":[]},{"content":"18.\u00a0\u00a0On 7 February 2001 the applicants specified the amount of compensation claimed.","elements":[]},{"content":"On 14 February 2001 a hearing was held. Since some of the requested documents were still missing, the applicants' representative obliged himself to reply to the SCC's statements.","elements":[]},{"content":"19.\u00a0\u00a0On 20 February 2001 the filed a reply.","elements":[]},{"content":"On 14 September 2001, further to the court's additional request, the applicants' representative filed submissions.","elements":[]},{"content":"20.\u00a0\u00a0On 13 December 2001, after a hearing, the rejected the claim.","elements":[]},{"content":"21.\u00a0\u00a0On 28 January 2001 the applicants lodged an appeal with the (Vi\u0161je sodi\u0161\u010de).","elements":[]},{"content":"22.\u00a0\u00a0On 15 January 2003 the rejected their appeal. On 6 February 2003 the decision was served on the applicants. That decision became final.","elements":[]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION","elements":[{"content":"23.\u00a0\u00a0The applicants complained about the excessive length of the civil proceedings. They relied on Article 6 \u00a7 1 of the Convention, which reads as follows:","elements":[]},{"content":"\u201cIn the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...\u201d","elements":[]},{"content":"A.\u00a0\u00a0AdmissiSbility","elements":[{"content":"24.\u00a0\u00a0The Government pleaded non-exhaustion of domestic remedies.","elements":[]},{"content":"25.\u00a0\u00a0The applicants contested that argument, claiming that the remedies available were not effective.","elements":[]},{"content":"26.\u00a0\u00a0The Court notes that the present application is similar to the cases of Belinger and Lukenda (see Belinger v. Slovenia (dec.), no. 42320/98, 2\u00a0October 2001 and Lukenda v. Slovenia, no. 23032/02, 6 October 2005). In those cases the Court dismissed the Government's objection of non-exhaustion of domestic remedies because it found that the legal remedies at the applicants' disposal were ineffective. The Court recalls its findings in the Lukenda judgment that the violation of the right to a trial within a reasonable time is a systemic problem resulting from inadequate legislation and inefficiency in the administration of justice.","elements":[]},{"content":"27.\u00a0\u00a0As regards the instant case, the Court finds that the Government have not submitted any convincing arguments which would require the Court to distinguish it from its established case-law.","elements":[]},{"content":"28.\u00a0\u00a0The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]}]},{"content":"B.\u00a0\u00a0Merits","elements":[{"content":"1.\u00a0\u00a0Article 6 \u00a7 1","elements":[{"content":"29.\u00a0\u00a0The period to be taken into consideration began on 28 June 1994, the day when the Convention entered into force with respect to , and ended on 6 February 2003, the day the 's decision was served on the applicants. It therefore lasted about 8 years and 7 months for 2 levels of jurisdiction.","elements":[]},{"content":"30.\u00a0\u00a0The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, \u00a7 43, ECHR 2000-VII).","elements":[]},{"content":"31.\u00a0\u00a0In the Government's view, the proceedings at stake were rather complex, since denationalisation claims are professionally demanding for a judge. The applicants themselves also contributed to their complexity, course and duration because they belatedly replied to the court's requests to submit the documents. In addition, in 1998 they enlarged their claim. The domestic courts could not be reproached negligence in dealing with the proceedings in question. Moreover, the second-instance judge treated the case with priority. Delays in examining the case occurred primarily for the reasons for which the applicants were responsible. The Government contend that a decision on the restitution of ownership rights is undoubtedly of great importance to the applicants. However, they should have exercised their procedural rights with greater care","elements":[]},{"content":"32.\u00a0\u00a0The applicants contested those arguments.","elements":[]},{"content":"33. The Court notes that the period after 28 June 1994, when the Convention entered into force for , until 3 November 1997 when the applicants finally replied to the court's repeated requests is entirely incumbent on the applicants. Similarly, the periods between 10\u00a0December\u00a01998 and 14 May 1999 and between 14 February and 14\u00a0September 2001 are also attributable to the applicants. Therefore, the period which could be attributed to the domestic courts amounts to approximately 4 years and 2 months.","elements":[]},{"content":"34.\u00a0\u00a0Nevertheless, having examined all the material submitted to it, and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the \u201creasonable-time\u201d requirement.","elements":[]},{"content":"35.\u00a0\u00a0There has accordingly been a breach of Article 6 \u00a7 1.","elements":[]}]}]}]},{"content":"II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION","elements":[{"content":"36.\u00a0\u00a0Article 41 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Damage","elements":[{"content":"37.\u00a0\u00a0The applicants claimed non-pecuniary damage for the suffering sustained in the course of the proceedings, but left the matter to the Court's discretion.","elements":[]},{"content":"38.\u00a0\u00a0In addition, they claimed compensation for the material loss amounting to 57,200 DEM, which would be the value of the bonds of the Slovenian Compensation Corporation for the expropriated land, plus the interest, in respect of non-pecuniary damage.","elements":[]},{"content":"39.\u00a0\u00a0The Government contested these claims.","elements":[]},{"content":"40.\u00a0The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand,\u00a0the Court considers that the applicants must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards them EUR\u00a02,000 under that head.","elements":[]}]},{"content":"B.\u00a0\u00a0Costs and expenses","elements":[{"content":"41.\u00a0\u00a0The applicants also claimed reimbursement of the costs of their attorney, without specifying the amount.","elements":[]},{"content":"42.\u00a0\u00a0The Government contested their claim.","elements":[]},{"content":"43.\u00a0\u00a0According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. Accordingly, in the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicants the sum of EUR 200 for the proceedings before the Court.","elements":[]}]},{"content":"C.\u00a0\u00a0Default interest","elements":[{"content":"44.\u00a0\u00a0The 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.","elements":[]}]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT UNANIMOUSLY","elements":[{"content":"1.\u00a0\u00a0Declares the remainder of the application admissible;","elements":[]},{"content":"2.\u00a0\u00a0Holds that there has been a violation of Article 6 \u00a7 1 of the Convention;","elements":[]},{"content":"3.\u00a0\u00a0Holds","elements":[]},{"content":"(a)\u00a0\u00a0that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage and EUR 200 (two hundred euros) in respect of costs and expenses, plus any tax that may be chargeable;","elements":[]},{"content":"(b)\u00a0\u00a0that 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;","elements":[]},{"content":"4.\u00a0\u00a0Dismisses the remainder of the applicants' claim for just satisfaction.","elements":[]},{"content":"Done in English, and notified in writing on 18 January 2007 pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.","elements":[]}],"section_name":"conclusion"}]Uof the decision in his case. The police informed the Uzbekistani authorities of the applicant\u2019s arrest. On the same day they received a copy of the arrest order of 16\u00a0September 2010 and documents confirming that the applicant had been put on the wanted persons\u2019 list.","elements":[]},{"content":"12.\u00a0\u00a0On 4\u00a0February 2011 the Izmailovskiy District Court of Moscow authorised the applicant\u2019s detention pending extradition. The applicant was also advised of his right to appeal against the extension of his detention within three days of the adoption of the relevant decision. In particular, the court noted as follows:","elements":[]},{"content":"\u201cHaving heard the parties to the proceedings, and having studied the extradition materials submitted in respect of [the applicant], the court finds that the [prosecutor\u2019s] request should be granted. The court has established that [the applicant\u2019s] detention is lawful and justified under international treaties and the Russian Code of Criminal Procedure. [The applicant\u2019s] name is on the wanted persons\u2019 list in connection with a crime he committed in the . He has not been recognised as a refugee. Nor have any other circumstances preventing [the applicant\u2019s] extradition been identified.","elements":[]},{"content":"The court has received a decision by the dated 16\u00a0September 2010 authorising the [applicant\u2019s] remand in custody which mentions that [the applicant] has absconded.","elements":[]},{"content":"Regard being had to the fact that the documents submitted to the court are in compliance with the requirements set forth in the rules of criminal procedure, the court finds that the [prosecutor\u2019s] request should be granted. In view of the evidence submitted (the documents from the Republic of Uzbekistan) confirming that [the applicant] was charged with serious offences ... that his name was on the wanted persons\u2019 list and that he had been remanded in custody, the court believes that if released, [the applicant] might continue his criminal activities or abscond, or otherwise interfere with administration of justice.\u201d","elements":[]},{"content":"13.\u00a0\u00a0On 5\u00a0February 2011 the applicant lodged an appeal against the decision of 4\u00a0February 2011. He addressed it to the Moscow City Court, which received it on 21\u00a0February 2011. On 22\u00a0February 2011 the City Court forwarded the applicant\u2019s appeal to the District Court for processing. The District Court received the appeal statement on 28\u00a0February 2011. On 1\u00a0March 2011 the District Court fixed the appeal hearing for 16\u00a0March 2011 and informed the applicant and his counsel accordingly.","elements":[]},{"content":"14.\u00a0\u00a0On 11\u00a0March 2011 the General Prosecutor\u2019s Office of the requested the applicant\u2019s extradition.","elements":[]},{"content":"15.\u00a0\u00a0On 16\u00a0March 2011 the Moscow City Court upheld the decision of 4\u00a0February 2011 on appeal.","elements":[]},{"content":"16.\u00a0\u00a0On 24\u00a0March 2011 the District Court extended the applicant\u2019s detention until 3\u00a0August 2011, noting as follows:","elements":[]},{"content":"\u201c[The applicant\u2019s] detention should be extended given that he is charged with [serious offences] committed on the territory of the .","elements":[]},{"content":"These offences ... carry a custodial sentence exceeding one year. [The applicant] is not a refugee. There are no circumstances preventing his extradition [to ].","elements":[]},{"content":"Regard being had to the above, the court finds that the request should be granted given that the information in respect of the [applicant\u2019s] character leads the court to consider that, if released, he might abscond or interfere with the establishment of the truth.","elements":[]},{"content":"The court takes into account that the applicant\u2019s remand in custody was lawful and justified. There are no new circumstances in favour of its change or annulment.\u201d","elements":[]},{"content":"17.\Vu00a0\u00a0On 3\u00a0August 2011 the Izmailovskiy Inter-District Prosecutor ordered the applicant\u2019s release on account of the expiry of the maximum period of detention pending extradition and under his undertaking not to abscond. On the same day he was arrested for his alleged failure to comply with the administrative rules governing residence of foreigners in .","elements":[]},{"content":"18.\u00a0\u00a0On 17\u00a0August 2011 the General Prosecutor\u2019s Office of the Russian\u00a0Federation gave a decision refusing to extradite the applicant to .","elements":[]}]},{"content":"C.\u00a0\u00a0Arrest and detention with view to expulsion","elements":[{"content":"19.\u00a0\u00a0On 5\u00a0August 2011 the District Court found the applicant\u2019s stay in to be in contravention of the Russian Administrative Code and ordered his expulsion. The applicant was to remain in custody pending the execution of the judgment. The applicant appealed.","elements":[]},{"content":"20.\u00a0\u00a0On 14\u00a0September 2011 the City Court quashed the decision of 5\u00a0August 2011 and ordered the applicant\u2019s release.","elements":[]}]}]},{"content":"II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE","elements":[{"content":"A.\u00a0\u00a0The Russian Constitution","elements":[{"content":"21.\u00a0\u00a0The Constitution guarantees the right to liberty (Article 22):","elements":[]},{"content":"\u201c1.\u00a0\u00a0Everyone has the right to liberty and personal integrity.","elements":[]},{"content":"2.\u00a0\u00a0Arrest, placement in custody and detention are permitted only on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours.\u201d","elements":[]}]},{"content":"B.\u00a0\u00a0The European Convention on Extradition","elements":[{"content":"22.\u00a0\u00a0Article 16 of the European Convention on Extradition of 13\u00a0December 1957 (CETS no. 024), to which is a party, provides as follows:","elements":[]},{"content":"\u201c1.\u00a0\u00a0In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law.","elements":[]},{"content":"...","elements":[]},{"content":"4.\u00a0\u00a0Provisional arrest may be terminated if, within eighteen days of arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed forty days from the date of that arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.\u201d","elements":[]}]},{"content":"C.\u00a0\u00a0The 1993 Convention","elements":[{"content":"23.\u00a0\u00a0The CIS Convention on legal aid and legal relations in civil, family and criminal matters (the 1993 Minsk Convention), to which both Russia and are parties, provides that a request for extradition must be accompanied by a detention order (Article 58 \u00a7 2).","elements":[]},{"content":"24.\u00a0\u00a0A person whose extradition is sought may be arrested before receipt of the request for his or her extradition. In such cases a special request for arrest, containing a reference to the detention order and indicating that a request for extradition will follow, must be sent. A person may also be arrested in the absence of such a request if there are reasons to suspect that he or she has committed, on the territory of the other Contracting Party, an extraditable offence. The other Contracting Party must be immediately informed of the arrest (Article 61).","elements":[]},{"content":"25.\u00a0\u00a0A person arrested under Article 61 must be released if no request for extradition is received within forty days of the arrest (Article 62 \u00a7 1).","elements":[]}]},{"content":"D.\u00a0\u00a0The Code of Criminal Procedure (the \u201cCCrP\u201d)","elements":[{"content":"26.\u00a0\u00a0Chapter 13W of the Russian Code of Criminal Procedure (\u201cPreventive Measures\u201d) governs the use of preventive measures (\u043c\u0435\u0440\u044b \u043f\u0440\u0435\u0441\u0435\u0447\u0435\u043d\u0438\u044f), which include, in particular, placement in custody. Custody may be ordered by a court on an application by an investigator or a prosecutor if the person is charged with an offence carrying a sentence of at least two years\u2019 imprisonment, provided that a less restrictive preventive measure cannot be used (Article 108 \u00a7\u00a7 1 and 3). The period of detention pending investigation may not exceed two months (Article 109 \u00a7 1). A judge may extend that period to six months (Article 109 \u00a7 2). Further extensions to twelve months, or in exceptional circumstances eighteen months, may be granted only if the person is charged with serious or particularly serious criminal offences (Article 109 \u00a7 3). Beyond eighteen months no extension is permissible and the detainee must be released immediately (Article 109 \u00a7 4). The detention order is amenable to appeal within three days following its adoption (Article\u00a0108\u00a0\u00a7\u00a011). The statement of appeal must be lodged with the court which delivered the decision subject to appeal (Article\u00a0355\u00a0\u00a7\u00a01).","elements":[]},{"content":"27.\u00a0\u00a0Chapter 54 (\u201cExtradition of a person for criminal prosecution or execution of sentence\u201d) regulates extradition procedures. On receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, a prosecutor must decide on the preventive measure to be applied to the person whose extradition is sought. The measure must be applied in accordance with the established procedure (Article 466 \u00a7 1). A person who has been granted asylum in because of possible political persecution in the State seeking his extradition may not be extradited to that State (Article 464 \u00a7 1 (2)).","elements":[]},{"content":"28.\u00a0\u00a0An extradition decision made by the Prosecutor General may be challenged before a court. Issues of guilt or innocence are not within the scope of judicial review, which is limited to an assessment of whether the extradition order was made in accordance with the procedure set out in the relevant international and domestic law (Article 463 \u00a7\u00a7 1 and 6).","elements":[]}]},{"content":"E.\u00a0\u00a0Ruling no.\u00a022 of 29 October 2009 by the Supreme Court of the ","elements":[{"content":"29.\u00a0\u00a0Ruling No.\u00a022, adopted by the Plenary Session of the Supreme Court of the Russian Federation on 29 October 2009 (\u201cthe directive decision of 29\u00a0October 2009\u201d), stated that, pursuant to Article 466 \u00a7 1 of the CCrP, only a court could order the placement in custody of a person in respect of whom an extradition request was pending and the authorities of the country requesting extradition had not submitted a court decision to place him or her in custody. The judicial authorisation of placement in custody in that situation was to be carried out in accordance with Article 108 of the CCrP and following a prosecutor\u2019s request to place that person in custody. In deciding to remand a person in custody, a court was to examine if there existed factual and legal grounds for applying that preventive measure. If the extradition request was accompanied by a detention order of a foreign court, a prosecutor could remand the person in custody without a Russian court\u2019s authorisation (Article 466 \u00a7 2 of the CCrP) for a period not exceeding two months, and the prosecutor\u2019s decision could be challenged in the courts under Article 125 of the CCrP. In extending a person\u2019s detention with a view to extradition a court was to apply Article 109 of the CCrP.","elements":[]}]},{"content":"F.\u00a0\u00a0Ruling no. 245-O-O of 20 March 2008 by the Constitutional Court of the ","elements":[{"content":"30.\u00a0\u00a0In ruling no.\u00a0245-O-O of 20 March 2008, the Constitutional Court of the Russian Federation noted tXhat it had reiterated on several occasions (rulings nos. 14-P, 4-P, 417-O and 330-O of 13 June 1996, 22 March 2005, 4 December 2003 and 12 July 2005 respectively) that a court, when taking a decision under Articles 100, 108, 109 and 255 of the Russian Code of Criminal Procedure on the placement of an individual into detention or on the extension of a period of an individual\u2019s detention, was under an obligation, inter alia, to calculate and specify a time-limit for such detention.","elements":[]}]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION","elements":[{"content":"31.\u00a0\u00a0The applicant complained that, because of his religious beliefs, his extradition/expulsion to would expose him to a real risk of torture and ill-treatment in contravention of Article 3 of the Convention, which reads as follows:","elements":[]},{"content":"\u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d","elements":[]},{"content":"32.\u00a0\u00a0The Government contested that argument. With reference to the General Prosecutor\u2019s decision of 17\u00a0August 2011 refusing the applicant\u2019s extradition to , they considered that the applicant was not at any risk of ill-treatment.","elements":[]},{"content":"33.\u00a0\u00a0The applicant considered that the Russian authorities had failed to duly consider his claim and that he continued to be exposed to a risk of illtreatment in the event of his extradition or expulsion to .","elements":[]},{"content":"34.\u00a0\u00a0The Court notes that on 17\u00a0August 2011 the Prosecutor General of the Russian Federation refused the request for the applicant\u2019s extradition to . It further notes that on 14\u00a0September 2011 the City Court quashed the lower court\u2019s decision ordering the applicant\u2019s arrest with a view to expulsion, and ordered his release.","elements":[]},{"content":"35.\u00a0\u00a0It appears that the above-mentioned decisions remain in effect at present, and that the applicant is no longer subject to an extradition or expulsion order which can be executed. Thus, it must be concluded that the factual and legal circumstances which were at the heart of the applicant\u2019s grievance before the Court are no longer operative. Therefore, the Court considers that the applicant is no longer subjected to the risk of removal to and, accordingly, is no longer at risk of treatment in breach of Article 3 of the Convention.","elements":[]},{"content":"36.\u00a0\u00a0It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.","elements":[]},{"content":"37.\u00a0\u00a0The above findings do not prevent the applicant from lodging a new application before the Court and from making use of the available procedures, including the one under Rule 39 of the Rules of Court, in respect of any new circumstances, in compliance with the requirements of Articles 34 and 35 of the Convention (see Dobrov v. Ukraine (dec.), no.\u00a042409/09, 14 June 2011).","elements":[]}]},{"content":"II.\u00a0\u00a0RULE 39 OF THE RULES OF COURT","elements":[{"content":"38.\u00a0\u00a0The Court considers that the interim measure indicated to the Government under Rule 39 of the Rules of Court (see paragraph 3 above) must be lifted.","elements":[]}]},{"content":"III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE\u00a05\u00a0\u00a7\u00a01 OF THE CONVENTION","elements":[{"content":"39.\u00a0\u00a0The applicant complained that his remand in custody on 4\u00a0February 2011 and the extension of his detention pending extradition on 24\u00a0March 2011 had not been lawful. In particular, he submitted that the court order of 4\u00a0February 2011 had failed to specify a time-limit for his detention pending extradition, and that the subsequent extension of his detention had not rectified the situation. He relied on Article\u00a05\u00a0\u00a7\u00a01\u00a0(f), which reads as follows:","elementYs":[]},{"content":"\u201c1.\u00a0\u00a0Everyone 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:","elements":[]},{"content":"...","elements":[]},{"content":"(f)\u00a0\u00a0the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.\u201d","elements":[]},{"content":"40.\u00a0\u00a0The Government considered that the applicant\u2019s detention pending extradition had been carried out in strict compliance with the law. The applicant\u2019s detention and its extension had been duly authorised by the court orders of 4\u00a0February and 24\u00a0March 2011 respectively. The applicant had been represented by counsel and advised of his rights. In their view, initially the applicant had been remanded in custody for two months and his detention had subsequently been extended for another four months, that is, in strict compliance with the procedure prescribed by domestic law, in particular Article\u00a0109\u00a0\u00a7\u00a01 of the Code of Criminal Procedure. As regards the extension of the applicant\u2019s detention on 24\u00a0March 2011, the Government pointed out that the applicant had not appealed against the relevant court order and, accordingly, had failed to exhaust the effective domestic remedies, as required by Article\u00a035\u00a0\u00a7\u00a01 of the Convention.","elements":[]},{"content":"41.\u00a0\u00a0The applicant maintained that his detention had not been in accordance with the procedure set out in domestic law.","elements":[]},{"content":"A.\u00a0\u00a0Admissibility","elements":[{"content":"1.\u00a0\u00a0Detention from 4\u00a0February to 24\u00a0March 2011","elements":[{"content":"42.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]}]},{"content":"2.\u00a0\u00a0Detention from 24\u00a0March to 3\u00a0August 2011","elements":[{"content":"43.\u00a0\u00a0As regards the Government\u2019s argument that the applicant failed to exhaust effective domestic remedies in respect of his detention from 24\u00a0March to 3\u00a0August 2011, that is, he did not appeal against the court order of 24\u00a0March 2011, the Court reiterates that the rule of exhaustion of domestic remedies obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. The rule is based on the assumption that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Handyside v. the United Kingdom, 7 December 1976, \u00a7 48, Series A no.\u00a024). At the same time, it is incumbent on the Government claiming nonexhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, capable of providing redress in respect of the applicant\u2019s complaints and offered reasonable prospects of success (see Selmouni v.\u00a0France [GC], no. 25803/94, \u00a7 76, ECHR 1999-V, and Mifsud v. France (dec.), no. 57220/00, \u00a7 15, ECHR 2002-VIII).","elements":[]},{"content":"44.\u00a0\u00a0Turning to the circumstances of the present case, the Court observes that, unlike in some other previous Russian cases concerning detention with a view to extradition (see, for example, Dzhurayev v. , no. 38124/07, \u00a7\u00a068, 17 December 2009), the applicant\u2019s detention was ordered by a RussiaZn court rather than a foreign court or a non-judicial authority. The applicant was represented by professional counsel whose competence was not questioned by the applicant either in the domestic proceedings or before the Court. Both the applicant and his counsel were advised of the right to appeal against the court order extending the applicant\u2019s detention.","elements":[]},{"content":"45.\u00a0\u00a0The Court also notes that the general procedure governing the lodging and consideration of appeals against detention orders is clearly defined in domestic law and that the applicant did not claim otherwise. The Court further notes that the applicant, indeed, followed the prescribed procedure and appealed against the initial detention order of 4\u00a0February 2011. He did not furnish any argument as to why he did not do so in respect of the second detention order of 24\u00a0March 2011.","elements":[]},{"content":"46.\u00a0\u00a0Having regard to the above, the Court accepts the Government\u2019s objection that the applicant did not appeal against the court order of 24\u00a0March 2011 and therefore did not afford the Russian authorities an opportunity to address the issue and, if appropriate, remedy the situation.","elements":[]},{"content":"47.\u00a0\u00a0It follows that this part of the application must be rejected for nonexhaustion of domestic remedies pursuant to Article\u00a035\u00a0\u00a7\u00a7\u00a01 and 4 of the Convention.","elements":[]}]}]},{"content":"B.\u00a0\u00a0Merits","elements":[{"content":"1.\u00a0\u00a0General principles","elements":[{"content":"48.\u00a0\u00a0The Court reiterates at the outset that Article 5 enshrines a fundamental human right, namely, the protection of the individual against arbitrary interference by the State with his or her right to liberty (see Aksoy v. Turkey, 18 December 1996, \u00a7 76, Reports of Judgments and Decisions 1996-VI). The text of Article 5 makes it clear that the guarantees it contains apply to \u201ceveryone\u201d (see A. and Others v. the United Kingdom [GC], no.\u00a03455/05, \u00a7 162, ECHR 2009). Sub-paragraphs (a) to (f) of Article 5 \u00a7 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (ibid, \u00a7 163).","elements":[]},{"content":"49.\u00a0\u00a0The Court also reiterates that the expressions \u201clawful\u201d and \u201cin accordance with a procedure prescribed by law\u201d in Article 5 \u00a7 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. It is in the first place for the national authorities, and notably the courts, to interpret domestic law, and in particular, rules of a procedural nature (see Toshev v. Bulgaria, no.\u00a056308/00, \u00a7 58, 10 August 2006). However, the words \u201cin accordance with a procedure prescribed by law\u201d in Article 5 \u00a7 1 do not merely refer back to domestic law; they also relate to the quality of this law, requiring it to be compatible with the rule of law, a concept inherent in all Articles of the Convention (see Stafford v. the United Kingdom [GC], no. 46295/99, \u00a7\u00a063, ECHR 2002-IV). Quality in this sense implies that where a national law authorises deprivation of liberty, it must be sufficiently accessible and precise, in order to avoid all risk of arbitrariness (see, among others, Dougoz v. Greece, no. 40907/98, \u00a7 55, ECHR 2001-II).","elements":[]}]},{"content":"2.\u00a0\u00a0Application of the principles in the present case","elements":[{"content":"50.\u00a0\u00a0Turning to the circumstances of the present case, the Court observes that on 4\u00a0February 2011 the District Court authorised the applicant\u2019s detention with a view to extradition. Its decision was subject to review by the City Court.","elements":[]},{"content":"51.\u00a0\u00a0The Court accepts that on 4\u00a0February 2011 the District Court acted within its powers in deciding to remand the applicant in custod[y pending extradition proceedings. However, the Court cannot but notice that the District Court failed to indicate a time-limit for the applicant\u2019s detention. The Government argued that a time-limit was indicated implicitly and that the applicant was to be detained for two months, that is, the maximum period of initial placement in custody provided for in Article 109 of the Russian Code of Criminal Procedure. The Court observes that this argument contradicts the interpretation of the relevant national legislation given by the Russian Constitutional Court, which has emphasised on several occasions that the national courts are under an obligation to set a time-limit when ordering an individual\u2019s placement in, or extending the period of, pre-trial detention at any stage of criminal proceedings (see paragraph 30 above). It is therefore clear that, by omitting to specify such a time-limit, the District Court failed to comply with the applicable rules of domestic criminal procedure.","elements":[]},{"content":"52.\u00a0\u00a0The Court further reiterates that defects in a detention order do not necessarily render the underlying detention as such \u201cunlawful\u201d for the purposes of Article 5 \u00a7 1; the Court has to examine whether the flaw in the order against an applicant amounted to a \u201cgross and obvious irregularity\u201d such as to render the underlying period of detention unlawful (see Mooren v. [GC], no. 11364/03, \u00a7\u00a084, 9 July 2009, and Kolevi v. Bulgaria, no. 1108/02, \u00a7 177, 5 November 2009).","elements":[]},{"content":"53.\u00a0\u00a0In the present case, the court order of 4\u00a0February 2011 was deficient because of a failure to specify the period during which the applicant\u2019s custodial measure should remain in place. The Court notes the Government\u2019s argument that the Russian Code of Criminal Procedure clearly provides that an initial period of pre-trial detention may not exceed two months. It also takes into account the fact that the applicant did not claim that he had not been aware of that provision. The Court, however, is not persuaded that the maximum time-limit provided for in Article 109 of the Russian Code of Criminal Procedure should be applied implicitly each time an individual\u2019s placement in custody is authorised by a domestic court. It is true that this period, in itself, does not appear unreasonably long and can be justified by the need for the authorities to ensure the proper conduct of various investigative actions. Nevertheless, the Court notes that the ruled that the period of one\u2019s detention should be clearly defined by a domestic court, this being an essential guarantee against arbitrariness. With this in mind, the Court considers that the absence of any specific time-limit in the District Court\u2019s decision of 4\u00a0February 2011 amounted to a \u201cgross and obvious irregularity\u201d capable of rendering the applicant\u2019s detention pursuant to that order arbitrary and therefore \u201cunlawful\u201d within the meaning of Article 5 \u00a7 1. Accordingly, there has been a violation of that provision as regards the lawfulness of the applicant\u2019s detention from 4\u00a0February to 24\u00a0March 2011.","elements":[]}]}]}]},{"content":"IV.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 5\u00a0\u00a7\u00a04 OF THE CONVENTION","elements":[{"content":"54.\u00a0\u00a0The applicant complained that he had not been able to obtain a speedy review of his detention pending extradition authorised by the court order of 4\u00a0February 2011. He relied on Article 5\u00a0\u00a7\u00a04 of the Convention, which reads as follows:","elements":[]},{"content":"\u201cEveryone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.\u201d","elements":[]},{"content":"55.\u00a0\u00a0The Government contested that argument. They submitted that the delay in the appeal proceedings was attributable to th\e applicant, who had been required to lodge his statement of appeal with the District Court. Instead, he had submitted the statement of appeal to the City Court, which had to forward it to the District Court for processing purposes.","elements":[]},{"content":"56.\u00a0\u00a0The applicant maintained his complaint. In his view, no delay in the appeal proceedings was attributable to him.","elements":[]},{"content":"A.\u00a0\u00a0Admissibility","elements":[{"content":"57.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]}]},{"content":"B.\u00a0\u00a0Merits","elements":[{"content":"58.\u00a0\u00a0The Court reiterates that Article 5 \u00a7 4 of the Convention, in guaranteeing to persons detained a right to institute proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of the detention and ordering its termination if it proves unlawful (see Baranowski v. Poland, no. 28358/95, \u00a7 68, ECHR 2000-III). The question whether the right to a speedy decision has been respected must be determined in the light of the circumstances of each case (see Rehbock v.\u00a0Slovenia, no. 29462/95, \u00a7 84, ECHR 2000-XII).","elements":[]},{"content":"59.\u00a0\u00a0Turning to the circumstances of the present case, the Court observes that on 4\u00a0February 2011 the District Court authorised the applicant\u2019s detention with a view to extradition on grounds of the gravity of the charges against him and the danger of his absconding. In the appeal lodged on 5\u00a0February 2011 the applicant contested those grounds. In the Court\u2019s opinion, this was a straightforward matter, and it has not been argued by the Government that the case in itself disclosed any complex features.","elements":[]},{"content":"60.\u00a0\u00a0The Court further observes that the appeal hearing took place on 16\u00a0March 2011, that is, thirty-nine days after the appeal was lodged. In this connection, the Court takes into account the Government\u2019s argument that the applicant contributed to a certain extent to the length of the appeal proceedings. He sent his statement of appeal to the appeal court while he was required by law to send it to the court of first instance for processing purposes. The appeal court had to resend the document to the court of first instance, which, undoubtedly, caused a delay in the scheduling and preparing of the appeal hearing. Nevertheless, despite that omission on the applicant\u2019s part, the Court is not convinced that the review of the applicant\u2019s detention was speedy. The Government have not provided any explanation as to the length of time it took for the delivery of correspondence between courts located within the boundaries of the same city. It notes that it took the authorities sixteen days on one occasion and six days on another to deliver documentation from one court to the other and back. In the Court\u2019s view, it was those delays that significantly protracted the appeal proceedings. The fact that the correspondence delivery system between the courts did not function effectively cannot serve to justify the deprivation of the applicant of his rights under Article 5 \u00a7 4 of the Convention: it is for the State to organise its judicial system in such a way as to enable its courts to comply with the requirements of that provision (see Hutchison Reid v.\u00a0the\u00a0United\u00a0Kingdom, no. 50272/99, \u00a7\u00a078, ECHR\u00a02003IV).","elements":[]},{"content":"61.\u00a0\u00a0Having regard to the above, the Court considers that the time taken to review the applicant\u2019s detention cannot be considered compatible with the \u201cspeediness\u201d requirement of Article 5 \u00a7 4. There has therefore been a violation of that provision.","elements":[]}]}]},{"content":"V.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION","elements":[{"content":"62.\u00a0\u00a0Article 41 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Damage","elements":[{"content":"63.\u00a0\u00a0The applicant claimed to have incurred non-pecuniary damage as a result of the violation of his rights set out in the Convention, leaving the amount of the award to the Court\u2019s discretion.","elements":[]},{"content":"64.\u00a0\u00a0The Government submitted that there had been no violation of the applicant\u2019s rights and considered that no award should be made to the applicant. Alternatively, they suggested that a finding of a violation would constitute in itself sufficient just satisfaction.","elements":[]},{"content":"65.\u00a0\u00a0The Court considers that the applicant must have sustained anguish and suffering resulting from his unlawful detention and the lack of a speedy review in this regard, and that this would not be adequately compensated by the finding of a violation alone. Making its assessment on an equitable basis and having regard to the particular circumstances of the case, it awards him 1,000 euros (EUR) under that head, plus any tax that may be chargeable on that amount.","elements":[]}]},{"content":"B.\u00a0\u00a0Costs and expenses","elements":[{"content":"66.\u00a0\u00a0The applicant did not submit a claim for costs and expenses. Accordingly, the Court considers that there is no call to award him any sum on that account.","elements":[]}]},{"content":"C.\u00a0\u00a0Default interest","elements":[{"content":"67.\u00a0\u00a0The 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.","elements":[]}]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT UNANIMOUSLY","elements":[{"content":"1.\u00a0\u00a0Declares the complaints concerning the lawfulness and review of the applicant\u2019s detention with a view to extradition as authorised by the court order of 4\u00a0February 2011 admissible and the remainder of the application inadmissible;","elements":[]},{"content":"2.\u00a0\u00a0Decides to lift the interim measure indicated to the Government under Rule\u00a039 of the Rules of the Court;","elements":[]},{"content":"3.\u00a0\u00a0Holds that there has been a violation of Article 5\u00a0\u00a7\u00a01 of the Convention on account of the applicant\u2019s detention from 4\u00a0February to 24\u00a0March 2011;","elements":[]},{"content":"4.\u00a0\u00a0Holds that there has been a violation of Article 5\u00a0\u00a7\u00a04 of the Convention on account of the lack of a speedy review of the applicant\u2019s detention as authorised by the court order of 4\u00a0February 2011;","elements":[]},{"content":"5.\u00a0\u00a0Holds","elements":[]},{"content":"(a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable on the date of settlement;","elements":[]},{"content":"(b)\u00a0\u00a0that 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.","elements":[]},{"content":"Done in English, and notified in writing on 16 October 2012, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.","elements":[]}],"section_name":"conclusion"}] v!CQ 33'- s001-113718CASE OF RAKHMONOV v. RUSSIACHAMBERECLI:CE:ECHR:2012:1016JUD00500311150031/112012-10-16 00:00:002012-10-16 00:00:00ENGFirst SectionCourt926.949890136719RUS38[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in an application (no. 50031/11) against the lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by an Uzbekistani national, Mr Abdusami Abdusamatovich Rakhmonov (\u201cthe applicant\u201d), on 10 August 2011.","elements":[]},{"content":"2.\u00a0\u00a0The applicant was represented by Ms R. Magomedova, a lawyer practising in . The Russian Government (\u201cthe Government\u201d) were represented by Mr G.\u00a0Matyushkin, Representative of the at the European Court of Human Rights.","elements":[]},{"content":"3.\u00a0\u00a0On 11\u00a0August 2011 the President of the First Section, acting upon a request by the applicant of 10\u00a0August 2011, decided to apply Rules\u00a039 and\u00a041 of the Rules of the Court, indicating an interim measure to the Government under which the applicant should not be extradited to Uzbekistan until further notice and granting priority to the application.","elements":[]},{"content":"4.\u00a0\u00a0On 14 November 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 \u00a7 1).","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE","elements":[{"content":"5.\u00a0\u00a0The applicant was born in 1974 and lives in .","elements":[]},{"content":"6.\u00a0\u00a0According to the applicant, on 19\u00a0July 2010 he arrived in Moscow from with a view to finding a seasonal job and marrying. He soon learnt that his brothers had been arrested and charged with participation in an extremist religious organisation. He also learnt that he was suspected by the Uzbekistani authorities of having founded an extremist religious organisation himself.","elements":[]},{"content":"A.\u00a0\u00a0Application for asylum and refugee status","elements":[{"content":"7.\u00a0\u00a0On 18\u00a0October 2010 the applicant lodged a request with the Moscow Division of the Federal Migration Service (the FMS) seeking refugee status in . On 21\u00a0January 2011 the FMS refused to grant refugee status to the applicant. The applicant appealed.","elements":[]},{"content":"8.\u00a0\u00a0On 14\u00a0April 2011 the FMS quashed the decision of 21\u00a0January 2011 and remitted the matter for fresh consideration to its division in .","elements":[]},{"content":"9.\u00a0\u00a0On 6\u00a0July 2011 the FMS refused by a de novo decision to grant the applicant refugee status. The applicant appealed. It appears that the appeal proceedings are still pending.","elements":[]}]},{"content":"B.\u00a0\u00a0Arrest and detention pending extradition","elements":[{"content":"10.\u00a0\u00a0On 16\u00a0September 2010 the Bukhara Town Court of the ordered the applicant\u2019s arrest pending the criminal investigation against him.","elements":[]},{"content":"11.\u00a0\u00a0On 3\u00a0February 2011 the applicant was arrested at the FMS\u2019s office where he had gone to receive the copy T_rs by the \u015e\u00f6len Town Council (hereafter \u201cthe Town Council\u201d) until their contracts of employment were terminated by the Town Council on 29 April 1999.","elements":[]},{"content":"7.\u00a0\u00a0On various dates in 1999 the applicants brought proceedings before the Ergani Civil Court of First Instance against the Town Council and claimed their unpaid salaries and other pecuniary rights to which they were entitled under the applicable legislation.","elements":[]},{"content":"8.\u00a0\u00a0The applicants' claims were partly accepted by the in its decisions adopted on 3 November 1999 and 30 December 1999.","elements":[]},{"content":"9.\u00a0\u00a0Between December 1999 and March 2000 the applicants initiated enforcement proceedings against the Town Council and sought to obtain the sums awarded to them by the together with statutory interest.","elements":[]},{"content":"10.\u00a0\u00a0The sums claimed by the applicants were as follows:","elements":[]},{"content":"11.\u00a0\u00a0In the course of the enforcement proceedings, the applicants unsuccessfully attempted to recover their monies from the Town Council's bank accounts at the State owned Ziraat Bank. The bank refused to make the payments on the ground that the monies deposited there by the Town Council had been allocated to a special fund earmarked for public services. Following this, the Town Council transferred all their monetary assets to the special fund to circumvent the Ergani Civil Court's decisions.","elements":[]},{"content":"12.\u00a0\u00a0At the time of the adoption of the present judgment the applicants' attempts at recovering their monies were still continuing.","elements":[]}]},{"content":"II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE","elements":[{"content":"13.\u00a0\u00a0For a summary of the relevant domestic law and practice, see Demirhan and Others v. , nos.\u00a028152/02, 28155/02 and 28156/02, \u00a7\u00a7\u00a016-18, 5\u00a0June 2007.","elements":[]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"14.\u00a0\u00a0Given the similarity of the applications, both as regards fact and law, the Court deems it appropriate to join them.","elements":[]},{"content":"I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION","elements":[{"content":"15.\u00a0\u00a0The applicants complained that the Town Council's refusal to comply with the Ergani Civil Court's decisions had deprived them of their property within the meaning of Article 1 of Protocol No. 1 to the Convention which, in so far as relevant, reads as follows:","elements":[]},{"content":"\u201cEvery natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\u201d","elements":[]},{"content":"16.\u00a0\u00a0The Government contested that argument and submitted that the reason behind the non-payment of the applicants' monies had been the financial problems faced by the Town Council. As the Ergani Civil Court's decisions remained valid, the applicants had not been deprived of their property.","elements":[]},{"content":"A.\u00a0\u00a0Admissibility","elements":[{"content":"17.\u00a0\u00a0The Government argued that the applicants had not complied with the requirement to exhaust domestic remedies because the enforcement proceedings instigated by them to recover their monies were still continuing. The Government further submitted that the applicants had failed to raise their Convention complaints, even in substance, before the domestic courts.","elements":[]},{"content":"18.\u00a0\u00a0The applicants maintained that they had complied with the requirement to exhaust domestic remedies and that their efforts at the national level were still continuing. The Town Council was doing everything in its power to circumvent the decisions of the domestic courts.","elements":[]},{"content":"19.\u00a0\u00a0The Court reiterates that a person who has obtained an `enforceable judgment against the State as a result of successful litigation cannot be required to resort to additional proceedings, such as enforcement proceedings, in order to have it executed (see Demirhan and Others, cited above, \u00a7 34; see also Metaxas v. Greece, no. 8415/02, \u00a7 19, 27 May 2004). In any event, the remedies which the applicants have been making use of since December 1999 have not been capable of offering them any prospect of success in forcing the national authorities to pay the due amounts.","elements":[]},{"content":"20.\u00a0\u00a0The Court consequently dismisses the Government's objection regarding the issue of exhaustion of domestic remedies.","elements":[]},{"content":"21.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]}]},{"content":"B.\u00a0\u00a0Merits","elements":[{"content":"22.\u00a0\u00a0The Court reiterates that a \u201cclaim\u201d can constitute a \u201cpossession\u201d within the meaning of Article 1 of Protocol No. 1 to the Convention if it is sufficiently established to be enforceable (see Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no.\u00a0301-B, \u00a7 59).","elements":[]},{"content":"23.\u00a0\u00a0The Ergani Civil Court's decisions adopted in 1999 provided the applicants with enforceable claims and, indeed, enforcement proceedings were instituted by the applicants in 1999 and 2000. It follows that the applicants' inability to have the decisions enforced constituted an interference with their right to the peaceful enjoyment of their possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 to the Convention.","elements":[]},{"content":"24.\u00a0\u00a0By failing to comply with the judgments of the , the national authorities prevented the applicants from receiving the monies to which they were entitled. The Government have not advanced any justification for this interference and the Court considers that a lack of funds cannot justify such an omission (see, mutatis mutandis, Ambruosi v. Italy, no. 31227/96, \u00a7\u00a7 28-34, 19 October 2000).","elements":[]},{"content":"25.\u00a0\u00a0It follows that there has been a violation of Article 1 of Protocol No.\u00a01 to the Convention in respect of all the applicants.","elements":[]}]}]},{"content":"II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION","elements":[{"content":"26.\u00a0\u00a0The applicants complained that the non-enforcement of the decisions of the had also given rise to a violation of Article 6 of the Convention, the relevant parts of which provide as follows:","elements":[]},{"content":"\u201cIn the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...\u201d","elements":[]},{"content":"27.\u00a0\u00a0The Government contested that argument.","elements":[]},{"content":"28.\u00a0\u00a0The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.","elements":[]},{"content":"29.\u00a0\u00a0The Court reiterates that Article 6 \u00a7 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the \u201cright to a court\u201d, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State's domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 \u00a7 1 should describe in detail procedural guarantees afforded to litigants \u2013 proceedings that are fair, public and expeditious \u2013 without protecting the implementation of judicial decisionas; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the \u201ctrial\u201d for the purposes of Article 6 (see Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, \u00a7 40).","elements":[]},{"content":"30.\u00a0\u00a0It is not open to a State authority to cite lack of funds as an excuse for not honouring a debt. Whilst a delay in the execution of a judgment may be justified in particular circumstances, it may not be such as to impair the essence of the right protected under Article\u00a06\u00a0\u00a7\u00a01 (see Immobiliare Saffi v.\u00a0Italy [GC], no. 22774/93, \u00a7 74, ECHR 1999-V). In the instant case, the applicants should not have been prevented from benefiting from the success of the litigation on the ground of alleged financial difficulties experienced by the Town Council.","elements":[]},{"content":"31.\u00a0\u00a0However, as pointed out above, the Ergani Civil Court's decisions adopted in 1999 remain wholly unenforced.","elements":[]},{"content":"32.\u00a0\u00a0In view of the above, the Court considers that, by failing for nine years to take the necessary measures to comply with the final judicial decisions in the present case, the authorities deprived the provisions of Article 6 \u00a7 1 of all useful effect.","elements":[]},{"content":"33.\u00a0\u00a0There has accordingly been a violation of Article 6 \u00a7 1 of the Convention in respect of all of the applicants.","elements":[]}]},{"content":"III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION","elements":[{"content":"34.\u00a0\u00a0Article 41 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Damage","elements":[{"content":"35.\u00a0\u00a0In respect of pecuniary damage the applicants claimed the amounts below. These amounts were converted to euros from the national currency of the respondent State on the basis of the currency exchange rate of 3 July 2008, that is the date of the applicants' submissions of their claims to the Court.","elements":[]},{"content":"36.\u00a0\u00a0According to the applicants, these sums included the amounts awarded to them by the , statutory interest, the fees of their lawyers who represented them before the domestic authorities and other expenses incurred in the domestic proceedings:","elements":[]},{"content":"Mehmet Arat: 2,322 euros (EUR)","elements":[]},{"content":"Haci Ats\u0131z: EUR 6,164","elements":[]},{"content":"Mehmet Ats\u0131z (son of Hakim): EUR 13,589","elements":[]},{"content":"Edip \u00c7elik: EUR 11,161","elements":[]},{"content":"Ramazan Alaca: EUR 10,474","elements":[]},{"content":"Erdal G\u00fcne\u015f: EUR 2,943","elements":[]},{"content":"Mehmet Ats\u0131z: EUR 9,024","elements":[]},{"content":"Mehmet Can: EUR 5,714","elements":[]},{"content":"37.\u00a0\u00a0Each applicant also claimed the sum of EUR 50,000 in respect of non-pecuniary damage.","elements":[]},{"content":"38.\u00a0\u00a0The Government contested the sums claimed by the applicants in respect of pecuniary damage, alleging that the claims were not supported with any evidence and were based on speculative calculations. They also submitted that the claims made in respect of non-pecuniary damage were excessive and baseless.","elements":[]},{"content":"39.\u00a0\u00a0The Court considers that, in accordance with its finding of a violation of Article 1 of Protocol No. 1 (see paragraph 25 above), the applicants are entitled to pecuniary damages. Bearing in mind that the applicants' complaint related to the non-payment of the monies owed to them by the Town Council, the Court considers that the payment by the Government of these outstanding amounts, together with interest applicable under domestic law for late payment, would satisfy the applicants' claims for pecuniary damage.","elements":[]},{"content":"40.\u00a0\u00a0Given its finding of a violation of Article 6 \u00a7 1 of the Convention on account of the significant period of time during which the domestic decisions remained unenforced (see paragraph 33 above), the Court considers that the applicants' prejudice cannot be sufficiently compensated by the finding of a violation alone. Taking into account the circumstances of the case and having regard to its case-law (see Demirhan and Others, cited above, \u00a7 54; Ayg\u00fcn and Others v. Turkey, no. 5325/02, 5353/02 and 27608/02, \u00a7 45, 20 November 2007; \u00c7i\u00e7ek and \u00d6ztemel and Others v.\u00a0Turkey, nos.\u00a074069/01, 74703/01, 76380/01, 16809/02, 25710/02, 25714/02 and 30383/02, \u00a7\u00a054, 3\u00a0May 2007), the Court awards each applicant EUR\u00a05,000 in respect of non-pecuniary damage.","elements":[]}]},{"content":"B.\u00a0\u00a0Costs and expenses","elements":[{"content":"41.\u00a0\u00a0Each of the eight applicants also claimed EUR 2,934 for the costs and expenses incurred before the Court. In support of their claims the applicants submitted fee agreements signed by them and their lawyers.","elements":[]},{"content":"42.\u00a0\u00a0The Government contested the claims.","elements":[]},{"content":"43.\u00a0\u00a0According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award each applicant the sum of EUR 500 covering costs under all heads.","elements":[]}]},{"content":"C.\u00a0\u00a0Default interest","elements":[{"content":"44.\u00a0\u00a0The 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.","elements":[]}]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT UNANIMOUSLY","elements":[{"content":"1.\u00a0\u00a0Decides to join the applications;","elements":[]},{"content":"2.\u00a0\u00a0Declares the applications admissible;","elements":[]},{"content":"3.\u00a0\u00a0Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;","elements":[]},{"content":"4.\u00a0\u00a0Holds that there has been a violation of Article 6 \u00a7 1 of the Convention;","elements":[]},{"content":"5.\u00a0\u00a0Holds","elements":[]},{"content":"(a)\u00a0\u00a0that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, the sums awarded to them by the Ergani Civil Court together with statutory interest applicable under domestic law for late payment. Within the same period the respondent State is also to pay each applicant the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:","elements":[]},{"content":"(b)\u00a0\u00a0that 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;","elements":[]},{"content":"6.\u00a0\u00a0Dismisses the remainder of the applicants' claim for just satisfaction.","elements":[]},{"content":"Done in English, and notified in writing on 13 January 2009, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.","elements":[]}],"section_name":"conclusion"}] ;;y!Q 33)- 7001-170351CASE OF CACUCI AND S.C. VIRRA & CONT PAD S.R.L. v. ROMANIACHAMBERECLI:CE:ECHR:2017:0117JUD00271530727153/072017-01-17 00:00:002017-01-17 00:00:00ENGFourth SectionCourt1745.80920410156ROU37[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in an application (no. 27153/07) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Romanian national, Ms Floare Cacuci (\u201cthe first applicant\u201d), and by S.C.\u00a0Virra & Cont Pad SRL (\u201cthe second applicant\u201d), a single-member private Romanian company owned by the first applicant, on 19 April 2007.","elements":[]},{"content":"2.\u00a0\u00a0The applicants were represented by Mr S.A. Kolozsi, a lawyer practising in Oradea. The Romanian Government (\u201cthe Government\u201d) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.","elements":[]},{"content":"3.\u00a0\u00a0The applicants alleged, in particular, a violation of their rights under Article\u00a08 of the Convention as regards the circumstances in which a search at the first applicant\u2019s home and the second applicant\u2019s business premises had been performed. They also claimed that they did not have an effective remedy in respect of this complaint.","elements":[]},{"content":"4.\u00a0\u00a0On 18 October 2012 this part of the application was communicated to the Government.","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE","elements":[{"content":"5.\u00a0\u00a0The first applicant, Ms Floare Cacuci, wascXMQ 33)+ /001-90583CASE OF ARAT AND OTHERSv. TURKEYCHAMBERECLI:CE:ECHR:2009:0113JUD00428940442894/04;42904/04;42905/04;42906/04;42907/04;42908/04;42909/04;42910/042009-01-13 00:00:002009-01-13 00:00:00ENGSecond SectionCourt658.45068359375TUR47Q[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in eight applications (nos. 42894/04, 42904/04, 42905/04, 42906/04, 42907/04, 42908/04, 42909/04 and 42910/04) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by eight Turkish nationals, Messrs Mehmet Arat, Haci\u00a0Ats\u0131z, Mehmet Ats\u0131z (son of Hakim), Edip \u00c7elik, Ramazan Alaca, Erdal G\u00fcne\u015f, Mehmet Ats\u0131z and Mehmet Can (\u201cthe applicants\u201d), on 6\u00a0September 2004.","elements":[]},{"content":"2.\u00a0\u00a0The applicants were represented by Mr F\u0131rat \u00dcger, a lawyer practising in . The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.","elements":[]},{"content":"3.\u00a0\u00a0The applicants alleged that the non-enforcement of a number of court decisions in their favour had given rise to a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.","elements":[]},{"content":"4.\u00a0\u00a0On 21 January 2008 the President of the Second Section decided to give notice of the applications to the Government. It was also decided to examine the merits of the applications at the same time as their admissibility (Article 29 \u00a7 3).","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE","elements":[{"content":"5.\u00a0\u00a0The applicants were born in 1975, 1970, 1972, 1967, 1963, 1972, 1961 and 1972 respectively, and live in the town of \u015e\u00f6len.","elements":[]},{"content":"6.\u00a0\u00a0The applicants were all employed as manual worke^d born on 2 March 1939 and lives in Oradea. She is an accounting expert and the owner and general manager of the second applicant, S.C. Virra & Cont Pad SRL, a singlemember company based in Oradea. Both applicants were members of the Romanian Institute of Accounting Experts and Certified Accountants (Corpul exper\u021bilor contabili \u0219i contabililor autoriza\u021bi din Rom\u00e2nia).","elements":[]},{"content":"A.\u00a0\u00a0The criminal investigation against the first applicant","elements":[{"content":"1.\u00a0\u00a0The first forensic accounting report","elements":[{"content":"6.\u00a0\u00a0On 30 July 2001 the criminal department of the Bihor County Police ordered a forensic accounting report in a criminal case it was dealing with. The first applicant was appointed to produce this report, which concerned pecuniary damage to the State budget in the sum of 22,143,258,699\u00a0Romanian\u00a0lei (ROL), allegedly caused by S.C. T.P. SRL, a private company. The first applicant\u2019s fees in relation to that expert report amounted to ROL 497,250,000.","elements":[]},{"content":"Claiming that she had not been fully paid for the report, on 25\u00a0January\u00a02004 the first applicant submitted to the county police only approximately ninety-five pages of the report, which actually consisted of more than five hundred pages. She only submitted the conclusions of the report. The annexes justifying the conclusions were thus not appended on that occasion, but at a later date (see paragraph 22 below).","elements":[]},{"content":"The first applicant alleged that, when asked by the Police to hand in the remaining pages of the report, she had replied that the report was on her computer, and that, since she had not received any payment for it, she was not able to print it, as it was extremely long.","elements":[]}]},{"content":"2.\u00a0\u00a0The second forensic accounting report","elements":[{"content":"7.\u00a0\u00a0On 25 March 2005 the first applicant, together with two\u00a0other accounting experts, was appointed by the Oradea District Court to produce a forensic accounting report in a criminal case concerning tax fraud, forgery and the use of forged documents \u2013 offences allegedly committed by two\u00a0third parties, M.G.S. and C.V.C, in their capacity as managers of two\u00a0private companies. A fourth expert, who was assisting M.G.S. and C.V.C., was also appointed to participate in producing the report.","elements":[]},{"content":"The conclusions of the report, which was submitted on 15\u00a0September\u00a02005 by the three experts and with which the assisting expert agreed, noted that no damage had been caused to the State budget by the managerial activities of M.G.S.","elements":[]},{"content":"M.G.S. and C.V.C were acquitted on 7 December 2005 by the Oradea District Court. That judgment was later upheld by the Bihor County Court on 28 May 2007 on appeal, and by the Oradea Court of Appeal on 22\u00a0May\u00a02008 in an appeal on points of law.","elements":[]}]},{"content":"3.\u00a0\u00a0The prosecutor\u2019s decision to initiate criminal proceedings in connection with the second forensic accounting report","elements":[{"content":"8.\u00a0\u00a0On 18 October 2005 the prosecutor\u2019s office attached to the Oradea District Court proposed to initiate ex officio criminal investigations against the first applicant in relation to an offence of intellectual forgery (fals intelectual, defined by Article 289 of the Criminal Code) in connection with the second forensic accounting report. The prosecutor noted that the report was based solely on documents provided by M.G.S., in spite of the fact that it stated that the district court\u2019s case file had been consulted. In the case file, there was no request from any of the experts to either consult the file or obtain copies of it. The conclusions of the report were therefore not based on all the documents on file, in spite of what the report stated.","elements":[]},{"content":"9.\u00a0\u00a0The prosecutor\u2019s proposal also concerned the two other accounting experts, who were einvestigated for the same offence as the first applicant.","elements":[]},{"content":"10.\u00a0\u00a0The proposal to initiate criminal investigations in respect of the first applicant was confirmed by the prosecutor\u2019s office on 19 October 2005.","elements":[]}]}]},{"content":"B.\u00a0\u00a0The search of the first applicant\u2019s home and the second applicant\u2019s registered office","elements":[{"content":"11.\u00a0\u00a0On 20 October 2005 the prosecutor\u2019s office attached to the Oradea District Court filed an application with the court, asking it to issue a search warrant in respect of the first applicant\u2019s home.","elements":[]},{"content":"The prosecutor argued that there was a reasonable suspicion that the applicant had committed intellectual forgery while producing the second forensic accounting report, in order to help one of the defendants, M.G.S, avoid investigation. The grounds for this suspicion were: the report\u2019s conclusions contradicted the conclusions of a previous report which had been produced by another accounting expert during the criminal investigation; the report objectives proposed by M.G.S. had most likely been copied and pasted into the report itself, the two documents having the same page settings, wording, spelling and grammar mistakes; and there was no proof that the first applicant had ever studied the case file in the court\u2019s archives or requested copies of the documents in order to produce the expert report, therefore the report was probably based solely on information provided by M.G.S.","elements":[]},{"content":"The prosecutor also stated that, in accordance with the decision of 19\u00a0October\u00a02005, a criminal investigation had already been initiated in respect of the first applicant in relation to intellectual forgery.","elements":[]},{"content":"The prosecutor further submitted that important evidence relating to the production of the second expert report \u2013 such as a computer, a printer, files and documents (whether on paper or on disc) \u2013 could be obtained from the first applicant\u2019s home.","elements":[]},{"content":"12.\u00a0\u00a0On the same day the Oradea District Court \u2013 sitting as a single\u00a0judge, Judge F.P. \u2013 allowed the prosecutor\u2019s application and issued a warrant to search the first applicant\u2019s home, with the aim of discovering evidence concerning the alleged offence of intellectual forgery. In accordance with the relevant domestic law, the decision was taken in camera, in the presence of the prosecutor and without summoning the parties.","elements":[]},{"content":"The warrant was to last three days, the court stating that the search was to be carried out in compliance with Articles 101, 103-108 and 111 of the Romanian Code of Criminal Procedure (hereafter \u201cthe RCCP\u201d \u2013 see paragraph\u00a046 below). It was formulated as follows:","elements":[]},{"content":"\u201cBased on Article 100 of the RCCP, in view of the prosecutor\u2019s application issued on 20 October 2005 and the investigative work which has been presented, namely: the minutes attesting to the decision of the prosecutor to initiate criminal investigations ex officio, confirmation of the proposal to initiate criminal investigations against Cacuci Floare in relation to the offence of intellectual forgery as set out in Article 289 of the Criminal Code, and the forensic reports included in the file, [the court] authorises that a home search (perchezi\u021bie domiciliar\u0103) be performed at the suspect\u2019s place of residence, [the suspect being] Cacuci Floare, daughter of ..., born on ..., in Oradea, ..., in the Bihor District.","elements":[]},{"content":"The search shall be performed in compliance with Articles 101, 103-108 and 111 of the RCCP.","elements":[]},{"content":"This warrant is to last three days from the day of issue.","elements":[]},{"content":"Given in camera on 20 October 2005 at 3 p.m.\u201d","elements":[]},{"content":"13.\u00a0\u00a0\u00a0According to the first applicant, on 21 October 2005, while she was in the streeft, having just left her house, she was stopped by a police officer, who told her that he had a search warrant for her home. The first applicant asked to be assisted by her lawyer. The police officer then searched her bag, from which he seized some personal documents, including an orange notebook containing various phone numbers. Subsequently, a prosecutor entered the first applicant\u2019s home in order to perform the home search, accompanied by three police officers, one of whom was an information technology (IT) specialist.","elements":[]},{"content":"14.\u00a0\u00a0According to the Government\u2019s version of events \u2013 supported by the documents in the file, as issued by the criminal investigating authorities (see paragraph\u00a042 below) \u2013 the search of the bag was carried out inside the first\u00a0applicant\u2019s home.","elements":[]},{"content":"15.\u00a0\u00a0The first applicant\u2019s lawyer arrived at the beginning of the search, namely around ten minutes after the first applicant had been stopped in the street (see paragraph 13 above); two assistant witnesses, who were neighbours of the first applicant, were also present during the search.","elements":[]},{"content":"16.\u00a0\u00a0The prosecutor\u2019s notes in the search report produced on that occasion at the place of residence of the first applicant state that the first\u00a0applicant was asked to surrender the items used to commit the alleged offence of intellectual forgery, namely the computer, the printer, and the documents on which the second expert report was based (Articles 96-99 of the RCCP, see paragraph 45 below). The first applicant confirmed the existence of such items at her place of residence.","elements":[]},{"content":"According to the search report, the first floor of the building was occupied by the first applicant\u2019s office, where she claimed to keep the objects which had been requested and other objects essential to her professional duties.","elements":[]},{"content":"Several items and documents were found, the first applicant claiming that everything belonged to the second applicant. She showed the prosecutor a lease contract concluded between herself and the second applicant in respect of the use of one half of the immovable property.","elements":[]},{"content":"According to the report, the following objects were seized: the computer\u2019s central processing unit, one printer, four files and documents concerning various forensic accounting reports, one CD, forty-two\u00a0floppy discs, an orange notebook containing several notes written by the first\u00a0applicant and telephone numbers \u2013 one of which belonged to M.G.S., see paragraph 7 above \u2013 and an empty printer cartridge box.","elements":[]},{"content":"17.\u00a0\u00a0The applicants argued that, while the copy of the search report handed to them at that moment had made no mention of the manner in which the seized items had been sealed, the copy in the criminal file contained supplementary information on page 4, mentioning that the objects had been put in a sealed cardboard box labelled MAI (the Ministry of Internal Affairs) 15980.","elements":[]},{"content":"18.\u00a0\u00a0At the end of the search the first applicant declared, in the presence of her lawyer, that she would submit written objections at a later stage. The witnesses had no objections concerning the manner in which the search had been carried out.","elements":[]},{"content":"19.\u00a0\u00a0According to the report, the search started at 8.45 a.m. and was finished by 12.30 p.m.","elements":[]},{"content":"20.\u00a0\u00a0On 18 November 2005, at the request of the prosecutor, the Oradea District Court issued a warrant for a search of the computer system and IT data seized from the applicants on 21 October 2005, namely one CD and forty-two floppy discs. The court gave reasons for its decision, accepting that there was sufficient indication that the IT data would prove that the impugned expert report had been partly copied from a document given to the first applicant by M.G.S (see paragraph 11 aboveg).","elements":[]},{"content":"The warrant was to last three days, starting on 21 November 2005.","elements":[]},{"content":"21.\u00a0\u00a0According to the applicant, on 18 November 2005 she was summoned to the Cluj District police headquarters to participate in the unsealing of the computer on 21 November 2005. She went there with her lawyer, where they noted that the sealed box was different to the box which had been used at her house during the search (see paragraphs 16-17 above). She therefore asked that the two witnesses who had been present at the search be summoned to attest that the box was different, but the request was refused. Consequently, together with her lawyer, she decided to leave the police headquarters without attending the unsealing and search procedure.","elements":[]},{"content":"22.\u00a0\u00a0On 5 December 2005 the first applicant submitted the missing 497\u00a0pages from the first expert report (see paragraph 6 above) to the Oradea District Court, following payment of 60% of her fee.","elements":[]}]},{"content":"C.\u00a0\u00a0Complaints concerning the search","elements":[{"content":"23.\u00a0\u00a0On 8 November 2005, pursuant to Articles 275-2781 of the RCCP (see paragraph 47 below), the first applicant filed a complaint against the search carried out on 21 October 2004 (see paragraphs 13-19 above). She contested both the search itself and the manner in which it had been carried out.","elements":[]},{"content":"The first applicant submitted that the warrant had been issued only in respect of her home, and not in respect of the registered office of the second applicant. In spite of that, a search of the whole house had been carried out, including the space used by the second applicant. The seized items and documents belonged to the second applicant.","elements":[]},{"content":"The first applicant also submitted that the search had not been necessary, and could have been avoided if she had been asked to submit the relevant items and documents, as set out in Article 98 of the RCCP (see paragraph\u00a045 below). Furthermore, no reasons had been given to justify the search measure.","elements":[]},{"content":"She argued that the limits of the search warrant had been exceeded by the search carried out in respect of her purse, which constituted a body search (perchezi\u0163ie corporal\u0103), and by the fact that she had been prevented from using her mobile phone during the search.","elements":[]},{"content":"She complained of the manner in which the electronic devices seized had been sealed on that occasion.","elements":[]},{"content":"She further referred to the seizure of various items from her home, namely \u201cpersonal documents and personal notebooks which had no connection to the criminal charge against her\u201d, concluding that all the above circumstances constituted evidence of a breach of her right to a private life, personal inviolability, professional secrecy, and right of property.","elements":[]},{"content":"24.\u00a0\u00a0On 24 November 2005 the head prosecutor of the prosecutor\u2019s office attached to the District Court of Oradea dismissed the first applicant\u2019s claims, finding that the complaint against the search measure itself was inadmissible, given the lack of specific legal provisions allowing for such an appeal, while the complaint concerning the carrying out of the search was ill-founded.","elements":[]},{"content":"25.\u00a0\u00a0Concerning the appeal against the search measure itself, the prosecutor gave reasons for his inadmissibility decision, stating that it was inconceivable that any search warrant application would be debated in adversarial proceedings, as such a procedure would impede the very purpose of the search, namely the discovery and collection of specific evidence from a specific place without prior notice.","elements":[]},{"content":"The prosecutor stated that the search at the applicant\u2019s home had been conducted in accordance with the law. The warrant had been issued in respect of her residence as stated on her identification documents. The prhosecutor submitted that the investigating authorities had had no obligation to check whether that residence was also the registered office of various private companies. In the impugned forensic expert report, the first\u00a0applicant had given her identification details, including her place of residence, without mentioning that the report had been issued by or on behalf of the second applicant. Moreover, during the search, the first\u00a0applicant had submitted a lease contract concluded between herself and the second applicant concerning one half of the immovable property, without specifying or determining which half belonged to which party.","elements":[]},{"content":"The prosecutor also stated that the investigating authorities had been obliged to seize all pieces of physical evidence found at the search location, irrespective of who owned them, and that the pieces not belonging to the suspect had been returned to their owner at the end of the criminal trial.","elements":[]},{"content":"26.\u00a0\u00a0Concerning the body search, namely the search of the first\u00a0applicant\u2019s bag, the prosecutor submitted that the relevant forensic rules set out clearly and authoritatively that such a search had to be performed before the start of a home search, \u201cso as to preclude any potential act of aggression against the authorities or self-aggression, but also so as to locate and collect any potential corpora delicti thus hidden by the searched person (in [this] case, documents)\u201d.","elements":[]},{"content":"The rules also provided that the investigating authorities were obliged to prevent any people inside the building in question from communicating with people outside, whether by phone or otherwise, which justified the fact that the first applicant had been temporarily prevented from using her mobile phone.","elements":[]},{"content":"27.\u00a0\u00a0In respect of the manner in which the seized electronic devices had been sealed, the prosecutor stated that the report produced on that occasion had been signed by both the first applicant and her lawyer, and no objections had been raised. As mentioned in the report, the central processing unit of the computer had been sealed in a cardboard box with the MAI seal. In any event, the manner in which the seized objects had been sealed could not affect the legality of the search, but possibly their use as evidence in the criminal proceedings.","elements":[]},{"content":"28.\u00a0\u00a0The first applicant contested that decision before both the prosecutor\u2019s office attached to the County Court of Bihor and the Oradea District Court.","elements":[]},{"content":"29.\u00a0\u00a0It is unclear whether any response to that complaint was given by the prosecutor\u2019s office. In any event, the same complaint was assessed by the domestic courts in two separate sets of proceedings, as detailed below.","elements":[]},{"content":"30.\u00a0\u00a0In the first set of proceedings, started by the first applicant on 23\u00a0December\u00a02005, the Oradea District Court gave its judgment on 29\u00a0June\u00a02006, dismissing the first applicant\u2019s complaint as inadmissible in respect of the search measure itself, and ill-founded in respect of the manner in which the search had been carried out. The court stated that, in the event that she was indicted, the first applicant would be entitled to lodge with the criminal courts complaints regarding the search and the acts of the prosecutor.","elements":[]},{"content":"31.\u00a0\u00a0The first applicant appealed. On 28 November 2006 the Bihor County Court dismissed her appeal, upholding the first instance court\u2019s decision. It considered that the search had been lawful and in compliance with the warrant issued by the Oradea District Court. Furthermore, at the material time, the first applicant, assisted by her lawyer, had not objected to either the search or the manner in which it had been carried out.","elements":[]},{"content":"The court considered that it would be \u201cabusive\u201d to have an adversarial procedure for debating ithe necessity of a search, either before or after it was carried out.","elements":[]},{"content":"32.\u00a0\u00a0In the second set of proceedings, a complaint lodged by the first\u00a0applicant on 4 January 2006 reiterated the same main arguments as those presented in the proceedings described above. In particular, it referred to the fact that the limits of the search warrant had been exceeded as follows: the warrant had only been issued in respect of her home, and not in respect of the registered office of the second applicant; no warrant had existed in respect of her purse or mobile phone; certain items, like her personal notebooks, had been seized even though they had no connection with the criminal charge. The computer had been seized without being appropriately sealed, therefore the first applicant had refused to take it back in the absence of verification and confirmation by an expert that the IT data had not been altered. The first applicant argued that the real aim of the prosecutor and the police had been to seize her computer in order to copy the 497 pages of annexes to the first accounting expert report (see paragraph\u00a06 above).","elements":[]},{"content":"In any event, the search had not been necessary, as she would have surrendered all required items and documents if she had been asked to.","elements":[]},{"content":"33.\u00a0\u00a0The complaint was allocated to a single judge for determination, Judge\u00a0F.P., who on 21 February 2006 asked to recuse herself from the case, as it had been she who had examined and approved the application for a search warrant on 20 October 2005 (see paragraph 12 above).","elements":[]},{"content":"That request was dismissed by the President of the Oradea District Court on the same day. It was noted that the first applicant had expressly confirmed that she was not challenging the search measure itself, but the manner in which it had been carried out. In such circumstances, there was no reason for Judge F.P. to withdraw from the case.","elements":[]},{"content":"34.\u00a0\u00a0In the context of the second set of proceedings, on 28 June 2006 the first\u00a0applicant lodged an application calling into question the constitutionality of the provisions of Article 100 \u00a7 4 of the RCCP (see paragraph\u00a046 below). She claimed that the impugned provisions breached a claimant\u2019s defence rights, right to a fair trial and right to an effective remedy, as he or she was denied the right to participate in proceedings and contest a search measure.","elements":[]},{"content":"35.\u00a0\u00a0The application was dealt with by the Romanian Constitutional Court (\u201cthe Constitutional Court\u201d), which gave its judgment on 30\u00a0November\u00a02006, dismissing the objection as ill-founded. The Constitutional Court firstly found that the constitutionality of the impugned provisions had already been examined and found to be in accordance with the Constitution (the court referred to its decision of 21\u00a0October\u00a02004, detailed in paragraph 52 below). The court reiterated that only the legislature could dictate the jurisdiction of the domestic courts and trial procedure.","elements":[]},{"content":"Furthermore, the Constitutional Court held that the issuing of a search warrant was a procedural measure and not a trial in itself, and that therefore the summoning of parties was not obligatory, especially as a search was conducted in the presence of the interested parties and/or their representative. Moreover, interested parties had at their disposal several opportunities and means to contest any measure taken during a criminal investigation or criminal trial.","elements":[]},{"content":"36.\u00a0\u00a0The case was sent back to the Oradea District Court, which gave its judgment on 31 January 2007, dismissing the first applicant\u2019s complaint. The court noted that a similar claim lodged by the first applicant in another set of proceedings had already been dismissed by a final judgment (see paragraph\u00a031 above).","elements":[]},{"content":"The court further stated that tjhe search had been carried out in compliance with the domestic legal provisions and in the presence of the prosecutor, the applicant and her lawyer, and no objections had been raised at the material time.","elements":[]},{"content":"It appears that the decision was not appealed against by the first applicant.","elements":[]}]},{"content":"D.\u00a0\u00a0The criminal proceedings against the first applicant","elements":[{"content":"37.\u00a0\u00a0In January 2006 the second applicant was struck off the list of the Romanian Institute of Accounting Experts and Certified Accountants; the first applicant was removed from the list from January 2006 until 7\u00a0April\u00a02010, allegedly as a result of the criminal investigations against her.","elements":[]},{"content":"38.\u00a0\u00a0The first applicant was indicted on 27 September 2009, charged with perjury as a witness in a criminal trial, aiding and abetting a perpetrator (with specific reference to the criminal trial concerning M.G.S. and C.V.C.), and spoliation (the material alteration, thereby invalidation) of evidence.","elements":[]},{"content":"The indictment referred to the items seized during the search of 21\u00a0October\u00a02005, namely documents relating to the forensic accounting reports issued by the first applicant and relevant to several criminal proceedings against various suspects (C.V.C., A.D., F.K., G.P.); the prosecutor considered that such documents had been withheld by the first\u00a0applicant for the purpose of obstructing justice.","elements":[]},{"content":"The indictment stated that the criminal proceedings against the two\u00a0other accounting experts (see paragraph 9 above) were to be terminated (scoatere de sub urm\u0103rire penal\u0103).","elements":[]},{"content":"39.\u00a0\u00a0By a judgment of 30 November 2010 the Oradea District Court acquitted the first applicant of all charges.","elements":[]},{"content":"In relation to the charge of perjury, the court held that such a charge was relevant where an expert had been called before a court to give oral evidence, which had not been the case with regard to the first applicant. In relation to the written evidence given by the first applicant in the form of the forensic accounting report, the court held that the report was a collective piece of work produced by the three experts appointed in the case. Even if evidence had been adduced proving that only one of the experts had personally studied the file in the court\u2019s archives, it could not be inferred that the work had been done by the first applicant exclusively and in the absence of consideration of all the relevant documents and consultation with the other experts.","elements":[]},{"content":"The court further stated that there was insufficient proof that the first\u00a0applicant had favoured M.G.S. The accounting expert report had been produced with the other experts appointed in the case. The first applicant had been selected as an expert in the impugned criminal proceedings from a list of six experts, and it had therefore been impossible for her to plan to help M.G.S in any way.","elements":[]},{"content":"With reference to the documents found at the first applicant\u2019s residence during the search carried out on 21 October 2005, the court stated that they had not been in her possession unlawfully, as all of them had been given to her by the police for the purpose of allowing her to produce the relevant forensic accounting reports. It could therefore not be inferred that the applicant had withheld the documents with the intention of obstructing justice. The court ordered that all IT equipment seized from the first\u00a0applicant should be returned to her once the judgment became final.","elements":[]},{"content":"40.\u00a0\u00a0By a judgment of 21 April 2011 the Oradea Court of Appeal dismissed an appeal lodged by the prosecutor and upheld the first-instance court\u2019s judgment, stating essentially that the presumption of innocence in respect of the first applicant had not been rebutted. The only dissenting opinion of the Oradea kCourt of Appeal considered that the case should have been remitted to the first-instance court for a re-trial, as the first-instance judgment had lacked appropriate reasoning.","elements":[]}]},{"content":"E.\u00a0\u00a0Criminal complaints lodged by the first applicant against third parties","elements":[{"content":"41.\u00a0\u00a0The first applicant filed several criminal complaints against the relevant prosecutors and police officers who had requested and carried out the search of 21 October 2005 with various domestic authorities (the Romanian Senate, the High Council of the Judiciary and the Ministry of Internal Affairs), accusing them of abuse of office for carrying out the search in breach of Articles 100-111 of the RCCP (see paragraph 46 below). She reiterated her arguments: a special warrant and a separate report had been needed for the body search (Article 106), and another warrant had been necessary for the search of the company\u2019s registered office (Article\u00a0111).","elements":[]},{"content":"42.\u00a0\u00a0Those complaints were joined and assessed in a unique case file, being dismissed as ill-founded by the Oradea Court of Appeal on 20\u00a0September\u00a02006. The court upheld the prosecutor\u2019s decision. In respect of the complaint concerning the body search, it found that the search of the applicant\u2019s bag had been carried out inside her house, as a preliminary step of the actual search measure. Furthermore, the home search warrant had been issued in respect of an address, not in respect of a person or company. The court concluded that all the complaints were ill-founded.","elements":[]},{"content":"That decision was upheld by the High Court of Cassation and Justice on 10\u00a0November\u00a02006.","elements":[]},{"content":"43.\u00a0\u00a0The first applicant also submitted to the Court a copy of another undated criminal complaint, which was addressed to the prosecutor\u2019s office attached to the High Court of Cassation and Justice. In the complaint, the first applicant claimed that the search report had been forged with regard to the manner in which the computer had been sealed (see paragraphs\u00a016-17 above). She also stated that, at some point after the search, she had noticed that the data on her computer relating to various forensic accounting reports which she had produced had been altered while at the police headquarters, so as to provide evidence to incriminate her.","elements":[]},{"content":"In the absence of any registration number or reference to a domestic file number, it is unclear if and when that complaint was lodged with the domestic authorities; assuming that it was, it is equally unclear whether the first applicant received any response.","elements":[]}]}]},{"content":"II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE","elements":[{"content":"A.\u00a0\u00a0Domestic legislation","elements":[{"content":"44.\u00a0\u00a0The relevant Articles of the RCCP, as in force at the relevant time, were as follows:","elements":[]},{"content":"45.\u00a0\u00a0Articles 96-99 essentially provided that investigating authorities or a court had to seize items and documents which could serve as evidence in a criminal trial. Any legal or natural person was obliged to surrender any such items or documents at the request of the investigating authorities or the court. If the item or document was confidential or secret, the evidence in question had to be surrendered in circumstances which would preserve its secrecy or confidentiality. In so far as their role was to collect and discover all the information and evidence essential to a criminal case, the investigating authorities were entitled to seize the relevant items or documents by force if they were not voluntarily surrendered.","elements":[]},{"content":"46.\u00a0\u00a0Articles 100-111 referred to search procedures in general. In so far as relevant, they read as follows:","elements":[]},{"content":"\u201c(1) Where a person who is asked to surrender an object or document as referred to in Article 98 denies its existence or denies having it, orl where it [the object or document] is essential to the discovery and collection of evidence, a search may be ordered.","elements":[]},{"content":"(2) A body search or a home search may be carried out.","elements":[]},{"content":"(3) A home search may only be ordered by a judge in a reasoned decision, during a criminal investigation, at the request of a prosecutor, or during a criminal trial...","elements":[]},{"content":"(4) A home search requested during a criminal investigation is ordered in camera, without the parties being summoned. The presence of a prosecutor is mandatory.","elements":[]},{"content":"(5) Depending on the circumstances, a body search may be ordered by an investigating authority, a prosecutor or a judge.","elements":[]},{"content":"(6) A home search may not be ordered prior to a criminal investigation being started.\u201d","elements":[]},{"content":"\u201cIn accordance with Article 100, a search ordered during a criminal investigation is carried out by a prosecutor or an investigating authority, accompanied \u2013 depending on the circumstances \u2013 by investigating officers...\u201d","elements":[]},{"content":"\u201c(1) Before starting a search, the authorities in charge of an investigation are obliged to disclose their identity and, in the cases provided for by law, present authorisation from a judge.","elements":[]},{"content":"(2) Items or documents are seized and searches are carried out in the presence of the person whose home is searched, or, in the event that he or she is absent, in the presence of a representative, family member or neighbour with full capacity.","elements":[]},{"content":"(3) These operations carried out by the authorities in charge of an investigation require the presence of witnesses...\u201d","elements":[]},{"content":"\u201c(1) The authorities in charge of an investigation have the right to open rooms or any other repositories where items or documents which are the subject of a search may be found, if the person authorised to open those [rooms or repositories] refuses to do so.","elements":[]},{"content":"(2) The authorities in charge of an investigation shall seize only the items and documents related to the criminal act [in question]. The authorities shall always seize items and documents whose distribution and possession are forbidden ...\u201d","elements":[]},{"content":"\u201c(1) A body search is carried out by the investigating authority which ordered it, in compliance with the provisions of Article 104 \u00a7 1, or by a person [to whom responsibility has been] delegated by this authority.","elements":[]},{"content":"(2) A body search is only carried out by a person of the same gender as the person being searched ...\u201d","elements":[]},{"content":"\u201c(1) Seized objects and documents are firstly shown to the person from whom they have been seized and to those who assist, so that those people can identify and sign for the items to confirm their state, in order to prevent them from being changed at a later stage. Thereafter, the items are labeled and sealed.","elements":[]},{"content":"(2) Objects which cannot be signed for, labeled or sealed are wrapped up or packaged together and subsequently sealed ...\u201d","elements":[]},{"content":"\u201c(1) An official report is drawn up, describing how a search was carried out and how items and documents were seized ...\u201d","elements":[]},{"content":"\u201c...(3) Until a case is concluded, physical evidence is kept by the criminal investigating authority or the court which is dealing with the [case] file ...\u201d","elements":[]},{"content":"\u201cThe provisions set out above also apply to a search carried out in respect of a legal entity; the provisions are supplemented as follows:","elements":[]},{"content":"a) the authorities in charge of an investigation are obliged to disclose their identity and, in the cases provided for by law, present to the legal entity\u2019s representative authorisation from a judge;","elements":[]},{"content":"b) Objects or documents are seized, and searches are carried out in the pmresence of the legal entity\u2019s representative;","elements":[]},{"content":"c) when the presence of witnesses is necessary, they can be members of the legal entity\u2019s staff;","elements":[]},{"content":"d) a copy of the search report is given to the legal entity\u2019s representative.\u201d","elements":[]},{"content":"47.\u00a0\u00a0Articles 275-2781 set out the procedure for any person wanting to challenge any of the measures or decisions taken during a criminal investigation, in the event that these had harmed his or her legitimate interests (see, for instance, Centre for Legal Resources on behalf of Valentin C\u00e2mpeanu v. Romania [GC], no. 47848/08, \u00a7 50, ECHR 2014).","elements":[]},{"content":"48.\u00a0\u00a0The current version of the RCCP, in force since 1\u00a0February\u00a02014, sets out the procedure for a home search in Articles 157-164. Both a prosecutor\u2019s application for a search warrant, as well as a court\u2019s decision itself, must contain descriptions of the location to be searched and the perpetrator or suspect who it is assumed will be present at the search location, in addition to an indication of any signs that the offence in question has been committed or of other items which are presumed to exist at the search location.","elements":[]},{"content":"Article 158 \u00a7 9 expressly provides that a judgment authorising a search cannot be appealed.","elements":[]},{"content":"Articles 165-166 set out in detail the procedure for a body search, enumerating that the authorities in charge of an investigation, in addition to any authority in charge of maintaining public order and security, are entitled to perform a body search if they reasonably suspect that evidence relevant to a criminal investigation is to be found. At the end of a body search, a detailed report must be written and one copy given to the person who has been searched.","elements":[]},{"content":"Article 168 refers to a search involving IT equipment, which is to be authorised by a judge at the request of a prosecutor. The details of the procedure are essentially similar to those relevant to a home search.","elements":[]},{"content":"49.\u00a0\u00a0Article 289 of the Romanian Criminal Code, as in force at the time, read:","elements":[]},{"content":"\u201cThe act of forging an official document when it is issued, committed by a civil servant (functionar) while on duty or by a person exercising a service in the public interest, by certifying untrue acts or circumstances or by intentionally omitting to insert certain data or circumstances, shall be punishable by a term of imprisonment from six months to five years.\u201d","elements":[]},{"content":"50.\u00a0\u00a0The provisions concerning the duty of professional secrecy in relation to activities carried out by accounting experts are to be found in Professional Standard No. 35: Accounting Reports, the relevant parts of which read:","elements":[]},{"content":"\u201cThe accounting expert must respect the secrecy and confidential nature of the information to which he or she had access when producing an accounting report; he or she must refrain from disclosing such information to third parties, except when he or she has prior authorisation to do so, or if he or she has a legal or professional obligation to make such a disclosure.\u201d","elements":[]}]},{"content":"B.\u00a0\u00a0Decision of the Constitutional Court of 21 October 2004","elements":[{"content":"51.\u00a0\u00a0On 10 June 2004 the Constitutional Court was seised of an application lodged by the prosecutor\u2019s office attached to the Olt County Court challenging the constitutionality of Article 100 \u00a7 4 of the RCCP (see paragraph\u00a046 above). It was submitted that the fact that a decision given by a judge following an application for a search warrant was not open to any appeal was in breach of Article 129 of the Romanian Constitution, which stated:","elements":[]},{"content":"\u201cRelevant parties and the Public Ministry may appeal against court decisions in accordance with the law.\u201d","elements":[]},{"conntent":"The prosecutor\u2019s office submitted that a prosecutor should be entitled to challenge a court decision dismissing an application for a search warrant.","elements":[]},{"content":"52.\u00a0\u00a0On 21 October 2004 the Constitutional Court dismissed the application as inadmissible. It held that a search was ordered by a judge, in accordance with the conditions and forms stipulated by the RCCP, and thus in compliance with Article 27 \u00a7 3 of the Constitution on the inviolability of domicile, stating that searches could only be ordered by a judge and carried out under the terms and forms stipulated by the law.","elements":[]},{"content":"It held that Article 129 of the Constitution stipulated the existence of appeals, which, however, could be entertained subject to the conditions prescribed by the law, namely, in the circumstances of the case, prescribed by the RCCP; it was the exclusive power of the legislative branch to establish the rules on procedure and the jurisdiction of the domestic courts. The Constitutional Court further considered that the prosecutor\u2019s office was not contesting the content of the impugned legal text, but rather its lack of content, namely the fact that it did not include the possibility of an appeal against a decision taken by a judge in respect of an application for a search warrant. In so far as the Constitutional Court\u2019s role was not to amend existing legal provisions or make proposals on how to improve such texts, the application appeared inadmissible.","elements":[]}]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0THE GOVERNMENT\u2019S PRELIMINARY OBJECTION","elements":[{"content":"53.\u00a0\u00a0The Government contended that the second applicant had not complied with the six-month rule as required by Article 35 \u00a7 1 of the Convention. They stated that the application addressed to the Court on 9\u00a0January\u00a02006 had been made in the name of the first applicant and had been signed only by her. Only on 11 September 2007 had a form of authority signed by the first applicant and carrying the seal of the second applicant been appended to the case.","elements":[]},{"content":"Furthermore, the Government argued that the second applicant had not lodged any complaints with the domestic courts.","elements":[]},{"content":"54.\u00a0\u00a0The applicants disagreed. They contended that the complaints raised before the Court in respect of both the first applicant and the second had also been submitted to the domestic courts. The final national judgment had been issued on 20 October 2005 and the application had been submitted to the Court on 9 January 2006, thus within the six-month time-limit.","elements":[]},{"content":"55.\u00a0The Court observes at the outset that, in the application form, the first\u00a0applicant complained of the unlawfulness of the search conducted at her home, which was also the registered office of the company she owned (the second applicant). She invoked breaches of both her rights and the rights of the company.","elements":[]},{"content":"56.\u00a0\u00a0The Court notes that, according to the case file, the first document confirming the second applicant\u2019s intention to pursue complaints before it is the form of authority of 11 September 2007, submitted more than six\u00a0months after 31 January 2007, the date the Oradea District Court dismissed the last domestic complaint concerning the lawfulness of the searches (see paragraph 36 above). However, in the circumstances of the present case, the Court does not consider it necessary to examine whether the second applicant complied with the time-limit set out in Article\u00a035\u00a0\u00a7\u00a01 of the Convention. In this respect, it observes that both applicants are so closely linked to each other that it would be artificial to regard each as an applicant in her or its own right. In reality, the second applicant is the first applicant\u2019s company and the vehicle for her business projects. On that basis, the Court will consider the alleged violations oof the Convention from only the perspective of the first applicant (hereafter \u201cthe applicant\u201d), there being no doubt that she can be considered a \u201cvictim\u201d within the meaning of Article\u00a034 (see, mutatis mutandis, Niemietz v. Germany, 16\u00a0December\u00a01992, \u00a7\u00a7\u00a029-30, Series A no. 251B; see also Eugenia Michaelidou Developments Ltd and Michael Tymvios v. Turkey, no. 16163/90, \u00a7 21, 31 July 2003; and S\u00e9rvulo & Associados \u2013 Sociedade de Advogados, RL and Others v.\u00a0Portugal, no. 27013/10, \u00a7\u00a7 79-80, 3 September 2015).","elements":[]},{"content":"57.\u00a0\u00a0The Court further considers that there is no doubt that the applicant\u2019s complaints were filed within the six-month time-limit set out in Article\u00a035\u00a0\u00a7\u00a01 of the Convention.","elements":[]}]},{"content":"II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION","elements":[{"content":"58.\u00a0\u00a0The applicant complained that the search carried out at her home and business premises had infringed Article 8 of the Convention, which, in so far as relevant, reads as follows:","elements":[]},{"content":"\u201c1.\u00a0\u00a0Everyone has the right to respect for his ... home ...","elements":[]},{"content":"2.\u00a0\u00a0There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\u201d","elements":[]},{"content":"A.\u00a0\u00a0The parties\u2019 submissions","elements":[{"content":"59.\u00a0\u00a0The applicant contended that the search of her home, the seizure of various items, such as \u201cpersonal documents and personal notebooks which had no connection to the criminal charge against her\u201d, and the fact that she had been prohibited from using a mobile phone during the search had breached her right to private life and correspondence, including her right to professional secrecy. She claimed that the interference had not been \u201cin accordance with the law\u201d for two reasons.","elements":[]},{"content":"60.\u00a0\u00a0Firstly, the applicant contended that the national courts had failed to justify the necessity of the measure. Secondly, she argued that the search had not been carried out lawfully, as the limits of the warrant had been exceeded. Items belonging to the second applicant \u2013 in respect of which no warrant had been issued \u2013 had been seized, the seized computer had not been put in a sealed box, and the computer files had been falsified.","elements":[]},{"content":"She also complained that the body search which had been carried out in respect of her purse had not been authorized.","elements":[]},{"content":"61.\u00a0\u00a0The Government, for their part, submitted that if the search carried out at the applicant\u2019s home had constituted an interference, it had been in accordance with the law, namely Articles 100-110 of the RCCP (see paragraph\u00a046 above). The measure had been necessary, as it had related directly to the needs of the investigation, and proportionate to the legitimate aim of the prevention of crime. It had also involved appropriate procedural safeguards, being issued by a judge and therefore subjected to judicial scrutiny. The search had been based on a reasonable suspicion and its scope had been reasonably limited. Furthermore, it had been carried out in the presence of independent observers (the Government cited Iliya Stefanov v.\u00a0Bulgaria, no. 65755/01, \u00a7 38, 22 May 2008).","elements":[]},{"content":"The Government reiterated that, in the present case, the criminal investigation had been initiated against the applicant in relation to intellectual forgery charges relating to the drafting of a forensic accounting report which had proved to be essential to the outcome of a crimipnal case. The search had been authorised by a judge for a three-day period and had been issued on the basis of there being sufficient grounds to believe that there were items or documents possibly relevant to the criminal investigation at the applicant\u2019s residence. The court judgment had specified which items and documents relevant to the investigation were expected to be found at the applicant\u2019s residence.","elements":[]},{"content":"62.\u00a0\u00a0Concerning the manner in which the search had been carried out, the Government argued that the limits of the search warrant had not been exceeded. The documents seized were witness statements and accounting documents related to various judicial investigations, including the investigation initiated against the applicant; the accounting documents had not had the name of the company (the second applicant) anywhere on them and had essentially been issued by the applicant in her own name. No document proving ownership of the computer had ever been provided by the applicant. Moreover, the difference between the registered office of the second applicant and the applicant\u2019s home had not been clearly demarcated, either factually or legally, as evidenced by the signed lease contract between these parties.","elements":[]},{"content":"63.\u00a0\u00a0Furthermore, in the Government\u2019s view, the prosecutor had been entitled to carry out a body search of the suspect in accordance with Article\u00a0106 of the RCCP (see paragraph 46 above). The alleged breach of the applicant\u2019s privacy had been kept to a minimum, as only her purse had been searched for safety reasons and investigation considerations, and only relevant items and documents had been seized.","elements":[]}]},{"content":"B.\u00a0\u00a0The Court\u2019s assessment","elements":[{"content":"64.\u00a0\u00a0In the circumstances of the present case, with regard to compliance with Article 8 of the Convention, the Court considers it necessary to examine separately the prohibition on the use of the mobile phone, the body search, the alleged breach of the applicant\u2019s right to professional secrecy, and the home search.","elements":[]},{"content":"1.\u00a0\u00a0The temporary prohibition on using the mobile telephone during the home search","elements":[{"content":"65.\u00a0\u00a0The Court reiterates its case-law to the effect that telephone calls made from business premises, as well as from the home, may be covered by the notions of \u201cprivate life\u201d and \u201ccorrespondence\u201d within the meaning of Article\u00a08\u00a0\u00a7\u00a01 (see Halford v. the United Kingdom, 25 June 1997, \u00a7\u00a044, Reports of Judgments and Decisions 1997III). Turning to the applicant\u2019s situation, it observes that on 20 November 2005 she was indeed prevented from using her mobile phone during the search (see paragraph 26 above).","elements":[]},{"content":"66.\u00a0\u00a0However, taking into account the explanations provided by the domestic authorities in relation to this measure (see paragraph 26 above), the Court is not ready to hold that the applicant\u2019s rights under Article 8 were limited more than was strictly necessary on that occasion. The Court finds it relevant that the applicant failed to point to any specific or concrete need to use the mobile phone during the search (see, mutatis mutandis, D.D.\u00a0v.\u00a0Lithuania, no. 13469/06, \u00a7 181, 14 February 2012).","elements":[]},{"content":"67.\u00a0\u00a0The Court finds that the applicant\u2019s complaint regarding her being prevented from using the mobile phone is therefore manifestly ill-founded, and rejects it, pursuant to Article 35 \u00a7\u00a7 3 and 4 of the Convention.","elements":[]}]},{"content":"2.\u00a0\u00a0The body search","elements":[{"content":"68.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]},{"content":"69.\u00a0\u00qa0According to the Court\u2019s case-law, the use of coercive powers conferred by the legislation to require an individual to submit to a detailed search of his person, his clothing and his personal belongings amounts to a clear interference with the right to respect for private life (see Gillan and Quinton v. the United Kingdom, no. 4158/05, \u00a7 63, ECHR 2010, (extracts)).","elements":[]},{"content":"70.\u00a0\u00a0In the present case, the Court notes that there is no dispute between the parties that the applicant\u2019s bag was searched, and that this could constitute a \u201cbody search\u201d under the domestic law and in accordance with the relevant practice (see paragraphs 26, 42 and 63 above). At the beginning of this search, an orange notebook was seized from the applicant\u2019s bag, as it was believed to contain information relevant to the criminal investigations initiated against her (see paragraphs 13 and 26 above). The relevant seizure was noted in the home search report (see paragraph 16 above).","elements":[]},{"content":"71.\u00a0\u00a0In view of the above, the Court considers that there has been an interference with the applicant\u2019s right to respect for her private life, on account of the search performed on her bag. Such an interference is justified by the terms of paragraph 2 of Article 8 only if it is \u201cin accordance with the law\u201d, pursues one or more of the legitimate aims referred to in paragraph\u00a02, and is \u201cnecessary in a democratic society\u201d in order to achieve the aim or aims (see Smirnov v. Russia, no. 71362/01, \u00a7 37, 7 June 2007).","elements":[]},{"content":"72.\u00a0\u00a0The Court reiterates that an interference cannot be regarded as \u201cin accordance with the law\u201d unless, first of all, it has some basis in domestic law, this term being understood in its \u201csubstantive\u201d, rather than \u201cformal\u201d sense. In a sphere covered by the written law, the \u201claw\u201d is the enactment in force as the competent courts have interpreted it (see Soci\u00e9t\u00e9 Colas Est and Others v. France, no. 37971/97, \u00a7 43, ECHR 2002III).","elements":[]},{"content":"73.\u00a0\u00a0The Government maintained that the body search of the applicant had been performed in accordance with Article 106 of the RCCP, arguing that such a measure could be necessary at the start of or during a home search, for safety reasons and for the purposes of an investigation (see paragraph\u00a063 above). The domestic authorities relied on similar arguments when dismissing the applicant\u2019s complaint that the limits of the search warrant had been exceeded by the body search, namely the search performed on her bag (see paragraphs 26, 30, 31, 36 and 42 above).","elements":[]},{"content":"74.\u00a0\u00a0The Court notes at the outset that, at the time of the search, criminal investigations had been initiated in respect of the applicant \u2013 in her capacity as an accounting expert \u2013 in relation to intellectual forgery. The home search warrant had been issued so as to ensure that important evidence relating to the offence of intellectual forgery \u2013 such as files, documents, a computer, a printer \u2013 was located (see paragraphs 11 and 12 above).","elements":[]},{"content":"75.\u00a0\u00a0The Court further observes that, under the relevant domestic law in force at the material time, a body search could be carried out on the order of the authority in charge of an investigation, in compliance with specific rules (see Article 106 of the RCCP, cited in paragraph 46 above). However, the Court takes note of the fact that the warrant issued by the Oradea District Court on 20 October 2005 (see paragraph 12 above), while making general reference to the application of Articles 103-108 of the RCCP, did not mention specifically that a body search could be performed on the basis of Article\u00a0106 of the RCCP, nor did it contain any specific reasons justifying such a measure. Moreover, the prosecutor present at the search also omitted to define the purpose and scope of the body rsearch (see paragraph\u00a013\u00a0above).","elements":[]},{"content":"76.\u00a0\u00a0The Court reiterates that reference to the pertinent law in general terms cannot replace specific authorisation of a search, delimiting its purpose and scope and drawn up in accordance with the relevant legal provisions either beforehand or afterwards (see, mutatis mutandis, Kilyen v.\u00a0Romania, no. 44817/04, \u00a7 34, 25 February 2014).","elements":[]},{"content":"77.\u00a0\u00a0Accordingly, the Court considers that the search of the applicant\u2019s bag, which included the seizure of an orange notebook, was not accompanied by adequate and effective safeguards against abuse.","elements":[]},{"content":"78.\u00a0\u00a0Furthermore, while accepting that certain urgent circumstances, such as the existence of specific safety reasons, may require that particular measures, including on-the-spot body searches, be taken by the authorities in charge of an investigation at the outset of a home search, the Court considers that the Government have not put forward any convincing argument to prove the existence of such reasons in the present case.","elements":[]},{"content":"79.\u00a0\u00a0The Court thus concludes that, in view of the above-mentioned considerations and in the absence of a decision adapted to the applicant\u2019s case which would clearly indicate the purpose and scope of the body search, the interference with the applicant\u2019s right to a private life was not \u201cin accordance with the law\u201d within the meaning of Article 8 of the Convention. It is therefore not necessary to examine whether the interference pursued a legitimate aim and was proportionate.","elements":[]},{"content":"80.\u00a0\u00a0It follows that there has been a violation of Article 8 of the Convention on this account.","elements":[]}]},{"content":"3.\u00a0\u00a0Professional secrecy","elements":[{"content":"81.\u00a0\u00a0The Court notes that the applicant complained in vague and general terms before the domestic authorities that the seizure of various items from her home, namely \u201cpersonal documents and personal notebooks which had no connection with the criminal charge against her\u201d, had breached her right to professional secrecy (see paragraph 23 above). No further substantiation of the complaint, either in fact or in law, was put forward by the applicant. Before the domestic authorities, she never expressly referred to the relevant legal texts describing the circumstances in which such privilege operated (see paragraphs 45 and 50 above).","elements":[]},{"content":"82.\u00a0\u00a0The Court further observes that the applicant complained to it in similar terms, without further justification or substantiation of the damage produced by the alleged breach (see paragraph 59 above). Indeed, the applicant has failed to justify, both before the domestic authorities and before the Court, why such personal documents should have been covered by accountant-client privilege.","elements":[]},{"content":"83.\u00a0\u00a0In these circumstances, the Court considers that the applicant has failed to properly substantiate her complaint relating to a breach of her right to professional secrecy. It follows that this complaint must be declared inadmissible as manifestly ill-founded and rejected pursuant to Article\u00a035\u00a0\u00a7\u00a7 3 and 4 of the Convention.","elements":[]}]},{"content":"4.\u00a0\u00a0The home search","elements":[{"content":"84.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]},{"content":"85.\u00a0\u00a0The Court observes that the search and seizure of various items ordered by the judge concerned the applicant\u2019s residential premises, where she was found to have her office and where she kept the computer and certain work-related material.","elements":[]},{"content":"In line with its case-law on the matter, the Court considesrs that there has been an interference with the applicant\u2019s right to respect for her home in the present case (see Buck v. Germany, no. 41604/98, \u00a7 31, ECHR 2005IV; Niemietz v. Germany, cited above, \u00a7\u00a7 29-31; see also, mutatis mutandis, Sallinen and Others v. Finland, no. 50882/99, \u00a7\u00a7\u00a070-72, 27\u00a0September\u00a02005; and Wieser and Bicos Beteiligungen GmbH v.\u00a0Austria, no.\u00a074336/01, \u00a7\u00a7\u00a04345, ECHR 2007IV).","elements":[]},{"content":"86.\u00a0\u00a0The Court next has to determine whether the interference was justified under paragraph 2 of Article 8, that is, whether it was \u201cin accordance with the law\u201d, pursued one or more of the legitimate aims set out in that paragraph and was \u201cnecessary in a democratic society\u201d to achieve that aim.","elements":[]},{"content":"87.\u00a0\u00a0While referring to its general principles on the matter (see paragraph\u00a072 above), the Court notes that, at the relevant time, the RCCP, namely Articles 96-111 (see paragraphs 45-46 above), contained detailed provisions regarding the seizure of objects and documents and the applicable search procedure, both in respect of a home search and a search of a legal entity\u2019s registered office.","elements":[]},{"content":"88.\u00a0\u00a0However, in the present case, the Court observes that the applicant\u2019s objections relate primarily to the manner in which the legal framework was applied. The applicant\u2019s arguments concerning the lawfulness of the interference being closely related to the question as to whether the \u201cnecessity\u201d test was complied with in her case, the Court will address jointly the \u201cin accordance with the law\u201d and \u201cnecessity\u201d requirements (see, mutatis mutandis, Kvasnica v. Slovakia, no. 72094/01, \u00a7 84, 9 June 2009).","elements":[]},{"content":"89.\u00a0\u00a0The Court observes that the search and seizure measures were ordered in the context of criminal proceedings against the applicant, who was suspected of having committed intellectual forgery. They therefore served a legitimate aim, namely the prevention of crime.","elements":[]},{"content":"90.\u00a0\u00a0In accordance with the Court\u2019s established case-law, the notion of \u201cnecessity\u201d implies that an interference corresponds to a pressing social need and, in particular, is proportionate to the legitimate aim pursued (see, among many other authorities, Camenzind v.\u00a0Switzerland, 16\u00a0December\u00a01997, \u00a7 44, Reports, 1997VIII). In determining whether an interference is \u201cnecessary in a democratic society\u201d, the Court will take into account that a certain margin of appreciation is left to the Contracting States. However, the exceptions provided for in paragraph 2 of Article 8 are to be interpreted narrowly, and the need for them in a given case must be convincingly established (see, inter alia, Buck, cited above, \u00a7\u00a044).","elements":[]},{"content":"91.\u00a0\u00a0As regards searches of premises and seizures of items in particular, the Court has consistently held that Contracting States may consider it necessary to resort to such measures in order to obtain physical evidence of certain offences.","elements":[]},{"content":"The question for the Court is whether the relationship between the aim sought to be achieved and the means employed can be considered proportionate (see Robathin v. Austria, no. 30457/06, \u00a7 43, 3 July 2012). Elements taken into consideration are, in particular: whether the search was undertaken pursuant to a warrant issued by a judge and based on reasonable suspicion; the circumstances in which the search warrant was issued, in particular the further evidence available at that time; whether the scope of the warrant was reasonably limited; and the manner in which the search was carried out, including the presence of independent observers during the search in order to ensure that materials subject to professional secrecy were not removed (see, inter alia, Smirnov, cited above, \u00a7 44, and, mtutatis mutandis, Sher and Others v. the United Kingdom, no.\u00a05201/11, \u00a7\u00a0172, ECHR\u00a02015 (extracts)).","elements":[]},{"content":"92.\u00a0\u00a0Turning to the present case, the Court notes at the outset that the search and seizure complained of were based on a warrant issued by a judge at the request of the authority in charge of the investigation, namely the prosecutor (see paragraphs 11-12 above). The Court does not consider that the fact that the warrant was obtained in an ex parte procedure was problematic in itself (see, for instance, Iliya Stefanov, cited above, \u00a7 39).","elements":[]},{"content":"However, whilst a highly relevant consideration, the fact that an application for a warrant has been subject to judicial scrutiny will not, in itself, necessarily amount to a sufficient safeguard against abuse. Rather, the Court must examine the particular circumstances and evaluate whether the legal framework and limits on the powers exercised were an adequate protection against arbitrary interference by the authorities (see Cronin v. the United Kingdom (dec.), no. 15848/03, 6 January 2004).","elements":[]},{"content":"93.\u00a0\u00a0In that respect, the Court observes that the application was formulated in the context of criminal proceedings which had been initiated against the applicant in relation to a suspected offence of intellectual forgery; it contained reasons and referred to specific evidence which was to be located and seized (see paragraph 11 above). The Oradea District Court examined the application and the evidence relied on by the prosecutor, and considered it to have a proper basis, including in respect of the existence of a reasonable suspicion, therefore allowing it as formulated. In this context, it is noteworthy that the relevant legislation at the time, namely Article 100 of the RCPP (see paragraph 46 above), did not require a warrant to include an enumeration of objects which were presumed to exist at a search location and which needed to be seized.","elements":[]},{"content":"In the circumstances described above, the Court finds no valid reason to question the domestic courts\u2019 assessment of the case and their conclusion that, at the material time, the search warrant was based on a reasonable suspicion. The fact that the applicant was eventually acquitted years later cannot change that assessment (see, for instance, Robathin, cited above, \u00a7\u00a046).","elements":[]},{"content":"94.\u00a0\u00a0Furthermore, noting that the warrant was issued for a short period of time and referred to specific evidence to be seized, namely the computer, the printer and the documents on which the second forensic accounting report was based (see paragraphs 11 and 12 above), the Court considers that the scope of the warrant was reasonably limited (see, by contrast, Smirnov, cited above, \u00a7 47).","elements":[]},{"content":"95.\u00a0\u00a0There remains the question of whether the actual execution of the search warrant can be regarded as \u201cnecessary\u201d and, in particular, proportionate to the legitimate aim pursued.","elements":[]},{"content":"96.\u00a0\u00a0The Court notes at the outset that the search was carried out in the presence of the applicant, two witnesses \u2013 who were the applicant\u2019s neighbours \u2013 and the applicant\u2019s defence counsel (see paragraph 15 above). An IT specialist was part of the investigative team that performed the search (see paragraph 13 above). According to the search report drawn up at the end of the search, all the items seized were listed and sealed.","elements":[]},{"content":"97.\u00a0\u00a0While the applicant argued that the sealing procedure was defective, especially in respect of the computer (see paragraph 23 above), in the absence of any proper substantiation of that claim, the Court is bound by the domestic courts\u2019 assessments in that respect, which all agree that the sealing was correct. Moreover, the Court observes that no objection was made at the time of the search by the applicant or her lawyer, either in respect ofu the search itself, or in relation to the sealing procedure or the objects which were seized (see paragraph 18 above).","elements":[]},{"content":"98.\u00a0\u00a0The Court also notes that the unsealing of the computer and its actual search took place in accordance with a different search warrant issued at a later date, namely on 18 November 2005. When this latter warrant was executed, the applicant and her lawyer refused to be present during the unsealing and search procedure (see paragraph 21 above).","elements":[]},{"content":"99.\u00a0\u00a0Under these circumstances, the Court considers that they implicitly but unequivocally waived an important guarantee offered to them by the domestic legal system (see, mutatis mutandis, D.H. and Others v. the Czech Republic [GC], no. 57325/00, \u00a7 202, ECHR 2007IV), which would have allowed them to perform an ex post facto check of the content of the computer in order to reveal any possible manipulation of the relevant files.","elements":[]},{"content":"100.\u00a0\u00a0Furthermore, even assuming that the applicant has properly pursued before the domestic authorities her allegations that the IT data seized on 21\u00a0October\u00a02005 was falsified and altered before the search of the computer of 21 November 2005 (see paragraphs 21, 33 and 43 above), these allegations were never found to be substantiated (see paragraphs 27, 31 and 36 above).","elements":[]},{"content":"101.\u00a0\u00a0In any event, the Court considers that, in relation to the particular complaints regarding the sealing of the computer and the alteration of its files, the salient issue essentially concerns the use of allegedly unlawfully obtained evidence in criminal proceedings, rather than a breach of Article\u00a08 rights. As indicated by the domestic courts and the Constitutional Court (see paragraphs\u00a030 and 35 above), in such a situation, once she was indicted, the applicant had the opportunity to contest the impugned measures and their impact on her rights throughout the criminal proceedings.","elements":[]},{"content":"102.\u00a0\u00a0Finally, in the present case, the applicant had a remedy in the form of an ex post facto judicial review claim in respect of the manner in which the home search order was executed (see, by way of contrast, Iliya Stefanov, cited above, \u00a7 44).","elements":[]},{"content":"The Court notes that all of the applicant\u2019s complaints concerning the circumstances in which the home search was carried out on 21\u00a0October\u00a02005 were examined by the domestic courts in three separate sets of proceedings (see paragraphs 30-36 and 42 above). The judgments, which relied on the relevant domestic legislation in force at the material time, were fairly reasoned.","elements":[]},{"content":"103.\u00a0\u00a0In these circumstances, the Court is unable to arrive at a different conclusion to that of the domestic authorities. It reiterates that its power to review compliance with domestic law is limited, it being in the first place for the national authorities, notably the courts, to interpret and apply that law (see Chappell v. the United Kingdom, 30 March 1989, \u00a7 54, Series\u00a0A no.\u00a0152A).","elements":[]},{"content":"104.\u00a0\u00a0To conclude, the Court considers that the decision authorising the search of the applicant\u2019s home was based on relevant and sufficient reasons, and was attended by adequate safeguards against abuse and arbitrariness. The Court therefore does not regard either the home search measure itself or the manner in which it was carried out, including the seizure of various items other than the orange notebook (see paragraph 77 above), as disproportionate to the aim pursued.","elements":[]},{"content":"It follows that no breach of Article 8 has been established in the circumstances of the present case in respect of the search carried out at the applicant\u2019s home and of the seizure of other various items on 21\u00a0October\u00a02005.","elements":[]}]}]}]},{"content":"III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 13, TAKEN IN CONJUNCTION WITH vARTICLE 8 OF THE CONVENTION","elements":[{"content":"105.\u00a0\u00a0The applicant argued that she did not have an effective remedy in respect of her complaints related to the home search. She invoked Article\u00a013 of the Convention in this respect, which reads as follows:","elements":[]},{"content":"\u201cEveryone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\u201d","elements":[]},{"content":"A.\u00a0\u00a0The parties\u2019 submissions","elements":[{"content":"106.\u00a0\u00a0The applicant complained of a violation of her right to an effective remedy, as Romanian law did not provide for an appeal against the decision allowing the home search. She claimed that she had exhausted all existing avenues, none proving to be effective in respect of her complaints under Article\u00a08.","elements":[]},{"content":"107.\u00a0\u00a0The Government admitted that no appeal lay against the home search measure itself. However, the manner in which the measure had been carried out could be challenged before a court. Furthermore, the applicant had had the opportunity to raise any objections concerning the legality of the evidence collected during the home search before the criminal court.","elements":[]},{"content":"The Government further submitted that the applicant could have lodged criminal complaints against the officers in question in relation to unlawful trespass on property or abuse of office. She could also have brought tort claims against the officers responsible if the search had been unlawfully ordered or executed.","elements":[]}]},{"content":"B.\u00a0\u00a0The Court\u2019s assessment","elements":[{"content":"108.\u00a0\u00a0The effect of Article 13 is to require the provision of a remedy at national level which allows the competent domestic authority to both deal with the substance of a relevant Convention complaint and grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. However, such a remedy is only required in respect of grievances which can be regarded as arguable in terms of the Convention (see Camenzind, \u00a7\u00a053 and Ilyia Stefanov, \u00a7 56, both cited above).","elements":[]},{"content":"109.\u00a0\u00a0Having regard to its findings under Article 8 in relation to the search of the applicant\u2019s home and the seizure of various items (see paragraph\u00a084 above), the Court considers that the complaint in this respect was arguable. Accordingly, it finds that the applicant\u2019s grievance under Article\u00a013, relating to the lack of an effective remedy in this respect, is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]},{"content":"110.\u00a0\u00a0The Court recalls at the outset that the issue of the warrant was subject to an a priori judicial scrutiny in a procedure providing sufficient safeguards against abuse and arbitrariness (see paragraph 104 above).","elements":[]},{"content":"111.\u00a0\u00a0However, neither now, nor at the material time, did any provision of the RCCP set out any procedure whereby a person could contest a search measure itself or its necessity.","elements":[]},{"content":"112.\u00a0\u00a0The Court reiterates its established case-law on the matter: the notion of an effective remedy in this context does not presuppose the possibility of challenging the issuing of a warrant prior to a search (see, mutatis mutandis, Tamosius v. the United Kingdom (dec.), no.\u00a062002/00, ECHR 2002VIII and Ilyia Stefanov, \u00a7 59, cited above).","elements":[]},{"content":"113.\u00a0\u00a0Furthermore, the Court notes that both the lawfulness of the search measure in question and the manner in which it was executed could be challenged before the domestic courts, either before windictment (via a challenge to the measures taken by the prosecutor), or afterwards (before the court seized of the criminal case). The domestic courts were entitled to check the legality of all procedural acts and measures taken in the earlier stages of the investigation (see, by contrast, L.M. v. Italy, no.\u00a060033/00, \u00a7\u00a7\u00a041-47, 8 February 2005, where the applicant had no remedy available to contest either the search measure, or the fact that it had not been validated a\u00a0posteriori by the Prosecutor\u2019s Office, as prescribed by the relevant domestic law, in so far as no items had been seized during the search).","elements":[]},{"content":"114.\u00a0\u00a0The Court takes particular note of the fact that the domestic courts, including the Constitutional Court, referred to the applicant\u2019s opportunities to challenge, before the courts called upon to decide on the merits of the charges against her, any impugned measure taken during the criminal investigation, including with reference to the search and the manner in which it was executed (see paragraphs 30 and 35 above).","elements":[]},{"content":"In fact, this is what the applicant did in challenging the impugned measure and its manner of execution before the domestic courts in three\u00a0separate sets of proceedings. In this context, the Court attaches particular importance to the fact that, in the second set of proceedings, the domestic courts held that she had expressly stated that she agreed with the measure, but not the manner in which it had been carried out (see paragraph\u00a033 above; see also, mutatis mutandis, Giuttari v. Italy (dec.), no.\u00a042733/07, \u00a7\u00a7 33 and 45, 2 December 2014).","elements":[]},{"content":"The applicant\u2019s claims were duly assessed by the courts, in compliance with the relevant legislation. Furthermore, the evidence seized during the search was examined and relied on by the courts in their acquittal decision (see paragraph 39 above).","elements":[]},{"content":"115.\u00a0\u00a0At the same time, the Court observes that the applicant has not filed any tort claim under general tort law seeking compensation for the allegedly unlawful search.","elements":[]},{"content":"116.\u00a0\u00a0In view of the above, the Court considers that the applicant did have at her disposal sufficient remedies capable of offering redress for her complaints relating to the search and seizure of various items on 21\u00a0October\u00a02005.","elements":[]},{"content":"There has therefore been no violation of Article 13 taken in conjunction with Article 8 of the Convention, in relation to the search carried out at the applicant\u2019s home and the seizure of various items.","elements":[]}]}]},{"content":"IV.\u00a0\u00a0OTHER ALLEGED VIOLATIONS OF THE CONVENTION","elements":[{"content":"117.\u00a0\u00a0Lastly, the applicant complained under Article 6 of the Convention of several issues relating to the criminal proceedings against her.","elements":[]},{"content":"118.\u00a0\u00a0However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.","elements":[]},{"content":"It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 \u00a7\u00a7 3 and 4 of the Convention.","elements":[]}]},{"content":"V.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION","elements":[{"content":"119.\u00a0\u00a0Article 41 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Damage","elements":[{"content":"120.\u00a0\u00a0The applicant claimed 412.07 euros (EUR) in respect of pecuniary damage, which corresponded to the value of the seized computer and printer. She further claimed EUR 10,000 in respect of non-pecuniary damage.","elements":[]},{"content":"121.\u00a0\u00a0The Government contested these claims. They further argued that the finding of a violation would constitute sufficient just satisfaction.","elements":[]},{"content":"122.\u00a0\u00a0The Court notes that it has found no violation of the Convention in respect of the seizure of the applicant\u2019s computer and printer. There is therefore no reason to award her the pecuniary damage claimed in this respect; hence it rejects this claim. However, the Court accepts that the breach of the applicant\u2019s right to a private life must have caused her distress. Making its assessment on an equitable basis, the Court awards the applicant EUR\u00a04,500 in compensation for non-pecuniary damage.","elements":[]}]},{"content":"B.\u00a0\u00a0Costs and expenses","elements":[{"content":"123.\u00a0\u00a0The applicant also claimed EUR 2,432.67 for costs and expenses incurred before the domestic authorities.","elements":[]},{"content":"124.\u00a0\u00a0The Government contested these claims, submitting that they were not properly supported by evidence.","elements":[]},{"content":"125.\u00a0\u00a0According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, and ruling on an equitable basis, the Court considers it reasonable to award the applicant the sum of EUR 500 for costs and expenses incurred in the domestic proceedings.","elements":[]}]},{"content":"C.\u00a0\u00a0Default interest","elements":[{"content":"126.\u00a0\u00a0The 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.","elements":[]}]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT, UNANIMOUSLY,","elements":[{"content":"1.\u00a0\u00a0Declares the application admissible in respect of the search performed on the applicant\u2019s bag, the home search, and the seizure of various items on 21 October 2005, and the remainder of the application inadmissible;","elements":[]},{"content":"2.\u00a0\u00a0Holds that there has been a violation of Article 8 of the Convention in respect of the search performed on the applicant\u2019s bag, which included the seizure of an orange notebook;","elements":[]},{"content":"3.\u00a0\u00a0Holds that there has been no violation of Article 8 of the Convention in respect of the home search and the seizure of other various items on 21\u00a0October\u00a02005;","elements":[]},{"content":"4.\u00a0\u00a0Holds that there has been no violation of Article 13, taken in conjunction with Article 8 of the Convention;","elements":[]},{"content":"5.\u00a0\u00a0Holds","elements":[]},{"content":"(a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:","elements":[]},{"content":"(b)\u00a0\u00a0that 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;","elements":[]},{"content":"6.\u00a0\u00a0Dismisses the remainder of the applicant\u2019s claim for just satisfaction.","elements":[]},{"content":"Done in English, and notified in writing on 17 January 2017, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.","elements":[]}],"section_name":"conclusion"}]yontent":"THE FACTS","elements":[{"content":"I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE","elements":[{"content":"4.\u00a0\u00a0The applicant was born in 1949 and lives in the city of .","elements":[]},{"content":"5.\u00a0\u00a0On 21\u00a0February\u00a02001 the awarded the applicant 23,536.80 Ukrainian hryvnyas (UAH) against the State-owned Udarnik mine in compensation for her husband\u2019s death as a result of a work-related accident. Subsequently, the mine was reorganised into the Snizhneantratsyt State Company.","elements":[]},{"content":"6.\u00a0\u00a0The judgment was not appealed against, became final, and enforcement proceedings were instituted to collect the debt.","elements":[]},{"content":"7.\u00a0\u00a0Between February 2002 and December 2003 the applicant was paid UAH 11,135.","elements":[]},{"content":"8.\u00a0\u00a0On 18 January 2008 the applicant received the rest of the judgment debt.","elements":[]},{"content":"9.\u00a0\u00a0The applicant attempted to collect compensation from the debtor company for the delay in enforcement, by way of judicial proceedings; however her efforts were to no avail.","elements":[]}]},{"content":"II.\u00a0\u00a0RELEVANT DOMESTIC LAW","elements":[{"content":"10.\u00a0\u00a0The relevant domestic law is summarised in the judgments of Romashov v. Ukraine, no. 67534/01, \u00a7\u00a7 16-19, 27 July 2004, and Voytenko v. Ukraine, no.\u00a018966/02, \u00a7\u00a7\u00a020-25, 29 June 2004.","elements":[]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION","elements":[{"content":"11.\u00a0\u00a0The applicant complained about the lengthy non-execution of the judgment of 21\u00a0February\u00a02001. The Court will examine the applicant\u2019s complaint under Article\u00a06\u00a0\u00a7\u00a01 of the Convention (see Sharov v. Russia, no.\u00a038918/02, \u00a7\u00a011, 12 June 2008). As far as relevant, this Article reads as follows:","elements":[]},{"content":"Article 6 \u00a7 1","elements":[]},{"content":"\u201cIn the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...\u201d","elements":[]},{"content":"A.\u00a0\u00a0Admissibility","elements":[{"content":"12.\u00a0\u00a0The Government raised objections regarding the applicants\u2019 victim status and exhaustion of domestic remedies similar to those which the Court has already dismissed in the case of Romashov v. Ukraine (see the Romashov judgment, cited above, \u00a7\u00a7 23-33). The Court considers that the present objections must be rejected for the same reasons.","elements":[]},{"content":"13.\u00a0\u00a0The Court concludes that the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It finds no ground for declaring it inadmissible. It must therefore be declared admissible.","elements":[]}]},{"content":"B.\u00a0\u00a0Merits","elements":[{"content":"14.\u00a0\u00a0In their observations, the Government contended that there had been no violation of Article 6 \u00a7 1 of the Convention (as in the cases of Romashov cited above, \u00a7 37, and Solovyev v. Ukraine, no. 4878/04, \u00a718, 14 December 2006).","elements":[]},{"content":"15.\u00a0The applicant reiterated that the State was responsible for the delay in the enforcement of the court judgment in her favour.","elements":[]},{"content":"16.\u00a0\u00a0The Court observes that the judgment in the applicant\u2019s favour remained without enforcement for around six years and eight months.","elements":[]},{"content":"17.\u00a0\u00a0The Court has frequently found violations of Article 6 \u00a7 1 of the Convention in cases raising similar issues to the ones in the present case (see Romashov v. Ukraine, cited above, \u00a7 46, and Solovyev, cited above\u00a0\u00a7\u00a024).","elements":[]},{"content":"18.\u00a0\u00a0Having examined the material submitted to it, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.","elements":[]},{"content":"19.\u00a0\u00a0There has accordingly been a violation of Article 6 \u00a7 1 of the Convention.","elements":[]}]}]},{"content":"II.\u00a0\u00a0OTHER ALLEGED VIOLATIONS OF THE CONVENTION","elements":[{"content":"20.\u00a0\u00a0The applicant further complained of a violation of Articles\u00a03 and\u00a04 the Convention on account of the non-enforcement of the judgment in her favour.","elements":[]},{"content":"21.\u00a0\u00a0The Court, in the light of all material before it, finds that in so far as the matters complained of are within its competence, they do not disclose any appearance of an unjustified interference or breach of these provisions and rejects this part of the application in accordance with Article 35 \u00a7\u00a7\u00a03 and\u00a04 of the Convention as being manifestly ill-founded.","elements":[]}]},{"content":"III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION","elements":[{"content":"22.\u00a0\u00a0Article 41 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Damage","elements":[{"content":"23.\u00a0\u00a0The applicant claimed 500,000 euros (EUR) in respect of non-pecuniary damage.","elements":[]},{"content":"24.\u00a0\u00a0The Government contested the applicant\u2019s claim as being unsubstantiated.","elements":[]},{"content":"25.\u00a0\u00a0The Court finds that the applicant must have suffered non-pecuniary damage on account of the lengthy non-enforcement of the judgment given in her favour. Ruling on an equitable basis, it awards the applicant EUR\u00a02,600 in respect of non-pecuniary damage.","elements":[]}]},{"content":"B.\u00a0\u00a0Costs and expenses","elements":[{"content":"26.\u00a0\u00a0The applicant did not submit any claim under this head. The Court therefore makes no award.","elements":[]}]},{"content":"C.\u00a0\u00a0Default interest","elements":[{"content":"27.\u00a0\u00a0The 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.","elements":[]}]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT UNANIMOUSLY","elements":[{"content":"1.\u00a0\u00a0Declares the complaint concerning the non-enforcement of the judgment given in the applicant\u2019s favour admissible and the remainder of the application inadmissible;","elements":[]},{"content":"2.\u00a0\u00a0Holds that there has been a violation of Article 6 \u00a7 1 of the Convention;","elements":[]},{"content":"3.\u00a0\u00a0Holds","elements":[]},{"content":"(a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, EUR 2,600 (two thousand six hundred 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 at the date of settlement;","elements":[]},{"content":"(b)\u00a0\u00a0that 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;","elements":[]},{"content":"4.\u00a0\u00a0Dismisses the remainder of the applicant\u2019s claim for just satisfaction.","elements":[]},{"content":"Done in English, and notified in writing on 12 March 2009, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.","elements":[]}],"section_name":"conclusion"}]   GQ 33)-  001-85253CASE OF BUCZKIEWICZ v. POLANDCHAMBERECLI:CE:ECHR:2008:0226JUD00104460310446/032008-02-26 00:00:002008-02-26 00:00:00ENGFourth SectionCourt616.810485839844POL35-[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in an application (no.\u00a010446/03) against the lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by two Polish nationals, Ms\u00a0Wanda Buczkiewicz and Mr Antoni Buczkiewicz (\u201cthe applicants\u201d), on 14\u00a0March 2003","elements":[]},{"content":"2.\u00a0\u00a0The applicants, who had been granted legal aid, were represented by Mr P. Sendecki, a lawyer practising in . The Polish Government (\u201cthe Government\u201d) were r.!;Q 33;- S001-187925CASE OF KHANH v. CYPRUSCOMMITTEEECLI:CE:ECHR:2018:1204JUD00436391243639/122018-12-04 00:00:002018-12-04 00:00:00ENGThird Section CommitteeCourt2881.12036132813CYP10`*[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in an application (no. 43639/12) against the Republic of Cyprus lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Vietnamese national, Ms Thi Nguyen Khanh (\u201cthe applicant\u201d), on 2 July 2012.","elements":[]},{"content":"2.\u00a0\u00a0On 12 May 2015 the complaint concerning the applicant\u2019s conditions of detention at Limass{ KQ 33%- 001-91744CASE OF LEBEDINTSEVA v. UKRAINECHAMBERECLI:CE:ECHR:2009:0312JUD00372080437208/042009-03-12 00:00:002009-03-12 00:00:00ENGFith SectionCourt666.559387207031UKR48a[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in an application (no. 37208/04) against lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Ukrainian national, Ms Tamara Vasilyevna Lebedintseva (\u201cthe applicant\u201d), on 7 October 2004.","elements":[]},{"content":"2.\u00a0\u00a0The Ukrainian Government (\u201cthe Government\u201d) were represented by their Agent, Mr Y. Zaytsev.","elements":[]},{"content":"3.\u00a0\u00a0On 6 December 2007 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 \u00a7 3).","elements":[]}],"section_name":"procedure"},{"cx|ol Police Station Detention Centre (\u201cLimassol Police Station\u201d) was communicated to the Government under Article 3 of the Convention and the remainder of the application was declared inadmissible pursuant to Rule 54 \u00a7 3 of the Rules of Court.","elements":[]},{"content":"3.\u00a0\u00a0The applicant was initially represented by S.E., a Cypriot national, who was not a lawyer. Following the communication of the application, the applicant appointed Ms C. Toka, a lawyer practising in Limassol, to represent her before the Court. The Cypriot Government (\u201cthe Government\u201d) were represented by their Agent, Mr C. Clerides, Attorney General of the Republic of Cyprus.","elements":[]},{"content":"4.\u00a0\u00a0The Government did not object to the examination of the application by a Committee.","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE","elements":[{"content":"5.\u00a0\u00a0The applicant was born in 1980 and lives in Vietnam.","elements":[]},{"content":"6.\u00a0\u00a0From 1 March 2012 until 25 July 2012 she was detained at Limassol Police Station pending her deportation. She was deported on the latter date.","elements":[]},{"content":"A.\u00a0\u00a0Conditions of the applicant\u2019s detention","elements":[{"content":"1.\u00a0\u00a0The applicant\u2019s description of the conditions of her detention","elements":[{"content":"7.\u00a0\u00a0The applicant submitted that throughout her detention the women\u2019s wing at Limassol Police Station had been overcrowded. As result, most of the time she had shared cells with other detainees. When the applicant had been in a double occupancy cell with two bunks, she had shared the cell with up to four other detainees. They all had to share the two bunks. When the applicant had been in a single occupancy cell, which she had initially estimated to measure about 3 to 3.5 sq. m, she had had to share with another detainee and a mattress of about 1.90 m would be placed on the dirty floor alongside her bed. This left only about 30 cm of free space between the mattress and the bed. The mattresses placed in the cells to accommodate additional detainees were filthy and sleeping on the concrete floor with only one blanket was very uncomfortable. The detainees therefore shared the bunks as they could share two blankets this way, which made it warmer.","elements":[]},{"content":"8.\u00a0\u00a0The cells lacked fresh air. Furthermore, the air-conditioning/heating system did not function properly. In addition to a disruption that had lasted three days in March, there were electrical failures or system failures quite frequently, for up to four hours. During this period the cell temperature would drop to two or three degrees above zero and the detention authorities refused to provide more blankets. For this reason, the applicant had asked S.E. to bring her a blanket and a jumper. The disruption of the air-conditioning system also meant that there was no ventilation and the air became foul with so many women in the wing when the weather was warmer in May and June.","elements":[]},{"content":"9.\u00a0\u00a0The applicant was allowed to go to the courtyard for half an hour per day but only when a guard was available. As there was a shortage of police officers to supervise the detainees, in practice this happened every three days. When police officers were absent they were never replaced and as there was overcrowding at the station the detainees\u2019 exercise time was consequently reduced. The applicant was deprived of fresh air, light and exercise on most days of her detention.","elements":[]},{"content":"10.\u00a0\u00a0The detention authorities refused to provide basic hygiene products. From the very beginning of her detention, the applicant had contacted S.E. by telephone asking him to bring her soap, shampoo, toilet paper and toothpaste. He had continued to regularly provide her with basic hygiene products.","elements":[]},{"content":"11.\u00a0\u00a0Lastly, the applicant submitted that during her det}ention the food which was provided by an external restaurant was not compatible with her religious beliefs \u2013 she did not eat beef \u2013 or with her nutritional habits, which involved eating rice and fish on a daily basis. As the food provided often made her sick, S.E. would regularly bring her meals.","elements":[]}]},{"content":"2.\u00a0\u00a0The Government\u2019s description of the conditions of the applicant\u2019s detention","elements":[{"content":"12.\u00a0\u00a0The Government submitted that throughout her detention the applicant had been detained in the women\u2019s wing at the police station. The wing had eight cells, which could accommodate a total of ten detainees. It had two double occupancy cells which measured 9.99 sq. m (cell no. 27) and 6.48 sq. m (cell no. 28). The remaining eight cells (cells nos. 29-34) were single occupancy cells, each measuring 5.94 sq. m. When it was necessary to place a second detainee in a single occupancy cell or a third detainee in a double occupancy cell, another mattress was placed inside the cell and the additional detainee was provided with, inter alia, sheets and blankets. Additional blankets were provided upon request.","elements":[]},{"content":"13.\u00a0\u00a0The Government provided copies of the station\u2019s daily occupancy records (\u03ba\u03b1\u03c4\u03ac\u03c3\u03c4\u03b1\u03c3\u03b7 \u03c5\u03c0\u03bf\u03b4\u03b9\u03ba\u03ce\u03bd-\u03ba\u03b1\u03c4\u03b1\u03b4\u03af\u03ba\u03c9\u03bd) indicating the number of detainees (both men and women) held during the relevant period. However, they submitted that no consistent records were kept in relation to the occupancy of particular cells. There was therefore no record as to the precise cells or type of cells in which the applicant had been held. Notwithstanding this, in certain of the daily occupancy records where the cell was recorded, it was consistently noted that the applicant had been detained in cell no. 29.","elements":[]},{"content":"14.\u00a0\u00a0On the basis of the above records, the Government had put together a daily occupancy table for the purposes of the present case concerning the women\u2019s wing. According to the table, it was estimated that between 1\u00a0March 2012 and 25 July 2012 the wing had accommodated between eight and twenty detainees per day. That meant that when there were ten detainees, the applicant would have been alone in her cell and would thus have had 5.94 sq. m of personal space. When there were eleven to twenty detainees, it was likely that she had shared a cell with another detainee, and would therefore have had 2.97 sq. m of personal space. It was not, however, possible to estimate the length and frequency of the periods during which the applicant had shared a cell with another detainee. According to the table, during the relevant period there had been fifteen days when there were eight to ten detainees in the wing, three when there were eleven detainees in the wing, and at least sixty-three days where there were between twelve and twenty detainees. The remaining sixty-five days were unaccounted for.","elements":[]},{"content":"15.\u00a0\u00a0There were shared toilets and showers in the wing. There were two toilets, two showers, three washbasins and three mirrors. The detainees were provided with toilet paper and hygiene products (soap, sanitary towels and toothpaste) on a daily basis. There was a central air-conditioning system, which provided either heat or cold air. During the period of the applicant\u2019s detention, the air conditioning was permanently switched on, with the exception of three days in March 2012 when it was under maintenance. Furthermore, each cell had a ventilation system which also operated around the clock. All cells had glass block windows measuring 0.62 m by 0.95 m, which were properly insulated against draughts. The cells had lamps which provided artificial light.","elements":[]},{"content":"16.\u00a0\u00a0Female detainees were allowed to move freely in the open courtyard, which measured approximately 172 sq. m, for four hours per day between 3\u~00a0p.m. and 7 p.m.","elements":[]}]}]},{"content":"B.\u00a0\u00a0The applicant\u2019s complaints to the authorities","elements":[{"content":"17.\u00a0\u00a0On 9 March 2012 and 4 May 2012 S.E. sent letters on behalf of the applicant to the Commissioner for Administration of the Republic of Cyprus (\u201cthe Ombudsman\u201d) complaining, inter alia, about the conditions of the applicant\u2019s detention. By a letter dated 20 August 2012 the Ombudsman replied that she had carried out a visit to Limassol Police Station and had submitted a report to the competent authorities with her observations and recommendations. She assured the applicant that her office would continue to closely observe the conditions of detention in that station.","elements":[]},{"content":"18.\u00a0\u00a0On 10 April 2012 S.E. sent a letter on behalf of the applicant to the Independent Authority for Investigation of Allegations and Complaints against the Police (\u201cIAIACAP\u201d) complaining about the conditions of her detention and disputing the lawfulness of her arrest and detention. By a letter dated 6\u00a0July 2012 the IAIACAP informed the applicant that, following a preliminary investigation into her complaint, there was no basis for any further steps to be taken. In the actual report by the investigator dated 25\u00a0June 2012, in so far as the applicant\u2019s conditions of detention were concerned, it was stated that the heating at the station had been functioning in March 2012, apart from three days when the system had been under maintenance, and that blankets had been provided.","elements":[]},{"content":"19.\u00a0\u00a0In the meantime, S.E. sent a letter dated 4 April 2012 to the President of the Supreme Court of Cyprus informing him of the problems and violations of rights that the applicant had suffered during her detention. The President of the Supreme Court informed the applicant by a letter dated 5 April 2012 that this matter did not fall within his competence.","elements":[]},{"content":"20.\u00a0\u00a0On 8 June 2012 Mr L. Loucaides, a lawyer who had been hired by S.E., sent a letter of complaint to the General Director of the Ministry of Interior about the conditions of the applicant\u2019s detention and the detention itself. As no response was received Mr L. Loucaides sent a follow-up letter on 9 January 2013. This also remained unanswered.","elements":[]}]}]},{"content":"II.\u00a0\u00a0RELEVANT INTERNATIONAL AND DOMESTIC REPORTS","elements":[{"content":"A.\u00a0\u00a0Relevant international standards: report by the European Committee for the Prevention of Torture","elements":[{"content":"21.\u00a0\u00a0On 6 December 2012 the European Committee for the Prevention of Torture (\u201cthe CPT\u201d) released its report on its visit to Cyprus from 12 to 19\u00a0May 2008.","elements":[]},{"content":"22.\u00a0\u00a0The relevant extracts of the report concerning Limassol Police Station read as follows:","elements":[]},{"content":"\u201c5. Conditions of detention","elements":[]},{"content":"55. However, the delegation observed that some cells at Limassol Police Station had no windows, and, as a result, no access to natural light or ventilation. The CPT recommends that these deficiencies be remedied without delay.","elements":[]},{"content":"...","elements":[]},{"content":"56. Once again, the delegation heard consistent complaints about the provision of food, especially as regards quantity, but also as regards quality. Persons remanded in police custody were not provided with food in the evening for the first eight days at Larnaca Central Police Station. For the first 15 days of custody at Pafos and Limassol Police Stations, only cold food was provided, once a day. The CPT recommends that all persons held on police premises are provided with appropriate food at regular intervals (including at least one full meal every day).","elements":[]},{"content":"57. The CPT has reiterated in the report on each visit to Cyprus that all persons detained longer than 24 hours must be offered the opportunity of one hour of outdoor exercise every day. However, in 2008, outdoor exercise was provided only at Police Prison (Block 10) and Larnaca and Paralimni Police Stations. At Aradippou and Limassol Police Stations, detained persons were offered, at best, access for several hours to a courtyard covered by corrugated plastic sheeting. Thus, outdoor exercise was still not provided at most police establishments, including those which held primarily or exclusively long-term immigration detainees, such as the former Famagusta detention facility in Larnaca and Lakatamia Police Stations.","elements":[]},{"content":"...","elements":[]},{"content":"The CPT calls upon the Cypriot authorities to ensure that all persons detained in police stations for longer than 24 hours are offered one hour of daily outdoor exercise.","elements":[]},{"content":"58. Subject to remedying the shortcomings identified above, the existing police detention facilities visited in Cyprus were suitable for accommodating detained persons for short periods of time, i.e. for a few days. However, as the CPT has stressed in the past, police detention facilities will generally remain inappropriate for holding persons for prolonged periods. Indeed, none of the police establishments visited offered the material conditions or the opportunities for activities that persons detained for prolonged periods are entitled to expect. ...","elements":[]},{"content":"At the end-of-visit talks with the Cypriot authorities, the visiting delegation made an immediate observation pursuant to Article 8, paragraph 5, of the European Convention for the prevention of Torture and Inhuman or Degrading Treatment or Punishment, requesting that the Cypriot authorities take immediate steps to improve the conditions of detention of persons held in police custody for prolonged periods. The delegation requested to be informed, within three months, of action taken in response to the immediate observation.","elements":[]},{"content":"59. By letter of 8 September 2008, the Cypriot authorities informed the CPT that remand police custody rarely lasts longer than 16 days, and that, as regards immigration detention, pursuant to a recent decision of the Minister of Interior, he personally examines, on a case-by-case basis, the files of non-EU nationals detained for longer than six months. Where there is no prospect of deportation and the individual has not committed any criminal act, he or she is set free and issued with a 12-month temporary residence/employment permit, after which the case is re-examined. The Cypriot authorities also informed the CPT that a new establishment for the detention of up to 300 aliens was planned for 2012.","elements":[]},{"content":"...","elements":[]},{"content":"61. The CPT remains concerned by the persistence of the Cypriot authorities in using unsuitable premises for persons detained pursuant to the aliens legislation, and for prolonged periods.","elements":[]},{"content":"It is certainly positive that the Cypriot authorities state that they intend not to keep aliens in detention for longer than 6 months. However, the fact remains that holding such persons in police stations for months on end is not acceptable. A solution to this problem cannot await the opening of the new aliens centre planned for 2012. The CPT has already described, in its previous report, the standards that accommodation provided to persons detained for prolonged periods under aliens an asylum legislation should meet.","elements":[]},{"content":"The CPT once again recommends that the Cypriot authorities urgently review the conditions in the existing centres designed to hold persons deprived of their liberty under aliens/asylum legislation, in the light of the aforementioned standards, and that they ensure that any additional centres they establish comply with those standards.","elements":[]},{"content":"...\u201d","elements":[]}]},{"content":"B.\u00a0\u00a0Relevant domestic reports: the report of the Ombudsman","elements":[{"content":"23.\u00a0\u00a0On 31 July 2012 the Ombudsman released a report on the conditions of detention and the treatment of detainees at Limassol Police Station following a visit carried out on 23 May 2012 by her office. In the report the Ombudsman observed, in so far as relevant to the present case, the following.","elements":[]},{"content":"24.\u00a0\u00a0The station was overcrowded: it could house a maximum of thirty-seven men and ten women but on the day of the visit there had been forty-two men male detainees and nineteen women. It had thus substantially exceeded its capacity.","elements":[]},{"content":"25.\u00a0\u00a0The facilities were old and totally unsuitable for long-term detention and did not provide dignified conditions of detention. Taking into account the CPT\u2019s recommendations, none of the cells were of an adequate size. The hygiene and sanitation facilities, as well as nutrition, were inadequate and although the cell temperature was satisfactory there was no natural light or proper ventilation, contrary to both CPT and United Nations standards (referring to CPT/Inf/E (2002) 1 - Rev. 2010 and the United Nations Standard Minimum Rules for the Treatment of Prisoners (1957)). The cells had no windows but just glass blocks which did not allow natural ventilation and light.","elements":[]},{"content":"26.\u00a0\u00a0Furthermore, the Ombudsman observed that although the station\u2019s director had informed her that the detainees had access to hygiene products (for example, toilet paper, soap and shampoo), he had also informed her that in 2012 the budget for these products had been reduced from 3,000 euros (EUR) to EUR 400. This drastic cutback was not in line with the relevant CPT standards and the sum allocated was not enough to cover the needs of all the detainees.","elements":[]},{"content":"27.\u00a0\u00a0Although she had been informed that sheets were sent to the laundry once a week, there had been complaints by detainees that there were not enough sheets to go round and that they were often dirty. Similarly, complaints had been made to her about the cleanliness of mattresses, many of which were placed on the floor because of overcrowding.","elements":[]},{"content":"28.\u00a0\u00a0The centre had an internal courtyard with natural light and ventilation which female detainees could use from 3 p.m. to 7 p.m. In the Ombudsman\u2019s view this was satisfactory as it secured, in line with CPT standards, the detainees\u2019 right to least one hour\u2019s daily exercise.","elements":[]},{"content":"29.\u00a0\u00a0The Ombudsman concluded that the infrastructure of the facilities had serious shortcomings and inadequacies and was not compatible with the fundamental principles for the treatment of prisoners and international standards for detention and imprisonment. In particular, in addition to overcrowding, the shortcomings that existed as to natural ventilation, minimum/basic hygiene conditions and the failure to separate pre-trial detainees from immigration detainees, rendered the centre completely unsuitable for detention, especially for a period exceeding six months.","elements":[]},{"content":"30.\u00a0\u00a0The Ombudsman made recommendations which included the immediate adoption of measures to add a window to each cell, to end overcrowding and the practice of detainees sleeping on mattresses on the floor, to provide personal hygiene products to detainees at any time and to review the budget that was allocated for this purpose.","elements":[]}]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION","elements":[{"content":"31.\u00a0\u00a0The applicant complained that the conditions of her detention at Limassol Police Station had been inadequate. The complaint falls to be considered under Article 3 of the Convention, which reads as follows:","elements":[]},{"content":"32.\u00a0\u00a0The Government contested that argument.","elements":[]},{"content":"A.\u00a0\u00a0Admissibility","elements":[{"content":"33.\u00a0\u00a0In their initial observations of 18 September 2015 the Government questioned whether the applicant wished to pursue her application before the Court. The applicant contested this in her observations in reply.","elements":[]},{"content":"34.\u00a0\u00a0Furthermore, in their final observations of 8\u00a0December 2015 the Government contested the representation of the applicant both by S.E. at the initial stages and by Ms C. Toka subsequent to communication of the application.","elements":[]},{"content":"35.\u00a0\u00a0Taking into account all the documents in the case file, the Court is satisfied that the application was validly lodged, that both S.E. and Ms\u00a0C.\u00a0Toka were duly authorised to represent the applicant and that the applicant wishes to pursue her application before the Court. The Government\u2019s objections on these matters must therefore be dismissed.","elements":[]},{"content":"36.\u00a0\u00a0The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]}]},{"content":"B.\u00a0\u00a0Merits","elements":[{"content":"1.\u00a0\u00a0The parties\u2019 submissions","elements":[{"content":"37.\u00a0\u00a0The applicant submitted that the conditions of her detention at the police station for a period of approximately five months constituted inhuman and degrading treatment in breach of Article 3 of the Convention. As found by the CPT in its 2012 report and the Ombudsman in her report of 31 July 2012, police detention facilities in Cyprus were inadequate for holding people for prolonged periods. The detention facilities at Limassol Police Station had been unsuitable for detaining people for long periods: there had been overcrowding, the sanitary facilities had been inadequate and the applicant had been deprived of fresh air, natural light and exercise during most of her detention.","elements":[]},{"content":"38.\u00a0\u00a0From the very beginning of her detention, the applicant had contacted S.E. by telephone asking him to supply her with various necessities that the station\u2019s authorities had refused to provide. She had asked him for a blanket and a jumper because it had been cold, the heating had not been working and there had not been enough blankets to go round. She pointed out in this respect that the Ombudsman had visited the station on 23 May 2012, when the weather had been warm.","elements":[]},{"content":"39.\u00a0\u00a0S.E. had also repeatedly provided the applicant with hygiene products. The Ombudsman in her report had pointed to the insufficiency of the budget allocated for such products vis-\u00e0-vis the needs of the detainees.","elements":[]},{"content":"40.\u00a0\u00a0The applicant pointed out that in accordance with the Government\u2019s calculations, she had shared her cell for fifty-eight out of the eighty days the authorities had recorded, and out of the total of 145 days of her detention the estimate had been that for 104 days she must have shared her cell with one detainee when she was in cell no. 29 and more than one detainee when she was in cell no. 28. It also appeared from the records submitted by the Government that on some days up to twenty-one women had been held in the wing and that throughout almost her entire detention the numbers of detainees had significantly exceeded the formal capacity of ten women. This was corroborated by the Ombudsman\u2019s report of 31 July 2012.","elements":[]},{"content":"41.\u00a0\u00a0The Government submitted that in assessing the conditions of detention, account had to be taken of the specific allegations made by the applicant (referring to Dougoz v. Greece, no. 40907/98, \u00a7 46, ECHR\u00a02001II). In the present case the applicant\u2019s allegations had been too general. In any event, it appeared from the documents provided by the authorities that the applicant\u2019s description of the conditions of her detention was unfounded.","elements":[]},{"content":"42.\u00a0\u00a0The applicant had not been held with four other women in the cell in which she had been placed. There was evidence showing that she had been held in a single occupancy cell \u2013 that is, cell 29 \u2013 and that it was likely that she had shared that cell with one other detainee. When she had shared her cell she had had 2.97 sq. m of personal space. This situation had not pursued the aim of humiliating or debasing her. Although it may have caused her some inconvenience, it had not adversely affected her. The lack of space had been compensated for by the fact that she had been able to move freely in the open courtyard for four hours per day. The courtyard provided access to natural light and the detainees had between 8.6 sq. m and 17.2 sq. m of personal space depending on the number of detainees housed in the wing. When a female police officer had been sick or otherwise engaged, she had been replaced by another female officer. Thus, contrary to the applicant\u2019s claim, the daily exercise schedule had not been affected.","elements":[]},{"content":"43.\u00a0\u00a0Similarly, although this had been inconvenient, the applicant had not been adversely affected when the air-conditioning system had not functioned for three days in March 2012 owing to maintenance work. In connection with the latter, the Government pointed out that apart from those three days, the system had functioned properly throughout the applicant\u2019s detention. The Ombudsman in her report had observed that the temperature in the wing had been satisfactory.","elements":[]},{"content":"44.\u00a0\u00a0The Government concluded that the authorities had not failed to comply with their obligation to ensure that the applicant was not subjected to distress or hardship exceeding the unavoidable level of suffering inherent in detention. In any event, they argued that the conditions of the applicant\u2019s detention had not met the threshold required for a violation of Article 3.","elements":[]}]},{"content":"2.\u00a0\u00a0The Court\u2019s assessment","elements":[{"content":"45.\u00a0\u00a0The Court refers to the principles summarised in its case-law regarding inadequate conditions of detention (for a summary of the relevant general principles see the recent Grand Chamber judgment in the case of Mur\u0161i\u0107 v. Croatia [GC], no. 7334/13, \u00a7\u00a7 96-141, 20 October 2016).","elements":[]},{"content":"46.\u00a0\u00a0The Court notes at the outset that the applicant was detained for nearly five months at Limassol Police Station, a police establishment designed for short periods of detention. The Court has already ruled that police stations and other similar establishments which, by their very nature, are places designed to accommodate people for very short durations, are not appropriate places for the detention of people who are waiting for the application of an administrative measure, such as deportation (see, for example, Thuo v. Cyprus, no. 3869/07, \u00a7 159, 4 April 2017 with further references). On that point, the Court observes that the Cypriot authorities\u2019 practice of detaining aliens subject to deportation procedures in police facilities for long periods has been explicitly mentioned by the CPT, inter alia in its 2012 report describing such establishments as unsuitable for detaining people under immigration legislation for prolonged periods (see paragraph 22 above). It is true that the CPT\u2019s visit in 2008 took place nearly three years and ten months before the applicant\u2019s detention in the present case. However, there is nothing to suggest that the material conditions at the station changed dramatically between 2008 and 2012. This is evident from the description of the facilities set out in the Ombudsman\u2019s report of 31\u00a0July 2012 following her visit on 23 May 2012 during the applicant\u2019s detention (see paragraphs 23-29 above). The Ombudsman pointed out, inter alia, that the facilities were old and totally unsuitable for long-term detention and did not provide dignified conditions of detention (see paragraph 25 above).","elements":[]},{"content":"47.\u00a0\u00a0The applicant submitted that throughout her detention the women\u2019s wing at the station had been full beyond its capacity, to the point that there was a flagrant lack of personal space. The Ombudsman\u2019s report following her visit during the relevant period lends credence to the applicant\u2019s allegations (see paragraphs 24, 25 and 29 above). Thus, having in mind the above-mentioned inadequacy of the police station for accommodating the applicant for a long period of time, the Court will examine her complaint of overcrowding on the basis of the principles set out in the Mur\u0161i\u0107 case.","elements":[]},{"content":"48.\u00a0\u00a0The Court reiterates that Convention proceedings such as those relating to the present application do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation), as in certain instances the respondent Government alone have access to information capable of corroborating or refuting allegations. A failure on a Government\u2019s part to submit such information without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant\u2019s allegations (see, among many other authorities, Mela v. Russia, no.\u00a034044/08, \u00a7 62, 23 October 2014; Mitrokhin v. Russia, no. 35648/04, \u00a7\u00a051, 24 January 2012; and Grigoryevskikh v.\u00a0Russia, no. 22/03, \u00a7 59, 9 \u00a0April 2009; see also, for the burden of proof in such cases, Mur\u0161i\u0107, cited above, \u00a7\u00a0128).","elements":[]},{"content":"49.\u00a0\u00a0The Court notes that the documents submitted by the Government for the period of the applicant\u2019s detention are incomplete as no consistent and continuous records were kept as to the precise cells in which the applicant was held and the number of detainees held in them every day. The table they prepared concerning the number of detainees in the women\u2019s wing during the relevant period is also incomplete. It does appear from this table, however, that the women\u2019s wing was overcrowded for the majority of the days recorded and, overall, for more than two months during the applicant\u2019s detention. During the period of nearly five months, there are only fifteen days recorded where there were eight to ten detainees and only three when there were eleven detainees in the wing. The Government admitted that when the number of detainees exceeded the wing\u2019s capacity it was likely that the applicant would have shared a cell with another detainee, and therefore would have had 2.97 sq. m of personal space (see paragraphs\u00a014 and 42 above).","elements":[]},{"content":"50.\u00a0\u00a0The Government have failed to submit information capable of refuting the applicant\u2019s allegations that the women\u2019s wing at the police station was overcrowded and that for the greater part of her detention she was held in cells in which she had less than 3 sq. m. Consequently, a strong presumption of a violation of Article 3 arises in the case at hand (see Mur\u0161i\u0107, cited above, \u00a7\u00a7\u00a0136-37). As the Government have not shown that there were only short, occasional and minor reductions in the required personal space (ibid., \u00a7\u00a7 151-53), this presumption cannot be called into question.","elements":[]},{"content":"51.\u00a0\u00a0Accordingly, the Court finds that during the relevant period the conditions of the applicant\u2019s detention subjected her to hardship going beyond the unavoidable level of suffering inherent in detention and thus amounted to degrading treatment prohibited by Article 3 of the Convention.","elements":[]},{"content":"52.\u00a0\u00a0In view of that conclusion, the Court does not need to examine the applicant\u2019s remaining complaints concerning the conditions of her detention at Limassol Police Station.","elements":[]}]}]}]},{"content":"II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION","elements":[{"content":"53.\u00a0\u00a0Article 41 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Damage","elements":[{"content":"54.\u00a0\u00a0The applicant claimed EUR 40,000 in respect of non-pecuniary damage. She submitted that she had suffered both mentally and physically during her detention for nearly five months in inhuman and degrading conditions.","elements":[]},{"content":"55.\u00a0\u00a0The Government rejected the applicant\u2019s claim as excessive.","elements":[]},{"content":"56.\u00a0\u00a0The Court accepts that the applicant has suffered non-pecuniary damage as a result of the conditions of her detention in Cyprus and, ruling on an equitable basis, awards her EUR 6,500 under that head, plus any tax that may be chargeable.","elements":[]}]},{"content":"B.\u00a0\u00a0Costs and expenses","elements":[{"content":"57.\u00a0\u00a0The applicant claimed a total of EUR 4,070 for costs and expenses incurred in connection with her case. Firstly, she claimed EUR 3,570 for the work carried out by her lawyer before the Court, submitting a pro-forma invoice itemising the fees incurred on this account. This amount was broken down as follows: EUR 476 for preparatory work and letters sent to the Registry; EUR\u00a01,904 for eight hours\u2019 work carried out on research and studying the documents of the case; and EUR 1,190 for five hours\u2019 work on preparing the submissions in the case. The amounts included VAT at 19%.","elements":[]},{"content":"58.\u00a0\u00a0Secondly, the applicant also claimed the sum of EUR 500 which had been paid to Mr L. Loucaides by her previous representative S.E. in connection with her case. She submitted a receipt for that payment.","elements":[]},{"content":"59.\u00a0\u00a0The Government submitted that the applicant could not recover costs which had not been actually incurred, which had not been necessarily incurred to prevent or redress the breach of the Convention found by the Court and which were not reasonable as to quantum. They submitted that the applicant had not paid, and was not bound by any legal or contractual obligation to pay, the amounts on the pro-forma invoice and the receipt. In the alternative, they claimed that the amount claimed under this head was excessive.","elements":[]},{"content":"60.\u00a0\u00a0Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the amount claimed in full, plus any tax that may be chargeable to the applicant.","elements":[]}]},{"content":"C.\u00a0\u00a0Default interest","elements":[{"content":"61.\u00a0\u00a0The 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.","elements":[]}]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT, UNANIMOUSLY,","elements":[{"content":"1.\u00a0\u00a0Declares the application admissible;","elements":[]},{"content":"2.\u00a0\u00a0Holds that there has been a violation of Article 3 of the Convention;","elements":[]},{"content":"3.\u00a0\u00a0Holds","elements":[]},{"content":"(a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months, the following amounts:","elements":[]},{"content":"(b)\u00a0\u00a0that 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;","elements":[]},{"content":"4.\u00a0\u00a0Dismisses the remainder of the applicant\u2019s claim for just satisfaction.","elements":[]},{"content":"Done in English, and notified in writing on 4 December 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.","elements":[]}],"section_name":"conclusion"}]epresented by their Agent, Mr J. Wo\u0142\u0105siewicz of the Ministry of Foreign Affairs.","elements":[]},{"content":"3.\u00a0\u00a0The applicants alleged that their right to the peaceful enjoyment of their possessions had been breached since the land which they owned had been designated for expropriation at some undetermined future date. Under domestic legislation they were not entitled to any compensation for the interference with their ownership rights resulting from the future expropriation.","elements":[]},{"content":"4.\u00a0\u00a0On 20 October 2006 the President of the Fourth Section of the Court decided to give notice of the application to the Government. Under the provisions of Article\u00a029 \u00a7\u00a03 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility.","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE","elements":[{"content":"5.\u00a0\u00a0The applicants\u2019 legal predecessors owned a plot of land with a surface area of 3,625 sq. m. located in the , listed in a land register under entry no.\u00a029552. In 1993 the applicants inherited this property as coowners. The property was designated, by an administrative decision given on an undetermined date, apparently prior to 1993, for agricultural use.","elements":[]},{"content":"6.\u00a0\u00a0By a letter of 30 October 1991 the first applicant was informed by the WarszawaOchota Muncipal Office that the starting date for the development foreseen by the draft land development plan for the municipality had not yet been yet fixed, but that it was most likely that work would begin after 1995.","elements":[]},{"content":"7.\u00a0\u00a0According to the relevant local development plan, which was adopted in 1992 and later amended in 1995, the entire property had been designated for construction of a major roadway, connecting the municipality with , and various commercial buildings. As a result, the applicants could continue to use their property for gardening or agricultural purposes, but could not carry out any development. A number of owners lodged objections against this plan, which were ultimately dismissed by the .","elements":[]},{"content":"8.\u00a0\u00a0In June 1992 the applicants requested the municipality to specify the use to which their property would be put under the land development plan and to indicate timelimits for the works to begin. They also requested the municipality to acquire the property from them. This offer apparently remained unanswered.","elements":[]},{"content":"9.\u00a0\u00a0On 13 May 1999 the applicants made an enquiry with the municipality as to the development plans in respect of their property.","elements":[]},{"content":"10.\u00a0\u00a0In a reply of 14 June 1999 they were informed that their property remained covered by the development plan adopted in 1992 under which it was designated for construction of a roadway and for various commercial buildings.","elements":[]},{"content":"11.\u00a0\u00a0On 12 November 2001 the applicants renewed their request for the municipality to acquire their plot. This was refused on 21\u00a0December 2001.","elements":[]},{"content":"12.\u00a0\u00a0On 27 December 2001 the applicants complained to the municipal authorities that the local land development plan had not been implemented and that no timeframe for its implementation had been foreseen, even tentatively. As a result, they could not carry out any development of the property and had been left in a prolonged state of uncertainty as to its future fate. It could not be used for leisure purposes as it was situated in a rather unattractive area. They had been contacted by many potential buyers who, having learnt about the lack of possibilities to develop the land immediately, had lost interest in buying the property. Their requests that the municipality acquire their land had been unsuccessful. As a result of the legal situation of the property, their ownership had been stripped of all economic value.","elements":[]},{"content":"13.\u00a0\u00a0On 7 January 2002 the applicants were informed by the Municipal Office that their land would be acquired in the future by a company which would construct the roadway foreseen under the 1992 development plan.","elements":[]},{"content":"14.\u00a0\u00a0On 11 April 2002 the applicants requested, for the first time, that an initial approval of a development project (decyzja o warunkach zabudowy) be issued for the construction of a small house on their land.","elements":[]},{"content":"15.\u00a0\u00a0In a reply of 20 May 2002 the WarszawaW\u0142ochy Municipal Office informed them that such a decision could not be issued as it would not be compatible with the local land development plan adopted in 1992.","elements":[]},{"content":"16.\u00a0\u00a0In a further letter of 2 August 2002 the WarszawaW\u0142ochy Municipal Office informed the applicants that the mere fact that their property had been foreseen for future expropriation for the purposes of the construction of the roadway did not entail for the municipality an obligation to acquire their land from them. Accordingly, there were no immediate plans to purchase the properties designated in the local development plan for the construction of the roadway. They were also informed that a new land development plan was being prepared by the municipality.","elements":[]},{"content":"17.\u00a0\u00a0On 27 March 2003 the applicants complained to the about the local administration\u2019s failure to adopt a new land development plan. They referred to the restrictions which the 1992 plan imposed on the exercise of their ownership.","elements":[]},{"content":"18.\u00a0\u00a0On 16 April 2003 the rejected their complaint, holding that a complaint against the administration\u2019s failure to act could not be made in respect of proceedings concerning elaboration of local land development plans.","elements":[]},{"content":"19.\u00a0\u00a0On 31 December 2003 the relevant local development plan expired, pursuant to the Local Planning Act 2003 (see paragraph 23\u00a0below).\u00a0\u00a0Apparently to date no new land development plan has been adopted by the municipality.","elements":[]}]},{"content":"II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE","elements":[{"content":"A. \tChanges in land development legislation during the period concerned","elements":[{"content":"31.\u00a0\u00a0Other relevant legislative provisions are extensively set out in the Court\u2019s judgment of 14 November 2006 in the case of Skibi\u0144scy v.\u00a0Poland (no.\u00a052589/99, \u00a7\u00a7\u00a02853).","elements":[]}]},{"content":"B.\u00a0\u00a0Judgment of the ","elements":[]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION","elements":[{"content":"33.\u00a0\u00a0The applicants complained that their right to the peaceful enjoyment of their possessions had been breached. They referred to Article\u00a01 of Protocol No.\u00a01 Convention, which reads as follows:","elements":[]},{"content":"\u201cEvery natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.","elements":[]},{"content":"The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Admissibility","elements":[{"content":"1. Incompatibility ratione temporis with the provisions of the Convention","elements":[{"content":"34.\u00a0\u00a0The Government submitted that the alleged violation of the applicants\u2019 property rights had originated in the land development plan adopted in 1992. Moreover, the applicants\u2019 land had already been designated for agricultural purposes before they acquired a legal title thereto in 1993. The application was therefore incompatible ratione temporis with the provisions of the Convention because the alleged violation had taken place before 10\u00a0October 1994, the date on which had ratified Protocol No.\u00a01 to the Convention.","elements":[]},{"content":"35.\u00a0\u00a0The applicants disagreed. They argued that, in the context of a continuing violation of the right to the peaceful enjoyment of one\u2019s possessions, the events which had taken place before the date of ratification of Protocol No. 1 to the Convention were to be taken into account as a background relevant to the assessment of the current situation. The applicants referred to the Court\u2019s reasoning in a case in which it had held that legislation which had been adopted prior to the entry into force of Protocol No.\u00a01 had created for the applicant a continuing situation in that it had determined her legal situation and that this legal situation remained in force after the ratification (Rudzi\u0144ska v.\u00a0Poland (dec.), no.\u00a045223/99, 7\u00a0September 1999). In addition, the applicants referred to the Court\u2019s judgment in the case of Rosi\u0144ski v.\u00a0Poland (no. 17373/02, 17 July 2007), concerning similar facts, where the Court had accepted that it had temporal jurisdiction.","elements":[]},{"content":"36.\u00a0\u00a0The Court\u2019s jurisdiction ratione temporis covers only the period after the date of ratification of the Convention and its Protocols by the respondent State. After ratification, the State\u2019s acts must conform to the Convention or its Protocols and subsequent facts fall within the Court\u2019s jurisdiction even where they are merely extensions of an already existing situation (see, for example, Almeida Garrett, Mascarenhas Falc\u00e3o and Others v.\u00a0Portugal, nos.\u00a029813/96 and 30229/96, \u00a7\u00a043, ECHR 2000I). Accordingly, the Court is competent to examine the facts of the present case for their compatibility with the Convention only in so far as they occurred after 10\u00a0October 1994, the date of the ratification of Protocol No.\u00a01 by . It may, however, have regard to the facts prior to ratification inasmuch as they could be considered to have created a continuous situation extending beyond that date or may be relevant for the understanding of facts occurring after that date (see HuttenCzapska\u00a0v.\u00a0Poland [GC], no.\u00a035014/97, \u00a7\u00a7\u00a0147153, ECHR\u00a02006...).","elements":[]},{"content":"37.\u00a0\u00a0The Court observes that the applicants\u2019 complaint is not directed against a single measure or decision taken before, or even after, 10\u00a0October 1994. It rather refers to continuous restrictions imposed on the exercise of their ownership and arising from various legal measures, adopted both before and after that date (see paragraphs 2031 above). The Government\u2019s plea of lack of jurisdiction ratione temporis must accordingly be rejected.","elements":[]}]},{"content":"2. Incompatibility ratione materiae with the provisions of the Convention","elements":[{"content":"38.\u00a0\u00a0The Government submitted that in 1993 the applicants had acquired agricultural land, with no construction rights. Hence, they could not have had any legitimate expectation that in the future they would be allowed to use it for construction purposes. They had never been deprived of such a right. Under Polish law the authorities could not be required to permit agricultural land to be designated for construction purposes. In the present case the applicants could have had no more than a mere hope that they would acquire such a right, but it could not be said that they had ever had a legitimate expectation to be able to build on their land.","elements":[]},{"content":"39.\u00a0\u00a0The applicants disagreed and emphasised that as a result of the restrictions originating in the land development plan, seen as a whole, an effective exercise of their ownership, guaranteed by the applicable provisions of civil law, had been seriously limited.","elements":[]},{"content":"40.\u00a0\u00a0The Court notes the Government\u2019s argument that under applicable laws the applicants had no right to build on the land concerned. However, it observes that the essence of the applicants\u2019 complaint relates to a set of de facto restrictions on the exercise of their ownership, with particular emphasis on the lack of any right to compensation for the future expropriation of their land (see paragraph 59 below), rather than on the mere impossibility to implement any construction projects which they might have had. The Court further notes that this state of affairs lasted for over eight years. It therefore rejects the Government\u2019s objection.","elements":[]}]},{"content":"3.\tExhaustion of domestic remedies","elements":[{"content":"41.\u00a0\u00a0The Government argued that if the applicants had considered that the provisions on which the domestic decisions in their case had been based were incompatible with the Constitution, it would have been open to them to challenge these provisions by lodging a constitutional complaint under Article\u00a079 of the Constitution. They should have lodged such a complaint against a judgment of the administrative court which the applicants should have sought in order to have the local land development plan amended.","elements":[]},{"content":"42.\u00a0\u00a0The Government further argued that the applicants should have lodged a civil action with a court, claiming damages against either the State Treasury or the municipality for the interference with their right to the peaceful enjoyment of their possessions. Had a civil court found against them, they could subsequently have lodged a constitutional complaint with the .","elements":[]},{"content":"43.\u00a0\u00a0The applicants disagreed. They submitted that they had tried to remedy their situation by submitting various requests to the municipality in 1992, 2001 and 2002. In April 2002 they requested to be granted building permission. In reply, the municipality informed them, by way of a letter, that such permission would have been incompatible with the land development plan. However, in the absence of a formal refusal in the form of an administrative decision, the applicants could not lodge a formal appeal and pursue their application before the and, ultimately, to the .","elements":[]},{"content":"44.\u00a0\u00a0They further submitted that the provisions of civil law on civil liability of public authorities had not been applicable to their case. The Local Planning Act 1994 had expressly excluded civil liability of public authorities for claims originating from interferences with property rights in connection with future expropriations in the context of implementation of land development plans. They concluded that they had not had at their disposal any compensatory remedies that would have been available and offered reasonable prospects of success not only in theory, but also in practice.","elements":[]},{"content":"45.\u00a0\u00a0The Court recalls that the object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address the allegation made of violation of a Convention right and, where appropriate, to afford redress before that allegation is submitted to the Court (Kud\u0142a v.\u00a0Poland [GC], no.\u00a030210/96, \u00a7\u00a0152, ECHR\u00a02000-XI). The Court further reiterates that Article\u00a035 of the Convention, which sets out the rule on exhaustion of domestic remedies, provides for a distribution of the burden of proof. It is incumbent on the Government claiming nonexhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant\u2019s complaints and offered reasonable prospects of success (Selmouni v.\u00a0France [GC], no.\u00a025803/94, \u00a7\u00a076, ECHR 1999-V and Mifsud v.\u00a0France (dec.) [GC], no.\u00a057220/00, ECHR 2002VIII).","elements":[]},{"content":"46.\u00a0\u00a0The Court has already dealt with the question of the effectiveness of the Polish constitutional complaint (Szott-Medy\u0144ska v.\u00a0Poland (dec.), no.\u00a047414/99, 9\u00a0October 2003; Wypych v.\u00a0Poland (dec.), no.\u00a02428/05, 25\u00a0October 2005). It examined its characteristics and in particular found that the constitutional complaint was an effective remedy for the purposes of Article\u00a035 \u00a7\u00a01 of the Convention in situations where the alleged violation of the Convention resulted from the direct application of a legal provision considered by the complainant to be unconstitutional.","elements":[]},{"content":"47.\u00a0\u00a0However, in the instant case, the Court notes that the essence of the applicants\u2019 complaint is that, as a result of the expropriation to be carried out at a future, undetermined date:","elements":[]},{"content":"- they were not entitled to compensation for the protracted period of uncertainty, which was twice extended by the legislator;","elements":[]},{"content":"- they were not entitled to obtain land to replace the plot designated for expropriation;","elements":[]},{"content":"- they were unable to oblige the municipality to acquire their property before the planned expropriation; and lastly","elements":[]},{"content":"- they were prevented from pursuing any development projects on that property.","elements":[]},{"content":"48.\u00a0\u00a0 The Court further notes that the provisions of the Local Planning Act 1994 were examined by the in 1995. That court held that they were compatible with the obligation of the State to protect private property laid down in the Constitution of 1952 (see paragraph\u00a032 above).","elements":[]},{"content":"49.\u00a0\u00a0The Court observes that the applicants\u2019 requests to have their property acquired by the municipality were refused, but only by informal letters (see paragraphs 14 and 15 above). Hence, the authorities did not issue binding administrative decisions against which the applicants could have appealed to the administrative court. It has not been shown or argued that the applicants could oblige them to do so. Therefore the Court is of the view that it has not been shown that in the circumstances of the case the way to the Constitutional Court was open to them.","elements":[]},{"content":"50.\u00a0\u00a0Insofar as the Government argued that the applicants should have claimed compensation before a civil court, the Court observes that under the provisions of the Land Planning Act 1994 the liability of public authorities for any damage which might have its origin in expropriation planned in the future was excluded. Hence, this remedy did not offer any prospects of success. It further notes that the Government have not adduced any caselaw of the domestic courts which would have demonstrated that such a claim, in the circumstances arising against the background of the 1994 Act and the successive land planning legislation, offered any prospects of success.","elements":[]},{"content":"51.\u00a0\u00a0Having regard to the above, the Court dismisses the Government\u2019s objection concerning domestic remedies. Furthermore, it notes that the application is not manifestly ill-founded within the meaning of Article\u00a035 \u00a7\u00a03 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]}]}]},{"content":"B.\u00a0\u00a0Merits","elements":[{"content":"1. The parties\u2019 submissions","elements":[{"content":"52.\u00a0\u00a0 The Government first submitted that there had been no interference with the applicants\u2019 right to the peaceful enjoyment of their possessions. The plot at issue had been designated for agricultural purposes before the applicants acquired it. They had never had an unconditional right or a legitimate expectation to be able to use their property for housing purposes. Even if there had been no public investment planned for their property, the applicants would not automatically have had the right to build on it, or to demand its designation for such purposes (Allan Jacobsson v.\u00a0Sweden, no.\u00a018/1987/141/195, 25 October 1989, \u00a7\u00a060; Matti and Marianne Hiltunen against Finland (dec.), no.\u00a030337/96, 28\u00a0September 1999). In 1993, when the applicants had inherited the land, the planned course of the new roadway had already been known.","elements":[]},{"content":"53.\u00a0\u00a0The Government argued that neither the provisions of Polish law nor of Protocol No.\u00a01 imposed on the Polish authorities an obligation to change the character of the use of land by individual owners. Under Article\u00a01 of Protocol No.\u00a01, States had a right to enforce such laws as they deemed necessary to control the use of property in accordance with the general interest. The applicants had bought a property designated for agricultural use and should have been aware that their ownership right had not encompassed the right to build a house there. They had been entitled to use or dispose of their plot only within the limits prescribed by the law, the principles of reasonable social cooperation and the socio-economic purpose of ownership. The applicants\u2019 situation was therefore different from that in the case of Sporrong and L\u00f6nnroth v.\u00a0Sweden (judgment of 23\u00a0September 1982, Series A no.\u00a052, \u00a7\u00a011) in which restrictions were imposed on property in the centre of the capital city. The applicants\u2019 ownership had therefore not become precarious.","elements":[]},{"content":"54.\u00a0\u00a0The Government submitted that the measures complained of had pursued the legitimate aim of securing land for the implementation of the local development plan. The impugned measures had served the general interest as they had been intended to resolve the communication and environmental problems of the municipality. As the Court acknowledged on many occasions, such matters corresponded to the general interest of the community and the measures taken in the present case had been dictated by the difficult situation concerning the communications network in the municipality.","elements":[]},{"content":"55.\u00a0\u00a0The Government argued that by adopting in 1994 the provisions of the Local Planning Act, insofar as it conferred on the owners to be expropriated in the future an entitlement to obtain compensation, the legislature had given the local authorities time to adjust land development plans to the new needs of the municipalities. However, the latter were not obliged to compensate individual owners for the consequences of local development plans adopted before 1989, when the transformation of the legal and economic system of the State had been undertaken.","elements":[]},{"content":"56.\u00a0\u00a0The Government argued that the procedure for the adoption of the development plan had sufficiently involved the local community. All stages of the procedure had been public and the inhabitants of the municipality, including the applicants, had been able to comment on the draft plans.","elements":[]},{"content":"57.\u00a0\u00a0The Government were of the opinion that in the present case the individual burden imposed on the applicants had not been excessive. They had not been prevented from either selling or leasing their property. It had remained possible for them to continue using the property for agricultural purposes in the same way in which their parents had apparently been using it prior to the entry into force of the 1994 Act. Therefore the special compensatory entitlements provided for by that Act did not in any event apply to the applicants.","elements":[]},{"content":"Hence, the present case was different from the situation in which the Court had found a violation of Article\u00a01 of Protocol No.\u00a01 to the Convention in the case Immobiliare Saffi v.\u00a0 ([GC], no.\u00a022774/93, ECHR 1999V) as the applicants could fully enjoy their ownership rights. The authorities could not be held responsible for the fact that the value of the land had decreased as a result of the land development plan having been adopted in 1992. In any event, the property situated in the vicinity of an airport was not attractive to prospective buyers. The applicants had not shown that they had sought to lease the property to third parties or that they envisaged any other economically viable manner in which the property could be used until the expropriation.","elements":[]},{"content":"58.\u00a0\u00a0The Government concluded that, in the circumstances of the case, a fair balance had been struck between the applicants\u2019 individual rights on the one hand and the public interest of the local community on the other.","elements":[]},{"content":"59.\u00a0\u00a0The applicants were of the view that the circumstances of the case amounted to a breach of their right to the peaceful enjoyment of their possessions. Their land had been designated for expropriation at an undetermined future date and this state of affairs had lasted for a long period of time, despite the fact that no funds had been available throughout this period to finance the planned investment. The public authorities, while they were obviously entitled to take appropriate measures to implement their spatial planning policies, should have also eliminated uncertainty concerning the future fate of the properties affected by such policies. The applicants stressed that uncertainty \u2013 whether originating from legislative or administrative sources or arising from practices applied by the authorities \u2013 is a factor to be taken into account in assessing the State\u2019s conduct. Indeed, where an issue in the general interest is at stake, it is incumbent on the public authorities to act in good time and in an appropriate and consistent manner (see Vasilescu v.\u00a0Romania, judgment of 22\u00a0May 1998, Reports of Judgments and Decisions 1998-III, p.\u00a01078, \u00a7\u00a051; Beyeler v.\u00a0Italy [GC], no.\u00a033202/96, \u00a7\u00a7\u00a0110 in fine, 114 and 120 in fine, ECHR 2000I; Sovtransavto Holding v.\u00a0Ukraine, no.\u00a048553/99, \u00a7\u00a7\u00a09798, ECHR 2002VII).","elements":[]},{"content":"60.\u00a0\u00a0As a result of the authorities\u2019 failure to address their situation correctly, they could not freely use their property for purposes other than agricultural and could not seek requalification of their land. Moreover, they had not been entitled to any compensation for this interference with their rights. The applicants referred to the Court\u2019s finding of violations of Article\u00a01 of Protocol No.\u00a01 made in the aforementioned case of Rosi\u0144ski v.\u00a0Poland.","elements":[]}]},{"content":"2. The Court\u2019s assessment","elements":[]},{"content":"(i)\u00a0\u00a0Whether there was interference with the peaceful enjoyment of \u201cpossessions\u201d","elements":[{"content":"61.\u00a0\u00a0The Court must first examine whether there was interference with the peaceful enjoyment of the applicants\u2019 possessions. The Court observes that the applicants\u2019 situation was affected by the local land development plan adopted by the municipality in 1992 because it provided for the future expropriation of their land. The Court emphasises that the applicants were affected not so much by the mere prospect of expropriation, but by the fact that this future expropriation was to be carried out at an undetermined date.","elements":[]},{"content":"62.\u00a0\u00a0In that connection, the Court further observes that before the enactment of the Local Planning Act in 1994 the local authorities did not have any obligation to compensate owners of plots to be expropriated in the future. It was only by virtue of that Act that local authorities became obliged either to buy plots designated for future expropriation under local land development plans, or to replace those plots by other plots, or to award the owners compensation for damage caused by the fact that their plots were designated for future expropriation. However, the right to compensation applied only to plans adopted after the 1994 Act had entered into force. Consequently, they were not applicable to the applicants\u2019 situation as the plan for the municipality had been adopted in 1992.","elements":[]},{"content":"63.\u00a0\u00a0The Court notes the Government\u2019s argument that these compensation entitlements were available only to persons who could show that the future expropriation affected the current use to which their property could be put. In the Government\u2019s view, the applicants could not, in any event, avail themselves of such entitlements, because the future expropriation did not affect the agricultural use of the property concerned. However, the Court observes that, even assuming that this argument is correct, it is tantamount to acknowledging that the applicants did not have any entitlements to compensation for the future expropriation, either before the Local Planning Act 1994 was adopted, or afterwards.","elements":[]},{"content":"64.\u00a0\u00a0The Court further notes that the municipality repeatedly informed the applicants that it was not obliged to acquire their property which was to be expropriated in the future.","elements":[]},{"content":"65.\u00a0\u00a0Consequently, the Court is of the view that the measures complained of, taken as a whole, in law left intact the applicants\u2019 right to continue to use and dispose of their possessions. Nevertheless, in practice, they significantly reduced the practical and effective exercise of that right. The Court considers that the prospect of the future expropriation could negatively affect the market value of the property. It also notes that it is reasonable to accept that a request to have the land reclassified so that it could be used for construction purposes was, in these circumstances, bound to fail. Likewise, the applicants could not reasonably expect that any development projects on their property would be accepted by the municipality.","elements":[]},{"content":"Their property rights thus became precarious (mutatis mutandis, Sporrong and L\u00f6nnroth v.\u00a0Sweden, cited above, \u00a7\u00a7\u00a058-60; Skibi\u0144scy v.\u00a0Poland, no.\u00a052589/99, 14 November 2006, \u00a7\u00a079; Skrzy\u0144ski v.\u00a0Poland, no.\u00a038672/02, 6\u00a0September 2007, \u00a7\u00a074, Rosi\u0144ski v.\u00a0Poland, cited above, \u00a7\u00a072). The Court therefore concludes that there was indeed an interference with the peaceful enjoyment of the applicants\u2019 possessions. The Court further considers that the measures complained of did not amount to expropriation. Likewise, they cannot be regarded as a control of use of property. Accordingly, the interference falls to be examined under the first sentence of Article\u00a01 of Protocol No.\u00a01 (cf. James and Others v.\u00a0the United Kingdom, judgment of 21\u00a0February 1986, Series A no.\u00a098, pp.\u00a02930, \u00a7\u00a037; see also, among many other authorities, Belvedere Alberghiera S.r.l. v.\u00a0Italy, no.\u00a031524/96, \u00a7\u00a051, ECHR 2000VI).","elements":[]}]},{"content":"(ii)\u00a0\u00a0Whether the interference was \u201cprovided for by law\u201d","elements":[]},{"content":"(iii)\u00a0\u00a0Whether the interference was \u201cin the general interest\u201d","elements":[]},{"content":"(iv)\u00a0\u00a0Proportionality of the interference","elements":[{"content":"70.\u00a0\u00a0The Court considers that, in the area of land development and town planning, the Contracting States should enjoy a wide margin of appreciation in order to implement their policies (see Terazzi S.r.l. and Elia S.r.l., cited above). Nevertheless, in the exercise of its power of review, the Court must determine whether the requisite balance was maintained in a manner consonant with the applicant\u2019s right to property (see, mutatis mutandis, Sporrong and L\u00f6nnroth, cited above, \u00a7\u00a069).","elements":[]},{"content":"71.\u00a0\u00a0In that connection, the Court first observes that in 1992 the municipality adopted the land development plan. Under this plan, the applicants\u2019 property was designated for future expropriation with a view to the construction of a road. However, that plan did not have any timeframe for its implementation.\u00a0\u00a0As a result, the applicants were threatened with expropriation at an undetermined point in time. In addition, they did not have any effective entitlement to compensation in the meantime. The Court emphasises that this situation lasted for a long period: from 1992 when the plan was adopted until 31\u00a0December 2003, when this plan eventually expired under the provisions of the Local Planning Act 2003.","elements":[]},{"content":"72.\u00a0\u00a0The Court observes that the successive amendments to the Local Planning Act 1994 had a double effect: they extended the validity of the local plan and also prolonged the period during which owners to be expropriated in the future could not claim any compensation from the municipality.","elements":[]},{"content":"73.\u00a0\u00a0In this connection, the Court notes the Government\u2019s argument that the provisions of the 1994 Act were intended to improve the situation of owners, because it introduced for them a right to compensation which had not previously existed. They also pointed out the temporary nature of the prolongations. However, the Court cannot overlook the fact that, although the legislature introduced compensatory provisions into the law, at the same time it excluded their application in respect of plans adopted before 1\u00a0January 1995. Moreover, this situation was prolonged three times, for an overall period of nine years. Consequently, until July 2003, the date of entry into force of the Local Planning Act 2003, the applicant could not make any claim for compensation against the municipality.","elements":[]},{"content":"74.\u00a0\u00a0The Court notes that compensation claims of owners who were affected by future expropriations can be pursued before civil courts. However, this provision is only applicable to situations arising after the 2003 Act had entered into force in respect of new local land development plans. It has not been argued or shown that the 2003 Act, or any other legislation, provides for any retroactive right to compensation for the prejudice suffered by the applicants before its entry into force, as a result of the restrictions originating in earlier development plans. Consequently, even assuming that the provisions on compensation contained in this Act were applicable to the applicants\u2019 situation (an assumption which the Government, in any event, refute; see paragraph 63 above), the entry into force of the 2003 Act did not alter their situation.","elements":[]},{"content":"75.\u00a0\u00a0The Court notes the Government\u2019s argument that, by adopting such provisions, the legislature had given the local authorities time to adjust land development plans to the new needs of the municipalities. The Court is aware that the problems arising from the enactment of a comprehensive legal framework in the area of urban planning constitute part of the process of transition from a socialist legal order and its property regime to one compatible with the rule of law and the market economy \u2013 a process which, by the very nature of things, is fraught with difficulties. However, these difficulties and the enormity of the tasks facing legislators having to deal with all the complex issues involved in such a transition do not exempt the Contracting States from the obligations stemming from the Convention or its Protocols (see Schirmer v.\u00a0Poland, no.\u00a068880/01, 21\u00a0September 2004, \u00a7\u00a038).","elements":[]},{"content":"76.\u00a0\u00a0Finally, the Court notes that the applicants\u2019 request for an initial approval of a development project was refused in 2001 (see paragraphs 1415 above). In the refusal the authorities essentially referred to the provisions of the development plan. However, when the applicants requested that approval, there were no sound grounds on which to believe that the land development plan adopted in 1992 would be implemented promptly. As a result, the de facto blocking of any construction on the property did not serve any immediate or medium-term purpose in the interests of the community.","elements":[]},{"content":"77.\u00a0\u00a0In the Court\u2019s view, given that it was uncertain when the land development plan adopted in 1992 would be implemented, and in the absence of any reasonable timeframe, this state of affairs, seen as a whole, failed to strike the requisite fair balance between the competing general and individual interests. Consequently, the applicants were required to bear an excessive individual burden (see Skibi\u0144scy v.\u00a0Poland, cited above, \u00a7\u00a097; Skrzy\u0144ski v.\u00a0Poland, cited above, \u00a7\u00a091, Rosi\u0144ski v.\u00a0Poland, cited above, \u00a7\u00a088). There has accordingly been a violation of Article\u00a01 of Protocol No.\u00a01 to the Convention.","elements":[]}]}]}]},{"content":"II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION","elements":[{"content":"78.\u00a0\u00a0Article 41 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Damage","elements":[{"content":"79.\u00a0\u00a0The applicants claimed 100,000 (PLN) in respect of pecuniary and non-pecuniary damage which they had sustained as a result of the violation of their rights.","elements":[]},{"content":"80.\u00a0\u00a0The Government argued that the applicants\u2019 claim was exorbitant.","elements":[]},{"content":"81.\u00a0\u00a0As regards pecuniary damage, the Court observes that the applicants have not quantified their claims. Accordingly, the Court considers that there is no call to award the applicants any sum on that account. At the same time, the Court accepts that the applicants suffered some distress as a result of the violations found and therefore awards to the applicants jointly EUR\u00a05,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.","elements":[]}]},{"content":"B.\u00a0\u00a0Costs and expenses","elements":[{"content":"82.\u00a0\u00a0The applicants did not submit any claims in this respect. The Court, accordingly, makes no award under this head.","elements":[]}]},{"content":"C.\u00a0\u00a0Default interest","elements":[{"content":"83.\u00a0\u00a0The 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.","elements":[]}]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT UNANIMOUSLY","elements":[{"content":"1.\u00a0\u00a0Declares the application admissible;","elements":[]},{"content":"2.\u00a0\u00a0Holds that there has been a violation of Article\u00a01 of Protocol No.\u00a01 to the Convention;","elements":[]},{"content":"3.\u00a0\u00a0Holds","elements":[]},{"content":"(a)\u00a0\u00a0that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, EUR 5,000 (five thousand euros) in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;","elements":[]},{"content":"(b)\u00a0\u00a0that 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;","elements":[]},{"content":"4.\u00a0\u00a0Dismisses the remainder of the applicants\u2019 claim for just satisfaction.","elements":[]},{"content":"Done in English, and notified in writing on 26 February 2008, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.","elements":[]}],"section_name":"conclusion"}] IlS:!sZA( { b I 0  k R 9  s Z A (  { c K 2  k R : ! w_G/rZB*gN5nU<$ w_G0jQ<# t[C*{bI50924/99001-8525323529/94001-8525337710/97001-8525327265/95001-8525331524/96001-8525338672/02001-8525348553/99001-8525333202/96001-8525322774/93001-8525330337/96001-852532428/05001-8525347414/99001-85253 57220/00001-85253 25803/94001-85253 30210/96001-85253 35014/97001-85253 30229/96001-8525329813/96001-8525317373/02001-8525345223/99001-852536/95001-8525352589/99001-8525310446/03001-85253!22/03001-187925!35648/04001-187925!34044/08001-187925!3869/07001-187925~!7334/13001-187925}!40907/98001-187925|!43639/12001-187925{4878/04001-91744z38918/02001-91744y18966/02001-91744x67534/01001-91744w37208/04001-91744v!42733/07001-170351u!60033/00001-170351t!62002/00001-170351s!57325/00001-170351r!15848/03001-170351q!5201/11001-170351p!30457/06001-170351o!72094/01001-170351n!74336/01001-170351m!50882/99001-170351l!41604/98001-170351k!44817/04001-170351j!37971/97001-170351i!71362/01001-170351h!4158/05001-170351g!13469/06001-170351f!65755/01001-170351e!27013/10001-170351d!16163/90001-170351c!47848/08001-170351b!27153/07001-170351a30383/02001-90583`25714/02001-90583_25710/02001-90583^16809/02001-90583]76380/01001-90583\74703/01001-90583[74069/01001-90583Z27608/02001-90583Y5353/02001-90583X5325/02001-90583W22774/93001-90583V31227/96001-90583U8415/02001-90583T28156/02001-90583S28155/02001-90583R28152/02001-90583Q42910/04001-90583P42909/04001-90583O42908/04001-90583N42907/04001-90583M42906/04001-90583L42905/04001-90583K42904/04001-90583J42894/04001-90583I!50272/99001-113718H!29462/95001-113718G!28358/95001-113718F!1108/02001-113718E!11364/03001-113718D!40907/98001-113718C!46295/99001-113718B!56308/00001-113718A!3455/05001-113718@!38124/07001-113718?!57220/00001-113718>!25803/94001-113718=!42409/09001-113718<!50031/11001-113718;30979/96001-79133:23032/02001-79133942320/98001-79133875567/01001-791337!65480/10001-1683526!37920/07001-1683525!28881/07001-1683524!56618/00001-1683523!55638/00001-1683522!55066/00001-1683521!34503/97001-1683520!12976/07001-168352/!37083/03001-168352.!35677/04001-168352-!412/03001-168352,!57898/00001-168352+!41344/98001-168352*!41343/98001-168352)!41342/98001-168352(!41340/98001-168352'!18705/06001-168352&!42202/07001-168352%!126/05001-168352$!74025/01001-168352#!46726/99001-168352"!9103/04001-168352!!10226/03001-168352 !58278/00001-168352!35634/03001-168352!35626/03001-168352!35613/03001-168352!35579/03001-168352!20972/08001-168352!41561/07001-168352!45963/99001-168352!59491/00001-168352!2140/13001-168352!3896/04001-168352!27765/09001-168352!21727/08001-168352!47848/08001-168352!39727/14001-168352!39496/14001-168352!18860/07001-168352!60800/08001-175680!42525/07001-175680 !7334/13001-175680 !43095/05001-175680 !21980/04001-175680 !18114/02001-175680 !32036/10001-175680!40962/04001-175680!11469/05001-175680!30863/10001-175680!7614/09001-175680!7848/06001-175680!11020/03001-175680!21272/03001-175680!45498/11001-175680 @jP6fL2 } e K 1  ~ e L 3   k R 9 !  s Z A (  s Y ? % oU;!oV=# mT: jP6fL2fL2lS:!rY@-26629/95001-58537,23118/93001-67248+59498/00001-67248*52854/99001-67248)28342/95001-67248(61333/00001-67248'18966/02001-71607&39574/02001-71607%34297/02001-71607$67534/01001-71607#43593/02001-71607"25444/94001-83979!18078/02001-83979 7438/76001-8397913017/02001-8397931096/02001-8397946412/99001-8397959659/00001-8397942739/98001-839791206/03001-83979!43978/09001-180442!14139/03001-180442!43395/09001-180442!27207/95001-180442!25321/94001-180442!50/02001-180442!4663/05001-180442!30943/04001-180442!33592/96001-180442!32250/08001-180442!23592/07001-180442!16528/05001-180442 !26772/95001-180442 !46043/14001-180442 !25579/05001-180442 !18030/11001-180442 !34503/97001-180442!15066/07001-180442!15054/07001-180442!56030/07001-180442!39022/97001-180442!10231/07001-180442!37664/04001-180442!16219/90001-180442!59909/00001-180442!58255/00001-180442!35623/05001-180442~!44647/98001-180442}!61496/08001-180442|!48183/99001-180442{!46133/99001-180442z!6825/74001-180442y!55525/00001-180442x!48107/99001-180442w!11052/06001-180442v!27013/07001-180442u!27940/07001-180442t!12534/03001-180442s!36178/03001-180442r!48158/11001-180442q!6427/13001-180442p!6846/12001-180442o!77769/13001-180442n!48151/11001-180442m30979/96001-96109l7867/06001-96109k!36448/02001-117683j!21279/02001-117683i!6086/10001-117683h!26958/95001-117683g!27306/07001-117683f!69698/01001-117683e!49017/99001-117683d!21980/93001-117683c!57829/00001-117683b!40984/07001-117683a!64915/01001-117683`!29183/95001-117683_!35877/04001-117683^!12697/03001-117683]!37698/97001-117683\!23676/03001-117683[!3002/03001-117683Z!25716/94001-117683Y!16354/06001-117683X!39954/08001-117683W!29492/05001-117683V!12365/03001-117683U!14087/08001-117683T31107/96001-83278S28342/95001-83278R41963/98001-83278Q39221/98001-83278P26307/95001-83278O71503/01001-83278N58752/00001-83278M77617/01001-83278L3531/94001-83278K23763/94001-83278J7615/02001-83278I25660/94001-83278H38361/97001-83278G69480/01001-83278F34056/02001-83278E26129/95001-83278D22535/93001-83278C21954/93001-83278B22277/93001-83278A23657/94001-83278@21986/93001-83278?25656/94001-83278>41964/98001-83278=57945/00001-83278<57942/00001-83278;29361/02001-83278:!51744/99001-1864339!17446/07001-1864338!22824/04001-1864337!5126/05001-1864336!22385/03001-1864335!26132/95001-1864334!27570/03001-1864333!510/04001-1864332!26682/95001-1864331!39954/08001-1864330!28070/06001-186433/!3690/10001-186433.!29032/95001-186433-!33348/96001-186433,!51279/99001-186433+!26958/95001-186433*!21980/93001-186433)!56925/08001-186433(!21724/03001-186433'!17550/03001-186433&!23510/02001-186433%!12556/03001-186433$!36448/02001-186433#!21279/02001-186433"!33352/02001-186433!!14087/08001-186433 !36207/03001-186433!7972/09001-18643368880/01001-8525372552/01001-8525372203/01001-8525346720/99001-8525327238/95001-85253 Law and Order and State Service is a well-to-do man and has a \u2018small wholesale business\u2019 in neighbouring Orel. Sources note that he all too often takes a \u2018promenade\u2019 there in his official cars.","elements":[]},{"content":"At first they thought Mr Fedorov was going there for the rich legislative experience of Orel\u2019s parliamentarians. However, it became clear later that the \u2018experience\u2019 he wanted was of a somewhat different nature ...","elements":[]},{"content":"During the three years of his \u2018parliamentary career\u2019 the head of the Committee on Legislation, Law and Order and State Service bought three cars for himself. And each one was a foreign car that was cooler than the one before ...\u201d","elements":[]},{"content":"8.\u00a0\u00a0The following is the original Russian text:","elements":[]},{"content":"\u201c\u0412 \u043e\u0431\u043b\u0430\u0441\u0442\u043d\u0443\u044e \u0436\u0435 \u0414\u0443\u043c\u0443 \u043e\u043d \u043f\u043e\u043f\u0430\u043b \u043f\u043e \u043f\u0430\u0440\u0442\u0438\u0439\u043d\u044b\u043c \u0441\u043f\u0438\u0441\u043a\u0430\u043c \u0441\u043e\u0446\u0438\u0430\u043b-\u0434\u0435\u043c\u043e\u043a\u0440\u0430\u0442\u043e\u0432. \u041f\u043e\u043c\u043d\u044e, \u0447\u0442\u043e \u043d\u0430 \u0431\u043e\u043b\u044c\u0448\u043e\u043c \u043a\u0440\u0430\u0441\u0438\u0432\u043e\u043c \u043f\u043b\u0430\u043a\u0430\u0442\u0435 \u0424\u0435\u0434\u043e\u0440\u043e\u0432 \u043a\u0440\u0430\u0441\u043e\u0432\u0430\u043b\u0441\u044f \u0440\u044f\u0434\u043e\u043c \u0441 \u0410\u043d\u0430\u0442\u043e\u043b\u0438\u0435\u043c \u0411\u0443\u0433\u0430\u0435\u0432\u044b\u043c \u0438 \u041d\u0438\u043a\u043e\u043b\u0430\u0435\u043c \u0420\u0443\u0434\u0435\u043d\u043a\u043e\u043c. \u0421\u0435\u0439\u0447\u0430\u0441 \u0412\u0438\u043a\u0442\u043e\u0440 \u0424\u0435\u0434\u043e\u0440\u043e\u0432\u0438\u0447 \u0443\u0436\u0435 \u044f\u0432\u043b\u044f\u0435\u0442\u0441\u044f \u0447\u043b\u0435\u043d\u043e\u043c \u0434\u0443\u043c\u0441\u043a\u043e\u0439 \u0444\u0440\u0430\u043a\u0446\u0438\u0438 \u00ab\u0415\u0434\u0438\u043d\u0430\u044f \u0420\u043e\u0441\u0441\u0438\u044f\u00bb, \u043a\u0430\u043a \u0438 \u0433\u043e\u0441\u043f\u043e\u0434\u0438\u043d \u0411\u0443\u0433\u0430\u0435\u0432. \u041e\u0447\u0435\u043d\u044c \u0443\u0434\u043e\u0431\u043d\u0430\u044f \u0438 \u0438\u043d\u0442\u0435\u0440\u0435\u0441\u043d\u0430\u044f, \u0430 \u0433\u043b\u0430\u0432\u043d\u043e\u0435 \u043f\u0440\u0438\u043d\u0446\u0438\u043f\u0438\u0430\u043b\u044c\u043d\u0430\u044f \u043f\u043e\u0437\u0438\u0446\u0438\u044f. \u0424\u0430\u043a\u0442\u0438\u0447\u0435\u0441\u043a\u0438 \u0438 \u043e\u0434\u0438\u043d, \u0438 \u0434\u0440\u0443\u0433\u043e\u0439 \u00ab\u043a\u0438\u043d\u0443\u043b\u0438\u00bb \u043b\u0438\u0434\u0435\u0440\u0430 \u0441\u043e\u0446\u0438\u0430\u043b-\u0434\u0435\u043c\u043e\u043a\u0440\u0430\u0442\u043e\u0432 \u041d\u0438\u043a\u043e\u043b\u0430\u044f \u0420\u0443\u0434\u0435\u043d\u043a\u0430. \u041e\u0434\u043d\u0438 \u0433\u043e\u0432\u043e\u0440\u044f\u0442, \u0447\u0442\u043e \u044d\u0442\u043e \u0447\u0438\u0441\u0442\u0435\u0439\u0448\u0435\u0439 \u0432\u043e\u0434\u044b \u043f\u0440\u0435\u0434\u0430\u0442\u0435\u043b\u044c\u0441\u0442\u0432\u043e. \u0414\u0440\u0443\u0433\u0438\u0435 \u0443\u0442\u0432\u0435\u0440\u0436\u0434\u0430\u044e\u0442, \u0447\u0442\u043e \u044d\u0442\u043e \u2013 \u043f\u0440\u043e\u0441\u0442\u043e \u043f\u043e\u043b\u0438\u0442\u0438\u043a\u0430 ...","elements":[]},{"content":"\u0422\u0435\u043f\u0435\u0440\u044c \u00ab\u0441\u043b\u0430\u0434\u043a\u0430\u044f \u043f\u0430\u0440\u043e\u0447\u043a\u0430\u00bb \u0431\u044b\u0432\u0448\u0438\u0445 \u0441\u043e\u0446\u0438\u0430\u043b-\u0434\u0435\u043c\u043e\u043a\u0440\u0430\u0442\u043e\u0432 \u00ab\u0434\u0440\u0443\u0436\u0430\u0442\u00bb \u043f\u0440\u043e\u0442\u0438\u0432 \u0441\u043f\u0438\u043a\u0435\u0440\u0430 \u043e\u0431\u043b\u0430\u0441\u0442\u043d\u043e\u0439 \u0414\u0443\u043c\u044b \u0412\u043b\u0430\u0434\u0438\u043c\u0438\u0440\u0430 \u0413\u0430\u0439\u0434\u0443\u043a\u043e\u0432\u0430. \u0415\u0441\u043b\u0438 \u0443\u0447\u0435\u0441\u0442\u044c, \u0447\u0442\u043e \u0432\u0438\u0446\u0435-\u0441\u043f\u0438\u043a\u0435\u0440 \u0411\u0443\u0433\u0430\u0435\u0432 \u0440\u0432\u0435\u0442\u0441\u044f \u043d\u0430 \u043c\u0435\u0441\u0442\u043e \u043f\u0440\u0435\u0434\u0441\u0435\u0434\u0430\u0442\u0435\u043b\u044f, \u0442\u043e \u0432\u043f\u043e\u043b\u043d\u0435 \u0432\u043e\u0437\u043c\u043e\u0436\u043d\u043e, \u043e\u043d \u043c\u043e\u0433 \u043f\u043e\u043e\u0431\u0435\u0449\u0430\u0442\u044c \u0441\u0432\u043e\u0439 \u043d\u044b\u043d\u0435\u0448\u043d\u0438\u0439 \u043f\u043e\u0440\u0442\u0444\u0435\u043b\u044c \u0433\u043b\u0430\u0432\u0435 \u043a\u043e\u043c\u0438\u0442\u0435\u0442\u0430 \u043f\u043e \u0437\u0430\u043a\u043e\u043d\u043e\u0434\u0430\u0442\u0435\u043b\u044c\u0441\u0442\u0432\u0443 ... \u0410 \u043f\u043e\u0447\u0435\u043c\u0443 \u0431\u044b \u0438 \u043d\u0435\u0442?","elements":[]},{"content":"\u0412 \u043d\u0430\u0441\u0442\u043e\u044f\u0449\u0435\u0435 \u0432\u0440\u0435\u043c\u044f \u0433\u043e\u0441\u043f\u043e\u0434\u0438\u043d \u0424\u0435\u0434\u043e\u0440\u043e\u0432 \u043d\u0430 \u043f\u043e\u043b\u0438\u0442\u0438\u0447\u0435\u0441\u043a\u043e\u043c \u0440\u0430\u0441\u043f\u0443\u0442\u044c\u0435. \u0415\u0441\u043b\u0438 \u043d\u0430 \u0432\u044b\u0431\u043e\u0440\u0430\u0445 \u0432 \u043e\u0431\u043b\u0430\u0441\u0442\u043d\u0443\u044e \u0414\u0443\u043c\u0443 \u0435\u0433\u043e \u0432\u043a\u043b\u044e\u0447\u0430\u0442 \u0432 \u0441\u043f\u0438\u0441\u043a\u0438 \u00ab\u0415\u0434\u0438\u043d\u043e\u0439 \u0420\u043e\u0441\u0441\u0438\u0438\u00bb, \u0442\u043e \u0442\u043e\u043b\u044c\u043a\u043e \u0432 \u0441\u0430\u043c\u043e\u043c \u043a\u043e\u043d\u0446\u0435. \u0411\u0430\u043b\u043b\u043e\u0442\u0438\u0440\u043e\u0432\u0430\u0442\u044c\u0441\u044f \u043f\u043e \u043e\u0434\u043d\u043e\u043c\u0430\u043d\u0434\u0430\u0442\u043d\u043e\u043c\u0443 \u0438\u0437\u0431\u0438\u0440\u0430\u0442\u0435\u043b\u044c\u043d\u043e\u043c\u0443 \u043e\u043a\u0440\u0443\u0433\u0443 \u2013 \u043d\u0430\u0434\u043e \u0440\u0430\u0441\u043a\u043e\u0448\u0435\u043b\u0438\u0432\u0430\u0442\u044c\u0441\u044f, \u0430 \u044d\u0442\u043e \u043d\u0435 \u0432 \u0435\u0433\u043e \u043f\u0440\u0430\u0432\u0438\u043b\u0430\u0445.","elements":[]},{"content":"\u0425\u043e\u0442\u044f \u043f\u043e \u0441\u043b\u0443\u0445\u0430\u043c, \u043f\u0440\u0435\u0434\u0441\u0435\u0434\u0430\u0442\u0435\u043b\u044c \u043a\u043e\u043c\u0438\u0442\u0435\u0442\u0430 \u043f\u043e \u0437\u0430\u043a\u043e\u043d\u043e\u0434\u0430\u0442\u0435\u043b\u044c\u0441\u0442\u0432\u0443, \u0432\u043e\u043f\u0440\u043e\u0441\u0430\u043c \u043f\u0440\u0430\u0432\u043e\u043f\u043e\u0440\u044f\u0434\u043a\u0430 \u0438 \u0433\u043e\u0441\u0443\u0434\u0430\u0440\u0441\u0442\u0432\u0435\u043d\u043d\u043e\u0439 \u0441\u043b\u0443\u0436\u0431\u044b \u0441\u043e\u0441\u0442\u043e\u044f\u0442\u0435\u043b\u044c\u043d\u044b\u0439 \u0447\u0435\u043b\u043e\u0432\u0435\u043a, \u0438 \u0438\u043c\u0435\u0435\u0442 \u0441\u0432\u043e\u0439 \u00ab\u043c\u0430\u043b\u0435\u043d\u044c\u043a\u0438\u0439 \u043e\u043f\u0442\u043e\u0432\u044b\u0439 \u0431\u0438\u0437\u043d\u0435\u0441\u00bb \u0432 \u0441\u043e\u0441\u0435\u0434\u043d\u0435\u043c \u041e\u0440\u043b\u0435. \u0418\u0441\u0442\u043e\u0447\u043d\u0438\u043a\u0438 \u043e\u0442\u043c\u0435\u0447\u0430\u044e\u0442, \u0447\u0442\u043e \u0441\u043b\u0438\u0448\u043a\u043e\u043c \u0447\u0430\u0441\u0442\u043e \u043e\u043d \u0441\u043e\u0432\u0435\u0440\u0448\u0430\u0435\u0442 \u0442\u0443\u0434\u0430 \u00ab\u043f\u0440\u043e\u043c\u0435\u043d\u0430\u0436\u00bb \u043d\u0430 \u0441\u043b\u0443\u0436\u0435\u0431\u043d\u044b\u0445 \u0430\u0432\u0442\u043e\u043c\u043e\u0431\u0438\u043b\u044f\u0445.","elements":[]},{"content":"\u0421\u043d\u0430\u0447\u0430\u043b\u0430 \u0434\u0443\u043c\u0430\u043b\u0438, \u0447\u0442\u043e \u0433\u043e\u0441\u043f\u043e\u0434\u0438\u043d \u0424\u0435\u0434\u043e\u0440\u043e\u0432 \u0435\u0437\u0434\u0438\u0442 \u0437\u0430 \u0431\u043e\u0433\u0430\u0442\u044b\u043c \u0437\u0430\u043a\u043e\u043d\u043e\u0434\u0430\u0442\u0435\u043b\u044c\u043d\u044b\u043c \u043e\u043f\u044b\u0442\u043e\u043c \u043e\u0440\u043b\u043e\u0432\u0441\u043a\u0438\u0445 \u043f\u0430\u0440\u043b\u0430\u043c\u0435\u043d\u0442\u0430\u0440\u0438\u0435\u0432. \u041d\u043e \u043f\u043e\u0442\u043e\u043c \u0441\u0442\u0430\u043b\u043e \u044f\u0441\u043d\u043e, \u0447\u0442\u043e \u044d\u0442\u043e \u00ab\u043e\u043f\u044b\u0442\u00bb \u043d\u0435\u0441\u043a\u043e\u043b\u044c\u043a\u043e \u0434\u0440\u0443\u0433\u043e\u0433\u043e \u0440\u043e\u0434\u0430 ...","elements":[]},{"content":"\u0417\u0430 \u0442\u0440\u0438 \u0433\u043e\u0434\u0430 \u0441\u0432\u043e\u0435\u0433\u043e \u00ab\u0434\u0435\u043f\u0443\u0442\u0430\u0442\u0441\u0442\u0432\u0430\u00bb \u043f\u0440\u0435\u0434\u0441\u0435\u0434\u0430\u0442\u0435\u043b\u044c \u043a\u043e\u043c\u0438\u0442\u0435\u0442\u0430 \u043f\u043e \u0437\u0430\u043a\u043e\u043d\u043e\u0434\u0430\u0442\u0435\u043b\u044c\u0441\u0442\u0432\u0443, \u0432\u043e\u043f\u0440\u043e\u0441\u0430\u043c \u043f\u0440\u0430\u0432\u043e\u043f\u043e\u0440\u044f\u0434\u043a\u0430 \u0438 \u0433\u043e\u0441\u0443\u0434\u0430\u0440\u0441\u0442\u0432\u0435\u043d\u043d\u043e\u0439 \u0441\u043b\u0443\u0436\u0431\u044b \u0441\u043c\u0435\u043d\u0438\u043b \u0442\u0440\u0438 \u043b\u0438\u0447\u043d\u044b\u0445 \u0430\u0432\u0442\u043e\u043c\u043e\u0431\u0438\u043b\u044f. \u0418 \u0441 \u043a\u0430\u0436\u0434\u044b\u043c \u0440\u0430\u0437\u043e\u043c \u043f\u0440\u0438\u043e\u0431\u0440\u0435\u0442\u0430\u043b \u0438\u043d\u043e\u043c\u0430\u0440\u043a\u0443 \u043e\u0434\u043d\u0443 \u043a\u0440\u0443\u0447\u0435 \u0434\u0440\u0443\u0433\u043e\u0439 ...\u201d","elements":[]},{"content":"9.\u00a0\u00a0Mr Fedorov brought an action for defamation against the applicant and sought damages in the amount of 40,000 Russian roubles (RUB). He claimed, in particular, that the following passages were untrue and damaging to his honour and reputation:","elements":[]},{"content":"1.\u00a0\u00a0\u201cboth \u2018dumped\u2019 the Social Democrat Nikolay Rudenok\u201d;","elements":[]},{"content":"2.\u00a0\u00a0\u201cthe \u2018sweet couple\u2019 of former Social Democrats are united in their dislike of the speaker of the regional Duma\u201d;","elements":[]},{"content":"3.\u00a0\u00a0\u201cHowever, according to rumour, the head of the Committee ... has a \u2018small wholesale business\u2019 in neighbouring Orel\u201d;","elements":[]},{"content":"4.\u00a0\u00a0\u201che all too often takes a \u2018promenade\u2019 there in his official cars\u201d;","elements":[]},{"content":"5.\u00a0\u00a0\u201cDuring the three years of his \u2018parliamentary career\u2019 the head of the Committee ... bought three cars for himself. And each one was a foreign car that was cooler than the one before\u201d.","elements":[]},{"content":"10.\u00a0\u00a0On 25 March 2008 the Bryanskiy District Court of the Bryansk Region (\u201cthe Bryanskiy District Court\u201d) ordered an examination of the impugned passages by a psychological and linguistic expert.","elements":[]},{"content":"11.\u00a0\u00a0On 16 September 2008 Bryansk State University issued a report on the psychological and linguistic expert examination (\u201cthe expert report\u201d). In the report the expert specifically noted that the veracity of the statements at issue was not the subject of the examination.","elements":[]},{"content":"12.\u00a0\u00a0On 17 November 2008 the Bryanskiy District Court allowed the claim in part. In its decision the court relied heavily on the expert report.","elements":[]},{"content":"13.\u00a0\u00a0With regard to the first quote, the court referred to the conclusion of the expert report that the expression \u201cdumped\u201d contained a negative assessment of the claimant as an immoral person and found that, therefore, the passage contained information damaging to his honour and reputation. The court dismissed the applicant\u2019s submission to the effect that the word \u201cdumped\u201d had been used in quotes specifically to emphasise its figurative sense.","elements":[]},{"content":"14.\u00a0\u00a0At the same time, the court found that the second quote did not contain any information damaging to the claimant\u2019s honour and reputation.","elements":[]},{"content":"15.\u00a0\u00a0With regard to the third and fourth quotes, the applicant argued that under Articles 34 and 35 of the Constitution (see paragraph 24 below) everyone had the right to exercise an entrepreneurial activity and dispose of his or her property and that the quotes in question therefore contained no allegations of unlawful activities and could not be considered as defamatory. He also stated that the third quote had specified that it was based on rumours and therefore amounted to a supposition.","elements":[]},{"content":"16.\u00a0\u00a0The court dismissed the applicant\u2019s arguments and referred to the conclusions of the expert report, which stated that the third and fourth quotes contained information which showed the claimant in a negative light. In particular, they had portrayed him as a person who had committed the immoral and antisocial deed of using his official car for private purposes, and who had possibly even exercised an unlawful activity because members of the regional Duma were prohibited from other paid duties. In that regard the court referred to section 6 of the Law on the State of a Deputy of the Bryansk Region Duma (see paragraph 26 below) and noted that the claimant had provided it with a certificate from the tax authorities showing that he had not been an individual entrepreneur since 2005. It also took into account certificates from his employer about four business trips in official cars to Orel between 2005 and 2007 and concluded that the passages in question contained information damaging to the claimant\u2019s honour and reputation.","elements":[]},{"content":"17.\u00a0\u00a0Lastly, with regard to the fifth quote, the court again relied on the findings of the expert report, which stated that the impugned passage contained information damaging to the claimant\u2019s honour and reputation as it implied antisocial conduct on his part by suggesting that he had pursued his own enrichment instead of defending the interests of the public. The court also took into account a registration certificate for a Mitsubishi Pajero Sport presented by the claimant and found that the quote was damaging to his honour and business reputation.","elements":[]},{"content":"18.\u00a0\u00a0The court found the editorial board of Bryanskiye Budni and the applicant jointly liable for RUB 40,000 in respect of the non-pecuniary damage sustained by the claimant. It also ordered the newspaper to publish a retraction within ten days of the judgment\u2019s entry into force.","elements":[]},{"content":"19.\u00a0\u00a0The applicant appealed.","elements":[]},{"content":"20.\u00a0\u00a0On 25 December 2008 the Bryansk Regional Court upheld the judgment.","elements":[]}]},{"content":"II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE","elements":[{"content":"A.\u00a0\u00a0Freedom of expression and defamation","elements":[{"content":"21.\u00a0\u00a0Article 29 of the Constitution of the Russian Federation guarantees freedom of thought and expression, and freedom of the media.","elements":[]},{"content":"22.\u00a0\u00a0Article 152 of the Civil Code of the Russian Federation provides that an individual can apply to a court with a request for the correction of statements (\u0441\u0432\u0435\u0434\u0435\u043d\u0438\u044f) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements.","elements":[]},{"content":"23.\u00a0\u00a0Resolution no. 3 of the Plenary Supreme Court of the Russian Federation of 24 February 2005 defines \u201cuntruthful statements\u201d as allegations of facts or events which have not taken place in reality by the time of the dissemination of the statements. Statements contained in court decisions, decisions by investigative bodies and other official documents amenable to appeal cannot be considered untruthful. Statements alleging that a person has broken the law, committed a dishonest act, behaved unethically or broken rules of business etiquette tarnish that person\u2019s honour, dignity and business reputation (section 7). Resolution no. 3 requires courts hearing defamation claims to distinguish between statements of fact, which can be checked for their veracity, and value judgments, opinions and convictions, which are not actionable under Article 152 of the Civil Code since they are an expression of a defendant\u2019s subjective opinion and views and cannot be checked for their veracity (section 9).","elements":[]}]},{"content":"B.\u00a0\u00a0Other relevant provisions of domestic law","elements":[{"content":"24.\u00a0\u00a0Article 34 \u00a7 1 of the Constitution of the Russian Federation provides that everyone has the right freely to use his or her abilities and property for entrepreneurial and other economic activities not prohibited by law. Under Article 35 \u00a7 2 of the Constitution everyone has the right to have property and to possess, use and dispose of it both individually and jointly.","elements":[]},{"content":"25.\u00a0\u00a0Section 12(2) of the Law on the General Principles of the Organisation of Legislative and Executive Agencies of State Authority of the Subjects of the Russian Federation of 22 September 1999 provides that a deputy exercising his or her activity on a permanent basis is prohibited from carrying out other paid activities, apart from teaching or scientific or other creative activities, unless otherwise provided for by the laws of the Russian Federation.","elements":[]},{"content":"26.\u00a0\u00a0Section 6 of the Law on the State of a Deputy of the Bryansk Region Duma contains a similar provision to the effect that a deputy exercising his or her activity on a permanent basis is prohibited from exercising other paid activities, apart from teaching or scientific or other creative activities.","elements":[]}]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION","elements":[{"content":"27.\u00a0\u00a0The applicant complained that the domestic courts\u2019 judgments had violated his right to express his opinion and to impart information and ideas on matters of public interest guaranteed by Article 10 of the Convention, which reads as follows:","elements":[]},{"content":"\u201c1.\u00a0\u00a0Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.","elements":[]},{"content":"2.\u00a0\u00a0The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.\u201d","elements":[]},{"content":"28.\u00a0\u00a0The Government contested that argument. They conceded that the judicial decisions had constituted an interference with the applicant\u2019s rights guaranteed by Article 10. However, they argued that the interference had been \u201cprescribed by law\u201d as it had been based on Article 152 of the Civil Code and Resolution no. 3 of the Plenary Supreme Court of the Russian Federation of 24 February 2005 (section 7). It had also pursued a legitimate aim of protecting the reputation or the rights of others and had been proportionate to that aim.","elements":[]},{"content":"29.\u00a0\u00a0The Government noted that in the article in question the applicant had alleged in a sarcastic manner that Mr Fedorov had bought expensive cars, abused his official powers and had been engaged in unlawful entrepreneurial activity. They argued that it had been for the applicant to corroborate his allegations, which he had failed to do before the domestic courts. The Government relied in that regard on Markt Intern Verlag GmbH and Klaus Beermann v. Germany (20 November 1989, \u00a7 35, series\u00a0A no.\u00a0165); Rumyana Ivanova v. Bulgaria (no. 36207/03, 14 February 2008); and Novaya Gazeta and Borodyanskiy v. Russia (no. 14087/08, \u00a7\u00a7 36-44, 28\u00a0March 2013). The Government also pointed out that the newspaper had a wide circulation of 6,500 copies and that the amount of damages awarded by the domestic courts had been fairly modest.","elements":[]},{"content":"30.\u00a0\u00a0The Government further argued that the domestic courts had duly balanced the applicant\u2019s rights under Article 10 of the Convention and the plaintiff\u2019s rights protected under Article 8. In that regard they relied, inter alia, on Keller v. Hungary (dec.), no. 33352/02, 4 April 2006; Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, ECHR 2007IV; Pfeifer v. Austria, no. 12556/03, 15 November 2007; Vitrenko and Others v. Ukraine (dec.), no. 23510/02, 16 December 2008; Alithia Publishing Company Ltd and Constantinides v. Cyprus, no.\u00a017550/03, \u00a7 49, 22 May 2008; and OOO \u2018Vesti\u2019 and Ukhov v. Russia, no. 21724/03, \u00a7 62, 30 May 2013).","elements":[]},{"content":"31.\u00a0\u00a0The applicant, while agreeing with the Government that the interference had been \u201cprescribed by law\u201d and had pursued the legitimate aim of the protection of the reputation or rights of others, contended that it had not been proportionate. He argued that the domestic courts had taken neither his position nor that of the plaintiff into consideration. In his view, his being an editor of a newspaper and a journalist meant that the interference into his right of freedom of expression should have been assessed in the light of the important role the press plays in a democratic society. At the same time, Mr\u00a0Fedorov was not a State servant, but a member of the Bryansk Region Duma, that is a public figure, who had to display a greater degree of tolerance to public criticism. Furthermore, rather than bringing proceedings for defamation, it had been open to the plaintiff to react to the applicant\u2019s article by making a statement to the media.","elements":[]},{"content":"32.\u00a0\u00a0With regard to the particular passages that the domestic courts had found defamatory, the applicant submitted that by using the word \u201cdumped\u201d in the first passage \u2013 \u201cboth \u2018dumped\u2019 the Social Democrat Nikolay Rudenok\u201d \u2013 he had expressed his negative opinion of Mr Fedorov\u2019s switching of political parties. That fact as such had not been contested by the plaintiff and, furthermore, there had been nothing unlawful about it. The statement had thus constituted a value judgment.","elements":[]},{"content":"33.\u00a0\u00a0As for the second passage, \u201c[H]owever, according to rumour, the head of the Committee ... has a \u2018small wholesale business\u2019 in neighbouring Orel\u201d, the applicant emphasised that it had been based on rumours, as specified in the article. He argued that Article 152 did not provide for an obligation to prove the truthfulness of rumours as they did not amount to \u201cstatements\u201d whose veracity should be proved. The applicant further submitted that the passage had served to express his view that the plaintiff was a well-to-do man. It contained no allegations of Mr Fedorov\u2019s wealth being a result of unlawful activity. Furthermore, it was inherently subjective as the idea of wealth differed significantly from person to person. Accordingly, the statement also amounted to a value judgment not amenable to proof, even though the plaintiff\u2019s being an owner of an expensive car might be considered as providing grounds for such an opinion.","elements":[]},{"content":"34.\u00a0\u00a0As regards the passage \u201che all too often takes a \u2018promenade\u2019 there in his official cars\u201d, the applicant pointed out that the fact of Mr Fedorov\u2019s official trips to Orel, paid for from budget funds, had been confirmed by the Bryansk State Duma, had not been contested by the plaintiff and had been reflected in the judgment of the Bryanskiy District Court of 17\u00a0November\u00a02008. Furthermore, according to the applicant, Mr Fedorov\u2019s tax declaration, published after the delivery of the above judgment, had stated that he owned a flat in Orel, which corroborated the existence of a personal interest in official trips to Orel.","elements":[]},{"content":"35.\u00a0\u00a0With regard to the passage \u201c[D]uring the three years of his \u2018parliamentary career\u2019 the head of the Committee ... bought three cars for himself. And each one was a foreign car that was cooler than the one before\u201d, the applicant stated that according to the information submitted to the regional electoral commission in 2004, Mr Fedorov owned a Ford car. Upon his election to the Bryansk Region Duma he had changed it to a KIA and, by the end of his mandate, he had bought an expensive sports utility vehicle, a Mitsubishi Pajero Sport-2.5 manufactured in 2007. The applicant also pointed out that the purchase of a vehicle was in any event a lawful action.","elements":[]},{"content":"36.\u00a0\u00a0The applicant submitted that the language he had used in the passages in question had been neither rude, insulting, nor did it exceed the admissible degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, 26 April 1995, \u00a7 38, Series A no. 313). However, rather than assessing the form, the domestic courts had considered the passages in question as constituting statements of fact which the applicant had to prove. Furthermore, in the applicant\u2019s view, the amount awarded by the Bryanskiy District Court was considerable.","elements":[]},{"content":"A.\u00a0\u00a0Admissibility","elements":[{"content":"37.\u00a0\u00a0The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]}]},{"content":"B.\u00a0\u00a0Merits","elements":[{"content":"1.\u00a0\u00a0General principles","elements":[{"content":"38.\u00a0\u00a0The general principles for assessing the necessity of an interference with the exercise of freedom of expression are summarised in B\u00e9dat v.\u00a0Switzerland ([GC], no. 56925/08, \u00a7 48, ECHR 2016) as follows:","elements":[]},{"content":"\u201c(i)\u00a0\u00a0Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual\u2019s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to \u2018information\u2019 or \u2018ideas\u2019 that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no \u2018democratic society\u2019. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...","elements":[]},{"content":"(ii)\u00a0\u00a0The adjective \u2018necessary\u2019, within the meaning of Article 10 \u00a7 2, implies the existence of a \u2018pressing social need\u2019. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a \u2018restriction\u2019 is reconcilable with freedom of expression as protected by Article 10.","elements":[]},{"content":"(iii)\u00a0\u00a0The Court\u2019s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was \u2018proportionate to the legitimate aim pursued\u2019 and whether the reasons adduced by the national authorities to justify it are \u2018relevant and sufficient\u2019... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article\u00a010 and, moreover, that they relied on an acceptable assessment of the relevant facts ...\u201d","elements":[]},{"content":"39.\u00a0\u00a0The Court reiterates that the press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart \u2013 in a manner consistent with its obligations and responsibilities \u2013 information and ideas on all matters of public interest (see De Haes and Gijsels v. Belgium, 24 February 1997, \u00a7 37, Reports of Judgments and Decisions 1997I). Not only does it have the task of imparting such information and ideas, the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of \u201cpublic watchdog\u201d (see Thorgeir Thorgeirson v. Iceland, 25 June 1992, \u00a7\u00a063, Series\u00a0A no. 239, and Bladet Troms\u00f8 and Stensaas v. Norway [GC], no.\u00a021980/93, \u00a7 62, ECHR 1999-III).","elements":[]},{"content":"40.\u00a0\u00a0Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see Oberschlick v. Austria (no. 1), 23 May 1991, \u00a7 57, Series A no. 204). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick, cited above, \u00a7\u00a038).","elements":[]},{"content":"41.\u00a0\u00a0In its practice, the Court has distinguished between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see Lingens v. Austria, 8 July 1986, \u00a7 46, Series A no. 103).","elements":[]},{"content":"42.\u00a0\u00a0However, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive (see Jerusalem v. Austria, no. 26958/95, \u00a7 43, ECHR 2001II).","elements":[]}]},{"content":"2.\u00a0\u00a0Application of the above principles to the present case","elements":[{"content":"43.\u00a0\u00a0The Court observes that it was not disputed between the parties that the civil proceedings for defamation against the applicant constituted an interference with his freedom of expression and that this interference was in accordance with the law and pursued the legitimate aim of protecting the plaintiff\u2019s reputation. It remains to be determined whether it was \u201cnecessary in a democratic society\u201d.","elements":[]},{"content":"44.\u00a0\u00a0In examining the particular circumstances of the case, the Court will take the following elements into account: the position of the applicant, the position of the plaintiffs who instituted the defamation proceedings, and the subject matter of the debate before the domestic courts (see Jerusalem, cited above, \u00a7 35).","elements":[]},{"content":"45.\u00a0\u00a0As regards the applicant\u2019s position, the Court observes that he was sued in his capacity as the editor of the newspaper and the author of the article in question. In that connection, it points out that the most careful scrutiny on the part of the Court is called for when, as in the present case, measures taken or sanctions imposed by the national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern (see Jersild v. Denmark, 23 September 1994, \u00a7\u00a035, Series A no. 298).","elements":[]},{"content":"46.\u00a0\u00a0As regards the position of the plaintiff who brought civil proceedings against the applicant, the Court notes that Mr Fedorov was a member of the Bryansk Region Duma and the head of the regional Committee on Legislation, Law and Order and State Service. The Court reiterates that the limits of acceptable criticism are wider as regards a politician than as regards a private individual. A politician acting in his public capacity inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large (see, among other authorities, Colombani and Others v. France, no.\u00a051279/99, \u00a7 56, ECHR 2002V).","elements":[]},{"content":"47.\u00a0\u00a0Turning to the subject matter of the debate before the domestic courts, the Court notes that the impugned article discussed Mr Fedorov\u2019s transition from one party to another and his wealth (see paragraph 7 above). Given that Mr Fedorov was a member of the regional parliament, this was a matter of general interest to the local community which the applicant was entitled to bring to the public\u2019s attention and which the local population were entitled to receive information about (see, mutatis mutandis, Cump\u01cen\u01ce and Maz\u01cere v. Romania [GC], no. 33348/96, \u00a7\u00a7 94-95, ECHR 2004XI). The Court reiterates in that regard that there is little scope under Article\u00a010 \u00a7\u00a02 of the Convention for restrictions on political speech or on debate on questions of public interest (see Feldek v. Slovakia, no. 29032/95, \u00a7\u00a074, ECHR\u00a02001VIII).","elements":[]},{"content":"48.\u00a0\u00a0The Court has held that when examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the \u201cprotection of the reputation ... of others\u201d, it may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely on the one hand freedom of expression protected by Article 10, and on the other the right to respect for private life enshrined in Article 8 (see, among many other authorities, Annen v. Germany, no. 3690/10, \u00a7 55, 26 November 2015). The Court emphasises that, in order for Article 8 of the Convention to come into play, an attack on a person\u2019s reputation must attain a certain level of seriousness and its manner must cause prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway, no.\u00a028070/06, \u00a7 64, 9\u00a0April 2009, and Axel Springer AG v. Germany [GC], no. 39954/08, \u00a7 83, 7 February 2012). It is not convinced, however, in the circumstances of the present case, that the impugned statements could be considered as an attack reaching the requisite threshold of seriousness and capable of causing prejudice to Mr Fedorov\u2019s personal enjoyment of private life.","elements":[]},{"content":"49.\u00a0\u00a0The Court will further consider the newspaper article as a whole and have particular regard to the words used in the disputed parts of it, the context in which they were published and the manner in which it was prepared (see S\u00fcrek v. Turkey (no. 1) [GC], no. 26682/95, \u00a7\u00a062, ECHR\u00a01999-IV, and T\u00f8nsbergs Blad A.S. and Haukom v. Norway, no.\u00a0510/04, \u00a7 90, ECHR 2007III).","elements":[]},{"content":"50.\u00a0\u00a0The Court points out at the outset that the first impugned passage, \u201cboth \u2018dumped\u2019 the Social Democrat Nikolay Rudenok\u201d, was based on the fact that Mr Fedorov had switched political parties. The plaintiff did not contest that fact and, in any event, neither adherence to the political parties concerned nor resigning from either of them constituted an offence under Russian law at the material time (see, mutatis mutandis, Novaya Gazeta v\u00a0Voronezhe v. Russia, no. 27570/03, \u00a7 50, 21 December 2010).","elements":[]},{"content":"51.\u00a0\u00a0The domestic courts considered the colloquial term \u201cdumped\u201d used by the applicant to express a negative assessment of the plaintiff (see paragraph 12 above). However, to the extent that the tone of the passage may have implied the applicant\u2019s disapproval of Mr Fedorov\u2019s having switched political parties, that constitutes a value judgment which is not susceptible of proof. The domestic courts thus failed to distinguish between a statement of fact and a value judgment. Furthermore, the Court does not consider that using the word \u201cdumped\u201d, apparently with a view to adding a sarcastic tone to the passage, meant that the applicant overstepped the margins of a certain degree of exaggeration or even provocation allowed by journalistic freedom (see Prager and Oberschlick, cited above, \u00a7 38).","elements":[]},{"content":"52.\u00a0\u00a0The Court notes that the domestic courts, relying on the expert report, found that the next passage, \u201c[H]owever, according to rumour, the head of the Committee ... has a \u2018small wholesale business\u2019 in neighbouring Orel\u201d, implied that the plaintiff had exercised an unlawful activity because members of the regional Duma were prohibited from carrying out other paid activities (see paragraph 16 above).","elements":[]},{"content":"53.\u00a0\u00a0In previous cases, when the Court has been called upon to decide whether to exempt newspapers from their ordinary obligation to verify factual statements that are defamatory of private individuals, it has taken into account various factors, particularly the nature and degree of the defamation and the extent to which the newspaper could have reasonably regarded its sources as reliable with regard to the allegations (Bladet Troms\u00f8 and Stensaas, cited above, \u00a7 66). These factors, in turn, require consideration of other elements such as the authority of the source (ibid.), whether the newspaper conducted a reasonable amount of research before publication (Prager and Oberschlick, cited above, \u00a7 37), whether the newspaper presented the story in a reasonably balanced manner (Bergens Tidende and Others v. Norway, no. 26132/95, \u00a7 57, ECHR 2000IV) and whether the newspaper gave the persons defamed the opportunity to defend themselves (ibid., \u00a7 58). Hence, the nature of such an exemption from the ordinary requirement of verification of defamatory statements of fact is such that, in order to apply it in a manner consistent with the caselaw of this Court, the domestic courts have to take into account the particular circumstances of the case under consideration. If the national courts apply an overly rigorous approach to the assessment of journalists\u2019 professional conduct, they could be unduly deterred from discharging their function of keeping the public informed. The courts must therefore take into account the likely impact of their rulings, not only on the individual cases before them but also on the media in general (see Kasabova v. Bulgaria, no. 22385/03, \u00a7\u00a055, 19 April 2011, and Yordanova and Toshev v. Bulgaria, no.\u00a05126/05, \u00a7\u00a048, 2 October 2012).","elements":[]},{"content":"54.\u00a0\u00a0An additional factor of particular importance in the present case is the vital role of \u201cpublic watchdog\u201d which the press performs in a democratic society (see paragraph 39 above). As part of their role as a \u201cpublic watchdog\u201d, the media\u2019s reporting on \u201c\u2018stories\u2019 or \u2018rumours\u2019 \u2013 emanating from persons other than an applicant \u2013 or \u2018public opinion\u2019\u201d is to be protected where they are not completely without foundation (see Thorgeir Thorgeirson, cited above, \u00a7 65).","elements":[]},{"content":"55.\u00a0\u00a0At the outset, the Court has to assess the nature and degree of the defamation. It notes that the domestic courts did not examine the question whether Mr Fedorov actually had or not a \u201csmall wholesale business\u201d (see paragraphs 11, 12 and 16 above), but found that saying so was damaging to the latter\u2019s reputation. Given that entrepreneurial activity was expressly permitted by the Constitution, as was pointed out by the applicant in the proceedings before the Bryanskiy District Court (see paragraph 15 above), the Court is not convinced that that statement as such could be considered as damaging to Mr Fedorov\u2019s reputation.","elements":[]},{"content":"56.\u00a0\u00a0The Court further observes that the Bryanskiy District Court found the statement defamatory by relying on the conclusions of the expert report to the effect that it might have implied that Mr\u00a0Fedorov had possibly exercised an unlawful activity, as members of the regional Duma were prohibited from exercising other paid duties (see paragraph 16 above). The Court finds this conclusion rather strained. Firstly, the reference to the supposed \u201csmall wholesale business\u201d was of too general a nature to infer from it that Mr Fedorov held a paid post elsewhere. Secondly, it appears from the context of the article that such an inference was not the applicant\u2019s intention and was one that was unlikely to have been made by an average reader.","elements":[]},{"content":"57.\u00a0\u00a0The Court notes, furthermore, that in the impugned passage the applicant expressly stated that it was based on rumours. It reiterates that the extent to which it might be acceptable for journalists to rely on unverified sources depends on the particular aspects of each case (see paragraph\u00a053 above). Having regard to its finding that the statement in question as such could not be considered as damaging to Mr Fedorov\u2019s reputation (see paragraph 55 above), the Court considers that the reliance on rumours in the present case was compatible with the exercise of the freedom of expression (cf. Flux v. Moldova (no. 6), no. 22824/04, \u00a7\u00a7 27-34, 29 July 2008).","elements":[]},{"content":"58.\u00a0\u00a0Turning to the third impugned passage, \u201che all too often takes a \u2018promenade\u2019 there in his official cars\u201d, the Court notes that it is based on the fact that Mr Fedorov went on business trips to Orel in official cars, which not only was not denied, by Mr Fedorov in the hearing before the Bryanskiy District Court but was corroborated by him (see paragraph 16 above). The domestic courts found, however, that the passage in question portrayed him as a person who had committed the immoral and antisocial deed of using his official car for private purposes (ibid.).","elements":[]},{"content":"59.\u00a0\u00a0The Court observes in that regard that the words \u201call too often\u201d reflect the applicant\u2019s opinion that Mr Fedorov\u2019s business trips to Orel were too frequent, which constitutes a value judgment. As for the word \u201cpromenade\u201d, here ironically employed, the Court reiterates that the use of sarcasm and irony is perfectly compatible with the exercise of a journalist\u2019s freedom of expression (see Smolorz v. Poland, no. 17446/07, \u00a7\u00a041, 16\u00a0October 2012).","elements":[]},{"content":"60.\u00a0\u00a0As regards the fourth impugned passage, \u201c[D]uring the three years of his \u2018parliamentary career\u2019 the head of the Committee ... bought three cars for himself. And each one was a foreign car that was cooler than the one before\u201d, the Court notes that the domestic courts found it damaging to the plaintiff\u2019s reputation as it suggested that he pursued his own enrichment instead of defending the interests of the public.","elements":[]},{"content":"61.\u00a0\u00a0The Court observes that it was not contested by the plaintiff that over the previous years he had bought several cars. Furthermore, he provided the Bryanskiy District Court with a registration certificate for a Mitsubishi Pajero Sport, the vehicle he owned at the time (see paragraph\u00a017 above). Accordingly, that statement had a sufficient factual basis.","elements":[]},{"content":"62.\u00a0\u00a0The Court further observes that the word \u201ccooler\u201d employed by the applicant reflects his opinion that each new car bought by Mr Fedorov was better than the previous one, and thus constitutes a value judgment. As for the ironic tone of the passage, it is perfectly compatible with the exercise of a journalist\u2019s freedom of expression (see Smolorz, cited above, \u00a7\u00a041).","elements":[]},{"content":"63.\u00a0\u00a0Having regard to the foregoing, the Court concludes that the balancing exercise carried out by the domestic courts did not take sufficiently into account all the standards established in the Court\u2019s caselaw under Article 10 of the Convention (compare and contrast, Keller v.\u00a0Hungary (dec.), cited above, and Kwiecie\u0144 v. Poland, no. 51744/99, \u00a7\u00a052, 9\u00a0January 2007). The fact that the proceedings were civil rather than criminal in nature and that the final award was relatively small does not detract from the fact that the standards applied by the domestic courts were not compatible with the principles embodied in Article\u00a010 since they did not adduce \u201csufficient\u201d reasons to justify the interference at issue, namely the imposition of a fine on the applicant for publishing the impugned article.","elements":[]},{"content":"64.\u00a0\u00a0Therefore, having regard to the fact that there is little scope under Article 10 \u00a7 2 of the Convention for restrictions on debate on questions of public interest (see, among other authorities, S\u00fcrek, cited above, \u00a7 61, and Novaya Gazeta v Voronezhe v. Russia, cited above, \u00a7 59), the Court finds that the domestic courts overstepped the narrow margin of appreciation afforded to Member States. The interference was disproportionate to the aim pursued and was thus not \u201cnecessary in a democratic society\u201d.","elements":[]},{"content":"65.\u00a0\u00a0Accordingly, there has been a violation of Article 10 of the Convention.","elements":[]}]}]}]},{"content":"II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION","elements":[{"content":"66.\u00a0\u00a0Article 41 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Pecuniary damage","elements":[{"content":"67.\u00a0\u00a0The applicant claimed 1,000 euros (EUR) in respect of pecuniary damage, which corresponds to 40,000 Russian roubles at the exchange rate of 25 December 2008, on account of the damages he was ordered to pay by the domestic courts. The applicant enclosed a certificate issued by the bailiffs service to confirm that he had paid the amount due.","elements":[]},{"content":"68.\u00a0\u00a0The Government argued that the claim was unfounded as the award of damages had been made in a well-reasoned domestic court judgment.","elements":[]},{"content":"69.\u00a0\u00a0The Court finds that in the circumstances of the case there is a causal link between the violation found and the alleged pecuniary damage claimed. It further notes that it is its standard practice to make awards in euros rather than in the currency of the respondent State, should it be different, on the basis of the exchange rate which existed at the time the claim was submitted to the Court. Consequently, the Court awards the applicant the amount claimed in respect of pecuniary damage, plus any tax that may be chargeable on that amount.","elements":[]}]},{"content":"B.\u00a0\u00a0Non-pecuniary damage","elements":[{"content":"70.\u00a0\u00a0The applicant claimed EUR 12,000 in respect of non-pecuniary damage on account of the breach of his right to freedom of expression.","elements":[]},{"content":"71.\u00a0\u00a0The Government submitted that the claim was unfounded as, in their view, there had been no violation of the applicant\u2019s rights.","elements":[]},{"content":"72.\u00a0\u00a0The Court accepts that the applicant must have suffered distress and frustration resulting from the judicial decisions incompatible with Article\u00a010, which cannot be sufficiently compensated solely by the finding of a violation of the Convention. Making its assessment on an equitable basis, the Court awards the applicant EUR 7,500 under this head, plus any tax that may be chargeable on that amount.","elements":[]}]},{"content":"C.\u00a0\u00a0Costs and expenses","elements":[{"content":"73.\u00a0\u00a0The applicant also claimed EUR 1,830 for the costs and expenses incurred before the Court. He enclosed a contract for legal services of 17\u00a0February 2017 which provides for remuneration for his representative of 60\u00a0euros an hour and an act of 23 March 2017 attesting to the fact that the applicant\u2019s representative had spent 30 hours and 30 minutes on the case.","elements":[]},{"content":"74.\u00a0\u00a0The Government argued that the claim was unsubstantiated as the applicant had not enclosed any receipts to confirm that the payment had been made. In their view, the amount claimed was in any event excessive.","elements":[]},{"content":"75.\u00a0\u00a0According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the amount claimed for the proceedings before the Court.","elements":[]}]},{"content":"D.\u00a0\u00a0Default interest","elements":[{"content":"76.\u00a0\u00a0The 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.","elements":[]}]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT, UNANIMOUSLY,","elements":[{"content":"1.\u00a0\u00a0Declares the application admissible;","elements":[]},{"content":"2.\u00a0\u00a0Holds that there has been a violation of Article 10 of the Convention;","elements":[]},{"content":"3.\u00a0\u00a0Holds","elements":[]},{"content":"(a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:","elements":[]},{"content":"(b)\u00a0\u00a0that 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;","elements":[]},{"content":"4.\u00a0\u00a0Dismisses the remainder of the applicant\u2019s claim for just satisfaction.","elements":[]},{"content":"Done in English, and notified in writing on 2 October 2018, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.","elements":[]}],"section_name":"conclusion"}] 6 !SQ 33'- e001-186433CASE OF FEDCHENKO v. RUSSIA (No. 3)CHAMBERECLI:CE:ECHR:2018:1002JUD0007972097972/092018-10-02 00:00:002018-10-02 00:00:00ENGThird SectionCourt2720.33911132813RUS38X[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in an application (no. 7972/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Russian national, Mr Oleg Dmitriyevich Fedchenko (\u201cthe applicant\u201d), on 12 November 2008.","elements":[]},{"content":"2.\u00a0\u00a0The applicant was represented by Ms M.A. Ledovskikh, a lawyer practising in Voronezh. The Russian Government (\u201cthe Government\u201d) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.","elements":[]},{"content":"3.\u00a0\u00a0The applicant alleged, in particular, a breach of his right to freedom of expression on account of defamation proceedings against him.","elements":[]},{"content":"4.\u00a0\u00a0On 19 September 2016 the complaint under Article 10 was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 \u00a7 3 of the Rules of Court.","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE","elements":[{"content":"5.\u00a0\u00a0The applicant was born in 1968 and lives in Suponevo, the Bryansk Region.","elements":[]},{"content":"6.\u00a0\u00a0The applicant has been editor of a weekly newspaper, Bryanskiye Budni (\u0411\u0440\u044f\u043d\u0441\u043a\u0438\u0435 \u0431\u0443\u0434\u043d\u0438), since he founded it in 1999.","elements":[]},{"content":"7.\u00a0\u00a0On 21 February 2008 the applicant published an article in Bryanskiye Budni no. 429/7 headlined \u201cFedorov always takes the lead\u201d (\u201c\u0424\u0435\u0434\u043e\u0440\u043e\u0432 \u0432\u0441\u0435\u0433\u0434\u0430 \u0432\u043f\u0435\u0440\u0435\u0434\u0438\u201d) about Viktor Fedorovich Fedorov, a member of the Bryansk Region Duma and the head of the regional Committee on Legislation, Law and Order and State Service. It discussed Mr Fedorov\u2019s having switched political parties and his wealth. The article read as follows, in so far as relevant:","elements":[]},{"content":"\u201cHe got into the regional Duma on the party lists of the Social Democrats. I remember that in a big beautiful poster Fedorov was seen showing off in the company of Anatoliy Bugayev and Nikolay Rudenok. Now Viktor Fedorovich is a member of the Duma faction of United Russia, as is Mr Bugayev. A very convenient and interesting position which, most importantly, is based on principle. In fact, they both \u2018dumped\u2019 the Social Democrat Nikolay Rudenok. Some say that is pure betrayal. Others contend that that is just politics ...","elements":[]},{"content":"Now the \u2018sweet couple\u2019 of former Social Democrats are united in their dislike of the speaker of the regional Duma Vladimir Gaydukov. Considering that the deputy speaker Bugayev is eager to get the post of speaker, it is very likely that he could have promised his current post to the head of the Committee on Legislation ... And why not?","elements":[]},{"content":"At present Mr Fedorov is at a political crossroads. If they include him on the United Russia list for the elections to the regional Duma, he will only be at the very end of the list. To be a candidate in a single-member constituency entails expenses, and that would go against his principles.","elements":[]},{"content":"However, according to rumour, the head of the Committee on Legislation,isputed by the parties.","elements":[]}]}]},{"content":"(a)\u00a0\u00a0The applicant's account of events","elements":[{"content":"12.\u00a0\u00a0The applicant did not witness his son's detention, and the following account is based on eyewitness statements submitted by him, including those of two police officers, Mr G. and Mr Dzh., and a civilian, Mr\u00a0A.","elements":[]},{"content":"13.\u00a0\u00a0On the morning of 26 November 2000 the applicant's son, along with another police officer, D., left home to report for duty at the headquarters of the Chechen OMON in the town of . They were both wearing camouflage uniforms and had their OMON officers' identification cards.","elements":[]},{"content":"14.\u00a0\u00a0At around 12 noon the applicant's son and D. were passing through central market in D.'s white VAZ 2106 Zhiguli car. At the same time federal servicemen were carrying out a special (\u201csweeping-up\u201d) operation in the vicinity of the marketplace. According to Mr G.'s statement, the military personnel belonged to a \u201cmobile detachment\u201d (\u043c\u043e\u0431\u0438\u043b\u044c\u043d\u044b\u0439 \u043e\u0442\u0440\u044f\u0434) stationed in the central part of .","elements":[]},{"content":"15.\u00a0\u00a0The servicemen blocked D.'s vehicle and then took Aslanbek Kukayev and D. away in the direction of the headquarters of the federal military detachment Don-100. Some time later the soldiers seized the Zhiguli car, which subsequently disappeared. The applicant submitted that the car had later been seen on several occasions at the Khankala federal military base.","elements":[]},{"content":"16.\u00a0\u00a0At around 1 p.m. the applicant's son, D. and several other police officers of Chechen origin detained during the operation, including Mr\u00a0Dzh., were put into a GAZ 66 truck with an emblem representing a rampant horse on its doors, which then drove off. According to Mr Dzh., the servicemen who apprehended them were hostile and offensive.","elements":[]},{"content":"17.\u00a0\u00a0The truck having reached in the centre of , the officer in charge ordered that Aslanbek Kukayev and D. be taken out of the truck. Mr Dzh. saw the applicant's son and D. being escorted by six federal servicemen towards the former building. The vehicle then drove on.","elements":[]},{"content":"18.\u00a0\u00a0Several policemen of Chechen origin were detained during the \u201csweeping-up\u201d operation at central market on 26 November 2000. Some of them were released later that day, including Mr Dzh. Aslanbek Kukayev and D. disappeared after being apprehended.","elements":[]},{"content":"19.\u00a0\u00a0According to the applicant, on 27 November 2000 the central Russian television broadcaster announced that a number of members of illegal armed groups had been apprehended during a \u201csweeping-up\u201d operation in the vicinity of central market. The applicant also enclosed information which he had obtained from the Internet site of Human Rights Watch to the effect that on 26 November 2000 the federal troops had carried out a \u201csweeping-up\u201d operation at central market and that they had detained several people, some of them having subsequently disappeared.","elements":[]}]},{"content":"(b)\u00a0\u00a0The Government's account of events","elements":[{"content":"20.\u00a0\u00a0The Government relied on a reply from the Prosecutor General's Office (\u0413\u0435\u043d\u0435\u0440\u0430\u043b\u044c\u043d\u0430\u044f \u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 \u0420\u0424) to the effect that, on 26\u00a0November\u00a02000, during daylight hours, \u201cunidentified men wearing camouflage uniforms and armed with firearms\u201d had abducted the applicant's son and several other persons near central market. The bodies of those abducted were subsequently found at various times in .","elements":[]},{"content":"21.\u00a0\u00a0They also submitted, with reference to information provided by the Chechen Department of the Federal Security Service (\u0423\u043f\u0440\u0430\u0432\u043b\u0435\u043d\u0438\u0435 \u0424\u0435\u0434\u0435\u0440\u0430\u043b\u044c\u043d\u043e\u0439 \u0441\u043b\u0443\u0436\u0431\u044b \u0431\u0435\u0437\u043e\u043f\u0430\u0441\u043d\u043e\u0441\u0442\u0438 \u043f\u043e \u0427\u0435\u0447\u0435\u043d\u0441\u043a\u043e\u0439 \u0420\u0435\u0441\u043f\u0443\u0431\u043b\u0438\u043a\u0435), that the federal forces had not conducted any special operations in the vicinity of Grozny central market on 26 or 27 November 2000.","elements":[]},{"content":"2.\u00a0\u00a0The applicant's search for his son and the official investigation","elements":[{"content":"22.\u00a0\u00a0According to the applicant, he learnt about his son's detention from his neighbour the next day. Immediately thereafter, he went to Gudermes, to the headquarters of the Chechen OMON, and enquired about his son. He was told that neither his son nor D. had reported for duty.","elements":[]},{"content":"23.\u00a0\u00a0The applicant and his younger son also went to central market and enquired of those who had been there on 26 November 2000 about Aslanbek Kukayev. In particular, they questioned servicemen from the mobile detachment, showing Aslanbek Kukayev's photograph; however, the servicemen refused to talk to them.","elements":[]},{"content":"24.\u00a0\u00a0The applicant further applied repeatedly to a number of State bodies, including prosecutors at various levels, the Grozny military commander's office (\u043a\u043e\u043c\u0435\u043d\u0434\u0430\u0442\u0443\u0440\u0430 \u0433. \u0413\u0440\u043e\u0437\u043d\u043e\u0433\u043e), the regional and federal departments of the Russian Ministry of the Interior, the Federal Security Service (\u0424\u0435\u0434\u0435\u0440\u0430\u043b\u044c\u043d\u0430\u044f \u0441\u043b\u0443\u0436\u0431\u0430 \u0431\u0435\u0437\u043e\u043f\u0430\u0441\u043d\u043e\u0441\u0442\u0438 \u0420\u0424 \u2013 \u201cthe FSB\u201d), the Special Envoy of the Russian President in Chechnya for Rights and Freedoms (\u0421\u043f\u0435\u0446\u0438\u0430\u043b\u044c\u043d\u044b\u0439 \u043f\u0440\u0435\u0434\u0441\u0442\u0430\u0432\u0438\u0442\u0435\u043b\u044c \u041f\u0440\u0435\u0437\u0438\u0434\u0435\u043d\u0442\u0430 \u0420\u043e\u0441\u0441\u0438\u0439\u0441\u043a\u043e\u0439 \u0424\u0435\u0434\u0435\u0440\u0430\u0446\u0438\u0438 \u043f\u043e \u0441\u043e\u0431\u043b\u044e\u0434\u0435\u043d\u0438\u044e \u043f\u0440\u0430\u0432 \u0438 \u0441\u0432\u043e\u0431\u043e\u0434 \u0447\u0435\u043b\u043e\u0432\u0435\u043a\u0430 \u0432 \u0427\u0435\u0447\u0435\u043d\u0441\u043a\u043e\u0439 \u0420\u0435\u0441\u043f\u0443\u0431\u043b\u0438\u043a\u0435) and the Russian President's Office (\u0410\u0434\u043c\u0438\u043d\u0438\u0441\u0442\u0440\u0430\u0446\u0438\u044f \u041f\u0440\u0435\u0437\u0438\u0434\u0435\u043d\u0442\u0430 \u0420\u0424). In his letters to the authorities the applicant referred to the circumstances of his son's detention and asked for assistance and details of the investigation. In most cases he received formal responses informing him that his requests had been forwarded to various prosecutors.","elements":[]},{"content":"25.\u00a0\u00a0On 13 December 2000 the prosecutor's office (\u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 \u0433. \u0413\u0440\u043e\u0437\u043d\u043e\u0433\u043e) commenced a criminal investigation into the disappearance of the applicant's son and D. under Article 126\u00a0\u00a7\u00a02 of the Russian Criminal Code (kidnapping of two or more persons by a group using firearms). The file was given the number 12332.","elements":[]},{"content":"26.\u00a0\u00a0On 29 January 2001 the Grozny prosecutor's office joined the aforementioned criminal case with several other cases opened in connection with abductions near central market on 26 November 2000 and the subsequent disappearance of a number of persons, on the ground that all those offences had been committed by the same persons. The case file was assigned the number 12331.","elements":[]},{"content":"27.\u00a0\u00a0On 30 January 2001 the Chechen Department of the FSB forwarded the applicant's letter to the military prosecutor of military unit no. 20102 (\u0432\u043e\u0435\u043d\u043d\u0430\u044f \u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 \u2013 \u0432\u043e\u0439\u0441\u043a\u043e\u0432\u0430\u044f \u0447\u0430\u0441\u0442\u044c 20102).","elements":[]},{"content":"28.\u00a0\u00a0On 13 February 2001 the prosecutor's office suspended the investigation in criminal case no. 12331 on account of the failure to identify those responsible.","elements":[]},{"content":"29.\u00a0\u00a0On the same date the head of the special police unit at the Chechen Department of the Interior issued the applicant with a certificate confirming that Aslanbek Kukayev had been an officer of that unit since 24\u00a0August\u00a02000 and that he had disappeared on 26 November 2000 in the vicinity of central market.","elements":[]},{"content":"30.\u00a0\u00a0By a letter of 22 February 2001 the military prosecutor of military unit 20102 returned the applications by the mothers of Aslanbek Kukayev and D. to the prosecutor's office. The letter stated that the applications in question had been forwarded to the military prosecutor of military unit no. 20102 by mistake, since no involvement of military personnel in the alleged offence had been established.","elements":[]},{"content":"31.\u00a0\u00a0On 18 April 2001 the prosecutor's office resumed the investigation in criminal case no. 12331.","elements":[]}]},{"content":"3.\u00a0\u00a0Discovery of the body of the applicant's son","elements":[{"content":"32.\u00a0\u00a0It appears that at some point in 2001 a new mobile detachment replaced the one stationed in the central part of .","elements":[]},{"content":"33.\u00a0\u00a0On 22 April 2001, during the inspection of the area for which they were responsible, the servicemen of the mobile detachment found two corpses bearing signs of having met a violent death in the basement of in . The servicemen notified a district office of the Department of the Interior and the prosecutor's office. It appears that a forensic examination of the corpses was conducted later that day.","elements":[]},{"content":"34.\u00a0\u00a0On 23 April 2001 the bodies were identified by relatives as those of Aslanbek Kukayev and D. On the same day the applicant buried his son.","elements":[]},{"content":"35.\u00a0\u00a0According to the applicant, his son's body was found 50 metres away from the place where he had last been seen alive on 26\u00a0November\u00a02000. The applicant further submitted that both on 26\u00a0November 2000 and during the period thereafter the area in question had been under the firm control of the federal mobile detachment. He also claimed that the area had been tightly secured by the federal forces, fenced with barbed wire and watchtowers, and inaccessible to civilians, and that even the police and officials of the prosecutor's office had been required to obtain special leave to have access to the area on 22 April 2001. The applicant submitted a hand-drawn map of the area. In the Government's submission, \u201cit was not established during the investigation that the area where the dead bodies of the applicant's son and D. had been found had been secured and that there had been no free access there\u201d.","elements":[]},{"content":"36.\u00a0\u00a0On 3 May 2001 the Forensic Examinations Bureau of the (\u0420\u0435\u0441\u043f\u0443\u0431\u043b\u0438\u043a\u0430\u043d\u0441\u043a\u043e\u0435 \u0431\u044e\u0440\u043e \u0441\u0443\u0434\u043c\u0435\u0434\u044d\u043a\u0441\u043f\u0435\u0440\u0442\u0438\u0437\u044b) issued a medical death certificate (\u0432\u0440\u0430\u0447\u0435\u0431\u043d\u043e\u0435 \u0441\u0432\u0438\u0434\u0435\u0442\u0435\u043b\u044c\u0441\u0442\u0432\u043e \u043e \u0441\u043c\u0435\u0440\u0442\u0438) in respect of Aslanbek Khamzatovich Kukayev, born in 1976. The document stated that the applicant's son had died on 26 November 2000 as a result of gunshot wounds.","elements":[]},{"content":"37.\u00a0\u00a0On 1 June 2001 the civil registry office of the Leninskiy District of Grozny certified the death of the applicant's son. The date and the place of death were recorded as 26 November 2000, .","elements":[]},{"content":"38.\u00a0\u00a0On 7 August 2001 a military expert medical commission of the Chechen Department of the Interior (\u0432\u043e\u0435\u043d\u043d\u043e-\u0432\u0440\u0430\u0447\u0435\u0431\u043d\u0430\u044f \u043a\u043e\u043c\u0438\u0441\u0441\u0438\u044f \u0423\u0412\u0414 \u041c\u0412\u0414 \u0420\u0424 \u043f\u043e \u0427\u0435\u0447\u0435\u043d\u0441\u043a\u043e\u0439 \u0420\u0435\u0441\u043f\u0443\u0431\u043b\u0438\u043a\u0435) issued a certificate stating that Aslanbek Kukayev, an officer of the special police unit of the Chechen Department of the Interior, had died on 26 November 2000 as a result of a \u201cgunshot wound to the head and fracture of the cranial bones\u201d.","elements":[]},{"content":"39.\u00a0\u00a0On 10 August 2001 the commander of the Chechen OMON drew up a report on the result of the internal investigation into the death of their officer, Aslanbek Kukayev. The report stated that on 26 November 2000 Aslanbek Kukayev and D. had left for the Zavodskoy District of Grozny to perform an operational task and had gone missing during a special \u201csweeping-up\u201d operation in the vicinity of central market. On 22\u00a0April 2001 their bodies, bearing signs of a violent death, had been found in the basement of one of the destroyed buildings in .","elements":[]},{"content":"40.\u00a0\u00a0According to the Government, at some point the applicant and his wife had received compensation in connection with the death of their son, a police officer on duty. Under domestic law such compensation was payable for the loss of a breadwinner and comprised for each of them insurance payments of 19,786.25 Russian roubles (RUB \u2013 approximately 580 euros (EUR)), a lump-sum payment of RUB 44,365.80 (approximately EUR\u00a01,300) and a pension in the amount of RUB 1,078.22 (approximately EUR 30).","elements":[]}]},{"content":"4.\u00a0\u00a0Further investigation","elements":[{"content":"41.\u00a0\u00a0In a letter of 21 May 2001 the prosecutor's office informed the applicant, in reply to a query from him, that on 12 May 2001 the file in criminal case no. 12331 concerning Aslanbek Kukayev's disappearance and the subsequent discovery of his body had been sent to the military prosecutor of military unit no. 20102 for further investigation.","elements":[]},{"content":"42.\u00a0\u00a0On 1 July 2001 the prosecutor's office informed the applicant that the criminal proceedings in case no. 12331 had been suspended on 28 May 2001 on the ground of failure to identify those responsible.","elements":[]},{"content":"43.\u00a0\u00a0On 7 August 2001 the Russian President's Office forwarded the applicant's complaint to the Prosecutor General's Office.","elements":[]},{"content":"44.\u00a0\u00a0In a letter of 21 August 2001 the Southern Federal Circuit Department of the Prosecutor General's Office (\u0423\u043f\u0440\u0430\u0432\u043b\u0435\u043d\u0438\u0435 \u0413\u0435\u043d\u0435\u0440\u0430\u043b\u044c\u043d\u043e\u0439 \u041f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u044b \u0420\u0424 \u0432 \u042e\u0436\u043d\u043e\u043c \u0444\u0435\u0434\u0435\u0440\u0430\u043b\u044c\u043d\u043e\u043c \u043e\u043a\u0440\u0443\u0433\u0435) informed the applicant that his complaints concerning the ineffective investigation into the abduction of his son had been forwarded to the prosecutor's office of the (\u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 \u0427\u0435\u0447\u0435\u043d\u0441\u043a\u043e\u0439 \u0420\u0435\u0441\u043f\u0443\u0431\u043b\u0438\u043a\u0438).","elements":[]},{"content":"45.\u00a0\u00a0On 24 August 2001 the Russian Presidential Commission on Rights and Freedoms (\u041a\u043e\u043c\u0438\u0441\u0441\u0438\u044f \u043f\u043e \u043f\u0440\u0430\u0432\u0430\u043c \u0447\u0435\u043b\u043e\u0432\u0435\u043a\u0430 \u043f\u0440\u0438 \u041f\u0440\u0435\u0437\u0438\u0434\u0435\u043d\u0442\u0435 \u0420\u0424) forwarded the applicant's complaint concerning the ineffective investigation into the killing of his son to the Prosecutor General's Office for examination. The latter, in its turn, forwarded the complaint to the prosecutor's office of the on 3 September 2001.","elements":[]},{"content":"46.\u00a0\u00a0By a letter of 10 September 2001 the prosecutor's office of the Chechen Republic requested the prosecutor's office to send it the file in criminal case no. 12331 so as to enable it to investigate the applicant's complaints relating to the ineffective investigation into his son's death.","elements":[]},{"content":"47.\u00a0\u00a0On 10 October 2001 the Russian Ministry of the Interior informed the applicant that his complaint had been sent to the prosecutor's office of the for examination.","elements":[]},{"content":"48.\u00a0\u00a0On the same date the prosecutor's office of the Chechen Republic forwarded case file no. 12331, comprising 222 pages, to the prosecutor's office for further investigation. The latter reopened the proceedings instituted in the above-mentioned criminal case on 15\u00a0October\u00a02001 and then adjourned them a month later on the ground that it was impossible to identify the perpetrators. At some point the case file was referred to the prosecutor's office of the Zavodskoy District of Grozny (\u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 \u0417\u0430\u0432\u043e\u0434\u0441\u043a\u043e\u0433\u043e \u0440\u0430\u0439\u043e\u043d\u0430 \u0433. \u0413\u0440\u043e\u0437\u043d\u043e\u0433\u043e \u2013 \u201cthe Zavodskoy District prosecutor's office\u201d).","elements":[]},{"content":"49.\u00a0\u00a0On 15 November 2001 the prosecutor's office of the Chechen Republic referred the applicant's complaint to the prosecutor's office.","elements":[]},{"content":"50.\u00a0\u00a0On 25 March 2002 the prosecutor's office informed the applicant that the criminal proceedings instituted in connection with the abduction and killing of his son had been suspended, as it was impossible to identify the alleged perpetrators, and that all possible steps to that effect had been taken.","elements":[]},{"content":"51.\u00a0\u00a0It does not appear that any investigative activity took place between November 2001 and December 2005; the applicant's attempts to have the criminal proceedings resumed proved unsuccessful.","elements":[]},{"content":"52.\u00a0\u00a0On 4 November 2005 the present application was communicated to the Russian Government.","elements":[]},{"content":"53.\u00a0\u00a0On 16 December 2005 the Zavodskoy District Prosecutor's Office resumed the proceedings in criminal case no. 12331.","elements":[]},{"content":"54.\u00a0\u00a0By a decision of 22 December 2005 the investigator in charge, referring to the fact that, during the examination of the materials in case no.\u00a012331 concerning the abduction of the applicant's son and other persons, he had discovered that the bodies of the applicant's son and D., bearing signs of having met a violent death, had been found on 22\u00a0April\u00a02001, ordered the institution of criminal proceedings in relation to the matter under Article 105 \u00a7 2 (a), (c) and (g) of the Russian Criminal Code (murder of two or more persons committed by a group and involving the act of kidnapping).","elements":[]},{"content":"55.\u00a0\u00a0On 16 January 2006 the investigation in case no. 12331 was suspended, on the ground that it was impossible to identify those responsible.","elements":[]},{"content":"56.\u00a0\u00a0On 1 March 2006 that decision was set aside and the criminal proceedings were reopened. The investigation was then stayed on 1 April and 21 August 2006 and resumed on 21 July 2006 and 16 January 2007 respectively.","elements":[]},{"content":"57.\u00a0\u00a0According to the applicant, in March 2006 he was summoned to the Zavodskoy District Prosecutor's Office and informed that the investigation had been resumed. The applicant was not given access to the case file, let alone allowed to make copies of any documents.","elements":[]},{"content":"58.\u00a0\u00a0Referring to the information provided by the Prosecutor General's Office, the Government submitted that, on 13 December 2000, the authorities had commenced an investigation into the abduction of the applicant's son and D. and subsequently, following the discovery of their bodies, into their murder and the theft of D.'s car. The investigation had been suspended and resumed on several occasions, but to date had failed to identify the alleged perpetrators. The investigation had been reopened most recently on 16 January 2007 and was being supervised by the Prosecutor General's Office. According to the Government, the applicant was duly informed about all decisions taken during the investigation.","elements":[]},{"content":"59.\u00a0\u00a0The Government further submitted that the applicant had been questioned on 27 January and 30 April 2001 and on 20 December 2005 and that his wife, Aslanbek Kukayev's mother, had been questioned on 21\u00a0December 2005. According to the Government, the applicant had never made any statements concerning the fact that D.'s vehicle, which had disappeared on 26\u00a0November 2000, had later been seen at the Khankala federal military base. The applicant and his wife had been granted the status of victims on 20\u00a0and 21 December 2005 respectively and on 21\u00a0December\u00a02005 had been recognised as civil parties seeking damages in the criminal proceedings. Relatives of other persons kidnapped on 26\u00a0November 2000 had also been questioned.","elements":[]},{"content":"60.\u00a0\u00a0The investigating authorities had also questioned four persons, including Mr Dzh., all of whom, in the Government's words, \u201cwere apprehended by the federal forces on 26 November 2000 during a special operation and were later released\u201d, as well as four police officers, including Mr G., and the servicemen who had found the bodies of the applicant's son and D. The Government did not specify on what date witness statements had been obtained and submitted that all the witnesses concerned had testified that they had no information regarding the perpetrators of the offences in question.","elements":[]},{"content":"61.\u00a0\u00a0They stated next that on 23 April 2001 the corpses of Aslanbek Kukayev and D., found on 22 April 2001, had been examined by forensic medical experts, who had drawn up a report on 17 May 2001 stating that the death of the aforementioned two persons could have been caused by injuries sustained as a result of firearms shots. The Government stated that the investigating authorities had sent a number of queries to various State bodies on 19 December 2000, 3 January, 18 April, 8 May and 28 May 2001, and 18 December 2005. In their submission, on 3 March 2006 the investigators had sent a request to the Novosibirsk prosecutor's office to question the officers of the Novosibirsk special police unit who had served in between 20 and 28 November 2001 (rather than 2000). It is unclear whether any reply was received to this query. On 20 March and 11\u00a0August 2006 the investigators had requested the town and district offices of the interior of the to carry out a search so as to establish those responsible. None of the necessary information on the subject had been received, according to the Government, apart from the reply from the Chechen Department of the Federal Security Service to the effect that it had no information about the alleged perpetrators. According to the Government, the authorities had also undertaken other investigative measures; however, they did not specify what those measures had been.","elements":[]}]}]},{"content":"B.\u00a0\u00a0Documents submitted by the Government","elements":[{"content":"1.\u00a0\u00a0The Court's requests for the investigation file","elements":[{"content":"62.\u00a0\u00a0In November 2005, when the application was communicated to them, the Government were invited to produce a copy of the investigation file in criminal case no.\u00a012331 opened into the abduction and murder of Aslanbek Kukayev. Relying on the information obtained from the Prosecutor General's Office, the Government replied that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses. They, however, agreed to produce several documents, \u201cdisclosure of which did not contravene the requirements of Article 161\u201d. In February 2006 the Court reiterated its request and suggested that Rule 33 \u00a7 3 of the Rules of Court be applied. In reply, the Government submitted a few additional documents but refused to produce the entire investigation file for the aforementioned reasons.","elements":[]},{"content":"63.\u00a0\u00a0On 23 October 2006 the application was declared admissible. At that stage the Court once again invited the Government to submit the investigation file and to provide information concerning the progress of the investigation. In February 2007 the Government informed the Court of the latest dates on which the investigation had been suspended and reopened and produced several documents pertaining to the period after April 2006. Overall, the Government produced 67 documents running to 74 pages from the case file, which, as could be ascertained from the page numbering, comprised at least 235 pages. The documents included:","elements":[]},{"content":"(a)\u00a0\u00a0copies of the reports by the two servicemen who had found the bodies of the applicant's son and D. on 22 April 2001;","elements":[]},{"content":"(b)\u00a0\u00a0numerous procedural decisions suspending and reopening the investigation in case no. 12331;","elements":[]},{"content":"(c)\u00a0\u00a0a number of investigators' decisions taking up case no. 12331;","elements":[]},{"content":"(d)\u00a0\u00a0decisions granting the status of victims in case no. 12331 to relatives of some of the persons missing since 26 November 2000, but not to the applicant;","elements":[]},{"content":"(e)\u00a0\u00a0letters dated 17 December 2005 notifying the applicant and D.'s mother of the transfer of the case to the Zavodskoy District Prosecutor's Office;","elements":[]},{"content":"(f)\u00a0\u00a0numerous letters informing the applicant and relatives of other victims of the suspension and reopening of the criminal proceedings in case no. 12331.","elements":[]},{"content":"64.\u00a0\u00a0The Government did not furnish the Court with any other documents from the case file.","elements":[]}]},{"content":"2.\u00a0\u00a0Letters from the Russian courts","elements":[{"content":"65.\u00a0\u00a0The Government enclosed a number of letters from various higher courts in , stating that the applicant had never lodged any complaints about the allegedly unlawful detention of his son or challenged in court any actions or omissions of the investigating or other law-enforcement authorities.","elements":[]}]},{"content":"3.\u00a0\u00a0Domestic courts' decisions","elements":[{"content":"66.\u00a0\u00a0The Government also produced copies of domestic court decisions taken in unrelated sets of civil or criminal proceedings. These included three firstinstance judgments by which federal servicemen, privates or junior officers had been convicted of criminal offences committed in the Republic of Ingushetia or the Chechen Republic; a first-instance judgment and appeal decision awarding compensation for damage to property inflicted by servicemen in Ingushetia; a first-instance judgment and appeal decision awarding damages to the first applicant in Khashiyev and Akayeva v. Russia (nos. 57942/00 and 57945/00, judgment of 24 February 2005) in connection with the death of his relatives in Chechnya; and a first-instance judgment and appeal decision awarding compensation for omissions on the part of the investigating authorities during the investigation into a person's abduction in the Republic of Karachayevo-Cherkessia, the person in question having subsequently been released.","elements":[]}]}]}]},{"content":"II.\u00a0RELEVANT DOMESTIC LAW","elements":[{"content":"67.\u00a0\u00a0Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the .","elements":[]},{"content":"68.\u00a0\u00a0Article 125 of the new Code provides that the decision of an investigator or prosecutor to dispense with criminal proceedings or to terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens' access to justice may be appealed against to a district court, which is empowered to check the lawfulness and grounds of the impugned decisions.","elements":[]},{"content":"69.\u00a0\u00a0Article 161 of the new Code enshrines the rule that data from the preliminary investigation may not be disclosed. Paragraph 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator but only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of the participants in criminal proceedings without their permission.","elements":[]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0THE GOVERNMENT'S PRELIMINARY OBJECTIONS","elements":[{"content":"A.\u00a0\u00a0The applicant's victim status","elements":[{"content":"70.\u00a0\u00a0The Government did not make any express objections regarding the applicant's status as a victim in the present case, but argued that his claims for compensation in respect of his son's death were groundless, given that he had already been paid a certain amount at domestic level.","elements":[]},{"content":"71.\u00a0\u00a0The applicant contended that the Government's reference to the fact that he and his wife had been paid a certain amount in connection with their son's death was irrelevant in the circumstances of the present case, given that such payments were usually made to members of the family of any police officer who died on duty, without the question of State responsibility for the death being considered.","elements":[]},{"content":"72.\u00a0\u00a0In so far as the Government's argument could be interpreted as an objection concerning the applicant's victim status, the Court considers that the payment in question cannot deprive the applicant of his victim status within the meaning of Article 34 of the Convention, as, firstly, the Russian authorities made no acknowledgment of the alleged violations and, secondly, in any event, the compensation in question was paid to the applicant on the basis that his son had been a police officer and had died on duty and not on the basis of any alleged violations of Convention rights. The Government's objection should therefore be dismissed.","elements":[]}]},{"content":"B.\u00a0\u00a0The applicant's alleged failure to exhaust domestic remedies","elements":[{"content":"1.\u00a0\u00a0Submissions by the parties","elements":[{"content":"74.\u00a0\u00a0The applicant disputed that objection. He claimed that the fact that the investigation into the circumstances of the disappearance and death of his son was still pending cast doubt upon its effectiveness and that, in any event, he had not been informed of the conduct of the investigation, and therefore had been unable to appeal in time against decisions taken in the context of the investigation. The applicant also contended that the Government had not demonstrated that the remedies to which they had referred were effective and, in particular, were capable of leading to the identification and punishment of those responsible, as required by the Court's settled case-law in relation to complaints under Article 2 of the Convention.","elements":[]}]},{"content":"2.\u00a0\u00a0The Court's assessment","elements":[{"content":"75.\u00a0\u00a0The Court notes that, in its decision of 23 October 2006, it considered that the question of exhaustion of domestic remedies was closely linked to the substance of the present application and that it should be joined to the merits. It will now proceed to assess the parties' arguments in the light of the Convention provisions and its relevant practice.","elements":[]},{"content":"76.\u00a0\u00a0The Court reiterates that the rule of exhaustion of domestic remedies under Article 35 \u00a7 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. Article\u00a035\u00a0\u00a7 1 also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996VI, pp. 2275-76, \u00a7\u00a7 51-52; Akdivar and Others\u00a0v. Turkey, judgment of 16 September 1996, Reports 1996IV, p.\u00a01210, \u00a7\u00a065-67; and, most recently, Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, no. 41964/98, \u00a7 64, 27\u00a0June 2006).","elements":[]},{"content":"77.\u00a0\u00a0It is incumbent on the respondent Government claiming non-exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicants have not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicants' complaints and offered reasonable prospects of success (see Akdivar and Others, cited above, p.\u00a01211, \u00a7 68, or Cennet Ayhan and Mehmet Salih Ayhan, cited above, \u00a7\u00a065).","elements":[]},{"content":"78.\u00a0\u00a0\u00a0In the present case, in so far as the Government argued that the applicant had not lodged a court complaint about his son's detention, the Court observes that in the period between 26 November 2000 and 22\u00a0April\u00a02001, when Aslanbek Kukayev remained missing, the applicant actively attempted to establish his whereabouts and applied to various official bodies (see paragraphs 22-24), whereas the authorities had never acknowledged that they had detained the applicant's son. In such circumstances, and in particular in the absence of any proof to confirm the very fact of the detention, even assuming that the remedy referred to by the Government was accessible to the applicant, it is more than questionable whether a court complaint about the unacknowledged detention of the applicant's son by the authorities would have had any prospects of success. Moreover, the Government have not demonstrated that the remedy indicated by them would have been capable of providing redress in the applicant's situation \u2013 in other words, that the applicant's recourse to this remedy would have led to the release of Aslanbek Kukayev, particularly given the fact that the formal date of his death was subsequently recorded as 26\u00a0November 2000, and to the identification and punishment of those responsible.","elements":[]},{"content":"79.\u00a0\u00a0As regards the period after 22 April 2001, the date on which the corpse of the applicant's son was found, a court complaint about his detention would clearly have been an inadequate remedy.","elements":[]},{"content":"80.\u00a0\u00a0In the light of the foregoing, the Court considers that it has not been established with sufficient certainty that the remedy advanced by the Government would have been effective within the meaning of the Convention. The Court finds that the applicant was not obliged to pursue that remedy, and that this limb of the Government's preliminary objection should therefore be dismissed.","elements":[]},{"content":"81.\u00a0\u00a0To the extent the Government argued that the investigation was still pending and that the applicant had not complained to a court about the actions or omissions of the investigating or other law-enforcement authorities during the investigation, in accordance with Article 125 of the Russian Code of Criminal Procedure, the Court firstly observes that the Government did not indicate which particular actions or omissions of the investigators the applicant should have challenged before a court. It further notes that the legal instrument referred to by the Government became operative on 1 July 2002 and that the applicant was clearly unable to have recourse to the remedy invoked by the Government prior to that date. As regards the period thereafter, the Court considers that this limb of the Government's preliminary objection raises issues which are closely linked to the question of the effectiveness of the investigation, and it would therefore be appropriate to address the matter in the examination of the substance of the applicant's complaints under Article 2 of the Convention.","elements":[]}]}]}]},{"content":"II.\u00a0ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION","elements":[{"content":"82.\u00a0\u00a0The applicant complained that his son had disappeared after having been apprehended by representatives of the federal forces and had later been found dead, and that the domestic authorities had failed to carry out an effective investigation into the matter. He relied on Article 2 of the Convention, which provides:","elements":[]},{"content":"\u201c1.\u00a0\u00a0Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.","elements":[]},{"content":"2.\u00a0\u00a0Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:","elements":[]},{"content":"(a)\u00a0\u00a0in defence of any person from unlawful violence;","elements":[]},{"content":"(b)\u00a0\u00a0in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;","elements":[]},{"content":"(c)\u00a0\u00a0in action lawfully taken for the purpose of quelling a riot or insurrection.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Alleged failure to protect the right to life","elements":[{"content":"1.\u00a0\u00a0Submissions by the parties","elements":[{"content":"83.\u00a0\u00a0The applicant argued that it was beyond reasonable doubt that his son had been detained and killed by representatives of the federal forces. In particular, he pointed out that the fact that his son had been abducted and then found dead, and also the fact that the abduction had taken place at central market on 26 November 2000, had never been disputed by the Government. Moreover, it had been formally certified that the applicant's son had been killed on the day on which he had been detained, 26 November 2000. The applicant insisted that, contrary to the Government's allegations, on the date in question the federal forces had carried out a \u201csweeping-up\u201d operation at Grozny central market \u2013 this fact having been confirmed by the written statements from three eyewitnesses (see paragraph 12 above) and by the information from Human Rights Watch (see paragraph 19 above) \u2013 and had apprehended his son.","elements":[]},{"content":"84.\u00a0\u00a0The Government acknowledged that the applicant's son had been abducted near central market on 26 November 2000 and had later been found dead, but insisted that there were no grounds for holding the State liable for the alleged violation of his right to life. In that connection they relied on the reply of the Prosecutor General's Office to the effect that the investigation had obtained no evidence that Aslanbek Kukayev had been abducted by representatives of the federal forces; they also relied on information provided by the Chechen Department of the FSB stating that there had been no special operation in the vicinity of central market on 26 or 27\u00a0November 2000. On the other hand, the Government relied on witness statements by four persons, including Mr Dzh., all of whom, in the Government's words, \u201cwere apprehended by the federal forces on 26\u00a0November 2000 during a special operation and were later released\u201d. Later the Government explained that they had only mentioned the special operation in so far as it had been referred to by those witnesses during questioning. The Government also asserted that members of illegal armed formations within the territory of the had on numerous occasions used forged police officers' identity cards to enter the dwellings of local residents, seize them and kill them, and that officers of the law-enforcement bodies had often become the target of rebel fighters.","elements":[]}]},{"content":"2.\u00a0\u00a0The Court's assessment","elements":[{"content":"85.\u00a0\u00a0The Court reiterates that, in the light of the importance of the protection afforded by Article\u00a02, it must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Detained persons are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused. The obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter (see, among other authorities, Orhan v. Turkey, no. 25656/94, \u00a7\u00a0326, 18 June 2002, and the authorities cited therein).","elements":[]},{"content":"86.\u00a0\u00a0Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, \u00a7\u00a0100, ECHR 2000-VII, and \u00c7ak\u0131c\u0131 v. Turkey [GC], no. 23657/94, \u00a7 85, ECHR 1999IV).","elements":[]},{"content":"87.\u00a0\u00a0In the present case, the Court observes that the Government denied both that the State bore responsibility for the killing of the applicant's son and that the federal armed forces had conducted any special (\u201csweeping-up\u201d) operations near central market on 26 November 2000. On the other hand, they acknowledged the specific facts underlying the applicant's version of Aslanbek Kukayev's disappearance and death. In particular, it is common ground between the parties that the applicant's son, along with a number of other persons, was abducted by armed men in camouflage uniforms in the vicinity of central market during the daylight hours of 26 November 2000. It has therefore first to be established whether the armed men belonged to the federal armed forces.","elements":[]},{"content":"88.\u00a0\u00a0The Court notes in this connection that the fact that on the date in question a special operation had been carried out by the federal forces at Grozny central market was confirmed by a number of witness statements, including those quoted by the Government (see paragraph 84 above) and those submitted by the applicant (see paragraph 12 \tabove), as well as by the report of the commander of the Chechen OMON on the results of the internal investigation into Aslanbek Kukayev's murder (see paragraph 39 above). Moreover, the materials in the Court's possession do not reveal that any armed people other than federal servicemen were present at the scene of the abduction of the applicant's son. In particular, there is nothing in the witness statements to suggest the involvement of any illegal fighters, whilst officer Dzh.'s statements clearly indicate that federal servicemen were involved in Aslanbek Kukayev's detention (see paragraphs 16-17 above). In such circumstances, the Court finds it established that the applicant's son was apprehended by State agents in the course of a special operation on 26\u00a0November 2000.","elements":[]},{"content":"89.\u00a0\u00a0The parties further agreed, and it had clearly been established in the domestic proceedings, that Aslanbek Kukayev had died as the result of a murder, and that his corpse had been found at the same place and on the same date as the corpse of officer D., with whom he had been abducted. Moreover, the formal date of Aslanbek Kukayev's death, 26\u00a0November\u00a02000, as indicated in the relevant certificates (see paragraphs 36-38 above), remained uncontested by the Government.","elements":[]},{"content":"90.\u00a0\u00a0On the facts of the case, it is therefore clear that the applicant's son was taken into custody and killed on the same date. The Court notes in this connection that it was never alleged by the Government, or suggested by the evidence adduced, that the applicant's son had been released immediately, or shortly, after being apprehended. In such circumstances the Court is bound to conclude that the applicant's son died whilst being detained by the federal forces. In the absence of any plausible explanation on the part of the Government as to the circumstances of Aslanbek Kukayev's death, it further finds that the Government have not accounted for the death of the applicant's son during his detention and that the respondent State's responsibility for this death is therefore engaged.","elements":[]},{"content":"91.\u00a0\u00a0Accordingly, there has been a violation of Article 2 of the Convention in this respect.","elements":[]}]}]},{"content":"B.\u00a0\u00a0Alleged inadequacy of the investigation","elements":[{"content":"1.\u00a0\u00a0Submissions by the parties","elements":[{"content":"92.\u00a0\u00a0The applicant argued that the investigation in the present case could hardly be regarded as effective, according to the Convention standard. Although it had been pending for over six years, having been suspended and reopened on numerous occasions, it had not so far resulted in the identification and punishment of those responsible, despite abundant evidence pointing to the alleged perpetrators, including evidence indicating the military unit to which they belonged, its location and its emblem. Moreover, the investigating authorities had failed to take a number of essential measures, namely to examine the scene of the crime adequately, to perform ballistic tests, to find and question eyewitnesses to the abduction of the applicant's son and to investigate the applicant's allegations that the car in which his son had left on the day of his disappearance had later been seen at the Khankala federal military base. The authorities had also failed to treat the investigation as urgent and to keep the applicant abreast of the latest developments in the case. The applicant further pointed out that, even though Aslanbek Kukayev's body had been found on 22 April 2001, the proceedings in connection with the murder of the applicant's son, as opposed to his abduction, had not been commenced until 22\u00a0December\u00a02005.","elements":[]},{"content":"93.\u00a0\u00a0The Government claimed that the investigation into Aslanbek Kukayev's disappearance and death had met the Convention requirement of effectiveness, as all measures provided for by national law were being taken to identify the perpetrators. According to the Government, the length of the investigation was justified in the light of the complicated situation in .","elements":[]}]},{"content":"2.\u00a0\u00a0The Court's assessment","elements":[{"content":"94.\u00a0\u00a0The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article\u00a01 of the Convention to \u201csecure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention\u201d, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see McCann and Others\u00a0v. the United Kingdom, judgment of 27 September 1995, Series\u00a0A no.\u00a0324, \u00a7\u00a0161, and Kaya v.\u00a0Turkey, judgment of 19 February 1998, Reports 1998-I, p. 329, \u00a7\u00a0105). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. The authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigatory procedures (see \u0130lhan v.\u00a0 [GC] no. 22277/93, \u00a7\u00a063, ECHR 2000-VII).","elements":[]},{"content":"96.\u00a0\u00a0In the instant case, the Court observes that some degree of investigation was carried out into the disappearance and murder of the applicant's son. It must assess whether that investigation met the requirements of Article 2 of the Convention. The Court notes in this connection that its knowledge of the criminal proceedings at issue is limited to the materials selected by the respondent Government from the investigation file (see paragraphs 62-64 above). Drawing inferences from the respondent Government's behaviour when evidence is being obtained (see Ireland v. the United Kingdom judgment of 18 January 1978, Series A no.\u00a025, pp.64-65, \u00a7 161), the Court will assess the merits of this complaint on the basis of the available information in the light of these inferences.","elements":[]},{"content":"97.\u00a0\u00a0The Court notes that once the investigation into the disappearance of the applicant's son was opened on 13 December 2000 it was plagued with inexplicable shortcomings in taking the most essential steps in a situation where prompt action was vital. In particular, the Court cannot but agree with the applicant's argument that despite the fact that a number of eyewitnesses, and above all officers Dzh. and G., whose statements were referred to by the Government, pointed out that Aslanbek Kukayev had been apprehended by federal servicemen and even indicated the military unit to which they had belonged and its location and emblem, it does not appear that any meaningful efforts were made to investigate the possible involvement of the aforementioned personnel in the abduction and murder of the applicant's son. Furthermore, it does not appear, and the Government did not submit any relevant information in this regard, that any examination was ever carried out either of the place where the applicant's son had been abducted, or of the place where his dead body was discovered, or that any expert tests or examinations were conducted. In this latter connection, the Court is sceptical about the Government's statement to the effect that on 23\u00a0April\u00a02001 the corpses of Aslanbek Kukayev and D. were examined by forensic experts, who drafted a report on its results in May 2001, as the Government did not produce this report or any other relevant documents on this subject.","elements":[]},{"content":"98.\u00a0\u00a0The Court is also perplexed by the fact that even though Aslanbek Kukayev's body was found on 22 April 2001, the investigation into his murder was not formally opened until 22 December 2005, when, during the examination of the materials in case no. 12331 concerning the abduction of the applicant's son and other persons, the investigator in charge came across the information regarding the discovery of the body. In such circumstances it appears more than doubtful that the murder of the applicant's son was being investigated at all until 22 December 2005.","elements":[]},{"content":"99.\u00a0\u00a0The Court further notes that it is not quite clear whether the applicant was ever recognised as a victim in the criminal proceedings in question. The Government alleged that the status of victim had been granted to the applicant on 20 December 2005, but did not submit any relevant decision or other document to substantiate this. Even assuming that this allegation is true, the Court notes the Government's failure to explain such a considerable delay in taking one of the most essential steps in the investigation, which would have afforded minimum procedural guarantees to the applicant. It is also clear in this connection that before the decision to grant the status of victim was allegedly taken, he had been unable to study the case file as he had no procedural rights to participate in the investigation. Moreover, it has been alleged by the applicant that even after that time, namely in March 2006, he was denied access to the file. It also appears that before \u2013 and even after \u2013 the applicant was allegedly declared a victim, information concerning progress in the investigation was provided to him only occasionally and fragmentarily.","elements":[]},{"content":"100.\u00a0\u00a0Finally, the Court observes that the investigation remained pending from December 2000 to November 2001, when it was suspended for over four years and not resumed until December 2005. The Government did not advance any plausible explanation for such a considerable period of inactivity. After it was resumed the investigation remained pending at least until January 2007. Between December 2000 and January 2007 it was adjourned and reopened at least six times.","elements":[]},{"content":"101.\u00a0\u00a0The Court thus notes in respect of the Government's argument concerning the applicant's alleged failure to appeal in a court against the actions of omission of the investigators under Article 125 of the Russian Code of Criminal Procedure that in a situation where the effectiveness of the investigation was undermined from a very early stage by the authorities' failure to take necessary and urgent investigative measures, where the investigation was repeatedly stayed and reopened, where the applicant was unable to access the case file at least until December 2005, and most probably thereafter, and where he was only informed of the conduct of the investigation occasionally, it is highly doubtful that the remedy invoked by the Government would have had any prospects of success. Moreover, the Government have not demonstrated that this remedy would have been capable of providing redress in the applicant's situation \u2013 in other words, that it would have rectified the shortcomings in the investigation and would have led to the identification and punishment of those responsible for the abduction and death of his son. The Court thus considers that in the circumstances of the case it has not been established with sufficient certainty that the remedy advanced by the Government would have been effective within the meaning of the Convention. The Court finds that the applicant was not obliged to pursue that remedy, and that this limb of the Government's preliminary objection should therefore be dismissed.","elements":[]},{"content":"102.\u00a0\u00a0In the light of the foregoing, and with regard to the inferences drawn from the respondent Government's submission of evidence, the Court further concludes that the authorities failed to carry out a thorough and effective investigation into the circumstances surrounding the death of Aslanbek Kukayev. It accordingly holds that there has been a violation of Article 2 of the Convention on that account.","elements":[]}]}]}]},{"content":"III.\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION","elements":[{"content":"103.\u00a0\u00a0The applicant complained of mental suffering in breach of Article 3 of the Convention, which he had endured as a result of his son's disappearance and death and the State's failure to investigate those events properly. This Article reads as follows:","elements":[]},{"content":"\u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d","elements":[]},{"content":"104.\u00a0\u00a0The applicant maintained that he had suffered severe mental distress and anguish falling within the scope of Article 3 of the Convention on account of the fact that for several months he had had no information about his son and that his attempts to find Aslanbek Kukayev and later to have his death investigated had been paid scant attention by the State authorities.","elements":[]},{"content":"105.\u00a0\u00a0The Government argued that the investigation had not established that the applicant had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention. In the Government's view, the investigation had not breached the requirements of that provision. They also claimed that \u201cthe perception of events is a very personal matter depending on emotional and other specific features of an individual's personality and relates in fact to the field of psychology\u201d, and that therefore \u201cit is impossible to assess the degree of the applicant's mental suffering from the views of the investigating officers\u201d, the latter being responsible only for investigating criminal offences.","elements":[]},{"content":"106.\u00a0\u00a0The Court reiterates that while a family member of a \u201cdisappeared person\u201d can claim to be a victim of treatment contrary to Article 3 (see Kurt\u00a0v. Turkey, judgment of 25 May 1998, Reports 1998III, \u00a7\u00a0130-134), the same principle would not usually apply to situations where the person taken into custody has later been found dead (see, for example, Tanl\u0131 v. Turkey, no. 26129/95, \u00a7\u00a0159, ECHR 2001III (extracts)). In such cases the Court would normally limit its findings to Article 2. However, if a period of initial disappearance is long it may in certain circumstances give rise to a separate issue under Article 3 (see Gongadze v. , no. 34056/02, \u00a7\u00a7\u00a0184-186, ECHR 2005XI, and Luluyev and Others\u00a0v. , no.\u00a069480/01, \u00a7\u00a0114, ECHR 2006... (extracts)).","elements":[]},{"content":"109.\u00a0\u00a0The Court therefore finds that the applicant suffered distress and anguish as a result of his son's disappearance and of his inability to find out what had happened to his son or to receive up-to-date and exhaustive information on the investigation. The manner in which the applicant's complaints have been dealt with by the authorities must be considered to constitute inhuman treatment contrary to Article 3 of the Convention.","elements":[]},{"content":"110.\u00a0\u00a0In the light of the foregoing, the Court finds that there has been a violation of Article 3 of the Convention on that account.","elements":[]}]},{"content":"IV.\u00a0ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION","elements":[{"content":"111.\u00a0\u00a0The applicant complained that he had been deprived of effective remedies in respect of the violations alleged under Articles 2 and 3, contrary to Article 13 of the Convention, which provides as follows:","elements":[]},{"content":"\u201cEveryone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\u201d","elements":[]},{"content":"112.\u00a0\u00a0The applicant argued that the domestic remedies usually available had proved ineffective in his case, given that the investigation had been pending for several years without any progress and that he had never been properly informed of any developments in the investigation. With regard to the copies of the court decisions produced by the Government in support of their assertion as to the existence of effective remedies in Russia, the applicant contended that the decisions given in civil cases were irrelevant, as, according to the Court's well-established practice, alleged violations of Article 2 and 3 of the Convention could not be remedied merely by an award of damages to the relatives of victims in civil proceedings. In so far as the Government relied on judgments given in criminal cases, the applicant submitted that these were just a few exceptions and that, in reality, there existed an administrative practice consisting in the authorities' continuing failure to conduct adequate investigations into offences committed by representatives of the federal forces in .","elements":[]},{"content":"113.\u00a0\u00a0In the Government's submission, the applicant had had effective remedies at his disposal as required by Article 13 of the Convention and the authorities had not prevented him from using them. In particular, the applicant had received reasoned replies to all his complaints lodged in the context of the criminal proceedings. Besides, the applicant had had the opportunity to challenge the actions or omissions of the investigating authorities before military prosecutors at various levels or before the Prosecutor General's Office, and also before the different levels of military courts and the Supreme Court of Russia. The Government corroborated their submissions regarding the existence of effective domestic remedies in with copies of domestic court decisions (see paragraph\u00a066 above).","elements":[]},{"content":"114.\u00a0\u00a0The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an \u201carguable complaint\u201d under the Convention and to grant appropriate relief, although are afforded some discretion as to the manner in which they comply with their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Nevertheless, the remedy required by Article\u00a013 must be \u201ceffective\u201d in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by acts or omissions by the authorities of the respondent State (see Aksoy, cited above, \u00a7 95).","elements":[]},{"content":"115.\u00a0\u00a0Given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life, including effective access for the complainant to the investigation procedure leading to the identification and punishment of those responsible (see Anguelova v. Bulgaria, no. 38361/97, \u00a7\u00a7\u00a0161-162, ECHR 2002-IV; Assenov and Others\u00a0v. Bulgaria, judgment of 28 October 1998, Reports 1998VIII, \u00a7\u00a0117; and S\u00fcheyla Ayd\u0131n v. Turkey, no. 25660/94, \u00a7\u00a0208, 24\u00a0May 2005). The Court further reiterates that the requirements of Article\u00a013 are broader than a Contracting State's obligation under Article 2 to conduct an effective investigation (see Orhan, cited above, \u00a7\u00a0384).","elements":[]},{"content":"116.\u00a0\u00a0In view of the Court's findings above with regard to Article 2, the applicant's complaint was clearly \u201carguable\u201d for the purposes of Article\u00a013 (see Boyle and Rice v. the United Kingdom, judgment of 27\u00a0April 1988, Series A no.\u00a0131, \u00a7\u00a052). The applicant should accordingly have been able to avail himself of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation for the purposes of Article\u00a013.","elements":[]},{"content":"117.\u00a0\u00a0It follows that in circumstances where, as in the present case, the criminal investigation into the death was ineffective (see paragraph 102 above) and the effectiveness of any other remedy that may have existed, including the civil remedies, was consequently undermined, the State has failed in its obligation under Article\u00a013 of the Convention (see, among other authorities, Imakayeva\u00a0v. , no.\u00a07615/02, \u00a7\u00a0195, ECHR 2006... (extracts)).","elements":[]},{"content":"118.\u00a0\u00a0Consequently, there has been a violation of Article 13 of the Convention in connection with Article 2 of the Convention.","elements":[]},{"content":"119.\u00a0\u00a0As regards the applicants' reference to Article 13 in conjunction with Article 3 of the Convention, the Court notes that it has found above that the applicant endured severe mental suffering on account of, inter alia, the authorities' inadequate investigation into his son's disappearance (see paragraphs 108-110 above) and that it has also found a violation of Article\u00a013 of the Convention in connection with Article 2 of the Convention on account of lack of effective remedies in a situation, such as the applicant's one, where the investigation was ineffective (see paragraph 117 above). Having regard to these findings, the Court is of the opinion that the applicant's complaint under Article 13 in conjunction with Article 3 is subsumed by those under Article 13 in conjunction with Article 2 of the Convention. It therefore does not consider it necessary to examine the complaint under Article 13 in connection with Article 3 of the Convention.","elements":[]}]},{"content":"V.\u00a0\u00a0COMPLIANCE WITH ARTICLE 38 \u00a7 1 (a) OF THE CONVENTION","elements":[{"content":"120.\u00a0\u00a0The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted under Article 34 of the Convention that States should furnish all necessary facilities to make possible a proper and effective examination of applications (see Tanr\u0131kulu\u00a0v. [GC], no.\u00a023763/94, \u00a7\u00a070, ECHR\u00a01999IV). This obligation requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties as regards the examination of applications. Failure on a Government's part to submit such information which is in their hands, without a satisfactory explanation, may not only give rise to the drawing of inferences as to the well-foundedness of the applicant's allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article\u00a038\u00a0\u00a7\u00a01\u00a0(a) of the Convention (see Timurta\u015f v. Turkey, no.\u00a0\u00a03531/94,\u00a0\u00a7\u00a066, ECHR 2000-VI). In a case where the application raises issues of the effectiveness of the investigation, the documents of the criminal investigation are fundamental to the establishment of facts and their absence may prejudice the Court's proper examination of the complaint both at the admissibility stage and at the merits stage (see Tanr\u0131kulu, cited above, \u00a7\u00a070).","elements":[]},{"content":"121.\u00a0\u00a0The Court observes that it has on several occasions requested the Government to submit a copy of the file on the investigation opened into the abduction and murder of the applicant's son. The evidence contained in that file was regarded by the Court as crucial to the establishment of the facts in the present case. In reply, the Government produced only copies of procedural decisions instituting, suspending and reopening criminal proceedings, copies of investigators' decisions taking up the criminal case and some letters informing the applicant of the suspension and reopening of the criminal proceedings in the case. They refused to submit any other documents, such as transcripts of witness interviews, reports on investigative actions, or even the report on the results of the forensic examination of Aslanbek Kukayev's dead body or the decision granting the applicant the status of a victim, with reference to Article 161 of the Russian Code of Criminal Procedure.","elements":[]},{"content":"122.\u00a0\u00a0The Court notes in this connection that the Government did not request the application of Rule 33\u00a0\u00a7\u00a02 of the Rules of Court, which permits a restriction on the principle of the public character of the documents deposited with the Court for legitimate purposes, such as the protection of national security and the private life of the parties, and the interests of justice. The Court further notes that the provisions of Article 161 of the Code of Criminal Procedure, to which the Government referred, do not preclude disclosure of the documents from a pending investigation file, but rather set out a procedure for and limits to such disclosure. The Government failed to specify the nature of the documents and the grounds on which they could not be disclosed (see, for similar conclusions, Mikheyev v. Russia, no.\u00a077617/01, \u00a7\u00a0104, 26 January 2006). The Court also notes that in a number of comparable cases that have been reviewed by or are pending before the Court, similar requests have been made to the Russian Government and the documents from the investigation files have been submitted without reference to Article 161 (see, for example, Khashiyev and Akayeva v. Russia cited above, \u00a7\u00a046, and Magomadov and Magomadov v.\u00a0Russia (dec.), no.\u00a058752/00, 24 November 2005). For these reasons, the Court considers the Government's explanations concerning the disclosure of the case file insufficient to justify withholding the key information requested by the Court.","elements":[]},{"content":"123.\u00a0\u00a0Having regard to the importance of cooperation by the respondent Government in Convention proceedings and the difficulties associated with the establishment of the facts in cases such as the present one, the Court finds that the Russian Government fell short of their obligations under Article 38 \u00a7\u00a01\u00a0(a) of the Convention on account of their failure to submit copies of the documents requested in respect of the abduction and murder of Aslanbek Kukayev.","elements":[]}]},{"content":"VI.\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION","elements":[{"content":"124.\u00a0\u00a0Article 41 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Damage","elements":[{"content":"1.\u00a0\u00a0Pecuniary damage","elements":[{"content":"125.\u00a0\u00a0The applicant sought 34,978.70 pounds sterling (GBP) in respect of the lost earnings of his son. He submitted that Aslanbek Kukayev, who had been 25 years old at the time of his death, had earned 250 dollars per month and had provided financial support for the applicant and his wife. The applicant claimed that he and his wife could have counted on that support until his son had reached the age of 60 years old, which was the age of retirement for a male in Russia, and given that the average life expectancy for a male in was 60 years. The applicant based his calculation on the Ogden Actuarial Tables used to calculate personal injury and fatal accidents in the United Kingdom, with reference to the absence of any equivalent methods of calculation in .","elements":[]},{"content":"126.\u00a0\u00a0The Government contended that the applicant's claims under this head were excessive and unsubstantiated. In their opinion, it was impossible to establish the amount which Aslanbek Kukayev could have earned had he not been killed, and that therefore any calculations of his future earnings were approximate and unreliable.","elements":[]},{"content":"127.\u00a0\u00a0The Court reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention, and that this may, in appropriate cases, include compensation in respect of loss of earnings (see, among other authorities, \u00c7ak\u0131c\u0131, cited above, \u00a7\u00a0127). The Court has found that it may be taken as established that Aslanbek Kukayev died after being apprehended by the federal forces and that the State's responsibility is engaged under Article 2 of the Convention (see paragraphs\u00a088 and 90 above). In these circumstances, there is a direct causal link between the violation of Article 2 and the loss by his parents of the financial support which he provided for them. The Court, however, is not convinced that the amount claimed is reasonable, given in particular that the applicant seems only to have taken into account the average life expectancy for the deceased and not for the dependants. Moreover, the applicant did not indicate the proportion of his son's income on which he could have counted (see, by contrast, Imakayeva cited above, \u00a7\u00a0210). Nor did he take into account the compensation received at domestic level for loss of his son as his breadwinner. Having regard to these considerations, the Court considers it appropriate to award the applicant EUR 7,000 in respect of pecuniary damage, plus any tax that may be chargeable on this amount.","elements":[]}]},{"content":"2.\u00a0\u00a0Non-pecuniary damage","elements":[{"content":"128.\u00a0\u00a0The applicant claimed EUR 100,000 in respect of non-pecuniary damage for the fear, anguish and distress which he had suffered as a result of the loss of his son.","elements":[]},{"content":"129.\u00a0\u00a0The Government considered the applicant's claims to be excessive and submitted that should the Court find a violation of the applicant's rights, a token amount would suffice.","elements":[]},{"content":"130.\u00a0\u00a0The Court observes that it has found a violation of Articles 2, 3 and 13 of the Convention on account of the disappearance and death of the applicant's son, the mental suffering endured by the applicant and the absence of effective remedies to secure domestic redress for the aforementioned violations. The Court has also found a violation of Article\u00a038 \u00a7 1 (a) of the Convention on account of the Government's failure to submit the materials requested by the Court. The applicant must have suffered anguish and distress as a result of all these circumstances, which cannot be compensated by a mere finding of a violation. Having regard to these considerations, the Court awards the applicant, on an equitable basis, EUR 35,000 for non-pecuniary damage, plus any tax that may be chargeable on this amount.","elements":[]}]}]},{"content":"B.\u00a0\u00a0The applicant's request for an investigation","elements":[{"content":"131.\u00a0\u00a0The applicant also requested, referring to Article 41 of the Convention, that \u201can independent investigation which would comply with the Convention standards be conducted into his son's disappearance\u201d. He relied in this connection on the cases of Assanidze\u00a0v. ([GC], no.\u00a071503/01, \u00a7\u00a7 202-203, ECHR 2004II) and Tahsin Acar\u00a0v.\u00a0Turkey ((preliminary objection) [GC], no.\u00a026307/95, \u00a7\u00a084, ECHR 2003VI).","elements":[]},{"content":"132.\u00a0\u00a0The Government argued that the investigation into the murder of the applicant's son was still in progress and that there was therefore no need for the Court to indicate any special measures in this regard.","elements":[]},{"content":"133.\u00a0\u00a0The Court reiterates that, in the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which it finds a breach imposes on the respondent State a legal obligation under that provision to put an end to the breach and to make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (restitutio in integrum). However, its judgments are essentially declaratory in nature and, in general, it is primarily for the State concerned to choose the means to be used in its domestic legal order in order to discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court's judgment (see, among other authorities, Scozzari and Giunta\u00a0v. [GC], nos.\u00a039221/98 and 41963/98, \u00a7\u00a0249, ECHR 2000VIII; Brum\u0103rescu v.\u00a0Romania (just satisfaction) [GC], no. 28342/95, \u00a7 20, ECHR 2001-I; Akdivar and Others v. Turkey (Article 50), judgment of 1 April 1998, Reports 1998-II, pp. 723-24, \u00a7 47; and Marckx v. Belgium, judgment of 13\u00a0June 1979, Series A no. 31, p. 25, \u00a7 58). This discretion as to the manner of execution of a judgment reflects the freedom of choice attached to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1) (see, mutatis mutandis, Papamichalopoulos and Others v. Greece (Article 50), judgment of 31\u00a0October 1995, Series A no. 330-B, pp. 58-59, \u00a7 34).","elements":[]},{"content":"134.\u00a0\u00a0In the Court's opinion, the present case is distinguishable from the ones referred to by the applicant. In particular, the Assanidze judgment ordered the respondent State to secure the applicant's release so as to put an end to the violations of Article 5 \u00a7 1 and Article 6 \u00a7 1, whereas in the Tahsin Acar\u00a0judgment the effective investigation was mentioned in the context of the Court's examination of the respondent Government's request for the application to be struck out on the basis of their unilateral declaration. The Court further notes its above finding that in the present case the effectiveness of the investigation had already been undermined at the early stages by the domestic authorities' failure to take essential investigative measures (see paragraphs 97 and 101 above). It is therefore very doubtful that the situation existing before the breach could be restored. In such circumstances, having regard to the established principles cited above and the Government's argument that the investigation is currently under way, the Court finds it most appropriate to leave it to the respondent Government to choose the means to be used in the domestic legal order in order to discharge their legal obligation under Article 46 of the Convention.","elements":[]}]},{"content":"C.\u00a0\u00a0Costs and expenses","elements":[{"content":"135.\u00a0\u00a0The applicant claimed EUR\u00a08,750 and GBP 2,973.20 for the fees and costs he had incurred in the domestic proceedings and before the Court. These amounts included EUR 5,150 for the lawyers of the Memorial Human Rights Centre, EUR 3,600 for the work done by the field staff of the Memorial Human Rights Centre office in the Northern Caucasus, GBP\u00a01,316.70 for the lawyers of the European Human Rights Advocacy Centre, GBP 1,446.50 for translation of the documents and GBP 210 in respect of administrative costs, such as postal expenses, photocopying, faxing and other expenses.","elements":[]},{"content":"136.\u00a0\u00a0The Government did not dispute the details of the calculations submitted by the applicant, but contested the applicant's claims in their entirety as excessive, with reference to the established rates of legal fees in Russia. They relied on to the Court's case-law to the effect that costs and expenses should be awarded only in so far as they were actually incurred, were necessary and were reasonable as to their amount. The Government also insisted that the applicant's claims were not supported by any relevant documents.","elements":[]},{"content":"137.\u00a0\u00a0The Court reiterates that costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred, and were also reasonable as to quantum (see Iatridis\u00a0v.\u00a0Greece (just satisfaction) [GC], no.\u00a031107/96, \u00a7\u00a054, ECHR\u00a02000XI).","elements":[]},{"content":"138.\u00a0\u00a0The Court notes firstly that the applicant did not submit any documents in support of his claim for administrative costs. It therefore dismisses this claim. The Court further observes that in April 2002 and April 2005 the applicant gave authority to the lawyers of the Memorial Human Rights Centre and the European Human Rights Advocacy Centre to represent his interests in the proceedings before the European Court of Human Rights and that these lawyers acted as the applicant's representative throughout the procedure. The applicant also produced invoices from the translators for the total amount of GBP 1,446.50 (EUR 2,142.94). The Court is therefore satisfied that the applicant's claims in this part were substantiated.","elements":[]},{"content":"139.\u00a0\u00a0The Court further notes that this case was rather complex, and required a certain amount of research work. On the other hand, it did not involve any large amount of documents, especially once the preparation of the initial submissions was done, and therefore the Court doubts whether at later stages it required the amount of research and preparation claimed by the applicant's representatives.","elements":[]},{"content":"140.\u00a0\u00a0In these circumstances, having regard to the details of the claims submitted by the applicant, the Court awards him a reduced amount of EUR\u00a08,000, less EUR 850 received by way of legal aid from the Council of Europe, together with any tax that may be chargeable.","elements":[]}]},{"content":"D.\u00a0\u00a0Default interest","elements":[{"content":"141.\u00a0\u00a0The 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.","elements":[]}]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT UNANIMOUSLY","elements":[{"content":"1.\u00a0\u00a0Dismisses the Government's preliminary objections;","elements":[]},{"content":"2.\u00a0\u00a0Holds that there has been a violation of Article\u00a02 of the Convention as regards the disappearance and death of Aslanbek Kukayev;","elements":[]},{"content":"3.\u00a0\u00a0Holds that there has been a violation of Article\u00a02 of the Convention on account of the authorities' failure to carry out an adequate and effective investigation into the circumstances surrounding the disappearance and death of Aslanbek Kukayev;","elements":[]},{"content":"4.\u00a0\u00a0Holds that there has been a violation of Article\u00a03 of the Convention on account of the mental suffering endured by the applicant because of his son's disappearance and the lack of an effective investigation into the matter;","elements":[]},{"content":"5.\u00a0\u00a0Holds that there has been a violation of Article\u00a013 of the Convention in respect of the alleged violations of Article 2 of the Convention;","elements":[]},{"content":"6.\u00a0\u00a0Holds that no separate issue arises under Article 13 of the Convention in respect of the alleged violation of Article 3 of the Convention;","elements":[]},{"content":"7.\u00a0\u00a0Holds that there has been a failure to comply with Article 38 \u00a7 1 (a) of the Convention in that the Government refused to submit the documents requested by the Court;","elements":[]},{"content":"8.\u00a0\u00a0Holds","elements":[]},{"content":"(a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, the following amounts:","elements":[]},{"content":"(b)\u00a0\u00a0that 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;","elements":[]},{"content":"9.\u00a0\u00a0Dismisses the remainder of the applicant's claim for just satisfaction.","elements":[]},{"content":"Done in English, and notified in writing on 15 November 2007, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.","elements":[]}],"section_name":"conclusion"}] m ?Q 33%- i001-83278CASE OF KUKAYEV v. RUSSIACHAMBERECLI:CE:ECHR:2007:1115JUD00293610229361/022007-11-15 00:00:002007-11-15 00:00:00ENGFith SectionCourt605.639465332031RUS38@[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in an application (no. 29361/02) against the lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Russian national, Mr Khamzat Khasanovich Kukayev (\u201cthe applicant\u201d), on 23 April 2002.","elements":[]},{"content":"2.\u00a0\u00a0The applicant, who had been granted legal aid, was represented by lawyers of the Memorial Human Rights Centre (Moscow) and the European Human Rights Advocacy Centre (). The Russian Government (\u201cthe Government\u201d) were represented by Mr P. Laptev, former Representative of the at the European Court of Human Rights.","elements":[]},{"content":"3.\u00a0\u00a0The applicant alleged that his son had disappeared and subsequently died after being unlawfully apprehended. He complained of the absence of an adequate investigation into the matter, and also of the mental suffering he had endured on account of these events and the lack of effective remedies in respect of those violations. He relied on Articles 2, 3 and 13 of the Convention.","elements":[]},{"content":"4.\u00a0\u00a0On 29 August 2004 the President of the First Section decided to grant priority to the application under Rule 41 of the Rules of Court.","elements":[]},{"content":"5.\u00a0\u00a0By a decision of 23 October 2006 the Court declared the application admissible.","elements":[]},{"content":"6.\u00a0\u00a0The applicant and the Government each filed further written observations (Rule 59 \u00a7 1).","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE","elements":[{"content":"7.\u00a0\u00a0The applicant was born in 1945 and lives in .","elements":[]},{"content":"8.\u00a0\u00a0The facts of the case as submitted by the parties are summarised in section A below (paragraphs 9-61). A description of the documents submitted by the Government is contained in section B below (paragraphs\u00a062-66).","elements":[]},{"content":"A.\u00a0\u00a0The facts","elements":[{"content":"9.\u00a0\u00a0The applicant is the father of Aslanbek Kukayev, born in 1976, who at the material time was an officer of the special police unit of the Chechen Department of the Interior (\u043e\u0442\u0440\u044f\u0434 \u043c\u0438\u043b\u0438\u0446\u0438\u0438 \u043e\u0441\u043e\u0431\u043e\u0433\u043e \u043d\u0430\u0437\u043d\u0430\u0447\u0435\u043d\u0438\u044f \u043f\u0440\u0438 \u0423\u043f\u0440\u0430\u0432\u043b\u0435\u043d\u0438\u0438 \u0432\u043d\u0443\u0442\u0440\u0435\u043d\u043d\u0438\u0445 \u0434\u0435\u043b \u0420\u0424 \u043f\u043e \u0427\u0435\u0447\u0435\u043d\u0441\u043a\u043e\u0439 \u0420\u0435\u0441\u043f\u0443\u0431\u043b\u0438\u043a\u0435 \u2013 \u201cthe Chechen OMON\u201d) and lived in , together with his parents.","elements":[]},{"content":"10.\u00a0\u00a0In early October 1999 the Russian Government launched a counter-terrorist operation in the .","elements":[]},{"content":"1.\u00a0\u00a0Events of 26 November 2000","elements":[{"content":"11.\u00a0\u00a0The facts surrounding Aslanbek Kukayev's abduction are df update on the criminal inquiry into the alleged loan fraud concluded the article.","elements":[]},{"content":"9.\u00a0\u00a0The article contained, in particular, the following four fragments:","elements":[]},{"content":"\u201c[1] In this case the interests of an important politician \u2013 the President of the Agrarian Party of Kazakhstan, which is the second most influential party [in that country] after the Otan Party headed by Mr Nazarbayev [the President of Kazakhstan], [Mr R.M.], were involved.","elements":[]},{"content":"[2] In Omsk [Mr R.M.] controls the Kirovskiy Grain Elevator, the biggest flour producer in the Omsk Region, [limited liability company] M, a bread factory and dozens of successful enterprises.","elements":[]},{"content":"[3] It would be inconceivable for anyone to achieve such success in our region without the benevolence (\u0431\u043b\u0430\u0433\u043e\u0432\u043e\u043b\u0435\u043d\u0438\u0435) of the Governor [Mr P.] who has held senior public office in for more than twenty years. And this biographical fact of [Mr P.], naturally, has linked the republic [of Kazakhstan] and the [] region ever closer with \u2018fraternal bonds\u2019.","elements":[]},{"content":"[4] The Kirovskiy Grain Elevator sent forged certificates to Sberbank confirming that different companies [had] grain which actually never existed. Those certificates were issued by its CEO, Ms Zh. According to the investigators, each certificate cost fifty to seventy thousand roubles. Loans were given on the basis of those certificates in the amount of half a billion roubles.\u201d","elements":[]},{"content":"10.\u00a0\u00a0On 11 December 2006 Mr P., the Governor of Region, lodged a libel action against the first and second applicants with the Kuybyshevskiy District Court of Omsk (the District Court). He sought recognition of statements about him as libellous, publication of a rectification in Novaya Gazeta, and 500,000\u00a0Russian roubles (RUB) in non-pecuniary damages.","elements":[]},{"content":"11.\u00a0\u00a0The court proceedings started on 20 December 2006.","elements":[]},{"content":"12.\u00a0\u00a0On 26 December 2006 the applicants were notified about the next hearing on 11 January 2007, which was subsequently adjourned to 15\u00a0January 2007. The applicants were notified of the change of date.","elements":[]},{"content":"13.\u00a0\u00a0On 14 January 2007 the first applicant requested the trial court to adjourn the hearing by three more weeks in order to prepare its written comments on the lawsuit.","elements":[]},{"content":"14.\u00a0\u00a0On 15 January 2007 the District Court refused to further adjourn the hearing, because the applicant newspaper did not advance any reasons why its representative could not appear for the hearing and why it did not submit its written comments on the lawsuit between 20 December 2006 and 15\u00a0January 2007.","elements":[]},{"content":"15.\u00a0\u00a0The trial court held a hearing in the defendants\u2019 absence and allowed Mr\u00a0P.\u2019s action in part. The relevant part of the judgment read as follows:","elements":[]},{"content":"\u201c... In accordance with Article 23 of the Constitution protection of every citizen\u2019s good name is guaranteed.","elements":[]},{"content":"Under Article 152 of the Civil Code an individual may apply to a court with a request for rectification of statements that are damaging to his honour, dignity or professional reputation if the person who disseminated such statements can not prove their truthfulness ...\u201d","elements":[]},{"content":"The trial court also established that the statements about Mr\u00a0P. (reproduced above in paragraph 9) were disseminated by the applicants in printed and online versions of Novaya Gazeta, and thus became known to an indeterminate number of readers. It continued:","elements":[]},{"content":"\u201c... In consideration of defamation disputes the following must be established: whether the defendant had disseminated statements about the plaintiff, whether those statements were discrediting, and whether those statements were false.","elements":[]},{"content":"The statements about the plaintiff had been disseminated ...\u201d","elements":[]},{"content":"The defendants did not present any evidence that Mr P. had engaged in activities aimed at providing certain businessmen and commercial organisations with privileges, or that he had in fact abused his powers to further certain individuals\u2019 interests ...","elements":[]},{"content":"The author of the article referred to benevolence (\u0431\u043b\u0430\u0433\u043e\u0432\u043e\u043b\u0435\u043d\u0438\u0435) on the part of the Governor towards a renowned politician, the President of the Agrarian Party of Kazakhstan, [Mr R.M.]","elements":[]},{"content":"\u201cBenevolence\u201d is to be understood as good will, a favourable attitude, approval, expression of satisfaction, and gratitude ...","elements":[]},{"content":"The statement that \u201cin our region ... the Governor\u201d, by using his office, shows benevolence [or] approval of the actions of [Mr R.M.] in \u2018control of the Kirovskiy Grain Elevator\u2019, is not compatible with the office of a state official. These statements, taken in conjunction with other paragraphs of the article (about [Mr R.M.], about issuance of false certificates to procure loans), create a negative image of the plaintiff, and could generate scepticism as to the plaintiff\u2019s compliance with the ethical principles expected of the head of the executive authority in the region ... [T]hese statements characterise the plaintiff\u2019s actions as aimed at providing certain businessmen and commercial organisations with privileges, and as an abuse of his powers to further the interests of certain individuals ...\u201d","elements":[]},{"content":"The trial court concluded that the statements were defamatory, and that rectification of the disseminated statements must be published in printed and online versions of Novaya Gazeta. It further stated:","elements":[]},{"content":"\u201c... When determining the level of non-pecuniary damages the court considers the degree of distress caused to the plaintiff by the extent of the dissemination of false statements. The newspaper is distributed in nine regions of and in two foreign countries. The article was also published on line ... [on a website] with at least 91,369\u00a0readers weekly ... Having regard to these circumstances, the court orders the defendants to pay RUB 60,000 [in compensation] ...\u201d","elements":[]},{"content":"It addition to RUB 60,000 (EUR\u00a01,623) in non-pecuniary damages the plaintiff was also awarded RUB 100 (EUR 2.5) in court fees, to be paid by the applicants jointly.","elements":[]},{"content":"16.\u00a0\u00a0On 9 March 2007 the first applicant appealed, claiming, in particular, that the article contained value judgments not susceptible of proof and that the District Court had failed to duly notify it of the date and time of the hearing. According to the heading of the appeal statement, the second applicant was a co-defendant.","elements":[]},{"content":"17.\u00a0\u00a0On 25 July 2007 the , in the presence of the parties to the proceedings and hearing their statements, upheld the lower court\u2019s judgment. It reasoned that the District Court had correctly concluded that the information in the article had tarnished the plaintiff\u2019s reputation, and dismissed the first applicant\u2019s description of it as a value judgment. The relevant part of the judgment read as follows:","elements":[]},{"content":"\u201cThe following claims in the defendants\u2019 appeal are not justified: that the statements are not discrediting, that they may not be regarded as assertions, and that they are merely opinions, value judgments by the author and thus not susceptible of proof.","elements":[]},{"content":"The [trial] court rightly noted that the author of the article, by claiming that the Governor has \u201cbenevolence\u201d towards [Mr. R.M.], alleged approval of [his] control over the Kirovskiy Grain Elevator ...\u201d","elements":[]},{"content":"At the same time the ruled that the statement in paragraph 4 of the article reproduced above was not defamatory, as it did not refer to any abuse of powers by Mr\u00a0P. Further, it dismissed the first applicant\u2019s claim that it had not been summoned to the district court hearing, stating that several notifications had in fact been sent to the defendants.","elements":[]},{"content":"18.\u00a0\u00a0The Regional Court ruled in the final judgment that the first applicant was to publish a rectification of the statements contained in paragraphs 1-3 of the article reproduced above, and that the applicants were to pay Mr\u00a0P. jointly RUB\u00a060,100 in non-pecuniary damages and court fees.","elements":[]},{"content":"19.\u00a0\u00a0Following this judgment, the first applicant published a rectification\u00a0in the printed and online versions of Novaya Gazeta and paid Mr P. non-pecuniary damages and court fees.","elements":[]}]},{"content":"II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE","elements":[{"content":"A.\u00a0\u00a0Constitution of the ","elements":[{"content":"20.\u00a0\u00a0Article 23 guarantees protection of private life, privacy of personal and family affairs, good name and honour. Article 29 protects freedom of thought and expression, together with freedom of the mass media.","elements":[]}]},{"content":"B.\u00a0\u00a0Civil Code of the ","elements":[{"content":"21.\u00a0\u00a0Article 152 provides that an individual may apply to a court with a request for rectification of statements (\u0441\u0432\u0435\u0434\u0435\u043d\u0438\u044f) that are damaging to his honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements. The same rules are applicable in cases where the plaintiff is a legal entity.","elements":[]}]},{"content":"C.\u00a0\u00a0Decree of the Plenum of the Supreme Court of the no. 3 of 24 February 2005","elements":[{"content":"22.\u00a0\u00a0The Supreme Court clarified to the lower courts that a defamation action may be allowed only if a defendant has disseminated statements about the plaintiff, if those statements are discrediting, and if those statements are false. It required the courts hearing defamation claims to distinguish between statements of facts, which can be checked for veracity, and evaluative judgments, opinions and convictions which are not actionable under Article 152 of the Civil Code since they are an expression of the defendant\u2019s subjective opinion and views and cannot be checked for veracity.","elements":[]}]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION","elements":[{"content":"23.\u00a0\u00a0The applicants complained that their right to freedom of expression had been violated. This complaint falls to be examined under Article 10 of the Convention, which in the relevant parts reads as follows:","elements":[]},{"content":"\u201c1.\u00a0\u00a0Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ...","elements":[]},{"content":"2.\u00a0\u00a0The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ...\u201d","elements":[]},{"content":"A.\u00a0\u00a0Admissibility","elements":[{"content":"24.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]}]},{"content":"B.\u00a0\u00a0Merits","elements":[{"content":"1.\u00a0\u00a0The parties\u2019 submissions","elements":[{"content":"25.\u00a0\u00a0The applicants submitted that the libel proceedings, the order to publish a rectification, and the award of non-pecuniary damages amounted to an interference with their freedom of expression. They maintained that the second applicant\u2019s statements about Mr P. and his \u201cbenevolence\u201d towards certain business interests were expressions of his opinion and a value judgment, and did not suggest any breach of professional or ethical conduct on the part of Mr P. Since value judgments are not susceptible to proof, the domestic courts had erred in requiring the applicants to present evidence supporting the statements.","elements":[]},{"content":"26.\u00a0\u00a0The Government did not dispute that the libel proceedings and the sanctions imposed on the applicants constituted an interference with their freedom of expression. They argued that the interference was necessitated by a pressing social need, namely the protection of the reputation and rights of others, and that the sanction imposed was proportionate. The domestic courts had complied with the requirements of Article\u00a010 of the Convention, considered the distinction between statements of fact and value judgments, and concluded that the statements of the second applicant were devoid of any factual basis. Referring to the Court\u2019s judgments in the cases of Krasulya v. Russia (no. 12365/03, 22\u00a0February 2007), and Kudeshkina v.\u00a0Russia (no. 29492/05, 26 February 2009), the Government contended that even if the paragraphs in question were expressing a value judgment the second applicant lacked \u201cgood faith\u201d in the exercise of his journalistic duties by failing to rely on any facts.","elements":[]}]},{"content":"2.\u00a0\u00a0General principles","elements":[{"content":"27.\u00a0\u00a0The Court has repeatedly stressed that the freedom of expression enshrined in Article 10 of the Convention has paramount importance as an essential foundation of a democratic society, a basic condition for its progress and the development of every person. Consequently, the Convention provisions securing this right apply not only to \u201cinformation\u201d or \u201cideas\u201d that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no \u201cdemocratic society\u201d (see, notably, Handyside v. the United Kingdom, 7 December 1976, \u00a7\u00a049, Series\u00a0A no. 24; and, more recently, Axel Springer AG v. Germany [GC], no. 39954/08, \u00a7 78, 7 February 2012, and Mouvement ra\u00eblien suisse v.\u00a0Switzerland [GC], no. 16354/06, \u00a7 48, ECHR 2012 (extracts).","elements":[]},{"content":"28.\u00a0\u00a0Nevertheless, the guarantees or Article 10 of the Convention are not absolute and are subject to possible restrictions, which, however, must be construed strictly, and the need for any restrictions must be established convincingly (see, among other authorities, Jersild v. Denmark, judgment of 23\u00a0September 1994, Series A no.\u00a0298, pp.\u00a023-24, \u00a7\u00a031, and Janowski v.\u00a0Poland [GC], no.\u00a025716/94, \u00a7 30, ECHR 1999-I). The primary responsibility to balance restrictions on freedom of expression rests with the competent national authorities, but it remains subject to the Court\u2019s scrutiny whether the conduct of the national authorities is compatible with their engagements under the Convention (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, \u00a7 59, Series\u00a0A no. 30).","elements":[]},{"content":"29.\u00a0\u00a0In cases similar to the present one the Court is mindful of the vital role of \u201cpublic watchdog\u201d, which the press plays in a society based on the values and principles underlying the Convention (see Observer and Guardian v. the United Kingdom, 26 November 1991, \u00a7 59, Series A no.\u00a0216). It is incumbent on it to impart information and ideas of public interest and the public also has a right to receive them (see Times\u00a0Newspapers Ltd v. the (nos. 1 and 2), nos. 3002/03 and 23676/03, \u00a7 40, ECHR 2009). In order to play a meaningful role in covering matters of public interest and importance, journalists are permitted a degree of exaggeration, provocation, and even certain immoderate statements (see Lopes Gomes da Silva v. Portugal, no. 37698/97, \u00a7 34, ECHR 2000X, and Mam\u00e8re v.\u00a0France, no. 12697/03, \u00a7 25, ECHR 2006XIII).","elements":[]},{"content":"30.\u00a0\u00a0Further, the Court has consistently held that, in assessing whether there was a \u201cpressing social need\u201d capable of justifying interference with the exercise of freedom of expression, a careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible to proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see Lingens v. Austria, 8\u00a0July 1986, \u00a7\u00a046, Series A no.\u00a0103; De Haes and Gijsels v. Belgium, 24 February 1997, \u00a7\u00a042, Reports of Judgments and Decisions 1997I; and Mahmudov and Agazade v.\u00a0Azerbaidjan, no. 35877/04, \u00a7 41, 18 December 2008). However, where allegations are made about the conduct of a third party, it may sometimes be difficult to distinguish between assertions of fact and value judgments.","elements":[]}]},{"content":"3.\u00a0\u00a0The Court\u2019s assessment","elements":[{"content":"31.\u00a0\u00a0The Court notes that the parties agreed that the libel proceedings, leading to the order to publish a rectification of the statements and to the award of non-pecuniary damages, constituted an interference with the applicants\u2019 rights under Article 10 of the Convention. Furthermore, it was not disputed that such interference was prescribed by law and pursued a legitimate aim of protection of Mr P\u2019s reputation.","elements":[]},{"content":"32.\u00a0\u00a0Consequently, it falls to the Court to examine whether the interference was necessary in a democratic society, and, specifically, whether it was justified by any pressing social need and was proportionate to the aims pursued (see, for example, Fressoz and Roire v. France [GC], no.\u00a029183/95, \u00a7\u00a045, ECHR 1999I).","elements":[]},{"content":"33.\u00a0\u00a0The sole existence of a legitimate aim for an interference with the freedom of expression is not sufficient to indicate the presence of a pressing social need for such interference. The values and principles underlying Article 10 of the Convention command that the national authorities shall always be guided by \u201crelevant and sufficient reasons\u201d (see, among other authorities, Chauvy and Others v. France, no. 64915/01, \u00a7\u00a070, ECHR 2004VI, and Fatullayev v. , no. 40984/07, \u00a7 84, 22\u00a0April 2010).","elements":[]},{"content":"34.\u00a0\u00a0The article, authored by the first applicant and published by the second, dealt with a criminal inquiry into what appeared to be a large-scale organised fraud with issuance of loans of over EUR\u00a0147,000,000. Beyond any doubt such an inquiry constituted a matter of significant public interest. It is the fundamental role of the press in a democratic society to deal with such matters, provide coverage of the events for the public, and contribute to discussion. In fulfilling its role as a \u201cpublic watchdog\u201d, the press is entitled to address openly and directly such events of general interest, and the margin of appreciation afforded to a State is significantly narrower in these cases (see, mutatis mutandis, Fatullayev, cited above, \u00a7 82, with further references). Therefore a certain degree of journalistic exaggeration, provocation, and even immoderate language had to be tolerated (see paragraph 29 above).","elements":[]},{"content":"35.\u00a0\u00a0The libel proceedings were initiated by Mr P., an important political figure and Governor of the region. The Court reiterates that unlike private individuals, politicians inevitably and knowingly lay themselves open to close scrutiny of every word and deed by both journalists and the public at large, and they must consequently display a greater degree of tolerance (see, for instance, Lingens, cited above, \u00a7 42, Series A no. 103, and Vides\u00a0Aizsardz\u012bbas Klubs v.\u00a0Latvia, no.\u00a057829/00, \u00a7 40, 27 May 2004).","elements":[]},{"content":"36.\u00a0\u00a0On the other hand, the statements made about Mr P. (see paragraph 9 above) were made in the context of an article uncovering large-scale fraudulent schemes employed by certain individuals in the region. While no explicit and direct connection was drawn between the issuance of loans under falsified documents and Mr P.\u2019s personality or office, the article suggested personal connection between the Governor and Mr R.M., a prominent Kazakhstani politician holding control over the biggest flour producer as well as several other enterprises in the Omsk Region. The business success of Mr R.M. was claimed to be inconceivable without the \u201cbenevolence\u201d of Mr P. (see fragment 4 of the text in paragraph 9 above)","elements":[]},{"content":"37.\u00a0\u00a0In this respect the Court reiterates that Article 10 does not guarantee wholly unrestricted freedom of expression to the press, even with respect to coverage of matters of serious public concern. While enjoying the protection afforded by the Convention, journalists must, when exercising their duties, abide by the principles of responsible journalism, namely to act in good faith, provide accurate and reliable information, objectively reflect the opinions of those involved in a public debate, and refrain from pure sensationalism (see Fressoz and Roire [GC], cited above, \u00a7\u00a7 45, 52; Bladet\u00a0Troms\u00f8 and Stensaas v. Norway [GC], no. 21980/93, \u00a7\u00a7 59, 65, ECHR 1999III; Pedersen and Baadsgaard v. Denmark [GC], no.\u00a049017/99, \u00a7 78, ECHR 2004XI; Stoll v. Switzerland [GC], no. 69698/01, \u00a7\u00a7\u00a0102-103, 149, ECHR 2007V; and Krone Verlag GmbH v. Austria, no.\u00a027306/07, \u00a7\u00a7\u00a046-47, 19 June 2012).","elements":[]},{"content":"38.\u00a0\u00a0Both at the domestic level and before this Court the applicants relied on the distinction between statements of fact and value judgments in justifying the impugned statements. However, they did not present any evidence that their assertions had any factual basis, since in their opinion a value judgment did not necessitate any proof.","elements":[]},{"content":"39.\u00a0\u00a0The Court reiterates that the truth of value judgments is not susceptible to proof and have to be carefully distinguished from facts, which existence can be demonstrated. However, it may be difficult to distinguish between assertions of fact and value judgments when opinions are expressed and allegations are made about a third party\u2019s conduct (see paragraph\u00a030 above). In the present case the Court does not find it necessary to make a definitive assessment in respect of the impugned statements in the light of the following.","elements":[]},{"content":"40.\u00a0\u00a0By reason of the \u201cduties and responsibilities\u201d inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see, among other authorities, Bladet Troms\u00f8 and Stensaas, \u00a7\u00a065, cited above). Even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for that statement, since even a value judgment without any factual basis to support it may be excessive (see De Haes and Gijsels, cited above, \u00a7\u00a047; Jerusalem v. Austria, no. 26958/95, \u00a7 43, ECHR 2001II, and Karpetas v.\u00a0Greece, no. 6086/10, \u00a7 78, 30 October 2012).","elements":[]},{"content":"41.\u00a0\u00a0The Court has previously considered generally known facts, basic verification, or independent research as a minimal factual basis for statements containing value judgments (see, mutatis mutandis, Mahmudov and Agazade v. Azerbaijan, cited above, \u00a7 44, and, mutatis mutandis, Lindon, Otchakovsky-Laurens and July v. France [GC], nos.\u00a021279/02 and\u00a036448/02, \u00a7 55, ECHR 2007IV).","elements":[]},{"content":"42.\u00a0\u00a0These considerations play a particularly important role nowadays, given the influence wielded by the media in contemporary society: not only do they inform, they can also suggest by the way in which they present the information how it is to be assessed. In a world in which the individual is confronted with vast quantities of information circulated via traditional and electronic media and involving an ever-growing number of players, monitoring compliance with journalistic ethics takes on added importance (see Stoll, \u00a7 104, cited above).","elements":[]},{"content":"43.\u00a0\u00a0In these circumstances the Court accepts the conclusion of the domestic courts that the insertion of a comment regarding \u201cbenevolence\u201d of a public official towards certain business interests participating in large-scale fraudulent schemes suggested at least some degree of involvement by Mr P. in these schemes and, therefore, have harmed his reputation. The applicants\u2019 argument that such an effect was neither intended nor desired by them is not a sufficient justification for departure from the principles of \u201cgood faith\u201d reporting. Considering that the applicants failed to provide at least some factual basis for such statements, the Court arrives at the conclusion that the interference was based on \u201crelevant and sufficient\u201d reasons.","elements":[]},{"content":"44.\u00a0\u00a0The last question to be considered by the Court is whether the sanctions imposed on the applicants \u2013 publication of a rectification and payment of EUR 1,625 in non-pecuniary damages \u2013 was proportionate to the legitimate aim pursued. The Government claimed in their submissions that the sanction was \u201cfair\u201d, given the need to protect the reputation and rights of Mr\u00a0P. The applicants did not advance any arguments in this regard. Considering the nature of the statements, the amount of non-pecuniary damages awarded jointly against the applicants, and the widespread distribution of the newspaper (see paragraphs 5 and 15 above), the Court is of the opinion that the sanction imposed by the domestic courts was proportionate to the aim pursued.","elements":[]},{"content":"45.\u00a0\u00a0Accordingly, there has been no violation of Article 10 of the Convention.","elements":[]}]}]}]},{"content":"II.\u00a0\u00a0OTHER ALLEGED VIOLATIONS OF THE CONVENTION","elements":[{"content":"46.\u00a0\u00a0The first applicant also complained under Article 6 of the Convention about its alleged inability to effectively participate in the trial court\u2019s hearing on 15 January 2007. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that this complaint does not disclose any violation of the provision invoked. Therefore it must be rejected in accordance with Article 35 \u00a7 3 (a) of the Convention.","elements":[]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT UNANIMOUSLY","elements":[{"content":"1.\u00a0\u00a0Declares the complaint concerning interference with the applicants\u2019 freedom of expression admissible and the remainder of the application inadmissible;","elements":[]},{"content":"2.\u00a0\u00a0Holds that there has been no violation of Article 10 of the Convention.","elements":[]},{"content":"Done in English, and notified in writing on 28 March 2013, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.","elements":[]}],"section_name":"conclusion"}] 99# !mQ 33'- #001-117683CASE OF NOVAYA GAZETA AND BORODYANSKIY v. RUSSIACHAMBERECLI:CE:ECHR:2013:0328JUD00140870814087/082013-03-28 00:00:002013-03-28 00:00:00ENGFirst SectionCourt976.030578613281RUS38^[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in an application (no. 14087/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by the editorial and publishing house Novaya Gazeta, a non-governmental organisation registered under Russian law, and a Russian national, Mr G. Borodyanskiy, (\u201cthe applicants\u201d) on 21 January 2008.","elements":[]},{"content":"2.\u00a0\u00a0The applicants were represented by Mr Ya. Kozheurov, a lawyer practising in . The Russian Government (\u201cthe Government\u201d) were represented by Mr G. Matyushkin, the Representative of the at the European Court of Human Rights.","elements":[]},{"content":"3.\u00a0\u00a0The applicants alleged, in particular, that the libel proceedings against them constituted a violation of freedom of expression.","elements":[]},{"content":"4.\u00a0\u00a0On 18 January 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 \u00a7 1).","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE","elements":[{"content":"5.\u00a0\u00a0The first applicant, Novaya Gazeta Editorial and Publishing House, is an autonomous non-governmental organisation registered under Russian law in on 24 June 1998. It edits and publishes a daily national newspaper with circulation of 500,000 copies under the name Novaya Gazeta.","elements":[]},{"content":"6.\u00a0\u00a0The second applicant, Mr G. Borodyanskiy, was born in 1959 and lives in . He is one of the regional journalists of Novaya Gazeta in Omsk, , and Tyumen Regions.","elements":[]},{"content":"7.\u00a0\u00a0In 2006 Novaya Gazeta published a series of articles by the second applicant.","elements":[]},{"content":"8.\u00a0\u00a0On 27 November 2006 the newspaper published in both its printed and online versions an article by the second applicant entitled \u2018Personalities received loans\u2019 (\u00ab\u041a\u0440\u0435\u0434\u0438\u0442\u044b \u0432\u044b\u0434\u0430\u043b\u0438 \u043f\u043e\u0434 \u043b\u0438\u0446\u0430\u00bb) (\u201cthe article\u201d). It concerned alleged irregularities in the issuance of large unpaid loans by Sberbank (Savings Bank). The text described several fraudulent schemes which were used to obtain up to 147,000,000 euros (EUR) in loans from Sberbank, and listed certain individuals allegedly involved in these schemes. Among others the article mentioned Mr R.M., a politician and businessman from with significant business interests in agricultural production in Omsk Region. A brie 1[ K  l  + ^}9}"[!5V.l;\1=Mouvement Raëlien Suisse V. Switzerland [Gc], No. 16354/06, § 48, Echr 2012 (Extracts)90yMamère V. France, No. 12697/03, § 25, Echr 2006-XiiiG/Mahmudov And Agazade V. Azerbaidjan, No. 35877/04, 18 December 2008F.Lopes Gomes Da Silva V. Portugal, No. 37698/97, § 34, Echr 2000-X4-oLingens V. Austria, 8 July 1986, Series A No. 103h,ULindon, Otchakovsky-Laurens And July V. France [Gc], Nos. 21279/02 And 36448/02, § 55, Echr 2007-IvH+Krone Verlag Gmbh V. Austria, No. 27306/07, §§ 46-47, 19 June 2012:*{Karpetas V. Greece, No. 6086/10, § 78, 30 October 2012:){Jerusalem V. Austria, No. 26958/95, § 43, Echr 2001-IiY(7Jersild V. Denmark, Judgment Of 23 September 1994, Series A No. 298, Pp. 23-24, § 31<'Janowski V. Poland [Gc], No. 25716/94, § 30, Echr 1999-IL&Handyside V. The United Kingdom, 7 December 1976, § 49, Series A No. 24?%Fressoz And Roire V. France [Gc], No. 29183/95, Echr 1999-I8$wFatullayev V. Azerbaijan, No. 40984/07, 22 April 2010_#CDe Haes And Gijsels V. Belgium, 24 February 1997, Reports Of Judgments And Decisions 1997-IB" Chauvy And Others V. France, No. 64915/01, § 70, Echr 2004-ViO!#Bladet Tromsø And Stensaas V. Norway [Gc], No. 21980/93, 65, Echr 1999-IiiJ Axel Springer Ag V. Germany [Gc], No. 39954/08, § 78, 7 February 2012MYasa V. Turkey, Judgment Of 2 September 1998, Reports 1998-Vi, § 102-1048wTimurtas V. Turkey, No. 3531/94, § 66, Echr 2000-Vi?Tanrikulu V. Turkey [Gc], No. 23763/94, § 70, Echr 1999-IvC Tanli V. Turkey, No. 26129/95, § 159, Echr 2001-Iii (Extracts)?Süheyla Aydin V. Turkey, No. 25660/94, § 208, 24 May 2005Y7Scozzari And Giunta V. Italy [Gc], Nos. 39221/98 And 41963/98, § 249, Echr 2000-Viii>Salman V. Turkey [Gc], No. 21986/93, § 100, Echr 2000-ViizyPapamichalopoulos And Others V. Greece (Article 50), Judgment Of 31 October 1995, Series A No. 330-B, Pp. 58-59, § 34B Orhan V. Turkey, No. 25656/94, § 326 And § 384, 18 June 2002;}Ögur V. Turkey [Gc], No. 21954/93, § 88, Echr 1999-Iii<Mikheyev V. Russia, No. 77617/01, § 104, 26 January 2006dMMccann And Others V. The United Kingdom, Judgment Of 27 September 1995, Series A No. 324, § 161N!Marckx V. Belgium, Judgment Of 13 June 1979, Series A No. 31, P. 25, § 58D Mahmut Kaya V. Turkey, No. 22535/93, Echr 2000-Iii, §§ 106-1073Luluyev And Others V. Russia, No. 69480/01, § 114, Echr 2006 (Extracts) . Magomadov And Magomadov V. Russia (Dec.), No. 58752/00, 24 November 2005IKurt V. Turkey, Judgment Of 25 May 1998, Reports 1998-Iii, § 130-134P%Kaya V. Turkey, Judgment Of 19 February 1998, Reports 1998-I, P. 329, § 105`EIreland V. The United Kingdom Judgment Of 18 January 1978, Series A No. 25, Pp.64-65, § 161M Imakayeva V. Russia, No. 7615/02, § 120 And § 195, Echr 2006 (Extracts): {Ilhan V. Turkey [Gc] No. 22277/93, § 63, Echr 2000-ViiR )Iatridis V. Greece (Just Satisfaction) [Gc], No. 31107/96, § 54, Echr 2000-XiA Gongadze V. Ukraine, No. 34056/02, §§ 184-186, Echr 2005-Xi] ?Cennet Ayhan And Mehmet Salih Ayhan V. Turkey, No. 41964/98, §§ 64 And 65, 27 June 2006;}Cakici V. Turkey [Gc], No. 23657/94, § 85, Echr 1999-IvT-Brumarescu V. Romania (Just Satisfaction) [Gc], No. 28342/95, § 20, Echr 2001-I\=Boyle And Rice V. The United Kingdom, Judgment Of 27 April 1988, Series A No. 131, § 52Z9Assenov And Others V. Bulgaria, Judgment Of 28 October 1998, Reports 1998-Viii, § 117C Anguelova V. Bulgaria, No. 38361/97, §§ 161-162, Echr 2002-IvxuAksoy V. Turkey, Judgment Of 18 December 1996, Reports Of Judgments And Decisions 1996-Vi, Pp. 2275-2276, §§ 51-52k[Akdivar And Others V. Turkey (Article 50), Judgment Of 1 April 1998, Reports 1998-Ii, Pp. 723-24, § 47wsAkdivar And Others V. Turkey, Judgment Of 16 September 1996, Reports 1996-Iv, P. 1210, § 65-67, And P. 1211, § 68 3zTT h ! } < B  y 1 T K[Al^*XB0zSd+K.-F. V. Germany Judgment Of 27 November 1997, Reports 1997-Vii, P. 2674, § 63_cCJohnston And Others V. Ireland Judgment Of 18 December 1986, Series A No. 112, P. 24, § 51Pb%Guzzardi V. Italy Judgment Of 6 November 1980, Series A No. 39, P. 37, § 98aaGGolder V. The United Kingdom Judgment Of 21 February 1975, Series A No. 18, P. 14, §§ 29-30[`;Erkalo V. The Netherlands Judgment Of 2 September 1998, Reports 1998-Vi, P. 2477, § 50`_EDe Wilde, Ooms And Versyp V. Belgium Judgment Of 18 June 1971, Series A No. 12, P. 37, § 68y^wVasilescu V. Romania, Judgment Of 22 May 1998, Reports Of Judgments And Decisions 1998-Iii, Pp. 1075-1076, §§ 39-417]uRyabykh V. Russia, No. 52854/99, § 59, 24 July 2003J\Nilsen And Johnsen V. Norway [Gc], No. 23118/93, § 62, Echr 1999-Viii7[uBurdov V. Russia, No. 59498/00, § 35, Echr 2002-IiiKZBrumarescu V. Romania [Gc], No. 28342/95, § 65, § 78, 28 October 19992YkVoytenko V. Ukraine, No. 18966/02, 29 June 2004^XARomashov V. Ukraine, No. 67534/01, §§ 16-18, §§ 23-33, § 37, §§ 42-46, 27 July 2004UW/Derkach And Palek V. Ukraine, Nos. 34297/02 And 39574/02, § 42, 21 December 2004UV/X. V. Iceland, No 6825/74, Decision Of The Commission Of 18 May 1976, D R 5 P. 88JUWinterstein And Others V. France, No 27013/07, § 107, 17 October 2013De Tommaso V. Italy [Gc], No 43395/09, Echr 2017 (Extracts)6=sBolat V. Russia, No 14139/03, § 65, 5 October 20065<qBaumann V. France, No 33592/96, § 61, Echr 2001 V3;mBattista V. Italy, No 43978/09, § 36, Echr 2014E:Bărbulescu V. Romania [Gc], No 61496/08, § 70, 5 September 2017`9EAssociation De Défense Des Intérêts Du Sport V. France (Dec.), No 36178/03, 10 April 2007>8A, B And C V. Ireland [Gc], No 25579/05, § 185, Echr 2010H7Vides Aizsardzibas Klubs V. Latvia, No. 57829/00, § 40, 27 May 2004j6YTimes Newspapers Ltd V. The United Kingdom (Nos. 1 And 2), Nos. 3002/03 And 23676/03, § 40, Echr 2009Y57The Sunday Times V. The United Kingdom (No. 1), 26 April 1979, § 59, Series A No. 3074uStoll V. Switzerland [Gc], No. 69698/01, Echr 2007-VN3!Pedersen And Baadsgaard V. Denmark [Gc], No. 49017/99, § 78, Echr 2004-XiZ29Observer And Guardian V. The United Kingdom, 26 November 1991, § 59, Series A No. 216e-limit for lodging his appeal in cassation.","elements":[]},{"content":"20.\u00a0\u00a0On 9 September 2005 the Supreme Court rejected the applicant's appeal in cassation as unsubstantiated.","elements":[]},{"content":"21.\u00a0\u00a0Of twenty court hearings six were adjourned at the respondent's request or due to its representative's failure to appear, eight following the applicant's requests and due to the introduction of additional claims.","elements":[]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS","elements":[{"content":"22.\u00a0\u00a0Relying on Articles 6 \u00a7 1 and 13 of the Convention and Article 1 of Protocol No. 1 the applicant complained about the length of the proceedings. The Court, which is master of the characterisation to be given in law to the facts of the case, considers that the applicant's complaint falls to be examined under Article 6 \u00a7 1 of the Convention, which reads, in so far as relevant, as follows:","elements":[]},{"content":"Article\u00a06\u00a0\u00a7\u00a01","elements":[]},{"content":"\u201cIn the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...\u201d","elements":[]},{"content":"A.\u00a0\u00a0Admissibility","elements":[{"content":"23.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]}]},{"content":"B.\u00a0\u00a0Merits","elements":[{"content":"24.\u00a0\u00a0The Government submitted that the case was complex and there were no substantial delays attributable to the domestic authorities, while the applicant contributed to the protracted length of the proceedings by requesting adjournments of the hearings and lodging his appeals out of time.","elements":[]},{"content":"25.\u00a0\u00a0The applicant disagreed.","elements":[]},{"content":"26.\u00a0\u00a0The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, \u00a7 43, ECHR 2000-VII).","elements":[]},{"content":"27.\u00a0\u00a0Turning to the circumstances of the present case, the Court notes that the period to be taken into consideration began on 16 April 1998 and ended on 9 September 2005. It thus lasted for about seven years and five months before the courts at three levels of jurisdiction.","elements":[]},{"content":"28.\u00a0\u00a0The Court notes that the applicant's case was of no particular factual or legal complexity and the Government did not put forward any explanation for the delays of two years and seven months and two years during the periods from 18 November 1999 to 8 April 2002 and from 13\u00a0November 2003 to 3 September 2005.","elements":[]},{"content":"29.\u00a0\u00a0Although the applicant might have caused some protraction of the proceedings, the Court is of the view that the primary responsibility for the delays in the proceedings rests with the courts. The Court considers that the length of the proceedings was excessive and there has accordingly been a breach of the \u201creasonable time\u201d requirement of Article 6 \u00a7 1.","elements":[]}]}]},{"content":"II.\u00a0\u00a0OTHER COMPLAINTS","elements":[{"content":"30.\u00a0\u00a0The applicant complained under Articles 6 \u00a7 1 and 13 of the Convention about the outcome of the proceedings and that they were unfair. He also complained of a violation of Article 1 of Protocol No. 1 on account of the outcome of the proceedings. He also complained that he had been discriminated against on account of the outcome of the proceedings.","elements":[]},{"content":"31.\u00a0\u00a0In the light of the materials in its possession, the Court finds that the applicant's complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.","elements":[]},{"content":"32.\u00a0\u00a0It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 \u00a7\u00a7 3 and 4 of the Convention.","elements":[]}]},{"content":"III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION","elements":[{"content":"33.\u00a0\u00a0Article 41 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Damage","elements":[{"content":"34.\u00a0\u00a0The applicant claimed 304,862.46 Ukrainian hryvnias (UAH) in respect of pecuniary damage and UAH 50,000 for non-pecuniary damage.","elements":[]},{"content":"35.\u00a0\u00a0The Government contested these claims.","elements":[]},{"content":"36.\u00a0\u00a0The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects that claim. On the other hand, making its assessment on an equitable basis, as required by Article\u00a041 of the Convention, the Court awards the applicant EUR\u00a01,200 for non-pecuniary damage.","elements":[]}]},{"content":"B.\u00a0\u00a0Costs and expenses","elements":[{"content":"37.\u00a0\u00a0The applicant also claimed UAH 1,000 for costs and expenses without any further specification.","elements":[]},{"content":"38.\u00a0\u00a0The Government contested the claim.","elements":[]},{"content":"39.\u00a0\u00a0According 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 information in its possession and the above criteria, the Court rejects the claim for costs and expenses.","elements":[]}]},{"content":"C.\u00a0\u00a0Default interest","elements":[{"content":"40.\u00a0\u00a0The 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.","elements":[]}]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT UNANIMOUSLY","elements":[{"content":"1.\u00a0\u00a0Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;","elements":[]},{"content":"2.\u00a0\u00a0Holds that there has been a violation of Article 6 \u00a7 1 of the Convention;","elements":[]},{"content":"3.\u00a0\u00a0Holds","elements":[]},{"content":"(a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, EUR 1,200 (one thousand and two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into national currency at the rate applicable at the date of settlement;","elements":[]},{"content":"(b)\u00a0\u00a0that 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;","elements":[]},{"content":"4.\u00a0\u00a0Dismisses the remainder of the applicant's claim for just satisfaction.","elements":[]},{"content":"Done in English, and notified in writing on 10 December 2009, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.","elements":[]}],"section_name":"conclusion"}] k EQ 33%- a001-96109CASE OF GONCHAROV v. UKRAINECHAMBERECLI:CE:ECHR:2009:1210JUD0007867067867/062009-12-10 00:00:002009-12-10 00:00:00ENGFith SectionCourt707.582885742188UKR48kX[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in an application (no. 7867/06) against lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Ukrainian national, Mr Pavel Vasilyevich Goncharov (\u201cthe applicant\u201d), on 4\u00a0February 2006.","elements":[]},{"content":"2.\u00a0\u00a0The Ukrainian Government (\u201cthe Government\u201d) were represented by their Agent, Mr Yuriy Zaytsev.","elements":[]},{"content":"3.\u00a0\u00a0On 12 September 2006 the Court decided to give notice of the application to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 \u00a7 3).","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"4.\u00a0\u00a0The applicant was born in 1953 and lives in Artemivsk.","elements":[]},{"content":"5.\u00a0\u00a0On 16 April 1998 the applicant instituted proceedings in the Artemivsk Town Court against the company A., his former employer, and the State Pension Fund, seeking recalculation of his salary and pension and recovery of salary and pension arrears.","elements":[]},{"content":"6.\u00a0\u00a0On 5 May 1999, further to the applicant's request, the court ordered an expert examination as regards the accuracy of the calculation of the applicant's salary and pension and suspended the proceedings awaiting the results of the examination.","elements":[]},{"content":"7.\u00a0\u00a0On 18 November 1999 the court, further to the applicant's request, cancelled the examination and resumed the proceedings.","elements":[]},{"content":"8.\u00a0\u00a0During the period from 18 November 1999 to 8 April 2002 no court hearings were held in the case.","elements":[]},{"content":"9.\u00a0\u00a0On 7 February 2003 the court rejected the applicant's claims as not based on the relevant law.","elements":[]},{"content":"10.\u00a0\u00a0On 6 March 2003 the applicant appealed.","elements":[]},{"content":"11.\u00a0\u00a0On 13 March 2003 the first-instance court allowed the applicant until 25 March 2003 to rectify shortcomings in his appeal.","elements":[]},{"content":"12.\u00a0\u00a0On 21 March 2003 the applicant submitted his rectified appeal.","elements":[]},{"content":"13.\u00a0\u00a0On 12 June 2003 the Donetsk Regional Court of Appeal upheld the judgment of 7 February 2003.","elements":[]},{"content":"14.\u00a0\u00a0On 27 August 2003 the applicant appealed in cassation.","elements":[]},{"content":"15.\u00a0\u00a0By a ruling of 2 September 2003 the first-instance court returned the appeal in cassation to the applicant as lodged out of time.","elements":[]},{"content":"16.\u00a0\u00a0On 11 September 2003 the applicant appealed against that ruling.","elements":[]},{"content":"17.\u00a0\u00a0Further to the court's instructions he rectified shortcomings in that appeal and resubmitted it on 18 September 2003.","elements":[]},{"content":"18.\u00a0\u00a0On 30 October 2003 the Donetsk Regional Court of Appeal quashed the ruling of 2 September 2003.","elements":[]},{"content":"19.\u00a0\u00a0On 13 November 2003 the first-instance court granted the applicant extension of the tim7 3. In particular, the part of the application lodged by Mr Ciprelli, the applicant\u2019s husband, who had also applied to the Court on 6 December 2013, was declared inadmissible under the provision of the Rules of Court cited above.","elements":[]},{"content":"5.\u00a0\u00a0On 8 October 2013 the World Anti-Doping Agency (hereafter \u201cWADA\u201d) was given leave to intervene in the written procedure (Article 36 \u00a7 2 of the Convention and Rule 44 \u00a7 3).","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE","elements":[{"content":"A.\u00a0\u00a0Application no. 48151/11","elements":[{"content":"6.\u00a0\u00a0The applicants are the National Federation of Sportspersons\u2019 Associations and Unions (F\u00e9d\u00e9ration nationale des associations et syndicats de sportifs \u2013 hereafter \u201cFNASS\u201d), the National Rugby Players\u2019 Union (Syndicat national des joueurs de rugby \u2013 hereafter \u201cProvale\u201d), the National Professional Footballers\u2019 Union (Union nationale des footballeurs professionnels \u2013 hereafter \u201cthe UNFP\u201d), the Professional Handball Players\u2019 Association (Association des joueurs professionnels de handball \u2013 hereafter \u201cthe AJPH\u201d), and the National Basketball Players\u2019 Union (Syndicat national des basketteurs \u2013 hereafter \u201cthe SNB\u201d). FNASS, which was established in 1992, is a federation of trade unions representing professional athletes, which today comprises the unions representing track and field athletes (SAF), basketball players (SNB), cyclists (UNCP), footballers (UNFP), handball players (AJPH) and rugby players (Provale). It represents around 3,500 professional athletes in France. Its aim is to defend the individual and collective rights and the pecuniary and non-pecuniary interests of professional athletes in all disciplines. The remaining 99 applicants are professional handball, football, rugby and basketball players.","elements":[]},{"content":"1.\u00a0\u00a0The facts set out in the application form","elements":[{"content":"7.\u00a0\u00a0On 14 April 2010 the Government issued Order no. 2010-379 on athletes\u2019 health, bringing the Sports Code into line with the principles of the World Anti-Doping Code (hereafter \u201cthe Order of 14 April 2010\u201d). The Order was aimed, firstly, at bringing the provisions of the Sports Code into line with the most recent version of the World Anti-Doping Code (hereafter \u201cthe WADC\u201d), which entered into force on 1 January 2009 (see paragraph 45 below) following the Third World Conference on Doping in Sport held in Madrid in November 2007 (Title I) and, secondly, to clarify certain provisions of the Sports Code concerning athletes\u2019 health and efforts to combat doping (Title II). The provisions of the Order were ratified by Law no. 2012-158 of 1 February 2012 on strengthening sports ethics and athletes\u2019 rights. They were codified in Articles L. 232-2 et seq. of the Sports Code, which has undergone several amendments since.","elements":[]},{"content":"8.\u00a0\u00a0Article 3 of the Order (Article L. 232-5 of the Sports Code) set forth the tasks and powers of the French Anti-Doping Agency (Agence fran\u00e7aise de lutte contre le dopage \u2013 hereafter \u201cthe AFLD\u201d) and provided as follows:","elements":[]},{"content":"\u201cI. \u2013 In paragraph I of Article L. 232-5 of the Code, sub-paragraphs 1 to 13 shall be replaced by the following provisions:","elements":[]},{"content":"(1) It shall define an annual programme of tests;","elements":[]},{"content":"...","elements":[]},{"content":"(3)\u00a0\u00a0In the case of athletes subject to the whereabouts requirement referred to in Article L. 232-15, it shall carry out tests subject to the conditions laid down in Articles L. 232-12 to L. 232-16:","elements":[]},{"content":"(a)\u00a0\u00a0during sporting events organised by federations approved or licensed by the federations to which powers have been delegated;","elements":[]},{"content":"(b)\u00a0\u00a0during the international sporting events defined in Article L. 230-2 with the agreement of the competent international body or, failing that, the World Anti-Doping Agency;","elements":[]},{"content":"(c)\u00a0\u00a0during periods of training in preparation for the sporting events referred to in Article L. 230-3;","elements":[]},{"content":"(d)\u00a0\u00a0independently of the sporting events referred to in Article L. 230-3 and the periods of training in preparation for them;","elements":[]},{"content":"...\u201d","elements":[]},{"content":"9.\u00a0\u00a0Article 6 of the Order (Article L. 232-13-1 of the Sports Code, see paragraph 63 below) provided, in particular, that individualised anti-doping testing of athletes included in the testing pool could be carried out at training and sporting venues, but also \u201cat any location chosen with the athlete\u2019s agreement at which the test can be carried out in compliance with the athlete\u2019s right to respect for his or her privacy, including, at his or her request, at home.\u201d","elements":[]},{"content":"10.\u00a0\u00a0Article 7 of the Order added the following:","elements":[]},{"content":"\u201cArticle L. 232-15 of the Code shall read as follows:","elements":[]},{"content":"The athletes in the testing pool, designated for a period of one year by the French Anti-Doping Agency, shall be required to provide accurate and up-to-date information on their whereabouts for the purposes of conducting the tests referred to in Article\u00a0L.\u00a0232-5. The athletes concerned shall be:","elements":[]},{"content":"(1)\u00a0\u00a0\u00a0those whose names are on the list of elite athletes or the list of promising young athletes (Espoir) within the meaning of the present Code, or athletes whose names have featured on one of those lists for at least one of the past three years;","elements":[]},{"content":"(2)\u00a0\u00a0professional athletes who are licensed by the approved federations or who have been engaged in professional sport for at least one of the past three years;","elements":[]},{"content":"(3)\u00a0\u00a0athletes who have been the subject of a disciplinary sanction on the basis of Articles L. 232-9, L. 232-10 or L. 232-17 during the past three years.","elements":[]},{"content":"The information concerned may be computerised by the Agency with a view to organising tests. Computerised processing of information concerning athletes\u2019 whereabouts is authorised by a decision of the Agency\u2019s Board, taken after consultation with the National Commission on Data Processing and Civil Liberties.\u201d","elements":[]},{"content":"11.\u00a0\u00a0In an application registered on 1 June 2010 some of the applicants (unions and twenty-four individual applicants), together with other athletes, requested the Conseil d\u2019\u00c9tat to set aside the Order, and in particular Articles 3 and 7 thereof (see paragraphs 8 and 10 above). With regard to the whereabouts requirement provided for in those Articles, they complained of a \u201cparticularly intrusive\u201d testing system which compelled athletes in the testing pool to provide the AFLD with information concerning their places of residence, training and competition so that they could be located at any time, and to undergo immediate tests ordered on a discretionary basis and without advance notice. They complained in particular of the fact that the tests could be carried out independently of sporting events and outside training periods, that is, during periods when athletes were no longer at the disposal of their employer but were on holiday, resting or on sick leave or leave following an occupational injury. They argued that Article 3 infringed their freedom of movement by requiring them to give notice of their whereabouts on an ongoing basis, including during non-professional activities, and also infringed their right to a normal family life and their individual freedom as athletes. In their view, the unconditional implementation of Article 3(I)(3)(d) of the Order, allowing tests to be carried out independently of sporting events and outside training periods, meant that between 6 a.m. and 9 p.m. (the testing period laid down by Article L. 232-14 of the Sports Code, see paragraph 64 below) the athletes in the testing pool faced the permanent prospect of physically intrusive tests. This entailed systematically giving advance notice of their schedule, in breach of the right to establish relationships with their peers and the right to the peaceful enjoyment of their private lives. Lastly, the applicants complained of a breach of the principle of equality, as the whereabouts requirement for the purposes of anti-doping tests was confined to athletes included in the testing pool.","elements":[]},{"content":"12.\u00a0\u00a0In a judgment of 24 February 2011 the Conseil d\u2019\u00c9tat rejected the application in the following terms:","elements":[]},{"content":"\u201c... As regards Articles 3 and 7 of the impugned Order:","elements":[]},{"content":"These provisions provide a strict framework governing the locations where AFLD testing of athletes in the \u2018testing pool\u2019 may take place, and the period during which such tests may be carried out. They require the athletes in question, in view of the demands of efforts to combat doping, to provide accurate and up-to-date information on their whereabouts for the purposes of organising tests, including unannounced tests, with a view to the effective detection of the use of doping substances, which can be detected only for a short time after being taken despite having lasting effects. Hence, Articles 3 and 7 of the impugned order, which do not hamper athletes\u2019 freedom of movement, interfere with their right to respect for their private and family life as guaranteed by Article 8, and with individual freedoms, only to the extent that is necessary and proportionate to the general-interest aims pursued by efforts to combat doping, namely to protect athletes\u2019 health and to ensure fair and ethical sporting competitions. In any event, the order under challenge also complies with the provisions of the International Convention against Doping in Sport, which do not have direct effect.","elements":[]},{"content":"The principle of equality does not prevent the regulatory authority from laying down different rules for different situations or from derogating from equality on generalinterest grounds, provided that, in both cases, the resulting difference in treatment is proportionate to the purpose of the rule establishing it. Athletes whose names feature on the list of elite sportsmen and women or the list of promising young athletes, which include amateur athletes and licensed professionals who may be required to notify their whereabouts with a view to anti-doping tests, are not in the same situation as other athletes, in view of the level at which they compete and the greater risk of doping such competition may entail. Likewise, athletes who have been the subject of disciplinary sanctions for doping during the past three years are not in the same situation as other athletes. Furthermore, athletes belonging to the \u2018testing pool\u2019 are not in the same situation as persons in other professions and may therefore be made subject to special doping control measures without the principle of equality being breached.\u201d","elements":[]}]},{"content":"2.\u00a0\u00a0New information resulting from the parties\u2019 observations","elements":[{"content":"13.\u00a0\u00a0In their initial and additional observations of 22 October 2013 and 17 February 2014 the Government provided the Court with the following information concerning the situation of the individual applicants with regard to the impugned legislation.","elements":[]},{"content":"(a)\u00a0\u00a0Eight of the ninety-nine applicants had never been included in the AFLD testing pool (Mr Millo-Chluski, Mr Nallet, Mr Traille, Mr Mas, Mr Domingo, Mr Dusautoir, Mr Heymans and Mr Para).","elements":[]},{"content":"(b)\u00a0\u00a0Of the twenty-four applicants who had participated in the domestic proceedings, none had belonged to the testing pool on the date on which the application was lodged with the Court.","elements":[]},{"content":"(c)\u00a0\u00a0Eleven applicants who had not participated in the domestic proceedings had belonged to the testing pool on the date on which the application was lodged (Mr Da Silva, Mr Gomis, Mr Ho You Fat, Mr\u00a0Perquis, Mr Congre, Mr Coulibaly, Mr Cavalli, Mr Cabarry, Mr\u00a0Huget, Mr Honrubia and Mr Gharbi). According to the Government, these athletes had been included in the testing pool in September and October 2010. They had all undergone testing, some of them between two and eight times. Nine of them had been issued with one or two warnings. One (Mr Huget) had received three warnings, leading to the institution of disciplinary proceedings and to an administrative penalty which he had not contested before the Conseil d\u2019\u00c9tat. Of the eleven aforementioned applicants, six had had their inclusion in the testing pool renewed following two decisions of the AFLD Board of 12 and 25\u00a0September 2013. Mr Coulibaly, Mr Cavalli, Mr Gomis, Mr Cabarry and Mr Huget had been removed from the list.","elements":[]},{"content":"(d)\u00a0\u00a0With regard to Mr Kerckhof, the Government stated that he had been included in the testing pool on 7 November 2009 and had been kept on the list for a further year from 17 September 2010. During that time he had been found to be in breach of the whereabouts requirement on one occasion.","elements":[]},{"content":"14.\u00a0\u00a0In a letter of 22 August 2016 the Government informed the Court that, by decisions of the AFLD of 4 September and 22 October 2014, five of the six athletes still belonging to the AFLD\u2019s testing pool in 2013 (Mr\u00a0Honrubia, Mr Perquis, Mr Congre, Mr Da Silva and Mr Gharbi, see paragraph 13 (c) above) had been removed from the list at their request, on the grounds that their names had been on it for four years.","elements":[]},{"content":"15.\u00a0\u00a0In their observations in reply of 3 December 2013 the eight applicants who were not in the AFLD testing pool (see paragraph 13 (a) above) stated that they were in the testing pool of the International Rugby Board (IRB). They stated that they were required to declare their whereabouts in France on the same basis as the applicants included in the AFLD testing pool and that the AFLD, which had subsidiary powers in that regard, was empowered to impose sanctions on them.","elements":[]},{"content":"16.\u00a0\u00a0The twenty-four applicants who had applied to the Conseil d\u2019\u00c9tat also reported as follows on their situation at the time of lodging of the application on 23 July 2011.","elements":[]},{"content":"(a)\u00a0\u00a0Four of them (Mr Pierre, Mr Sissokho, Mr Psaume and Mr Talmont) had been included in the testing pool in 2010, and had remained in it for a further twelve months from 11 June 2010. They produced a letter from the AFLD dated 17 June 2011 asking the President of the Professional Football League to send a list of players by 2 September 2011 who should be included or retained in the testing pool. However, they did not produce the updated list of athletes who had been retained in the pool.","elements":[]},{"content":"(b)\u00a0\u00a0A further four (Mr Busselier, Mr Ternel, Mr Kiour and Mr Haon) had been included in the testing pool in 2009 or 2010 and had been retained for another twelve months from 23 September 2010. In a letter dated 23 September 2010 to the President of the National Handball League and the President of the French Handball Federation, forwarding the updated list of athletes in the testing pool, the President of the AFLD pointed out that the athletes in question were required to declare their whereabouts every day in accordance with decision no. 54 of 18 October 2007 (see paragraphs 69 and 70 below).","elements":[]},{"content":"(c)\u00a0\u00a0A further thirteen applicants who had been included in the testing pool in 2009 submitted that they had been included or retained in the pool on 11 June 2010 for a minimum twelve-month period (Mr Strunc, Mr Soliman, Mr Dondon, Mr Jeanneau, Mr Melody, Mr Kerckhof, Mr\u00a0Linehan, Mr Maynier, Mr Ouattara, Mr Tsagarakis, Mr Moncade, Mr Pons and Mr Toffin). They produced a letter from the AFLD to the President of the National Basketball League dated 11 June 2010, asking the latter to send a list of players by 30 August 2010 who should be included or retained in the testing pool. The applicants did not furnish the updated list of the athletes retained in the testing pool (however, as regards Mr Kerckhof, see the Government\u2019s observations at paragraph 13 (d) above).","elements":[]},{"content":"(d)\u00a0\u00a0Three applicants had been included in the pool in 2009 for a twelvemonth period (Mr Ayed, Mr Guilbert and Mr Dearlove).","elements":[]},{"content":"17.\u00a0\u00a0The remaining applicants stated that they had been included in the testing pool following the Conseil d\u2019\u00c9tat ruling and had joined the application to the Court in their capacity as union members. They did not provide any documents demonstrating that they belonged to the testing pool.","elements":[]},{"content":"18.\u00a0\u00a0In additional observations of 5 December 2013 Mr Da Silva\u2019s lawyer informed the Court that his client had appealed in the following terms to the President of the AFLD against the decision to retain him in the testing pool for an eighteen-month period from 26 September 2013:","elements":[]},{"content":" \u201c... I was first included in the testing pool on 20 September 2010, in other words a full three years ago, and you have just retained my name on the list until 2015 at least, making a total of five years! This is completely unacceptable and disproportionate.","elements":[]},{"content":"I have complied with all the obligations entailed in belonging to the testing pool. This has affected my family life and had a considerable impact on my children, who often see inspectors turn up on my doorstep at 6 a.m. I have always provided details of my whereabouts in good time, have never missed a test and, in three years, have never received the slightest warning, still less tested positive for any banned substance ...","elements":[]},{"content":"Can you kindly explain [the] scientific reasons for keeping me in the testing pool? Does the fact that I\u2019m nearing the end of my career make me a potential cheat? ... Keeping me in the testing pool for another 18 months stigmatises me in the eyes of my teammates as a potential cheat and is not acceptable.","elements":[]},{"content":"I agree that it\u2019s necessary to tackle doping in sport, but not to the detriment of MY life. ... I am therefore asking you to review your position on my inclusion in the testing pool: keeping the same person in the pool for five consecutive years is not an effective way of tackling doping.\u201d","elements":[]}]}]},{"content":"B.\u00a0\u00a0Application no. 77769/13","elements":[{"content":"19.\u00a0\u00a0The applicant, who was born in 1958, is a French national. She is an international racing cyclist who is on the list of elite athletes and has set numerous world records. She stated that she had undergone more than 1,200 anti-doping tests in the course of her career. She maintained that she had undergone unannounced tests abroad (in the United States, China, Switzerland and Australia) as well as regular tests at World Championship and Olympic events.","elements":[]},{"content":"20.\u00a0\u00a0By a decision of the AFLD\u2019s director of testing of 14 March 2008 the applicant was designated as one of the athletes in the testing pool and subject to individualised testing. At that time athletes could be included in the testing pool for an indeterminate period.","elements":[]},{"content":"21.\u00a0\u00a0The Order of 14 April 2010, cited above (see paragraph 10), laid down a one-year time-limit for inclusion in the pool of athletes to be tested.","elements":[]},{"content":"22.\u00a0\u00a0By a decision of 10 June 2010 taken under the transitional rules, the applicant was re-registered as belonging to the testing pool.","elements":[]},{"content":"23.\u00a0\u00a0In 2011, following three failures to comply with the rules on whereabouts, the applicant gave evidence before a disciplinary board of the French Cycling Federation. She was cleared of misconduct on the grounds that, at the time of the most recent failure to comply, in the United States in June 2011, she had no longer been in the testing pool and had thus no longer been liable for testing.","elements":[]},{"content":"24.\u00a0\u00a0In a letter of 20 December 2011 the AFLD invited the applicant to submit observations on her possible re-inclusion in the testing pool. In a letter, and subsequently during an interview with the President of the AFLD at which her lawyer was present, the applicant expressed her objections. She argued, among other things, that she was included in the testing pool of the Union Cycliste Internationale (UCI). In an email of 16 March 2012 the UCI informed the AFLD that the applicant was no longer in the UCI testing pool.","elements":[]},{"content":"25.\u00a0\u00a0In the meantime, on 10 February 2012, the applicant\u2019s husband and coach was placed under investigation for importing prohibited goods, infringements of the regulations on the trading and use of poisonous substances, and importing doping substances without duly substantiated medical reasons.","elements":[]},{"content":"26.\u00a0\u00a0On 19 March 2012 the AFLD\u2019s director of testing included the applicant in the testing pool. She lodged an application for reconsideration of that decision which was rejected on 22 May 2012.","elements":[]},{"content":"27.\u00a0\u00a0A few days previously the President of the French Cycling Federation (F\u00e9d\u00e9ration fran\u00e7aise de cyclisme) had contacted the President of the AFLD in connection with the applicant\u2019s planned selection for the London Olympics, expressing regret at the time taken to include the applicant in the testing pool.","elements":[]},{"content":"28.\u00a0\u00a0In a decision taken on 27 September 2012, anticipating a Conseil d\u2019\u00c9tat decision of 10 October 2012 (CE, no. 357097) to the effect that the director of testing did not have power to decide on the inclusion of an athlete in the testing pool (see paragraph 60 below), the AFLD Board, in order to prevent a legal vacuum that might adversely affect the implementation of checks on athletes\u2019 whereabouts, approved the applicant\u2019s inclusion in the testing pool.","elements":[]},{"content":"29.\u00a0\u00a0On 11 February 2013 the applicant and her husband brought proceedings in the Paris Criminal Court against the AFLD and three of its senior officials, accusing them of forwarding confidential information to the newspaper L\u2019\u00c9quipe concerning the disciplinary proceedings instituted in 2011 and the ongoing criminal proceedings.","elements":[]},{"content":"30.\u00a0\u00a0In a letter dated 20 March 2013 the applicant contested the possibility of her renewed inclusion in the testing pool.","elements":[]},{"content":"31.\u00a0\u00a0By a decision of the AFLD Board of 28 March 2013 the applicant was again designated for inclusion in the \u201ctesting pool\u201d. The decision contained the following reasoning:","elements":[]},{"content":"\u201cShe maintains ... that, since the entry into force of the Order of 14 April 2010, inclusion in the testing pool is possible only for a non-renewable one-year period. This argument has to be dismissed on the grounds that the provisions of the Sports Code concerning the whereabouts requirement must be read in the light of the \u2018principles\u2019 established by the World Anti-Doping Code ... Article 2.4 of the World Anti-Doping Code lays down the principle of checks on whereabouts and possible sanctions for violations of the resulting requirements in the event of three failures to comply \u2018within a twelve-month period\u2019. Moreover, limiting inclusion in the pool to a non-renewable one-year period could render the whereabouts checks ineffective; this is clearly not what the legislature intended.\u201d","elements":[]},{"content":"32.\u00a0\u00a0On 28 December 2012 and 28 May 2013 the applicant lodged an application with the Conseil d\u2019\u00c9tat for judicial review of the AFLD\u2019s decisions of 27 September 2012 and 28 March 2013. She argued, in particular, that the rules on whereabouts and the unannounced testing of athletes in the testing pool were contrary to Article 8 of the Convention, and complained of being made subject to these rules for several years.","elements":[]},{"content":"33.\u00a0\u00a0In the meantime, in a memorial of 11 March 2013, the applicant requested the Conseil d\u2019\u00c9tat to refer the following question to the Constitutional Council for a preliminary ruling on constitutionality with regard to the whereabouts requirement:","elements":[]},{"content":" \u201cDo the provisions of Articles L. 232-5-3 and L. 232-15 of the Sports Code establishing rules on the whereabouts and unannounced testing of athletes in the testing pool infringe the rights and freedoms guaranteed by the Constitution, in the light of Article 34 of the Constitution, Articles 2 and 4 of the Declaration of the Rights of Man and of the Citizen (freedom of movement, respect for private life and inviolability of the home), Article 66 of the Constitution (\u2018No one may be detained arbitrarily. The judicial authority, as the guardian of individual freedoms, shall ensure compliance with this principle ...\u2019) and, finally, the principle of equality before the law?\u201d","elements":[]},{"content":"34.\u00a0\u00a0In a decision of 29 May 2013 the Conseil d\u2019\u00c9tat decided not to refer the question. It observed that the provisions complained of did not call into question the individual freedom which Article 66 of the Constitution placed under the protection of the ordinary courts (arbitrary detention), but fell within the jurisdiction of the administrative courts (see the position of the Court of Cassation on this issue at paragraph 73 below).","elements":[]},{"content":"35.\u00a0\u00a0In a judgment of 18 December 2013 the Conseil d\u2019\u00c9tat joined the two applications of 28 December 2012 and 28 May 2013 and rejected them, after deciding not to refer a second question for a preliminary ruling on constitutionality. With regard to the alleged violation of the right to respect for private and family life, the Conseil d\u2019\u00c9tat found as follows:","elements":[]},{"content":" \u201c... Firstly, the aforementioned provisions of the Sports Code relating to the obligations of athletes in the \u2018testing pool\u2019 do not infringe the right to freedom of movement or the equivalent right under Article 2 of Protocol No. 4 to the [Convention]. They lay down strict rules for determining the locations where testing of athletes in the \u2018testing pool\u2019 may be carried out and the periods and hours during which these tests may be conducted, and preclude the testing of athletes at home without their consent. The computer processing provided for in Article L. 232-15 for the purposes of organising tests is subject to the Law of 6 January 1978 on data processing, files and freedoms. While the arrangements thus defined place restrictions on athletes, notably by requiring them to provide accurate and up-to-date information on their whereabouts, the legislative provisions at issue are justified by the demands of efforts to combat doping. These entail, in particular, the ability to carry out unannounced tests in order effectively to detect the use of certain performance-enhancing drugs which can be detected only for a short time after being taken despite having more lasting effects. Hence, these provisions interfere with the right of the athletes concerned to respect for their private and family life, as guaranteed by Article 8 of the Convention, only to the extent that is necessary and proportionate to the general-interest aims pursued by efforts to combat doping, namely to protect athletes\u2019 health and to ensure fair and ethical sporting competitions. ...","elements":[]},{"content":"Seventhly, although the provisions of L. 232-15 of the Sports Code, which provide that inclusion in the \u2018testing pool\u2019 is \u2018for a period of one year\u2019, require the [AFLD] to review periodically the composition of the testing pool, in order to ensure that the athletes are not subjected for unduly long periods and without specific reasons to the constraints linked to the requirement to provide accurate and up-to-date information on their whereabouts, those provisions do not have the purpose or effect of prohibiting the Agency from designating athletes who have already been included in the \u2018testing pool\u2019. Thus, the argument that Article L. 232-15 of itself prevents the Agency from designating an athlete previously included in the testing pool must be dismissed.\u201d","elements":[]},{"content":"36.\u00a0\u00a0In a judgment delivered in 2014 the Paris Criminal Court dismissed the applicant\u2019s action against the AFLD.","elements":[]},{"content":"37.\u00a0\u00a0By a decision of 9 April 2015 the AFLD removed the applicant from the list of athletes in the testing pool.","elements":[]},{"content":"38.\u00a0\u00a0In a judgment of 9 March 2017, following proceedings whose fairness he challenged before the Court (see paragraph 4 above), the applicant\u2019s husband was sentenced to one year\u2019s imprisonment, suspended, for importing erythropoietin (EPO).","elements":[]}]}]},{"content":"II.\u00a0\u00a0RELEVANT INTERNATIONAL LAW AND PRACTICE","elements":[{"content":"A.\u00a0\u00a0Council of Europe","elements":[{"content":"39.\u00a0\u00a0In 1967 the Committee of Ministers of the Council of Europe (\u201cthe Committee of Ministers\u201d) adopted Resolution (67) 12 on the Doping of Athletes. This was followed in 1979, 1984 and 1988 by three recommendations, the most recent of which provided for the introduction of out-of-competition doping controls without prior notice (Recommendation No. R (88) 12 of the Committee of Ministers to member States on the Institution of Doping Controls without Warning outside Competitions).","elements":[]},{"content":"40.\u00a0\u00a0Subsequently, the Anti-Doping Convention (ETS No. 135, hereafter \u201cthe Council of Europe Convention\u201d) was adopted by the Committee of Ministers on 16 November 1989. This convention, which is the European reference instrument, has been ratified by all the Council of Europe member States and by five non-member States (Australia, Belarus, Canada, Morocco and Tunisia). It lays down a number of common rules and standards on the basis of which the States Parties undertake to adopt the necessary harmonisation measures at national and international level in order to effectively combat doping in sport. A Monitoring Group was set up to monitor implementation of the Convention; its activities involve working with the World Anti-Doping Agency (WADA, established in 1999, see paragraph 45 below) and the international sports federations. There is also an Ad Hoc European Committee for the World Anti-Doping Agency (CAHAMA), which is a committee of experts responsible for coordinating the positions of the European countries acting on behalf of WADA.","elements":[]},{"content":"41.\u00a0\u00a0The preamble to the Council of Europe Convention highlights the ethical, moral and health-related aspects of efforts to combat doping:","elements":[]},{"content":" \u201c... Concerned by the growing use of doping agents and methods by sportsmen and sportswomen throughout sport and the consequences thereof for the health of participants and the future of sport. ...","elements":[]},{"content":"Aware that public authorities and the voluntary sports organisations have complementary responsibilities to combat doping in sport, notably to ensure the proper conduct, on the basis of the principle of fair play, of sports events and to protect the health of those that take part in them.\u201d","elements":[]},{"content":"42.\u00a0\u00a0Point 3 of Article 7 of the Council of Europe Convention, entitled \u201cCo-operation with sports organisations on measures to be taken by them\u201d, reads as follows:","elements":[]},{"content":" \u201cMoreover, the Parties shall encourage their sports organisations:","elements":[]},{"content":"(a) to introduce, on an effective scale, doping controls not only at, but also without advance warning at any appropriate time outside, competitions, such controls to be conducted in a way which is equitable for all sportsmen and sportswomen and which include testing and retesting of persons selected, where appropriate, on a random basis ...\u201d","elements":[]},{"content":"43.\u00a0\u00a0An Additional Protocol to the Council of Europe Convention was opened for signature on 12 September 2002 and entered into force on 1 April 2004. Its aim is to ensure the mutual recognition of doping controls and to reinforce the application of the Convention by means of a binding monitoring mechanism.","elements":[]},{"content":"44.\u00a0\u00a0At the fourteenth Council of Europe conference of Ministers responsible for sport, held on 29 November 2016, the Ministers adopted Resolution No. 1.1 on the role of the governments in addressing emerging challenges in the fight against doping in sport at national and international level. The resolution recognised the considerable challenges that had recently threatened the integrity of the international anti-doping system and observed the need to protect athletes against forced or encouraged doping schemes and to provide them with proper anti-doping education. It reaffirmed the Ministers\u2019 support for WADA as the \u201cglobal anti-doping regulator responsible for standard-setting and monitoring\u201d, and called for a strengthening of WADA\u2019s capacity. It welcomed the enhanced cooperation between the Council of Europe and WADA, and encouraged the Monitoring Group set up to monitor the implementation of the 1989 Convention to continue its standard-setting work in order to offer practical guidance to the States Parties on addressing emerging anti-doping issues in compliance with the Convention. The Ministers recognised that all anti-doping organisations must comply with the rules of good governance and the principle of proportionality, while respecting the fundamental rights of the individuals subjected to the anti-doping regulations, particularly when it came to data protection.","elements":[]}]},{"content":"B.\u00a0\u00a0The World Anti-Doping Code and International Standards","elements":[{"content":"45.\u00a0\u00a0Anti-doping activities took on a new dimension in the early twentyfirst century. The World Anti-Doping Agency (hereafter \u201cWADA\u201d) was established in the wake of the scandal that followed the discovery at the 1998 Tour de France of large-scale trafficking in doping substances involving one team and several well-known cyclists. WADA is an independent international organisation and a foundation under Swiss private law. It is composed of and financed by the Olympic Movement and governments. It draws up the WADC, which was adopted in 2003 and came into force on 1 January 2004 and which was subsequently revised in 2009 and 2015. WADA coordinates and supervises worldwide anti-doping activities in all sporting disciplines, with a view to harmonised implementation of a common set of general principles at international level, encompassing the definition of doping offences, the list of prohibited substances, tests, sanctions and the system of exemptions for therapeutic use.","elements":[]},{"content":"46.\u00a0\u00a0The WADC is the instrument for bringing consistency to the antidoping practices of the different international federations and States. The introductory part spells out the \u201cfundamental rationale for the World Anti-Doping Code\u201d as follows:","elements":[]},{"content":"\u201cAnti-doping programs seek to preserve what is intrinsically valuable about sport. This intrinsic value is often referred to as \u2018the spirit of sport\u2019. It is the essence of Olympism, the pursuit of human excellence through the dedicated perfection of each person\u2019s natural talents. It is how we play true. The spirit of sport is the celebration of the human spirit, body and mind, and is reflected in values we find in and through sport, including: ethics, fair play and honesty, health, excellence in performance, character and education, fun and joy, teamwork, dedication and commitment, respect for rules and laws, respect for self and other participants, courage, community and solidarity. Doping is fundamentally contrary to the spirit of sport.\u201d","elements":[]},{"content":"47.\u00a0\u00a0Article 2 of the WADC lists violations of the anti-doping rules, including the rule on athletes\u2019 whereabouts, which at the relevant time read as follows:","elements":[]},{"content":" \u201c2.4 Violation of applicable requirements regarding Athlete availability for OutofCompetition Testing, including failure to file required whereabouts information and missed tests which are declared based on rules which comply with the International Standard for Testing. Any combination of three missed tests and/or filing failures within an eighteen-month period as determined by Anti-Doping Organizations with jurisdiction over the Athlete shall constitute an anti-doping rule violation.\u201d","elements":[]},{"content":"48.\u00a0\u00a0As worded at the relevant time, Article 5 of the WADC concerning testing specified that the national anti-doping organisations and international federations had jurisdiction in the matter. The relevant parts read as follows:","elements":[]},{"content":" \u201c5.1.1 [The above-mentioned organisations shall p]lan and conduct an effective number of In-Competition and Out-of-Competition tests on Athletes over whom they have jurisdiction, including but not limited to Athletes in their respective Registered Testing Pools. Each International Federation shall establish a Registered Testing Pool for International-Level Athletes in its sport, and each National Anti-Doping Organization shall establish a national Registered Testing Pool for Athletes who are present in that National Anti-Doping Organization\u2019s country or who are nationals, residents, license-holders or members of sport organizations of that country. In accordance with Article 14.3, any Athlete included in a Registered Testing Pool shall be subject to the whereabouts requirements set out in the International Standard for Testing.","elements":[]},{"content":"5.1.2 Except in exceptional circumstances all Out-of-Competition Testing shall be No Advance Notice.","elements":[]},{"content":"5.1.3 Make Target Testing a priority. ...\u201d","elements":[]},{"content":"49.\u00a0\u00a0In its wording at the time of the events, Article 10.3.3 of the WADC, entitled \u201cSanctions on Individuals\u201d, provided as follows:","elements":[]},{"content":"\u201cFor violations of Article 2.4 (Whereabouts Filing Failures and/or Missed Tests), the period of Ineligibility shall be at a minimum one (1) year and at a maximum two (2) years based on the Athlete\u2019s degree of fault.\u201d","elements":[]},{"content":"50.\u00a0\u00a0Article 14.3, entitled \u201cAthletes whereabouts information\u201d provided at the relevant time that the International Federation and the national antidoping organisation were to coordinate the identification of athletes and the collecting of current location information and submit them to WADA.","elements":[]},{"content":"51.\u00a0\u00a0The revised version of the WADC, which entered into force on 1\u00a0January 2015, contained numerous amendments. Those of interest in the context of the present applications are as follows. Under the revised Article 2.4, a violation is established where three \u201cwhereabouts failures\u201d occur within a twelve-month period (rather than eighteen months as previously, see paragraph 47 above). The revised Article 5.2 now provides that \u201c[a]ny Athlete may be required to provide a Sample at any time and at any place\u201d if, according to the comment on the Article by WADA itself, the antidoping organisation has a serious and specific suspicion that the athlete may be engaged in doping.","elements":[]},{"content":"52.\u00a0\u00a0The provisions of the WADC operate in conjunction with five international standards. Section 11 of the standard on testing (\u201cAthlete whereabouts Requirements\u201d), as in force at the material time, read, inter alia, as follows:","elements":[]},{"content":" \u201c11.1 Objective/general principles","elements":[]},{"content":"11.1.1 It is recognised and accepted that (a) No Advance Notice Out-of-Competition Testing is at the core of effective Doping Control; and (b) without accurate information as to an Athlete\u2019s whereabouts, such Testing can be inefficient and often impossible.","elements":[]},{"content":"[11.1.1 Comment: Such recognition is the fundamental rationale underlying Code Article 2.4 and this Section 11 of the International Standard for Testing.]","elements":[]},{"content":"11.1.2 Therefore, in addition to developing a Test Distribution Plan in accordance with Section 4 of this International Standard, each IF [International Federation] and NADO [National Anti-Doping Organisation] shall create a Registered Testing Pool of Athletes ... Athletes in a Registered Testing Pool shall be subject to and required to comply with the Athlete whereabouts requirements set out in this Section 11: see Code Article 14.3.","elements":[]},{"content":"11.1.3 An Athlete in a Registered Testing Pool is required to make a quarterly Whereabouts Filing that provides accurate and complete information about the Athlete\u2019s whereabouts during the forthcoming quarter, including identifying where he/she will be living, training and competing during that quarter, so that he/she can be located for Testing at any time during that quarter: see Clause 11.3. A failure to do so amounts to a Filing Failure and therefore a Whereabouts Failure for purposes of Code Article 2.4.","elements":[]},{"content":"11.1.4 An Athlete in a Registered Testing Pool is also required to specify in his/her Whereabouts Filing, for each day in the forthcoming quarter, one specific 60-minute time slot where he/she will be available at a specified location for Testing: see Clause 11.4. This does not limit in any way the Athlete\u2019s obligation to be available for Testing at any time and place. Nor does it limit his/her obligation to provide the information specified in Clause 11.3 as to his/her whereabouts outside of that 60minute time slot. However, if the Athlete is not available for Testing at such location during the 60-minute time slot specified for that day in his/her Whereabouts Filing, and has not updated his/her Whereabouts Filing prior to that 60-minute time slot to provide an alternative time slot/location for that day, that failure shall amount to a Missed Test and shall therefore constitute a Whereabouts Failure for purposes of Code Article 2.4.","elements":[]},{"content":"[11.1.4 Comment: The purpose of the 60-minute time slot is to strike a balance between the need to locate the Athlete for Testing and the impracticality and unfairness of making Athletes potentially accountable for a Missed Test every time they depart from their previously-declared routine. ... After extensive consultation with stakeholders with substantial whereabouts experience, the view was taken that the best way to maximize the chances of finding the Athlete at any time, while providing a reasonable and appropriate mitigation of \u201824/7\u2019 Missed Test liability, was to combine the best elements of each system, i.e. requiring disclosure of whereabouts information on a \u201824/7\u2019 basis, while limiting exposure to a Missed Test to a 60-minute time slot ...]\u201d","elements":[]},{"content":"Under heading 11.3 (\u201cWhereabouts Filing Requirements\u201d), Clause 11.3.1 stated that the athletes concerned had to provide the International Federation or the national anti-doping organisation with the following information: a complete mailing address; details of any disability; specific confirmation of their consent to the sharing of their whereabouts information with other organisations having authority to test them; for each day during the following quarter, the full address of the place where they would be residing (for example, home, temporary lodgings, hotel, and so on); and for each day during the following quarter, the name and address of each location where they would train, work or conduct any other regular activity (for instance, school), as well as the usual time-frames for such regular activities. Clause 11.3.2 provided that the whereabouts information also had to include, for each day during the following quarter, one specific sixty-minute time slot between 6 a.m. and 11 p.m. each day during which the athlete concerned would be available and accessible for testing at a specific location. The comment on this clause stated that the athletes concerned could choose which location to nominate for this sixty-minute time slot: it could be their place of residence, training or competition, or it could be another location (for instance, work or school). A failure to be available for testing at the specified location during the specified time slot would be regarded as a missed test. Clause 11.3.6 specified that athletes could delegate the filing of the information to a third party.","elements":[]},{"content":"Under heading 11.4 (\u201cAvailability for Testing\u201d), Clause 11.4.1 provided as follows:","elements":[]},{"content":"\u201c11.4.1 An Athlete in a Registered Testing Pool must specifically be present and available for Testing on any given day in the relevant quarter for the 60-minute time slot specified for that day in his/her Whereabouts Filing, at the location that the Athlete has specified for that time slot in such filing.\u201d","elements":[]}]},{"content":"C.\u00a0\u00a0International Convention against Doping in Sport of 19 October 2005","elements":[{"content":"53.\u00a0\u00a0The International Convention against Doping in Sport, adopted under the auspices of UNESCO (hereafter \u201cthe UNESCO Convention\u201d) came into force on 1 February 2007. The preamble to this Convention reads as follows:","elements":[]},{"content":" \u201c... Conscious that sport should play an important role in the protection of health, ...","elements":[]},{"content":"Concerned by the use of doping by athletes in sport and the consequences thereof for their health, the principle of fair play, the elimination of cheating and the future of sport, ...","elements":[]},{"content":"Mindful also of the influence that elite athletes have on youth, ...","elements":[]},{"content":"Aware that public authorities and the organizations responsible for sport have complementary responsibilities to prevent and combat doping in sport, notably to ensure the proper conduct, on the basis of the principle of fair play, of sports events and to protect the health of those that take part in them, ...","elements":[]},{"content":"Recognizing that the elimination of doping in sport is dependent in part upon progressive harmonization of anti-doping standards and practices in sport and cooperation at the national and global levels, ...\u201d","elements":[]},{"content":"54.\u00a0\u00a0As the WADC is not binding on States because the instruments adopted by WADA are governed by private law, it was decided to draw up an international Convention in order to provide an internationally recognised legal framework allowing States to incorporate the Code into their domestic legislation. The UNESCO Convention has hitherto been ratified by France and by 186 other States. Article 4 stipulates that the provisions of the WADC are not an integral part of the Convention and do not have direct effect in national law. It states that \u201c[i]n order to coordinate the implementation, at the national and international levels, of the fight against doping in sport, States Parties commit themselves to the principles of the Code as the basis for the measures provided for in Article 5 of this Convention.\u201d Articles 3 and 5 provide that States undertake to \u201cadopt appropriate measures at the national and international levels which are consistent with the principles of the Code\u201d and that \u201csuch measures may include legislation, regulation, policies or administrative practices\u201d. According to Article 12, States are to encourage the implementation of doping controls in a manner consistent with the Code, including noadvance-notice and out-of-competition testing. Article 19 encourages States to implement education and training programmes on anti-doping, both for athletes and for the sporting community in general, who should be provided with information on \u201cthe harm of doping to the ethical values of sport\u201d and \u201cthe health consequences of doping\u201d.","elements":[]}]}]},{"content":"III.\u00a0\u00a0EUROPEAN UNION LAW","elements":[{"content":"55.\u00a0\u00a0Articles 6 and 165 of the Treaty on the Functioning of the European Union (TFEU) provide as follows:","elements":[]},{"content":" \u201cThe Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level, be: ...","elements":[]},{"content":"(e) education, vocational training, youth and sport; \u201d","elements":[]},{"content":" \u201c1. ... The Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function.","elements":[]},{"content":"2. Union action shall be aimed at: ...","elements":[]},{"content":"- developing the European dimension in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswomen.","elements":[]},{"content":"3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the field of education and sport, in particular the Council of Europe. ...\u201d","elements":[]},{"content":"56.\u00a0\u00a0The EU contributes to the revision of the WADC. Hence, in a contribution sent to WADA in March 2012 (6846/12), the Council of the European Union expressed its point of view on the whereabouts requirement, referring to an opinion of the \u201cArticle 29\u201d Data Protection Working Party (opinion 4/2009). That opinion stressed that the information to be provided concerning the whereabouts and the time slots for controls should be clearly determined by taking into account the requirements of the principles of necessity and proportionality with respect to the purposes of out-of-competition testing. In another contribution concerning the revision of the WADC (no. 6427/13), the Council observed that athletes\u2019 rights could be enhanced by the preparation of guidance aimed at ensuring the proportionality of measures concerning registered testing pools and athletes\u2019 whereabouts.","elements":[]}]},{"content":"IV.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE","elements":[{"content":"57.\u00a0\u00a0In France, Law no. 2006-405 of 5 April 2006 amended the French legislation to meet the requirements of the WADC and established the AFLD, which took over responsibility for anti-doping testing from the Ministry of Sport. Article L. 235-5-1 of the Sports Code (contained in Part III (Athletes\u2019 health and efforts to combat doping) of Book II (Sports stakeholders)), states that this agency is an independent public authority with legal personality which defines and implements measures to combat doping. It has limited regulatory powers and has exclusive power to conduct anti-doping tests and analyse the results. It also has disciplinary powers in addition to the powers exercised in principle by the sports federations.","elements":[]},{"content":"58.\u00a0\u00a0Unlike in many countries, sport in France is regarded as a public service, a fact which explains the State\u2019s involvement. Under Article\u00a0L.\u00a0230-1 of the Sports Code \u201cthe Minister of Sport, in cooperation with the other ministers and organisations concerned, shall initiate and coordinate actions in the sphere of prevention, medical supervision, research and education, with the assistance, among others, of the approved sports federations ..., with a view to protecting athletes\u2019 health and combating doping\u201d. The sports federations are associations, and hence private entities, but are granted approval \u201cwith a view to participating in a public-service activity\u201d (Article L. 131-15 of the Sports Code). They have powers delegated to them by the Sports Minister for the purpose of organising competitions (Article 131-8 of the Sports Code).","elements":[]},{"content":"59.\u00a0\u00a0The above-mentioned Law of 5 April 2006 also introduced a whereabouts requirement for some elite athletes. The Order of 14 April 2010 at issue in the present case brought the Sports Code into line with the WADC by broadening the scope of the rules on unannounced testing with regard to the categories of athletes concerned and the periods during which tests could be carried out.","elements":[]},{"content":"60.\u00a0\u00a0Inclusion in the registered testing pool of athletes required to provide whereabouts information is preceded by an adversarial stage. From the date of receipt of the letter informing them of their inclusion in the testing pool, athletes have fifteen days in which to contest the measure. The decision to include an athlete in the pool was taken at the relevant time by the AFLD\u2019s director of testing. Nowadays, the decision is taken by the AFLD Board (see paragraph 28 above). It must be accompanied by reasons and is open to appeal before the Conseil d\u2019\u00c9tat. Since 2010, under Article R. 311-1 of the Administrative Courts Code, the Conseil d\u2019\u00c9tat has jurisdiction at first and last instance to hear appeals against decisions taken by the AFLD in the performance of its supervisory or regulatory tasks.","elements":[]},{"content":"A.\u00a0\u00a0The Sports Code","elements":[{"content":"61.\u00a0\u00a0In addition to the impugned provisions of the Order contained in Articles L. 232-5 and L. 232-15 of the Sports Code (see paragraphs 8 and 10 above), the Articles of relevance at the material time were as follows.","elements":[]},{"content":"62.\u00a0\u00a0Article L. 232-13 provided that anti-doping tests could be carried out as part of the AFLD\u2019s annual testing programme or as requested by an approved federation, WADA, a national anti-doping organisation or an international sports body.","elements":[]},{"content":"63.\u00a0\u00a0Article L. 232-13-1 concerned testing locations. It read as follows:","elements":[]},{"content":"\u201cTests may be carried out:","elements":[]},{"content":"(1)\u00a0\u00a0at the location of any training session or event referred to in Article L. 230-3 [sporting events organised by an approved federation or authorised by a federation to which powers have been delegated, and international sporting events];","elements":[]},{"content":"(2)\u00a0\u00a0in any establishment referred to by Article L. 322-2 [establishments where one or more physical or sports activities are practised and which must afford, for each type of activity, the safeguards required by the rules on hygiene and safety] in which physical or sports activities are practised, and by the Annexes to that Article;","elements":[]},{"content":"(3)\u00a0\u00a0at any location chosen with the athlete\u2019s agreement at which the test can be carried out in compliance with the athlete\u2019s right to privacy, including, at his or her request, at home;","elements":[]},{"content":"(4)\u00a0\u00a0in the context of the police custody of an athlete suspected of committing one of the offences referred to in Articles L. 232-9 and 232-10.\u201d","elements":[]},{"content":"64.\u00a0\u00a0Articles L. 232-14 and L. 232-17 concerned the time slots for testing and the sanctions applicable in the event of failure to comply with the whereabouts requirements in particular. They provided as follows:","elements":[]},{"content":"\u201cIn the performance of their testing duties, the persons referred to in Article\u00a0L.\u00a023211 may enter the premises referred to in Article L. 232-13-1 only between 6 a.m. and 9 p.m., or at any time if the premises are open to the public or a sporting event or pre-event training session is in progress. Tests at athletes\u2019 homes may be carried out between 6 a.m. and 9 p.m. only. ...\u201d","elements":[]},{"content":"\u201cI.- Persons evading, attempting to evade or refusing to undergo the tests provided for in Articles L. 232-12 to L. 232-16 or to comply with the arrangements governing them shall be liable to incur the administrative sanctions laid down in Articles\u00a0L.\u00a023221 to L. 232-23.","elements":[]},{"content":"II.- Failure to comply with the whereabouts requirements laid down in Articles\u00a0L.\u00a0232-15 may also give rise to the administrative sanctions provided for in Articles L. 232-21 to L. 232-23.\u201d","elements":[]},{"content":"65.\u00a0\u00a0Articles L. 232-21 and L. 232-23 of the Sports Code stated that the sanctions were administrative in nature (warning, temporary or permanent ban on participating in sporting events) and could be accompanied by a fine not exceeding 45,000 euros (EUR). Under Article L. 232-24, the decisions taken were open to appeal before the administrative courts. WADA could also lodge an appeal with the administrative courts against a decision of a sports federation or the AFLD.","elements":[]},{"content":"66.\u00a0\u00a0In addition to the doping controls consisting in the taking of samples, the Sports Code (Article L. 232-19) specified that checks (house searches and seizures) could be carried out in order to investigate possible offences, under the supervision of the public prosecutor and the liberties and detention judge.","elements":[]},{"content":"67.\u00a0\u00a0France transposed the provisions of the most recent WADC (see paragraph 51 above) in the Order of 30 September 2015, which was ratified by Law no. 2016-41 of 26 January 2016 and was followed by two implementing decrees of 29 January 2016. In particular, Article L. 232-13-1 of the Sports Code (see paragraph 63 above) was revised, with the reference in the third sub-paragraph to the athlete\u2019s agreement being deleted. In addition, Article L. 232-14 (see paragraph 64 above) now provides that antidoping tests may be carried out between 6 a.m. and 11 p.m. (compared with 9 p.m. previously). The 2015 Order also made it possible to carry out night-time tests, subject to the athlete\u2019s consent. Article 232-14-1 of the Sports Code now provides that tests may be conducted at the athlete\u2019s home address or temporary lodgings between 11 p.m. and 6 a.m., subject to respect for his or her privacy, if the athlete concerned is in a registered testing pool or is taking part in an international sporting event and there are strong and consistent reasons to suspect that he or she has violated or is about to violate the anti-doping rules and that there is a risk of the evidence being lost.","elements":[]}]},{"content":"B.\u00a0\u00a0AFLD decisions","elements":[{"content":"68.\u00a0\u00a0The whereabouts requirements for athletes are laid down in AFLD decision no. 54, as rectified on 12 July 2007 and 18 October 2007, on arrangements for the filing and management of whereabouts information for athletes subject to individualised testing and to sanctions in the event of an infringement (hereafter \u201cdecision no. 54\u201d), and in decision no. 219 of 29\u00a0March 2012 supplementing Article 2 of decision no. 54. Articles 16 and 36 of Annex II-2 (Article R. 232-86 of the Sports Code \u2013 Model disciplinary regulations for approved sports federations on combating doping), as in force from 25 July 2007 to 16 January 2011 (Decree no.\u00a02007-1133 of 24 July 2007 on the regulatory provisions of the Sports Code), provided that the arrangements for the filing of information on athletes\u2019 whereabouts were to be determined by a decision of the AFLD Board. The preamble to decision no. 54 refers to Article 36 of Annex II-2, cited above. Decision no. 53 of 7 June 2007 authorised the automated processing of data concerning the whereabouts of athletes subject to individualised testing. In decision no. 68 of 4 October 2007, the AFLD Board undertook to comply with the principles set forth in the WADC and to implement the provisions of the WADC in its spheres of responsibility. Its commitment to the principles set forth in the 2009 revision of the WADC was reiterated in a 2011 decision.","elements":[]},{"content":"69.\u00a0\u00a0At the relevant time, Articles 1, 2, 3, 9, 12 and 13 of decision no. 54 read as follows:","elements":[]},{"content":"\u201cThe Agency shall inform ... the persons designated by the Agency\u2019s director of testing from the lists of elite athletes and professional sportsmen and women licensed by the approved sports federations that they may be the subject of individualised testing as provided for by Article L. 232-5 of the Sports Code and that they are therefore required to provide information on their whereabouts for the purposes of unannounced doping controls. ...","elements":[]},{"content":"The Agency shall draw the attention of athletes who are subject to this requirement to the fact that failure to submit information on their whereabouts within the timelimits laid down in Article 2 of this decision, or the filing of insufficiently accurate and up-to-date information concerning the one-hour time slot, or absence during this time slot from the address or location indicated, shall constitute failure to comply with the whereabouts requirement leading, save in exceptional circumstances, to the issuing of a warning.\u201d","elements":[]},{"content":"\u201cThe information in question must make it possible to establish a detailed daily schedule for the athletes concerned so that samples can be taken at their place of training, on any premises that ensure respect for their privacy, or at their home address. The information for each quarter must be submitted to the Agency no later than the fifteenth day of the month preceding that quarter ...\u201d","elements":[]},{"content":"\u201cAthletes identified by the Agency\u2019s director of testing as targets for individualised testing must declare, for each day, a one-hour time slot during which they may be required to undergo one or more individualised tests by the French Anti-Doping Agency under Article L. 232-15 of the Sports Code. The test may be carried out only between 6 a.m. and 9 p.m., unless the premises are open to the public or a sporting competition or event, or a preparatory training event, is in progress and the athlete concerned is taking part or has taken part in it.","elements":[]},{"content":"Individualised tests may be carried out at any time within the time slots declared by the athlete.","elements":[]},{"content":"The Agency may also conduct tests outside these time slots. ...\u201d","elements":[]},{"content":"\u201cIn order to submit the whereabouts information the athlete concerned, his or her legal representative or the person or persons with parental responsibility may:","elements":[]},{"content":"-\u00a0\u00a0either send the form referred to in Article 5, duly completed, to the Agency by registered letter with recorded delivery, by fax or by email;","elements":[]},{"content":"-\u00a0\u00a0or connect to the server referred to in Article 6 and enter the details online via the management module for the athletes\u2019 whereabouts information referred to in the aforementioned decision of the National Commission on Data Processing and Civil Liberties of 25 April 2007.","elements":[]},{"content":"The athlete may delegate in writing to a person of his or her choosing the task of submitting his or her whereabouts information to the Agency, by means of the form attached to this decision. The delegation must be sent to the Agency\u2019s director of testing by registered letter with recorded delivery. However, the athlete shall continue to have sole responsibility for the information submitted to the Agency. ...\u201d","elements":[]},{"content":"\u201cAny change to the information declared must be made as soon as possible, and no later than 5 p.m. on the day before the date of effect. In order to make changes, the athlete concerned may either use the change-of-information form attached to this decision, to be sent to the Agency by registered letter with recorded delivery, by fax or by email, or update the information online using the software referred to in Article 4.","elements":[]},{"content":"In exceptional circumstances, and provided that the athlete has previously informed or tried by all possible means to inform the Agency\u2019s testing department, changes may be made up to the beginning of the time slot. ...\u201d","elements":[]},{"content":"\u201cThe following shall constitute failures to comply with the requirement for athletes in the Agency\u2019s testing pool to submit whereabouts information:","elements":[]},{"content":"-\u00a0\u00a0failure to submit the requisite whereabouts information to the Agency within the time-limit specified in the second paragraph of Article 2;","elements":[]},{"content":"-\u00a0\u00a0submission to the Agency of insufficiently accurate and up-to-date information to enable individualised tests to be conducted under Article L. 232-5 of the Sports Code during the one-hour time slot declared by the athlete;","elements":[]},{"content":"-\u00a0\u00a0absence of the athlete during the one-hour time slot from the address or location that he or she has declared for the purposes of individualised testing. The official responsible for taking the sample shall record a failure to comply if the athlete has been continuously absent from the address or location concerned for thirty minutes during the time slot.","elements":[]},{"content":"The fact of being able to carry out a test on the athlete in question the same day, outside the specified time slot or despite a failure to submit the required information, will not alter the finding of failure to comply. ...\u201d","elements":[]},{"content":"\u201cAs regards failure to submit the required information, or the submission of information that is insufficient to enable individualised tests to be carried out during the daily one-hour time slot, a further warning may be issued to the athlete concerned if he or she has not satisfied the information requirements within seven working days from notification of the first warning.","elements":[]},{"content":"In the case of all athletes subject to the whereabouts requirement, a first finding by the Agency of one of the failures referred to in the previous paragraph shall give rise to a reminder, sent by registered letter with recorded delivery, of the athlete\u2019s obligations as specified in Article 2 of this decision. The athlete concerned then has three working days from notification of the letter in which to submit the information requested without a warning being issued by the Agency. If the information is not submitted within that period, the Agency shall issue a warning to the athlete, sent by registered letter with recorded delivery.","elements":[]},{"content":"Further attempts to test an athlete belonging to the Agency\u2019s testing pool during the daily one-hour time slot shall not be considered as a missed test resulting in a warning unless the attempts are made after the date on which the athlete received notice of the previous missed test.\u201d","elements":[]},{"content":"\u201cIn the event of three failures of the kind referred to in Article 9 over a period of eighteen consecutive months, the Agency shall send a notice of violation to the competent federation with a view to implementation of the sanction provided for in Article 36 of the model disciplinary regulations for approved sports federations on combating human doping attached to Article R. 232-86 of the Sports Code.\u201d","elements":[]},{"content":"70.\u00a0\u00a0According to the AFLD whereabouts form, athletes in the testing pool must provide information for the coming quarter no later than the fifteenth day of the month preceding the start of the quarter. The following personal information must be provided: name, home address, nationality, telephone number, email address, federation, discipline and licence. The whereabouts information must include the following details: main training location, secondary training location, other regular activities, further temporary addresses, competitions, training sessions, and a timetable for the quarter, that is, for each day, the address at which the athlete can be found during the chosen time slot.","elements":[]},{"content":"71.\u00a0\u00a0By decision no. 2014-145 of 3 December 2014 the AFLD amended the above-mentioned decision no. 54 and decided to reduce from eighteen to twelve months the period during which a specified number of failures to comply could result in disciplinary proceedings (see paragraph 51 above).","elements":[]}]},{"content":"C.\u00a0\u00a0Case-law","elements":[{"content":"72.\u00a0\u00a0In a decision of 9 July 2014 (CE, No. 373304), the Conseil d\u2019\u00c9tat reaffirmed its position on the whereabouts rules (see paragraphs 12 and 35 above).","elements":[]},{"content":"73.\u00a0\u00a0In a judgment of 16 October 2013 the Court of Cassation rejected a request for a preliminary ruling on constitutionality regarding the whereabouts requirement for athletes in the testing pool. It dismissed the possibility that allegations of breaches of their rights raised by athletes subject to the whereabouts requirement could come within the jurisdiction of the ordinary courts. The Court of Cassation found as follows:","elements":[]},{"content":" \u201c... the action brought by Mr X and Mr Y against the [AFLD] \u2013 an independent public authority with legal personality which carries out public duties, in the performance of which it took the measure which this court is requested to lift while providing compensation for the damaging consequences thereof \u2013 falls by its nature within the jurisdiction of the administrative courts. ... The constitutional rights and freedoms which the impugned provisions allegedly infringe do not come within the scope of individual liberty within the meaning of Article 66 of the Constitution as interpreted by the Constitutional Council. Furthermore, the whereabouts requirement for athletes in the testing pool does not of itself amount to a restriction of freedom of movement, as the controls must respect athletes\u2019 privacy, are carried out at home only at the athlete\u2019s request and within a fixed time slot, and are subject to the supervision of the courts where they are aimed at investigating offences or are liable to give rise to seizures. Accordingly, in the absence of a violation of a right or freedom placed under the sole protection of the ordinary courts, the ground of appeal alleging that the legislative provisions complained of infringe the rights and freedoms guaranteed by the Constitution cannot be raised before the ordinary courts, which do not have jurisdiction to hear the dispute.\u201d","elements":[]}]},{"content":"D.\u00a0\u00a0The Senate report on behalf of the Commission of Inquiry into the Effectiveness of Efforts to Combat Doping (17 July 2013)","elements":[{"content":"74.\u00a0\u00a0In February 2013 a commission of inquiry was set up within the Senate with a view to proposing new approaches to anti-doping policy. The report, which was submitted on 17 July 2013 and runs to around 235 pages, is divided into two sections, entitled \u201cDoping: an ethical and health-related issue\u201d and \u201cWays and means of combating doping\u201d (including improved monitoring of competition schedules), with a concluding part under the heading \u201cA multi-faceted approach\u201d. The rapporteur\u2019s introduction states that \u201cthe real dangers of doping for users are well documented\u201d. According to the report, between 1% and 2% of tests worldwide are positive. However, the statistics underestimate the scale of doping practices within sport, in particular because the development of detection methods always lags behind the emergence of new substances and the ingeniousness of doping protocols. More generally, the report criticises the culture of silence encountered by efforts to combat doping: the difficulty of obtaining evidence, attempts at intimidation, the lack of credibility of the sporting world\u2019s attempts at self-regulation, a general denial of the problem in society, and threats to information and educational activities.","elements":[]},{"content":"75.\u00a0\u00a0In the part entitled \u201cThe dangers of doping\u201d the report stresses that, at first, doping was largely confined to the improper use of medication, hormones and psychoactive substances: anabolic steroids in the 1970s, and testosterone, peptide hormones (EPO and growth hormones) from the 1990s onwards. Today, improper use of medication and hormones co-exists with the development of particularly sophisticated doping protocols and even the emergence of molecules created specifically for doping purposes. The report states that \u201c[d]oping protocols are based in particular on the simultaneous use of minute doses of several substances with different chemical structures and on a subtle balancing act between the duration of the desired effects and the duration of the window for detection\u201d. One of the salient features of modern-day doping, according to the report, is the misuse of certain molecules that have not been placed on the market and the emergence of a specific doping-related industry. Genetic doping also constitutes a very real threat.","elements":[]},{"content":"76.\u00a0\u00a0 According to the report, the threat to public health from doping is twofold:","elements":[]},{"content":" \u201c\u00a0-\u00a0\u00a0the substances used have potentially serious secondary effects, most of which are known [the report refers to a report by the Medical Academy, see paragraph 81 below], resulting directly from their use or indirectly from the increased exercise intensity which they make possible;","elements":[]},{"content":"-\u00a0\u00a0doping undermines the effectiveness of campaigns to promote sporting activities based on the health benefits of sport.\u201d","elements":[]},{"content":"The report goes on to state that \u201calthough the undesirable effects of doping products are well known, efforts to combat doping are hindered by the lack of reliable health indicators based on accurate epidemiological data (mortality, morbidity, and so on)\u201d. Among the proposals made by the report in that regard is the funding of epidemiological studies with a view to improving the state of knowledge concerning doping practices and the health risks involved.","elements":[]},{"content":"77.\u00a0\u00a0The report also stresses the extent of doping among amateur and non-licensed athletes, especially the young. It notes that this group is not covered by the provisions of the Sports Code relating to athletes\u2019 health and efforts to combat doping. \u201cThus, there continues to be very little monitoring of the non-licensed sector despite the fact that this appears to be the very area affected by what could be termed \u2018mass doping\u2019\u201d. The report makes numerous recommendations for preventive and educational action in this regard.","elements":[]},{"content":"78.\u00a0\u00a0The report states that doping is in very many respects an international issue which requires a worldwide response. It stresses the importance of the above-mentioned European and international instruments (the Council of Europe Convention, the WADC, and so on). At the level of the European Union in particular, it notes the differences in anti-doping legislation and encourages the EU to adopt harmonising directives on measures to combat trafficking in doping products.","elements":[]},{"content":"79.\u00a0\u00a0The report regards the whereabouts requirement for athletes as a severe but necessary constraint. It refers to the decisions of the Conseil d\u2019\u00c9tat (see paragraphs 12 and 35 above) and to the safeguards and adjustments provided for by the relevant instruments, concluding that the interference with athletes\u2019 private lives and with the opportunity to live a normal family life \u201cappears to be proportionate to the general-interest objectives pursued by efforts to combat doping\u201d.","elements":[]},{"content":"80.\u00a0\u00a0With regard to the list of locations for the unannounced testing provided for by Article L. 232-13-1 of the Sports Code, the report goes on to state that no exemption from these rules is possible. If an athlete does not wish the test to be carried out at home, he or she can be escorted to the location of his or her choice (the sample-taker\u2019s surgery, the athlete\u2019s club, and so on). As to the timing of the unannounced tests, which is often viewed unfavourably by athletes because it disrupts the training or recovery cycle, the report stresses that these are the very stages that are \u201crisky\u201d in terms of the taking of doping substances. The report further specifies that the only time when unannounced tests may not be carried out is during the night, from 9 p.m. to 6 a.m.","elements":[]},{"content":"81.\u00a0\u00a0Lastly, the report advocates systematic recourse to athletes\u2019 biological reports as a tool for targeting tests in accordance with Law no.\u00a02012-348 of 12 March 2012, which introduced the concept of athletes\u2019 \u201cbiological profiles\u201d. The procedure consists in examining the results of athletes\u2019 successive tests, looking for abnormal variations in athletes\u2019 biological parameters revealing the use of prohibited substances rather than for traces of the substances themselves.","elements":[]}]},{"content":"E.\u00a0\u00a0Senate information report on the European Union and professional sport, prepared on behalf of the European Affairs Committee (20 February 2013)","elements":[{"content":"82.\u00a0\u00a0This report provides an overview of European sports policy. While, under European law, sport was initially regarded purely as an economic activity, the Lisbon Treaty established the EU\u2019s role in the field of sport (see paragraph 55 above). The report contains a section on measures to combat doping, which emphasises the following:","elements":[]},{"content":"\u201cThe nature of anti-doping measures varies from one European Union member State to another. Hence three categories of countries can be distinguished: those which have legislation on the subject, where the public authorities lay down anti-doping rules, as is the case in France; those in which the Government and the sports authorities work together to tackle the phenomenon, as in Austria; and those in which doping issues come mainly within the remit of the sports associations, as in Germany.\u201d","elements":[]},{"content":"The report also observes a wide disparity between certain member States as regards the formation of the testing pools:","elements":[]},{"content":"\u201cIn 2010 Belgium, Estonia, Lithuania and Slovakia were notable in having a very high number of athletes in the testing pool as a proportion of the country\u2019s population. Meanwhile, this kind of monitoring was not carried out in Bulgaria, Cyprus, Malta, Poland or Romania.\u201d","elements":[]}]},{"content":"F.\u00a0\u00a0Report of the National Medical Academy entitled \u201cEfforts to combat doping: a public-health issue\u201d (2012)","elements":[{"content":"83.\u00a0\u00a0In the section of its report entitled \u201cUse and dangers of doping agents\u201d, the Medical Academy states that doping pursues three main aims:","elements":[]},{"content":" \u201c-\u00a0\u00a0To increase the sustainable level of intensity in training and in competition by masking the physiological warning signals (euphoria and aggressiveness overcoming the sensation of tiredness, pain-relieving effects).","elements":[]},{"content":"This is achieved by the use of stimulants, and in particular amphetamine derivatives; by narcotics and opioids, cocaine and cannabinoids; and by glucocorticoids. Mixtures of drugs are common, the most famous being the pot belge, comprising a mix of amphetamines, cocaine and heroin! In the short term, exceeding the body\u2019s limits may result in exhaustion, heat stroke or even death, especially in adverse heat conditions (the death of Tom Simpson during the 1967 Tour de France is an example). In the medium and long term, behavioural problems, psychiatric decompensation and drug addiction may develop and, more particularly with the use of amphetamines, cardiovascular diseases may occur such as arterial hypertension or valvular heart disease, or cardiomyopathy in the case of cocaine use. Particular mention should be made of the regular, prolonged used of glucocorticoids, the adverse effects of which are well documented and include increased fragility of the muscles and tendons, immunosuppression, arterial hypertension and corticoadrenal insufficiency.","elements":[]},{"content":"-\u00a0\u00a0To enhance aerobic capacity through the use of erythropoietin (EPO) or autologous blood transfusion, most commonly in endurance sports such as marathon running and road cycling. These methods are linked to a significant risk of increased blood viscosity leading to thrombosis and embolisms, and to intolerance syndromes or transfusion-related adverse events and transmission of infectious agents.","elements":[]},{"content":"-\u00a0\u00a0To increase muscle mass, in sports such as sprinting and weight lifting where explosive power is key. Growth hormones, anabolic steroids and beta2-agonists are the most commonly used drugs. The consequences of abuse of these drugs, which are usually administered in supra-therapeutic doses, are many and varied and include cardiovascular problems (enlarged heart, coronary disease, arterial hypertension, rhythm disorders) and cancer (of the colon, prostate and liver).","elements":[]},{"content":"In addition, more specific adverse effects are associated with anabolic steroids (dermatological \u2013 acne; psychiatric \u2013 aggressiveness and dependency; sexual \u2013 testicular insufficiency and development of breast tissue in men, change in morphotype and hypertrophied clitoris in women) and with growth hormones (morphological \u2013 hypertrophied jaw and extremities; metabolic \u2013 development of insulin resistance and lipid disorders such as elevated triglyceride levels; and endocrinological \u2013 thyroid insufficiency).","elements":[]},{"content":"The harmful consequences of this misuse of drugs are even greater when the drugs are administered to growing children. The disastrous effects of these practices are extensively documented in the Spitzer report on the consequences of State-sponsored doping as practised on very young athletes in the German Democratic Republic (GDR). The study, which covered 10,000 athletes who had taken doping agents, identified 1,000 minor disorders and 500 serious disorders including sex change, sterility and cancer.\u201d","elements":[]},{"content":"84.\u00a0\u00a0According to the section of the report entitled \u201cAt-risk populations\u201d, it is difficult to conduct epidemiological studies on the issue of doping in view of the extreme reluctance of those concerned to discuss the issue. Nevertheless, the findings made in France and certain research studies suggest that the phenomenon extends far beyond the confines of top-level sports. According to studies conducted worldwide, between 3% and 5% of adolescents who train on a daily basis have already been confronted with the issue of doping. The report quotes an article from the newspaper La Libre Belgique which was posted online in 2010 and which states that \u201calmost 8% of young people between the ages of 14 and 18 reportedly use growth hormones, which they order for home delivery on Belgian and foreign websites\u201d. The report adds that while the impact of doping on adults is less well known, \u201can older series of articles revealed that the prevalence of doping among adults was between 5% and 15%\u201d.","elements":[]},{"content":"85.\u00a0\u00a0The difficulties in tackling doping, according to the report, are of a scientific, regulatory and sociological nature. Among the scientific aspects it notes that \u201ccertain products are the result of chemical manipulation of the structure of drugs already on the market by small laboratories operating to a greater or lesser extent illegally ... What is more worrying is the emergence of new products currently being developed by the pharmaceutical industry.\u201d Moreover, \u201cpossibly in the near future, there is a danger of the spread of abusive techniques involving the use of \u2018normal or genetically modified cells or the transfer of nucleic acids\u2019\u201d. The difficulties facing anti-doping organisations also include the speed of metabolisation of certain products such as EPO, and very sophisticated doping protocols. In that regard the report states that doping in top-level sports is now:","elements":[]},{"content":"\u201c... in the hands of professionals with a good knowledge of pharmacology, the pharmacokinetics of the drugs and the physiology of the practice: the elimination time and the period during which the products or their metabolites can be detected in urine, the duration of the effects and the mixtures of drugs which reduce the dose administered and result in a shorter window of detection. They also have access to laboratories capable of testing before a competition for the residual presence or absence of illegal products in the blood and urine. It is clear that the current doping protocols could not be established without the active participation of scientists, doctors and pharmacists.\u201d","elements":[]},{"content":"The report also notes the regulatory obstacles to anti-doping measures, including the pre-eminent but ambiguous role of the federations.","elements":[]},{"content":"86.\u00a0\u00a0The report stresses the need for \u201cproactive, targeted and large-scale\u201d prevention in order to tackle doping. This prevention requires the involvement of top-level sports:","elements":[]},{"content":" \u201cEfforts to tackle doping in top-level sports and particularly in spectator sports should be given special priority since sporting champions, who are celebrated in the sports press and are the focus of much attention from the political authorities, act as role models for young athletes, for whom they represent the pinnacle of social and financial success.\u201d","elements":[]},{"content":"87.\u00a0\u00a0The report goes on to note that the merits of anti-doping measures are the subject of debate. It observes the following:","elements":[]},{"content":" \u201cThose who cast doubt on this approach point to the increasing reliance on medication in contemporary societies, the failure of prohibition in the US in the 1930s and the economic cost. They cite the fact that administering the biological passport programme costs the Union Cycliste Internationale (UCI) around four to five million euros annually. Opponents of this approach advocate legalising doping and placing it under medical supervision. This position appears to ignore the reality. Sporting careers are continuous: elite athletes are not \u2018born\u2019, they evolve gradually through talent and hard work and after overcoming numerous selection hurdles. This lengthy process begins at a young age and may result in addictive behaviours. Consequently, if doping were to be made legal and appeared essential in order to succeed in sport, children would follow the example of their role models, magnified by the media, and would engage in doping very early on, with potentially harmful consequences for their health.","elements":[]},{"content":"Lastly, sports ethics are based on equality of opportunity. If doping were authorised, champions\u2019 victories and performances would be largely the result of the skill of the teams of scientists; the latter\u2019s reputation would grow accordingly, placing athletes at risk of turning into human guinea pigs.\u201d","elements":[]},{"content":"88.\u00a0\u00a0The report makes the following recommendations. The State should devise a proactive anti-doping policy, independent of any economic, sporting or political pressures; a watchdog should be set up to monitor doping-related incidents and complications; all possibilities for cooperation should be used in order to share useful information concerning doping agents, including those under development, as well as analytical methods enabling them to be detected at an early stage; the WADC should provide for a reduction in the number of sporting fixtures, or rules should be laid down setting limits for each sport on the number of competitions in which an athlete may participate; the remit of the international federations should be restricted to major high-profile sporting events of a genuinely international nature; a research policy should be devised, especially in the field of epidemiology, in order to assess the extent of the doping scourge and its health impact; in-depth training on doping, doping methods and the risks entailed should be provided and should be the main focus of preventive measures aimed at young people; and audiovisual companies should be required to broadcast information campaigns on doping.","elements":[]}]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0JOINDER OF THE APPLICATIONS","elements":[{"content":"89.\u00a0\u00a0The Court considers that, in the interests of the proper administration of justice and in accordance with Rule 42 \u00a7 1 of the Rules of Court, the applications should be joined in view of their similarity as regards the facts and the legal issues raised.","elements":[]}]},{"content":"II.\u00a0\u00a0THE GOVERNMENT\u2019S INADMISSIBILITY PLEAS","elements":[{"content":"90.\u00a0\u00a0The Government raised several pleas of inadmissibility in relation to application no. 48151/11 and one plea of inadmissibility in relation to application no. 77769/13.","elements":[]},{"content":"A.\u00a0\u00a0Application no. 48158/11","elements":[{"content":"1.\u00a0\u00a0Victim status of the applicant unions","elements":[{"content":"91.\u00a0\u00a0The Government submitted that the applicant unions could not claim to be victims, within the meaning of Article 34 of the Convention, of measures which allegedly infringed their members\u2019 rights under the Convention. They stressed that the recognition that these organisations had standing before the Conseil d\u2019\u00c9tat was not to be confused with the requirement for the legal entities per se to be directly affected by the measure at issue.","elements":[]},{"content":"92.\u00a0\u00a0The applicant unions observed that their constitutions provided that they should defend the interests of their members, professional athletes who, by definition, were included or liable to be included in the testing pool. FNASS and the unions stressed their legitimate claim to assert the interests of all athletes, who, acting for the most part individually, had no practical opportunity to put forward their grievances and arguments. The applicant unions submitted that their standing before the domestic courts should enable them to apply to the Court on the basis that they were responsible for the conditions in which sports were practised at national and international level; to decide otherwise would deprive them of an effective remedy. They argued that they should therefore be considered at least as potential victims for the purposes of Article 34 of the Convention.","elements":[]},{"content":"93.\u00a0\u00a0The Court reiterates that under Article 34 of the Convention it may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. For an applicant to be able to claim to be a victim of a violation, there must be a sufficiently direct link between the applicant and the alleged violation. The concept of \u201cvictim\u201d must be interpreted autonomously and irrespective of rules of domestic law such as those concerning an interest or capacity to act (see, in particular, Association de d\u00e9fense des int\u00e9r\u00eats du sport v. France (dec.), no.\u00a036178/03, 10 April 2007; Stukus and Others v. Poland, no. 12534/03, \u00a7\u00a034, 1 April 2008; and Tunnel Report Limited v. France, no. 27940/07, \u00a7\u00a024, 18\u00a0November 2010).","elements":[]},{"content":"94.\u00a0\u00a0Furthermore, according to the Court\u2019s settled case-law, \u201cvictim\u201d status may be granted to an association or trade union only if it is directly affected by the measure complained of (see Winterstein and Others v.\u00a0France, no. 27013/07, \u00a7 108, 17 October 2013, and Syndicat CFDT des services de sant\u00e9 et des services sociaux de C\u00f4tes d\u2019Or and Others v.\u00a0France (dec.), no.\u00a011052/06, 21 October 2008).","elements":[]},{"content":"95.\u00a0\u00a0In the instant case the Court observes that, although FNASS and the four unions were recognised by the Conseil d\u2019\u00c9tat as having standing to challenge the impugned order, this is not sufficient for them to be considered as victims for the purposes of Article 34 of the Convention. The organisations concerned are not direct and personal victims of the alleged violation of Article 8 and Article 2 of Protocol No. 4, and the mere fact that one of their objectives under their constitutions is to defend their members\u2019 interests is not sufficient to confer such status on them. Accordingly, in so far as it was lodged by FNASS, Provale, the UNFP, the AJPH and the SNB, the application is incompatible ratione personae with the provisions of the Convention and must be rejected pursuant to Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.","elements":[]}]},{"content":"2.\u00a0\u00a0Victim status of the individual applicants","elements":[{"content":"96.\u00a0\u00a0In the light of the details provided as to the situation of the persons concerned with regard to the impugned legislation, the Government submitted that the eight applicants who had never been placed in the AFLD\u2019s testing pool could not claim to be victims of a violation of the Convention within the meaning of Article 34 of the Convention. Likewise, the fact that they were in the IRB\u2019s testing pool did not confer victim status on them, as that federation had its registered office in Ireland and therefore did not come within the jurisdiction of the French State. Moreover, the possibility of disciplinary sanctions being imposed on these applicants by the AFLD or the French Rugby Federation was merely hypothetical.","elements":[]},{"content":"97.\u00a0\u00a0With regard to the remaining ninety-one applicants, the Government stressed that the assessment of their situation was of necessity ongoing, bearing in mind the period of validity of registration in the testing pool, which since the adoption of the Order of 14 April 2010 was limited to one year, with the possibility of renewal. It was true that the ninety-one athletes had been included in the AFLD testing pool at various times. However, only eleven of them had been in the testing pool when the application had been lodged with the Court and when the Court had notified the Government of the application (see paragraph 13 (c) above). Lastly, the Government submitted that the AFLD\u2019s decisions of 4 September 2014 and 22 October 2014 (see paragraph 14 above) constituted new facts of which the five applicants in question should have informed the Court. The removal of the applicants\u2019 names from the list of athletes in the testing pool deprived their allegations of a violation of Article 8 of any effect or purpose. In view of this new circumstance, the Government requested the Court to find that the five athletes concerned no longer had victim status for the purposes of Article 34 of the Convention.","elements":[]},{"content":"98.\u00a0\u00a0Regarding the eight athletes belonging to the IRB\u2019s testing pool, the applicants specified that although the AFLD did not directly manage their whereabouts, it was entitled to impose sanctions on them under the Sports Code. They added that they were still liable for inclusion in the AFLD\u2019s testing pool. In these circumstances, they considered themselves to be victims within the meaning of Article 34 of the Convention.","elements":[]},{"content":"99.\u00a0\u00a0The twenty-four applicants referred to in paragraph 16 above claimed to have victim status as they had been in the testing pool at the time the application was lodged with the Court.","elements":[]},{"content":"100.\u00a0\u00a0The remaining applicants stated that they had joined the proceedings before the Court simply because they had been included in the testing pool after the Conseil d\u2019\u00c9tat\u2019s decision.","elements":[]},{"content":"101.\u00a0\u00a0The Court notes that the Government submitted two pleas of inadmissibility: one concerning the eight applicants included in the IRB testing pool and referred to at paragraph 15 above, and the other concerning the alleged loss of victim status of the five applicants referred to at paragraph 14 above, on the grounds that they allegedly failed to inform the Court of their removal from the testing pool in 2014.","elements":[]},{"content":"102.\u00a0\u00a0The Court observes in this connection that the whereabouts requirement criticised by the applicants is laid down in Article L. 232-15 of the Sports Code and in decision no. 54, which stipulate that the athletes registered in the testing pool for a one-year period are required to provide accurate and up-to-date information on their whereabouts. In these circumstances it considers that only those applicants who were included in the testing pool on the date on which the application was lodged, that is, on 23 July 2011, can claim victim status under Article 34 of the Convention. This was not the case with the eight applicants in the IRB pool. Furthermore, and having regard to the evidence before it, it considers that only the applicants referred to in paragraphs 13 (c) and (d) and 16 (b) above may claim victim status under Article 34. Lastly, as regards the victim status of the five applicants referred to in paragraph 14 above, the Court notes that the persons in question were included in the testing pool on the date on which the application was lodged, and that it is not disputed that they were subject to the whereabouts requirement and to tests which resulted in warnings being issued. It therefore considers that their removal from the testing pool in 2014 is not apt to deprive them of their victim status, as inclusion in the pool is by definition limited in duration. The Court therefore rejects the second inadmissibility plea raised by the Government.","elements":[]},{"content":"103.\u00a0\u00a0In sum, in so far as the application was lodged by Mr Da Silva, Mr\u00a0Gomis, Mr Ho You Fat, Mr Perquis, Mr Congre, Mr Coulibaly, Mr\u00a0Cavalli, Mr Cabarry, Mr Huget, Mr Honrubia, Mr Gharbi, Mr Kerckhof, Mr Busselier, Mr Ternel, Mr Kiour and Mr Haon (\u201cthe applicants\u201d for the purposes of the remainder of this judgment), it is compatible ratione personae with the provisions of the Convention. As regards the remaining individual applicants, the application must be rejected pursuant to Article\u00a035\u00a0\u00a7\u00a7\u00a03 (a) and 4 of the Convention.","elements":[]}]},{"content":"3.\u00a0\u00a0Exhaustion of domestic remedies","elements":[{"content":"104.\u00a0\u00a0The Government requested the Court to reject the application for failure to exhaust domestic remedies with regard to the seventy-five applicants who did not apply to the Conseil d\u2019\u00c9tat for judicial review of the impugned provisions of the Order of 14 April 2010 (see paragraph 11 above).","elements":[]},{"content":"105.\u00a0\u00a0In the alternative, the Government submitted that some of the complaints raised by the applicants in their observations had not been submitted to the Conseil d\u2019\u00c9tat and should also be rejected for failure to exhaust domestic remedies. The complaints in question concerned the automated processing of the information relating to athletes\u2019 whereabouts and the detrimental effects on athletes\u2019 health and on medical practitioners\u2019 freedom to prescribe resulting from the procedure for exempting drugs used for therapeutic purposes.","elements":[]},{"content":"106.\u00a0\u00a0The applicants who did not apply to the Conseil d\u2019\u00c9tat submitted that they had been included in the testing pool a posteriori and that a fresh appeal to that body would have served no purpose.","elements":[]},{"content":"107.\u00a0\u00a0The Court observes that eleven of the applicants whom it has found to have victim status under Article 34 of the Convention did not make use of any remedy before the Conseil d\u2019\u00c9tat, owing to the fact that they had not yet been included in the testing pool (see paragraph 13 (c) above) when the application for judicial review of the Order of 14 April 2010 was lodged on 1 June 2010. In these circumstances, and in view of the rejection of the application by the Conseil d\u2019\u00c9tat on 24 February 2011, the Court considers that they were not required to lodge a further application with that court that was manifestly bound to fail. This plea should therefore be dismissed.","elements":[]},{"content":"108.\u00a0\u00a0As a subsidiary consideration, the Court observes that the complaints referred to by the Government at paragraph 105 above were declared inadmissible on 26 June 2013 by the Section President sitting as a single judge (see paragraph 4 above), on the grounds that they had been raised for the first time in a supplementary pleading of 15 March 2013 that was submitted out of time. Accordingly, the Court will not examine these complaints despite the observations made by the parties on these two issues. While the same consideration applies to the complaint concerning the right to respect for \u201cprivate life\u201d, this complaint nevertheless concerns a specific aspect of the initial complaint raised within the time-limit under the right to respect for \u201cfamily life\u201d and may thus be examined by the Court (see, for example, S\u00e2mbata Bihor Greek Catholic Parish v. Romania (dec.), no.\u00a048107/99, 25 May 2004).","elements":[]}]}]},{"content":"B.\u00a0\u00a0Application no. 77769/13","elements":[{"content":"109.\u00a0\u00a0The Government maintained that, on account of her removal from the testing pool on 9 April 2015, of which she did not inform the Court, the applicant no longer had victim status for the purposes of Article 34 of the Convention.","elements":[]},{"content":"110.\u00a0\u00a0The applicant did not submit any observations on this point.","elements":[]},{"content":"111.\u00a0\u00a0The Court observes that the applicant was included in the testing pool at the time of lodging of the application and that she was subject to the impugned whereabouts requirement. In these circumstances it considers that her removal from the pool in 2015 is not apt to deprive her of her victim status (see paragraph 102 above). The Court therefore dismisses the Government\u2019s inadmissibility plea.","elements":[]}]}]},{"content":"III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION","elements":[{"content":"112.\u00a0\u00a0The applicants in both applications alleged that the whereabouts requirement was in breach of Article 8 of the Convention, which provides:","elements":[]},{"content":" \u201c1.\u00a0\u00a0Everyone has the right to respect for his private and family life, his home and his correspondence.","elements":[]},{"content":"2.\u00a0\u00a0There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Admissibility","elements":[{"content":"113.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention, and that it is not inadmissible on any other grounds. It therefore declares it admissible.","elements":[]}]},{"content":"B.\u00a0\u00a0Merits","elements":[{"content":"1.\u00a0\u00a0The parties\u2019 submissions","elements":[{"content":"114.\u00a0\u00a0The observations were submitted in an initial set of pleadings on behalf of all the applicants. The supplementary pleadings specifically concern the applicants Mr Da Silva and Mr Kerckhof, and contain arguments which will be referred to as those of the \u201ctwo applicants\u201d, in order to distinguish them.","elements":[]},{"content":"115.\u00a0\u00a0The applicants maintained that the whereabouts scheme compelled them to provide accurate information on their movements between 6 a.m. and 9 p.m. or, according to the wording of Article L. 232-14 of the Sports Code, \u201cat any time if the premises are open to the public or a sporting event or pre-event training session is in progress\u201d. In their view, this constraint constituted interference with their right to respect for their private and family lives and their homes.","elements":[]},{"content":"116.\u00a0\u00a0The information to be submitted concerned their daily schedule, including at the weekend and on public and other holidays. In practical terms this included the place where they slept, since they were not necessarily up and about at 6 a.m. Furthermore, the information concerned all the places where they stayed such as their home, any temporary residences and hotels (even those unconnected with sports activities), and thus also their holiday accommodation, both in France and abroad. The applicants, observing that the law aligned the timetable for the anti-doping whereabouts system with the timetable for home searches, complained of being permanently monitored. They added that the one-hour time slot which they had to declare for the purposes of individualised tests did not prevent tests being carried out at any time, as provided for by Article L. 232-14 of the Sports Code and Article 3 of decision no. 54 (see paragraphs 64 and 69 above).","elements":[]},{"content":"117.\u00a0\u00a0The applicants argued that the whereabouts requirement deprived athletes of their right to enjoy the rare occasions when they could lead a normal family life in view of the constraints inherent in their profession (weekend work, travel to competitions, training periods). Their lifestyle was also adversely affected as they were limited in their choice of where to conduct their private lives: for instance, they could not go hiking or camping or be more than twenty-four hours away from a location where a test could be carried out.","elements":[]},{"content":"118.\u00a0\u00a0Lastly, the applicants complained of interference with their homes, on account of the overlapping of their professional and private lives as a result of the whereabouts requirement. Firstly, the training and competition venues at which testing could be conducted were professional premises which attracted the protection of Article 8. Secondly, in order to be able to declare a location for the purposes of the sixty-minute time slot (Article 3 of decision no. 54, see paragraph 69 above) that was suitable for tests and satisfied the criteria of respect for their privacy, especially at weekends and on public and other holidays, they were obliged, de facto if not de jure, to declare a time slot when they would be at home. In view of this aspect, they could not actually be said to consent to the possibility of the test being carried out at their home address.","elements":[]},{"content":"119.\u00a0\u00a0The applicants acknowledged that the interference was provided for by the Order of 14 April 2010, which had the status of law within the meaning of the Court\u2019s case-law, but disputed the assertion that decision no.\u00a054 could be classified in this way. The purpose of their application was to challenge the constraints laid down by law and not those determined by the AFLD itself, which were liable to be changed simply by means of a decision. They cited as an example the daily time slot, which was laid down solely by a decision of the AFLD. Given the non-binding nature of the UNESCO Convention the Agency could, by means of a similar decision, require athletes to be available for a three-hour period.","elements":[]},{"content":"120.\u00a0\u00a0In the applicants\u2019 view the whereabouts requirement for professional athletes did not address a more significant public-health issue than that affecting amateurs. Furthermore, the health of professional athletes was already taken care of by means of medical supervision of a high standard, unannounced tests at training and competition venues, and the biological monitoring organised by the federations. By way of comparison, no coercive measures were taken with regard to the major public-health issues of smoking and alcohol abuse. The two applicants also argued that it was inconsistent to ban doping while promoting sports such as boxing and American football which caused harm to athletes. By definition, top-level sports carried risks and could adversely affect athletes\u2019 health in the long term. Lastly, the products consumed were not damaging to athletes\u2019 health in so far as they could be prescribed for anyone.","elements":[]},{"content":"The two applicants submitted that the reference by the Government and WADA in their observations to the ethical dimension of efforts to combat doping should be qualified, as doping was a structural phenomenon linked to the professionalisation and commercialisation of sport. Measures to tackle doping were confined to protecting the economic interests of spectator sports.","elements":[]},{"content":"121.\u00a0\u00a0As to the necessity of the interference the applicants submitted the following arguments. Firstly, referring to the remarks made by the Senate Committee concerning the lack of an epidemiological study on doping agents and the health risks of doping (see paragraph 76 above), they argued that it had never been demonstrated that prohibited substances could be detected for only a very short period and that samples therefore had to be taken every day, including at weekends.","elements":[]},{"content":"122.\u00a0\u00a0Secondly, the statistics on out-of-competition testing showed that the number of athletes testing positive for doping agents was extremely small. In this regard the applicants cited a year-long study conducted in nine European countries by Uni Global Union (a world federation of sports unions) which showed that, of 13,738 tests carried out during competitions, 222 had been positive, while the 17,166 out-of-competition tests carried out had revealed only 28 violations of the anti-doping rules.","elements":[]},{"content":"123.\u00a0\u00a0Thirdly, the interference in question was in any event disproportionate to the aim of protecting health since, as paid professional athletes, they already underwent checks in the context of occupational health schemes. They worked under the responsibility and supervision of an employer, and unannounced checks could be carried out at their places of work for almost eleven months of the year. Furthermore, they were subject to legislation which derogated from the ordinary law. In the applicants\u2019 submission, no other professional category was subject to such intrusive requirements entailing heavy disciplinary penalties. They cited the examples of members of the armed forces, doctors, airline pilots, senior industrialists and politicians.","elements":[]},{"content":"124.\u00a0\u00a0The two applicants maintained that the anti-doping measures in place were ineffective. Firstly, they emphasised the spectacular increase in the industrial manufacture of doping agents and the time lag in monitoring the technology used by the pharmaceutical industry. Inspectors were looking for substances which athletes no longer used while the athletes were taking substances which the inspectors were not yet looking for. They also stressed the ambiguous role of the national and international sports federations in tackling doping and the limited powers of those federations, as private entities, to take action.","elements":[]},{"content":"125.\u00a0\u00a0The two applicants added that their situation was comparable to that of sex offenders who were on a register or individuals wearing an electronic tag who had to declare their whereabouts. Top-level athletes were presumed to be potentially engaged in doping.","elements":[]},{"content":"126.\u00a0\u00a0The two applicants further submitted that the supposed international consensus in favour of unannounced testing, on which WADA and the Government based their approach, was a false consensus. States could not be legally bound by the WADC, which was the work of a private foundation. Those which had finally ratified the UNESCO Convention had done so under pressure and in order to be considered as candidates for hosting the Olympic Games or world championships.","elements":[]},{"content":"127.\u00a0\u00a0The two applicants stressed that the system of declaring one\u2019s whereabouts for one hour each day as described by WADA in its observations (see paragraph 150 below) did not fully correspond to the system in place or to the French system. A testing system that was less detrimental to athletes\u2019 rights could be implemented. This would entail taking into account the seriousness of the suspected infringement, a whereabouts requirement that applied only after a first violation of the WADC, the possibility of a \u201choliday period\u201d from the whereabouts requirement after the season had passed its peak, freedom to choose between the requirement to provide details of one\u2019s place of residence and a daily sixty-minute period of availability, and strengthening States\u2019 efforts to combat the illegal production of doping agents and trafficking.","elements":[]},{"content":"128.\u00a0\u00a0Lastly, the two applicants stressed that they had not given their consent to the testing system in place and that their waiver of the right to respect for their private life had been flawed and uninformed. They could not secure employment as professional athletes unless they were affiliated to a sports federation which applied the WADC and the whereabouts system.","elements":[]},{"content":"129.\u00a0\u00a0The Government submitted that the applicants were mistaken as to the extent of the whereabouts requirement. While the WADA international standard (clause 11.1.4, see paragraph 52 above) established the principle whereby athletes had to be available for testing at any time, no such provision featured either in the Sports Code or in decision no. 54. In France, the athletes in question were required to submit a provisional schedule for each quarter declaring, for each day, a location and a sixty-minute time slot of their own choosing for the purposes of individualised testing; the time slot had to be between 6 a.m. and 9 p.m.","elements":[]},{"content":"130.\u00a0\u00a0The Government acknowledged that the obligation for the persons concerned to declare their whereabouts each day between 6 a.m. and 9 p.m. constituted interference with their private and family life.","elements":[]},{"content":"131.\u00a0\u00a0That interference was in accordance with the law, namely Articles L. 232-5, L. 232-14 and L. 232-15 of the Sports Code (see paragraph 61 above, referring to paragraphs 8 and 10 above, and paragraph 64 above) and, contrary to the applicants\u2019 assertion, AFLD decision no. 54, published in the Official Gazette of the French Republic and on the AFLD website. In the Government\u2019s submission, these legislative and regulatory instruments gave precise details of the requirements in question. According to the case-law of the Constitutional Council, an independent administrative authority could be vested with regulatory powers, and the model disciplinary regulations (referred to in Article 13 in fine of decision no. 54, see paragraph 69 above) authorised the AFLD to take action with regard to whereabouts (see paragraph 68 above). In this sphere the AFLD had to comply with the requirements inherent in the hierarchy of norms, including international treaties and undertakings such as the Council of Europe Convention and the UNESCO Convention.","elements":[]},{"content":"132.\u00a0\u00a0The interference pursued the dual aim of protecting athletes\u2019 health and ensuring that sporting competitions were fair and ethical. These were near-universal values, a fact reflected in the preamble to the UNESCO Convention (see paragraph 53 above), and were in accordance with the aims referred to in Article 8 \u00a7 2 in the context of \u201cprotection of health or morals\u201d. With regard to the protection of health the Government argued that the fact that the whereabouts requirement was confined to professional athletes did not mean that the authorities were indifferent to the situation of amateur sportsmen and women. They further stressed that it was not the use of the drugs as such that was damaging to health, but their misuse for nontherapeutic purposes. The Government rejected the argument that doping should be authorised subject to \u201cproper medical supervision\u201d. This would encourage a return to practices which the sporting community and States had resolved to put behind them. Sporting competition should not become a confrontation between laboratories with athletes caught in the middle. As to morals, the Government dismissed the idea that efforts to combat doping were confined to protecting the economic interests of \u201cspectator sports\u201d without concern for ethics. The fact that sport was not immune to certain excesses should not lead to their being tolerated, at the risk of increasing the harmful effects, but rather to their being tackled, precisely for ethical reasons.","elements":[]},{"content":"133.\u00a0\u00a0The Government argued that the restrictions in question were necessary and proportionate in order to tackle new doping methods. Some prohibited substances such as growth hormones and EPO had a very short life and became impossible to detect after a few days or even a few hours, and there were numerous means of avoiding detection. There was broad international consensus on the necessity of unannounced tests and how they should be conducted, as evidenced by the undertakings given by States in ratifying the UNESCO Convention and the fact that 660 bodies representing all the actors involved in anti-doping (with the exception of the professional sports leagues in the United States), as well as the AFLD, abided by the WADC (see paragraph 68 above). The Government concluded from this that States had a wide discretion with regard to the interference complained of.","elements":[]},{"content":"134.\u00a0\u00a0As to the proportionality of the measures, the Government stressed the following.","elements":[]},{"content":"(a)\u00a0\u00a0In France, the tests concerned only a small number of athletes. The percentage of athletes in the AFLD\u2019s testing pool (556 in 2011 and 728 in 2012 ahead of the London Olympic Games) as a proportion of the national population was one of the lowest among the 28 EU countries.","elements":[]},{"content":"(b)\u00a0\u00a0The decision to include an athlete in the testing pool was taken after an adversarial stage. It was taken by the AFLD Board, had to be accompanied by reasons and was amenable to review by the administrative courts.","elements":[]},{"content":"(c)\u00a0\u00a0The duration of inclusion in the pool was limited since inclusion was on an annual basis. Re-registering an athlete in the pool entailed reviewing his or her situation.","elements":[]},{"content":"(d)\u00a0\u00a0The chosen location could be changed up to 5 p.m. the previous day, or in exceptional circumstances even up to the start of the sixty-minute time slot declared by the person concerned.","elements":[]},{"content":"(e)\u00a0\u00a0Tests were carried out at athletes\u2019 homes only with their consent, and athletes were required only to provide information about the location and not about their private and family life.","elements":[]},{"content":"(f)\u00a0\u00a0The sanction imposed related only to the athlete\u2019s absence from the declared location during the time slot. The sanctions were administrative rather than criminal and were proportionate, being imposed only following three failures to comply over an eighteen-month period; the first missed test was not regarded as a failure to comply.","elements":[]},{"content":"(g)\u00a0\u00a0The low rate of positive tests was widely interpreted as a sign of the effectiveness and deterrent impact of the means deployed, including the tests carried out on the basis of the whereabouts information.","elements":[]},{"content":"135.\u00a0\u00a0In reply to the two applicants\u2019 observations concerning athletes\u2019 lack of consent to the system in place, the Government observed that the rules were applied not on the basis of athletes\u2019 support for them but on the basis of the law and the regulations. The applicants appeared to confuse the principle of inviolability of the home, which was not applicable where there was \u201cconsent\u201d, and waiver of a right guaranteed by the Convention.","elements":[]},{"content":"136.\u00a0\u00a0Replying to the applicants\u2019 argument that professional athletes were not the \u201cright people\u201d to be testing, the Government stated that it was not their professional status that made them subject to the legislation but rather their status as athletes. The controls were not designed to test their aptitude for a job but pursued a public-health objective. That was why the testing was not carried out by the employer but by an independent public authority.","elements":[]},{"content":"137.\u00a0\u00a0The Government added that the parallel drawn by the two applicants with the wearing of an electronic tag was misleading since, contrary to their assertion, athletes were not monitored permanently. They were perfectly free to organise their private and family lives provided that they set aside a time slot of one hour, which could be at a place and time of their choosing. Declaring that location certainly did not mean that they were required to inform the AFLD of all the places they frequented. Furthermore, the application of the system during public and other holidays was justified in order to ensure its effectiveness.","elements":[]},{"content":"138.\u00a0\u00a0The applicant maintained that her inclusion in the testing pool from 2008 onwards constituted serious and repeated interference with her private life. In practice, the unannounced tests took place at her home or at her temporary lodgings when she was travelling, as this was the only fixed point where she could definitely be located. This requirement had had an impact on all her family, and therefore also amounted to interference with family life.","elements":[]},{"content":"139.\u00a0\u00a0In the applicant\u2019s view, this interference was not in accordance with the law. The Order of 14 April 2010 referred to above made no provision for registration in the testing pool to be renewed beyond the one-year period. Furthermore, prior to 2012 (see paragraph 28 above), the authority responsible for registering athletes in the testing pool had not been clearly designated, giving rise to heavy-handed and arbitrary decisions. The law did not define the nature and content of the unannounced tests. Hence, the AFLD was acting outside any legal framework and was conducting urine and blood tests and biological monitoring without warning and without seeking authorisation.","elements":[]},{"content":"140.\u00a0\u00a0In the applicant\u2019s submission, the whereabouts requirement did not pursue any\u00a0public-health goal. It did not protect athletes\u2019 health as it subjected them to permanent stress that was very damaging to their physical and mental health. Giving samples repeatedly \u2013 the applicant stated that she had been required to give one every three or four days \u2013 damaged the veins and strength in the arms, and in conjunction with training resulted in intense fatigue which posed a danger to the athletes concerned. Professional athletes took greater care of their health than people who were sedentary; therefore, there was no real reason to protect athletes\u2019 health any more than the health of pregnant women who smoked, drank or took drugs, or students who took drugs in order to succeed. Since the introduction of the testing pool, virtually no cases of doping had come to light as a result of unannounced testing. The creation of a testing pool was incompatible with the principles of fairness and equity because it stigmatised the athletes concerned, who were \u201cpresumed guilty\u201d, vis-\u00e0-vis their colleagues who had freedom of movement and action. Lastly, the applicant\u2019s inclusion in such a pool discriminated against her on the basis of her age and gender, and was the very opposite of fair given that she had represented France with dignity in numerous competitions.","elements":[]},{"content":"141.\u00a0\u00a0As to the necessity of the measure, the applicant stressed, firstly, that only genuinely random tests conducted outside the sports season and for all sports were likely to be effective. Secondly, there was no reason for always registering the same athletes in the testing pool, which was already small; the applicant maintained that her situation had not been reviewed after she had been cleared of misconduct. Her re-registration in the testing pool after she had been cleared, which had attracted media coverage, had amounted to a breach of her right to be presumed innocent. Thirdly, the applicant complained of voyeurism on the part of the AFLD, which knew at all times where athletes were and what they were doing. This meant that there was no provision for unforeseen events (a meal that lasted longer than expected, an unexpected meeting, a short bout of tiredness, family problems, and so on). The applicant complained in particular of the tests carried out in hotels, which were intrusive and humiliating because they were conducted in full public view. Family members were not spared either as they were confronted with the reality of the tests, like habitual offenders in their own home. Fourthly, last-minute changes to the time slot could not be made by telephone, and the athlete\u2019s relatives could not change it by email at the last minute. Fifthly, the athletes\u2019 consent was not sought before a tester visited them at home, at a hotel or with their family.","elements":[]},{"content":"142.\u00a0\u00a0The applicant maintained that she was the only athlete who had been included in the testing pool continuously since 2008. She submitted that the refusal of her request to be removed from the pool had been disproportionate as she had never committed a public-order offence or a doping offence. She complained that the operation of the AFLD lacked transparency: the public should be informed of the names of the athletes in the pool, the discipline concerned, the reasons for inclusion, the number of failures to comply, the samples taken, the length of time for which they were kept and their destruction. This was the only means of verifying compliance with the rules of equality and fairness for each sport and each category of athletes. The applicant also regretted the fact that she could not obtain the results of the analyses, and inferred from this that the AFLD deliberately kept her in a state of anxiety for a purpose other than that of protecting her health.","elements":[]},{"content":"143.\u00a0\u00a0If one were to follow the logic adopted by the Government in their observations, which sought to justify her inclusion in the testing pool by reference to the medals she had won and the length of her career, she could have been in the testing pool since 1979 given all the titles she had won each year, and would have remained in it for over thirty-five years. In fact, her lengthy career was scientific proof that she had never used dangerous substances.","elements":[]},{"content":"144.\u00a0\u00a0The Government reiterated the observations they had made in application no. 48151/11 (see paragraphs 129 to 137 above) and specified that the applicant\u2019s retention in the testing pool had been justified in view of the large number of titles she had won and the exceptional length of her career (she had won numerous competitions between 2008 and 2011), the prospect of her being selected for the London Olympics in 2012, her three failures to comply and the fact that her husband had been implicated in a preliminary investigation into the importing of prohibited substances.","elements":[]},{"content":"145.\u00a0\u00a0The Government stressed that it was not uncommon for elite athletes to continue to be required to provide whereabouts information for several years.","elements":[]},{"content":"146.\u00a0\u00a0They produced a table summarising the tests which the applicant had undergone between 2008 and 2013 and the samples taken. Twenty tests had been carried out and thirty-three samples had been taken; this differed from the figure which the applicant had submitted to the Court.","elements":[]},{"content":"147.\u00a0\u00a0For all the above reasons the Government contended that there had been no violation of Article 8 of the Convention.","elements":[]}]},{"content":"2.\u00a0\u00a0Submissions of the third-party intervener in application no. 48151/11","elements":[{"content":"148.\u00a0\u00a0WADA, in its capacity as an intervener, argued that anti-doping measures were necessary in order to ensure a level playing field for athletes and to protect their health. Anti-doping measures were taken across the globe by governments and the sports world alike, both of which had adopted international instruments in this sphere (the Council of Europe Convention, the WADC and the UNESCO Convention). A consensus existed on the absolute necessity of out-of-competition testing, which was not possible without the whereabouts system. Moreover, the instruments in question made provision for such testing. WADA added that this policy reflected athletes\u2019 wishes.","elements":[]},{"content":"149.\u00a0\u00a0New doping practices, which enabled athletes to engage in doping while preparing for competition and to continue to benefit from the effects during the competition itself when the doping was no longer detectable, made out-of-competition testing essential. Moreover, some athletes consumed minute doses of certain substances (EPO, steroids) which could not be detected during competitions. Hence, the surprise effect of outofcompetition testing was necessary in order to take account of manipulations such as hyperhydration, dilution of the blood or urine substitution, which masked prohibited substances or made it impossible, within a very short space of time, to detect them.","elements":[]},{"content":"150.\u00a0\u00a0According to WADA, out-of-competition testing necessarily entailed a whereabouts system that was accurate but compatible with athletes\u2019 private lives. This was so because (1) only athletes included in the testing pool were subject to the whereabouts requirement; (2) prior to 2009, athletes could be tested at any time. Since then, the window during which tests could be carried out had been reduced to the period between 6 a.m. and 11 p.m., and between 6 a.m. and 9 p.m. in France, and athletes had to make themselves available only for one hour; (3) athletes could choose the location where they wished to be tested during their chosen one-hour time slot and which did not have to be their home; (4) the system was sufficiently flexible to allow athletes to declare a change of whereabouts easily; and (5) as far as sanctions were concerned, there had to be at least three failures to comply before disciplinary proceedings could be instituted. In sum, athletes remained entirely free for 23 hours a day, since only one sixty-minute period had to be declared.","elements":[]}]},{"content":"3.\u00a0\u00a0The Court\u2019s assessment","elements":[{"content":"151.\u00a0\u00a0The Court observes that the parties agree that the whereabouts requirement constitutes interference with the rights guaranteed by Article 8 of the Convention. Nevertheless, it must define the extent of that interference, as the whereabouts system complained of affects several aspects of private life, and even of private social life, and has repercussions for family life, all protected by Article 8.","elements":[]},{"content":"152.\u00a0\u00a0The Court reiterates that the concepts of private and family life are broad terms not susceptible to exhaustive definition (see Hadri-Vionnet v.\u00a0Switzerland, no. 55525/00, \u00a7 51, 14 February 2008). The concept of \u201cfamily life\u201d implies that those concerned are allowed to lead a normal family life (see Marckx v. Belgium, 13 June 1979, \u00a7 31, Series A no. 31). The concept of \u201cprivate life\u201d is initially understood as the right to privacy, that is, the right to live, as far as one wishes, protected from publicity (see X. v. Iceland, no. 6825/74, Commission decision of 18 May 1976, DR 5) or the right to live privately, away from unwanted attention (see Smirnova v.\u00a0Russia, nos. 46133/99 and 48183/99, \u00a7 95, ECHR 2003-IX).","elements":[]},{"content":"153.\u00a0\u00a0Article 8 protects the right to personal development, whether in terms of personality or of personal autonomy, which is an important principle underlying the interpretation of the Article 8 guarantees (see B\u0103rbulescu v. Romania [GC], no. 61496/08, \u00a7 70, 5 September 2017 and the case-law cited therein). It encompasses the right for each individual to approach others in order to establish and develop relationships with them and with the outside world, that is, the right to a \u201cprivate social life\u201d, and may include professional activities or activities taking place in a public context (ibid., \u00a7\u00a7 70 and 71). According to the Court, \u201c[t]here is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of \u2018private life\u2019\u201d (see\u00a0Peck v. the United Kingdom,\u00a0no.\u00a044647/98, \u00a7 57, ECHR 2003I, and Uzun v. Germany, no.\u00a035623/05, \u00a7 43, ECHR 2010).","elements":[]},{"content":"154.\u00a0\u00a0The Court further reiterates that, just like \u201cprivate life\u201d, the concept of \u201chome\u201d in Article 8 of the Convention is an autonomous concept which does not depend on classification under domestic law but is defined by reference to the factual circumstances, namely the existence of sufficient and continuous links with a specific place (see Prokopovich v. Russia, no. 58255/00, \u00a7 36, ECHR 2004XI). A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area (see Giacomelli v. Italy, no. 59909/00, \u00a7 76, ECHR 2006XII). It is protected, among other things, from concrete or physical breaches, such as unauthorised entry into a person\u2019s home (ibid.). The notion of \u201chome\u201d can be interpreted widely and may apply to a holiday home (see Demades v.\u00a0Turkey, no. 16219/90, \u00a7\u00a7 31 to 34, 31 July 2003, and F\u00e4gerski\u00f6ld v.\u00a0Sweden, no. 37664/04, 26 February 2008). The Court has not ruled out that an artist\u2019s dressing room or a hotel room may be considered as a \u201chome\u201d (see Hartung v. France (dec.), no. 10231/07, 3\u00a0November 2009, and O\u2019Rourke v. the United Kingdom (dec.), no.\u00a039022/97, 26 June 2001). Lastly, the concept of home is not confined to places of residence where private life is conducted. It encompasses professional premises, because to interpret the words \u201cprivate life\u201d and \u201chome\u201d as including certain professional or business activities or premises is consonant with the essential object and purpose of Article 8, namely to protect the individual against arbitrary interference by the public authorities (see Niemietz v.\u00a0Germany, 16 December 1992, \u00a7 31, Series A no. 251B).","elements":[]},{"content":"155.\u00a0\u00a0In the present case the Court observes that the whereabouts requirement in question, as determined at the relevant time, obliged the athletes in the testing pool to provide details for the next quarter, using the ADAMS system (Anti-doping Administration and Management System) or the AFLD form, of their daily schedule, including at weekends, and to declare a one-hour time slot between 6 a.m. and 9 p.m. during which they would be available at a specific location for the purposes of unannounced testing (see paragraph 69 above). The tests in question may be carried out independently of sports events and training periods. They may therefore be conducted at an athlete\u2019s home if the athlete concerned has chosen it as the location for the one-hour time slot during which he or she is liable for testing by the AFLD.","elements":[]},{"content":"156.\u00a0\u00a0The Court thus notes that the athletes in the testing pool are required to provide a public authority with accurate, detailed and up-to-date information on their places of residence and their daily movements, seven days a week. They are further subject, for one hour each day, to a stringent requirement regarding their whereabouts and availability. Non-compliance with these obligations is regarded as a failure to comply with the requirement to submit whereabouts information (Article 9 of decision no.\u00a054, see paragraph 69 above). At the relevant time, three failures to comply over a period of eighteen consecutive months resulted in a sanction (Article 13 of decision no. 54, see paragraph 69 above). In order to determine whether such obligations amount to interference with the right to respect for private life, the Court must examine the repercussions of these measures on the applicants\u2019 daily lives, and in particular the constraints and restrictions to which they may give rise.","elements":[]},{"content":"157.\u00a0\u00a0In that connection the Court notes the varied and exhaustive nature of the information which the applicants are required to provide concerning their private lives, and which covers all the public and private spaces they frequent. The information in fact relates to the places in which all their activities are carried out, both professional (for instance, training venues) and those unrelated to sport. It also encompasses their private address, whether it be their home or any temporary lodgings they may be staying in for professional or private reasons. Furthermore, as these details must be provided for each coming quarter, the persons concerned are obliged to plan their private lives by organising their schedule a long time in advance. In addition, these plans are binding because any change during the quarter has to be notified. Lastly, the requirements in question limit athletes\u2019 life choices, as they are strictly obliged to be present and available for one hour each day at a precise location suitable for testing purposes. Even though it is foreseeable for top-level athletes, this requirement of transparency and availability suffices for the Court to consider that the obligations complained of by the applicants adversely affect the quality of their private lives and entail consequences for their family life and lifestyle. In particular, they reduce the immediate personal autonomy of the persons concerned.","elements":[]},{"content":"158.\u00a0\u00a0The privacy of the places where private life is conducted, in other words respect for the home, is also affected by the whereabouts system. Firstly, the Court does not rule out that training grounds and the venues of sporting events or competitions, and places related thereto such as hotel rooms for persons travelling, may be considered as a home within the meaning of Article 8 of the Convention. Secondly, it notes in any event that Article L. 232-13-1-3 of the Sports Code makes provision for the tests to be carried out at athletes\u2019 homes. The Court observes that the applicants sometimes have no choice but to stay at home during this daily time slot, a fact which the Government did not dispute. They therefore face a dilemma: either they comply with the impugned requirement and thus give up the peaceful enjoyment of their home, or they refuse to comply and thus lay themselves open to sanctions even if they have not used prohibited substances.","elements":[]},{"content":"159.\u00a0\u00a0In view of the foregoing, the Court considers that the whereabouts requirement constitutes interference with the applicants\u2019 exercise of their rights under the first paragraph of Article 8. Such interference will be in breach of Article 8 unless it is \u201cin accordance with the law\u201d, pursues one or more of the legitimate aims under the second paragraph of that Article and is \u201cnecessary in a democratic society\u201d in order to achieve the aim or aims concerned.","elements":[]},{"content":"160.\u00a0\u00a0The Court reiterates that the expression \u201cin accordance with the law\u201d requires, firstly, that the impugned measure should have some basis in domestic law. Secondly, it refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law. The phrase thus implies,\u00a0inter alia, that domestic law must be sufficiently foreseeable in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which the authorities are entitled to resort to measures affecting their rights under the Convention. According to the settled case-law, the concept of \u201claw\u201d must be understood in its \u201csubstantive\u201d sense, not its \u201cformal\u201d one. It therefore includes everything that goes to make up the written law, including enactments of lower rank than statutes, and the relevant case-law authority (see Fern\u00e1ndez Mart\u00ednez v. Spain [GC], no. 56030/07, \u00a7 117, ECHR 2014).","elements":[]},{"content":"161.\u00a0\u00a0The applicants did not dispute that the interference was provided for by Articles 3 and 7 of the Order of 14 April 2010, as codified in Articles L. 232-5 and L. 232-15 of the Sports Code. However, they considered in general terms that decisions of the AFLD were not \u201claws\u201d as they were taken by an institution that was not empowered to lay down accessible and precise rules.","elements":[]},{"content":"162.\u00a0\u00a0The Court observes that the aforementioned Article L. 232-15 spells out the obligations of athletes in the testing pool and the duration of their registration in that pool. For the purposes of implementing that provision the AFLD, as an independent public authority with legal personality set up by Law no. 2006-405 of 5 April 2006 and responsible, inter alia, for the planning and performance of doping controls and hence for designating the athletes included in the testing pool, defined the obligations to be met by those athletes in decision no. 54 (see paragraph 69 above), as it was required to do under Article R. 232-86 of the Sports Code (see paragraph 68 above). That instrument, which was published in the Official Gazette, is therefore accessible. It provides that athletes must be informed of their inclusion in the testing pool, a decision which is always preceded by an adversarial stage and is amenable to judicial review by the Conseil d\u2019\u00c9tat (see paragraph 60 above). It also gives details concerning the content of the whereabouts information, the means by which the information may be submitted and changed, failures to comply with the whereabouts requirement and the sanctions liable to be imposed. In view of the precise and detailed provisions of this instrument, which was adopted by a State authority in accordance with the provisions of the WADC, the Court considers that it allows licensed athletes, with the support of a coach, to regulate their conduct and be afforded sufficient protection against arbitrariness.","elements":[]},{"content":"163.\u00a0\u00a0In sum, the interference in question was \u201cin accordance with the law\u201d within the meaning of Article 8 \u00a7 2 of the Convention.","elements":[]},{"content":"164.\u00a0\u00a0The parties disagreed as to the aims of the impugned requirement. The Government referred to the legitimate aims of protecting public health and morals. The applicants rejected the suggestion that anti-doping measures pursued these aims. In their view, the harmful effects of doping had not been established, measures were already taken to protect the health of professional athletes and the ethical argument was merely a facade for protecting the economic interests of sport or stigmatising certain athletes.","elements":[]},{"content":"165.\u00a0\u00a0The Court considers at the outset that the applicants have done nothing to demonstrate that efforts to combat doping are dictated by economic interests. Furthermore, it takes the view that the applicants\u2019 remaining arguments relate to the assessment of the necessity of the interference. As regards the first aim referred to, namely the protection of \u201chealth\u201d, the Court observes, like the Government, that this aim is enshrined in the relevant international instruments and that all the evidence in the file is consistent with that aim. The Council of Europe Convention (see paragraph 40 above), the WADC (see paragraph 45 above), the UNESCO Convention (see paragraph 53 above) and the Sports Code (see paragraph 57 above) are unanimous in presenting efforts to combat doping as a health concern which the sporting world is seeking to address (see paragraphs 171 to 177 below). Consequently, the Court accepts that the whereabouts requirement is designed to address issues concerning \u201chealth\u201d, within the meaning of the second paragraph of Article 8, with regard to both professional and amateur athletes and with a particular focus on young people (see paragraphs 77 above and 166 below).","elements":[]},{"content":"166.\u00a0\u00a0As to the second aim relied upon, namely the protection of morals, the Government referred to fairness in sporting competitions. The Court observes that the need to tackle doping has always been recognised in the sporting world, and refers in this regard to the international instruments cited above, which mention fair play and equality of opportunity as being fundamental to the fight against doping. The Court considers that what the Government describe as \u201cmorals\u201d, in the context of efforts to ensure equal and meaningful competition in sports, is also linked to the legitimate aim of \u201cprotection of the rights and freedoms of others\u201d. The use of doping agents in order to gain an advantage over other athletes unfairly eliminates competitors of the same level who do not have recourse to them, is a dangerous incitement to amateur athletes, and in particular young people, to follow suit in order to enhance their performance, and deprives spectators of the fair competition which they are entitled to expect.","elements":[]},{"content":"167.\u00a0\u00a0It remains to be determined whether the interference resulting from the impugned requirement can be regarded as \u201cnecessary in a democratic society\u201d. To be so considered, it must be shown that it corresponded to a \u201cpressing social need\u201d, that the reasons given by the national authorities to justify it were relevant and sufficient and that it was proportionate to the legitimate aim pursued.","elements":[]},{"content":"168.\u00a0\u00a0The Court observes that in its decisions of 24 February 2011 and 18\u00a0December 2013 the Conseil d\u2019\u00c9tat, after acknowledging that the whereabouts requirement imposed constraints, found that it did not constitute excessive interference with the rights under Article 8 of the Convention, in view of the general-interest aims pursued by efforts to combat doping, and notably the aims of protecting athletes\u2019 health and ensuring that sporting competitions were fair and ethical. The Conseil d\u2019\u00c9tat particularly stressed the importance of unannounced testing, since some doping agents could be detected for only a short time after being taken but had long-lasting effects.","elements":[]},{"content":"169.\u00a0\u00a0The Court agrees with the Conseil d\u2019\u00c9tat\u2019s finding that the whereabouts requirements imposed on the applicants are onerous. It should be acknowledged that they have a considerable impact on the applicants\u2019 daily lives and may be regarded as interfering to a significant extent with their private lives, owing to the extent of the information to be provided to the AFLD and the day-to-day restrictions on their personal autonomy. The whereabouts system also has implications for their enjoyment of their homes, since intrusive anti-doping tests may be carried out there. Hence, the Court accepts the applicants\u2019 claim that they are made subject to obligations not imposed on most of the working population.","elements":[]},{"content":"170.\u00a0\u00a0That being so, the Court must examine the general-interest arguments put forward by the Government and by the third-party intervener as justification for the interference with the applicants\u2019 private lives. In that connection it considers that, in order to rule on the manner in which the interests at stake were balanced, it must first consider the dangers of doping and whether there is common ground at European and international level on the issue raised by the applications.","elements":[]},{"content":"171.\u00a0\u00a0The Court observes that the applicants do not consider doping to pose a risk to health. It is not its place to respond to this position using arguments based on medical knowledge. However, the Court notes that there is broad consensus among medical, governmental and international authorities in favour of denouncing and combating the dangers posed by doping to the health of those athletes who engage in it.","elements":[]},{"content":"172.\u00a0\u00a0It refers on this point to the relevant international instruments, all of which consider anti-doping measures to be legitimate in the interests of protecting health.","elements":[]},{"content":"173.\u00a0\u00a0The Court also finds support, in particular, in the detailed reports issued by the Medical Academy and the French Senate. It is true that those reports call for improved epidemiological studies on the use of doping agents in order to enhance the state of knowledge on doping and the health risks it entails (see paragraphs 76, 84 and 88 above). However, the reports point out that it is extremely difficult to conduct such studies given the reluctance of the persons concerned to discuss the issue. In the Court\u2019s view, this observation undermines the applicants\u2019 criticism of the findings concerning the dangers posed by certain substances and the role of doping in the development of disorders.","elements":[]},{"content":"174.\u00a0\u00a0That being said, the Court notes that both these reports spell out clearly and emphatically the dangers of doping for athletes\u2019 health. The damaging and potentially serious consequences of the misuse of performance-enhancing drugs in sport are set out in great detail, whether the use of such drugs is aimed at increasing the level of intensity that can be sustained in training and in competition, at increasing the supply of oxygen to the body or at increasing muscle mass. Both texts also warn of the ongoing development of highly sophisticated doping protocols, made possible by the use of substances administered in very small doses and with complex chemical structures. These doping methods can be detected only for a very short period but have a lasting effect on performance. Furthermore, the reports point out that new agents are being developed by laboratories specifically devoted to such research, often operating illegally, and that the sophisticated doping protocols are established with \u201cthe active participation of scientists, doctors and pharmacists\u201d. This makes it very difficult to adapt detection methods to keep pace with the emergence of these new substances. Lastly, these reports warn of the threat posed by the development of genetic doping techniques (see paragraphs 74 to 76 and 83 to 85 above).","elements":[]},{"content":"175.\u00a0\u00a0In the light of these publications, prepared by eminent scientific and political authorities, the Court considers that the applicants underemphasise the impact of doping agents on athletes\u2019 health. As the evidence in the case file shows, doping represents a real threat to athletes\u2019 physical and mental health. The Court does not rule out the possibility, as asserted by the applicants, that athletes\u2019 health may be harmed by factors unconnected to the taking of doping agents, in view of the intensity and high level of competitions. It notes in that connection the constant pressure to which some of them are subjected and observes that the relevant reports advocate regulating the number of competition fixtures (see paragraphs 74 and 88 above). However, the Court regards the demanding nature of toplevel sporting competitions as a further reason to protect the health of those taking part against the dangers inherent in doping, rather than as a reason to reduce efforts to combat the practice.","elements":[]},{"content":"176.\u00a0\u00a0Furthermore, while action to combat doping is a public-health issue in professional sport (see Ressiot and Others v. France, nos.\u00a015054/07 and 15066/07, \u00a7 114, 28 June 2012), it concerns all athletes. The abovementioned reports show that doping affects amateur sports to a worrying extent, in particular among young athletes. The document adopted by the Medical Academy highlights the significant incidence of doping among adolescents and points to the numerous disorders which may affect this category of individuals, who are still growing (see paragraphs 83 and 84 above). The Senate report warns of a phenomenon which it describes as mass doping (see paragraph 77 above). The Court also attaches weight to the impact which doping among professional athletes has on the amateur sporting world. It is widely recognised that young people identify with elite athletes, who act as role models for them. The UNESCO Convention clearly demonstrates the concerns surrounding the impact of doping on the sporting community in general, and in particular on the young. For that reason it stresses the importance of educational programmes on the subject (see paragraphs 53 and 54 above). According to the Medical Academy, prevention requires the involvement of top-level athletes (see paragraphs 85 to 87 above). In the Court\u2019s view, the fact that the conduct of elite athletes is liable to have a major influence on young people is further justification for the requirements imposed on them while they are registered in the testing pool.","elements":[]},{"content":"177.\u00a0\u00a0Accordingly, the Court is satisfied that the health and public-health considerations at stake in the present case, and the legitimate ethical concerns in that regard (see paragraph 166 above), constitute a decisive argument for the necessity of the interference resulting from the impugned whereabouts requirement.","elements":[]},{"content":"178.\u00a0\u00a0The Court observes that doping has historically been the principal focus of sports-related activities within the Council of Europe, which has constantly stepped up its efforts to reduce the practice and increase controls without prior notice (see paragraphs 39 to 43 above). Furthermore, the worldwide anti-doping strategy was established with the creation of WADA and the introduction of the WADC in 2003. In 2009 WADA intensified its efforts to secure greater harmonisation between anti-doping organisations by devising international standards, one of which deals with testing and in particular with \u201cAthlete whereabouts requirements\u201d (see paragraph 52 above). Since then, the UNESCO Convention has been adopted, enabling the WADC to be incorporated into the legislation of the States that have ratified it (see paragraph 54 above).","elements":[]},{"content":"179.\u00a0\u00a0The Court thus observes that the gradual construction of anti-doping programmes has resulted in an international legal framework of which the WADC is the main instrument. It notes in that regard that the most recent revision of that Code, which was adopted in 2015, demonstrates a trend towards strengthening and intensifying doping controls that apply not only to the athletes in the testing pools (see paragraph 51 above).","elements":[]},{"content":"180.\u00a0\u00a0The Court also notes that cooperation between the Council of Europe and WADA continues to focus on attempts to secure greater harmonisation of anti-doping measures in Europe and beyond (see paragraph 44 above). It observes that the cross-border dimension of toplevel sport makes international cooperation on efforts to combat doping essential.","elements":[]},{"content":"181.\u00a0\u00a0In these circumstances it considers, in view of the international rules and practice, that common ground exists in Europe and internationally on the need for unannounced testing. In that connection it reiterates that, in assessing a specific case, and in the interests of interpreting the application of the Convention in a concrete and effective manner, it may take account of specialised international instruments and of common international-law standards, including those which are non-binding (see Demir and Baykara v. Turkey [GC], no. 34503/97, \u00a7\u00a7 85 and 86, ECHR 2008, and Magyar Helsinki Bizotts\u00e1g v. Hungary [GC], no. 18030/11, \u00a7 124, 8 November 2016), as is the case with the WADC \u2013 the principles of which the States Parties to the UNESCO Convention undertake to observe (see paragraph 54 above) \u2013 and with all the Council of Europe resolutions.","elements":[]},{"content":"182.\u00a0\u00a0Notwithstanding the European and international consensus underpinning efforts to combat doping, other forms of organisation nevertheless continue to exist, notably, according to the materials in the Court\u2019s possession, among the European Union member States (see paragraphs 78 and 82 above). This variety is due to the diversity of national systems regulating power structures and the relationship between the public and sports authorities. In the respondent State anti-doping measures are implemented jointly by the public authorities, whose involvement is longstanding, and the sports authorities (see paragraphs 57, 58 and 82 above). This is not the case in all Council of Europe member States. In accordance with the principle of subsidiarity, it is primarily for the Contracting States to decide on the measures necessary to achieve the objectives which they set, while safeguarding the Convention rights of everyone within their jurisdiction. In order to resolve within their legal systems the specific problems raised by efforts to combat doping, States must enjoy a wide margin of appreciation, in the light of the complex scientific, legal and ethical questions raised (see in general terms, as regards the State\u2019s margin of appreciation in this regard, A, B and C v. Ireland [GC], no. 25579/05, \u00a7 185, ECHR 2010, and Lambert and Others v. France [GC], no. 46043/14, \u00a7 144, ECHR 2015).","elements":[]},{"content":"183.\u00a0\u00a0France, which has ratified the UNESCO Convention, made a very clear choice to bring its domestic law into conformity with the principles of the WADC as regards athletes\u2019 whereabouts. The enactment of the Order of 14 April 2010 and the AFLD\u2019s commitment to the principles of the WADC (see paragraph 68 above) place it among the European countries that have transposed the WADC rules on whereabouts almost in their entirety as they resulted from the revision of that instrument in 2009. Some of the applicants submitted that this was irrelevant since States were not bound by WADA rules and no international consensus existed in favour of unannounced testing (see paragraph 126 above). In that connection the Court observes that the States Parties to the UNESCO Convention undertook to adopt appropriate measures consistent with the principles of the WADC. In the instant case the respondent State\u2019s approach to anti-doping is in line with the consensus that emerges from the specialised international instruments. Hence, the Court stresses that the fact that domestic law coincided at the relevant time with the international rules concerning athletes\u2019 whereabouts and unannounced testing is a reflection of States\u2019 margin of appreciation with regard to the implementation of those international rules.","elements":[]},{"content":"184.\u00a0\u00a0Against this background the Court observes that the relevant international instruments are indicative of the continuous development of the applicable norms and principles regarding the need for the unannounced testing made possible in part by the whereabouts system. Hence, it considers that the common international-law standards which form the background to the legal question before it are a factor which it must take into account in deciding whether the interference at issue was necessary in a democratic society.","elements":[]},{"content":"185.\u00a0\u00a0The Court noted above the particular difficulties encountered by the applicants in order to comply with the whereabouts requirements. It is mindful, firstly, that for some of them whose registration in the testing pool has been renewed several times, the constraints imposed by the whereabouts system may attain a level of day-to-day interference which, over a lengthy period, gives cause for concern. However, it observes that the Order of 14\u00a0April 2010 specifically sets a one-year term of validity for registration in the testing pool. This new provision, although it does not exclude the possibility of renewal following an interview with the athlete (see paragraph 60 above), represents an improvement of the procedural safeguards afforded to the athletes concerned.","elements":[]},{"content":"186.\u00a0\u00a0Secondly, in some circumstances athletes may, for practical reasons, have to declare their whereabouts at their home address or in a holiday home during weekends and holidays, with the possibility of having to submit to tests there. Such a situation interferes with the peaceful enjoyment of their home and adversely affects their private and family life. Nevertheless, the Court observes that the use of these locations is \u201cat [their] request and within a fixed time slot\u201d (see paragraph 73 above) and is required in order to ensure the effectiveness of doping controls. Hence, these tests are carried out in a context that is very different from that of checks conducted under the supervision of the courts for the purpose of investigating offences and potentially giving rise to seizures (see paragraph 66 above). These last, by definition, go to the core of the right to respect for the home and the tests in question cannot be equated with them.","elements":[]},{"content":"187.\u00a0\u00a0In any event the Court considers that the rules on whereabouts adopted by the French authorities provide a legal framework for efforts to combat doping which should not be underestimated in terms of safeguarding the rights of the athletes concerned. The Court refers to its finding that the \u201claw\u201d in France satisfies the requirement of \u201cquality of the law\u201d, and considers that the clarity with which the obligations imposed on the applicants are laid down affords procedural safeguards against the risks of abuse. The Order of 14 April 2010, as codified in the Sports Code, as well as the decisions of the AFLD, thus establish a framework capable of ensuring that athletes can challenge their inclusion in the testing pool, including by means of an appeal to the courts (see paragraph 60 above). The Order also enables them to anticipate and adopt the necessary conduct as regards the places and times arranged for the testing (see paragraphs 63 and 64 above), as only a failure to be available at the place and time designated by them constitutes a missed test (see paragraph 69 above). Lastly, it provides them with the possibility of challenging any sanctions imposed before the administrative courts (see paragraph 65 above).","elements":[]},{"content":"188.\u00a0\u00a0In contesting the necessity of the impugned interference the applicants argued that the tests to which they were subjected were ineffective. However, although the figures produced in the proceedings confirm that the number of positive tests is low, the Court agrees with the Government that this is due at least in part to the deterrent effect of antidoping measures. The Court is mindful of the fact that the tests made possible by the whereabouts requirements for athletes are just one aspect of action to tackle doping, which has numerous other aspects. However, in its view, the applicants cannot rely on the complexity of the issue in order to claim exemption from the whereabouts requirements. As they are directly concerned by a scourge that is particularly prevalent in the world of toplevel sports in which they compete, they must accept their fair share of the constraints inherent in the measures needed to combat that scourge. Likewise, the allegedly endemic nature of doping in sports cannot call into question the legitimacy of efforts to tackle it; on the contrary, it justifies the desire of the authorities to succeed in so doing.","elements":[]},{"content":"189.\u00a0\u00a0The Court is not persuaded, either, by the applicants\u2019 argument that the authorities\u2019 supposed lack of action with regard to other health dangers such as tobacco, or the fact that other professions concerned by health issues are subject to fewer checks, are a source of injustice to them. Even assuming the applicant\u2019s claim to be well-founded, it does not justify a failure by the authorities to take action against doping, which would be tantamount to saying that two wrongs cancel each other out.","elements":[]},{"content":"190.\u00a0\u00a0Lastly, the applicants have not demonstrated that testing confined to training grounds and respecting private time would be sufficient to achieve the national authorities\u2019 objectives, in view of the development of increasingly sophisticated doping methods and the very short time-frame within which prohibited substances can be detected. Given the risks established by the evidence in the file and the difficulty of reducing them effectively, the Court agrees with the Government that the whereabouts requirements imposed in accordance with the above-mentioned norms of international law should be regarded as justified.","elements":[]},{"content":"191.\u00a0\u00a0The Court does not underestimate the impact of the whereabouts requirements on the applicants\u2019 private lives. Nevertheless, the generalinterest considerations that make them necessary are particularly important and, in the Court\u2019s view, justify the restrictions on the applicants\u2019 rights under Article 8 of the Convention. Reducing or removing the requirements of which the applicants complain would be liable to increase the dangers of doping to their health and that of the entire sporting community, and would run counter to the European and international consensus on the need for unannounced testing. The Court therefore finds that the respondent State struck a fair balance between the different interests at stake and that there has been no violation of Article 8 of the Convention.","elements":[]}]}]}]},{"content":"IV.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 TO THE CONVENTION (APPLICATION no. 48151/11)","elements":[{"content":"192.\u00a0\u00a0The applicants alleged that the whereabouts requirement was incompatible with their freedom of movement. They complained of a violation of Article 2 of Protocol No. 4, which provides:","elements":[]},{"content":"\u201c1.\u00a0\u00a0Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.","elements":[]},{"content":"2.\u00a0\u00a0Everyone shall be free to leave any country, including his own.","elements":[]},{"content":"3.\u00a0\u00a0No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.","elements":[]},{"content":"4.\u00a0\u00a0The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.\u201d","elements":[]},{"content":"Admissibility","elements":[{"content":"193.\u00a0\u00a0The Government observed that the Court\u2019s case-law concerning restrictions on freedom of movement related to compulsory residence orders (Labita v. Italy [GC], no. 26772/95, ECHR 2000IV) and orders barring persons from leaving their place of residence (Hajibeyli v.\u00a0Azerbaijan, no. 16528/05, 10 July 2008, and Mia\u017cd\u017cyk v. Poland, no.\u00a023592/07, 24 January 2012). As to the freedom to leave any country, including one\u2019s own, the case-law related to administrative or judicial bans such as a requirement to obtain prior authorisation in order to leave the country (Diamante and Pelliccioni v. San Marino, no. 32250/08, 27 September 2011), the confiscation of a passport (Baumann v. France, no. 33592/96, ECHR\u00a02001V, and Nalbantski v. Bulgaria, no. 30943/04, 10 February 2011) and a refusal to issue travel documents (Soltysyak v. Russia, no.\u00a04663/05, 10 February 2011, and Ignatov v. Bulgaria, no. 50/02, 2 July 2009).","elements":[]},{"content":"194.\u00a0\u00a0In the Government\u2019s submission, the whereabouts requirement was not designed to restrict the possibility for athletes to work or take up residence wherever they wished, nor did it have that effect. Athletes remained free to travel in France and abroad and to choose their place of residence and work. The measure in no sense amounted to police surveillance of the persons concerned of the kind described in the case of Labita, cited above, and in Denizci and Others v. Cyprus (nos. 2531625321/94 and 27207/95, ECHR 2001V). Likewise, the athletes concerned did not have to apply for permission to travel abroad. The only requirement imposed on them was to inform the AFLD in good time of their whereabouts for one hour each day between 6 a.m. and 9 p.m. The AFLD sometimes requested one of its counterparts abroad to carry out a test on its behalf, in the context of cooperation between national agencies. Lastly, where an athlete included in the testing pool wished to settle permanently outside France, he or she was removed from the AFLD testing pool.","elements":[]},{"content":"195.\u00a0\u00a0The Government concluded from the foregoing that the whereabouts requirement did not come within the scope of application of Article 2 of Protocol No. 4.","elements":[]},{"content":"196.\u00a0The applicants contended that they were subject to an unconditional system of checks that had no geographical or temporal limits. Having to submit their daily schedule and planned movements made it impossible for them to move around anonymously even though they could be traced for eleven months of the year in their clubs for the purposes of checks. They complained that the disclosure of their address or their destination meant that they had to account constantly for their movements. Furthermore, the requirement to indicate a time slot obliged them to be in a specific place (one that was suitable for conducting urine and blood tests) between 6 a.m. and 9 p.m. This meant, for practical if not legal purposes, that they had to be at home.","elements":[]},{"content":"197.\u00a0\u00a0The two applicants maintained that the whereabouts requirement obstructed the free movement of workers within the European Union. In their submission, the whereabouts requirements made travel and movement within the EU hazardous. They reiterated that a pragmatic approach would enable the aims of anti-doping measures to be pursued in an appropriate manner while respecting their right to freedom of movement.","elements":[]},{"content":"198.\u00a0\u00a0The Court reiterates that the right of freedom of movement as guaranteed by paragraphs 1 and 2 of Article 2 of Protocol No. 4 is intended to secure to any person a right to liberty of movement within a territory and to leave that territory, which implies a right to leave for such country of the person\u2019s choice to which he may be admitted\u00a0(see Baumann, cited above, ECHR 2001V). It further observes, as did the Government, that special supervision measures accompanied by an order for compulsory residence\u00a0amount in principle to restrictions on freedom of movement falling to be examined under Article 2 of Protocol No. 4 (see De Tommaso v. Italy [GC], no. 43395/09, \u00a7\u00a7 83 et seq., 23 February 2017). Likewise, a requirement for applicants to report to the police each time they wish to change residence or visit family or friends constitutes interference with their freedom of movement (see Denizci and Others, cited above, \u00a7\u00a7 346-47 and \u00a7\u00a7 403-04, and Bolat v. Russia, no. 14139/03, \u00a7 65, ECHR 2006XI). The Court further refers to its judgment in Battista v. Italy (no. 43978/09, \u00a7 36, ECHR 2014) for an exhaustive review of restrictions on the freedom to leave a country.","elements":[]},{"content":"199.\u00a0\u00a0In the present case the Court observes, as regards the examination of this complaint, that the applicants are required to notify to the AFLD a daily one-hour slot during which they will be available at a specified location for the purposes of unannounced testing. This means that they are obliged to remain in a specific place for one hour each day. However, it should be pointed out that this place is chosen by them and that it does not involve their home address unless they so request and subject to a limited time-frame. The Court concludes from this that the obligation in question precludes discreet comings and goings; this is more a matter of interference with privacy than a surveillance measure (see paragraphs 157 and 158 above). It takes note in that regard of the decisions of the domestic courts not to characterise the whereabouts requirement as a restriction on freedom of movement and to make a distinction between checks that come within the jurisdiction of the ordinary courts and those that do not (see paragraph 73 above). The measures complained of cannot therefore be equated, as the applicants contend, with electronic tagging ordered by way of adjustment of a sentence or in conjunction with a compulsory residence order as an alternative to detention. Lastly, the Court notes that the applicants are not prevented from leaving their country of residence but are merely obliged to indicate a location in the destination country where they will be available for the purposes of unannounced testing.","elements":[]},{"content":"200.\u00a0\u00a0In the light of the foregoing, the Court concludes that Article 2 of Protocol No. 4 is not applicable in the present case. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected pursuant to Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.","elements":[]}]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT, UNANIMOUSLY,","elements":[{"content":"1.\u00a0\u00a0Decides to join the applications;","elements":[]},{"content":"2.\u00a0\u00a0Declares application no. 48151/11 admissible as regards the complaints made under Article 8 of the Convention by the individual applicants Mr\u00a0Da Silva, Mr Gomis, Mr Ho You Fat, Mr Perquis, Mr Congre, Mr\u00a0Coulibaly, Mr Cavalli, Mr Cabarry, Mr Huget, Mr Honrubia, Mr\u00a0Gharbi, Mr Kerckhof, Mr Busselier, Mr Ternel, Mr Kiour and Mr\u00a0Haon, and the remainder of the application inadmissible;","elements":[]},{"content":"3.\u00a0\u00a0Declares application no. 77769/13 admissible as regards the applicant\u2019s complaint under Article 8 of the Convention;","elements":[]},{"content":"4.\u00a0\u00a0Holds that there has been no violation of Article 8 of the Convention in respect of any of the applicants.","elements":[]},{"content":"Done in French, and notified in writing on 18 January 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.","elements":[]},{"content":"List of applicants","elements":[{"content":"Most of the applicants are French nationals, with the exception of Mr\u00a0Alvarez Kairelis (Argentinian), Mr Ayed and Mr Gharbi (Tunisian), Mr\u00a0Human (South African), Mr Linehan (American), Mr Magrakvelidze (Georgian) and Mr Silvo do\u00a0Nascimento (Brasilian).","elements":[]}]}],"section_name":"conclusion"}] vMQ 33'- m001-83979CASE OF UYSAL AND OSAL v. TURKEYCHAMBERECLI:CE:ECHR:2007:1213JUD0001206031206/032007-12-13 00:00:002007-12-13 00:00:00ENGThird SectionCourt607.899108886719TUR47);[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in an application (no. 1206/03) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) !QQ /33%- 001-180442CASE OF NATIONAL FEDERATION OF SPORTSPERSONS' ASSOCIATIONS AND UNIONS (FNASS) AND OTHERS v. FRANCECHAMBERECLI:CE:ECHR:2018:0118JUD00481511148151/11;77769/132018-01-18 00:00:002018-01-18 00:00:00ENGFith SectionCourt2211.65869140625FRA16\[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in two applications (nos. 48151/11 and 77769/13) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 23 July 2011 and 6 December 2013 respectively. The\u00a0applicants in application no. 48151/11 are five legal entities registered in France (see paragraph 6 below) and 99 individuals, including one Georgian national (see Annex). The applicant in application no. 77769/13 is Ms\u00a0Jeannie Longo.","elements":[]},{"content":"2.\u00a0\u00a0The applicants in application no. 48151/11 were represented by Mr R.\u00a0Palao, a lawyer practising in Avignon. Four of them (FNASS, the UNPF, Mr Da Silva and Mr Kerckhof) were represented by Mr L. Misson, a lawyer practising in Li\u00e8ge (Belgium). Ms Longo was represented by Ms C. Ravaz, a lawyer practising in Toulon. The French Government (\u201cthe Government\u201d) were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs at the Ministry of European and Foreign Affairs.","elements":[]},{"content":"3.\u00a0\u00a0The applicants in application no. 48151/11 are sports unions and professional athletes. They alleged that the requirement as to whereabouts, imposed on a \u201ctesting pool\u201d of athletes designated by the national antidoping agency for the purposes of carrying out unannounced doping tests, infringed their rights under Article 8 of the Convention and Article 2 of Protocol No. 4. Ms Longo alleged a violation of Article 8 of the Convention.","elements":[]},{"content":"4.\u00a0\u00a0On 26 June 2013 the Government were given notice of the complaints lodged by the applicants in application no. 48151/11 under Article 8 and Article 2 of Protocol No. 4. The remainder of the application was declared inadmissible pursuant to Rule 54 \u00a7 3 of the Rules of Court. The Georgian Government were informed of their right to take part in the proceedings (Article 36 \u00a7 1 of the Convention and Rule 44 \u00a7 1) but did not reply. On 18\u00a0June 2014 the Government were given notice of the complaint under Article 8 lodged by the applicant in application no. 77769/13, and the remainder of the application was declared inadmissible pursuant to Rule 54 \u00a KxgVE4#N o ^ < +utcRA0yhWF5$ z i X G 6 %  M _   } l [ J 9 (   sbQ@/O>- rq`=, p aP?.  cRA0dSB1 t : )    n ] L ; *   9 ( !001-100093\G!001-100029ͮ!001-100093\P!001-100093\O!001-100093\N!001-100093\M!001-100093\L!001-100093\K!001-100093\J!001-100093\I!001-100093\H!001-100029͵!001-100029ʹ!001-100029ͳ!001-100029Ͳ!001-100029ͱ!001-100029Ͱ!001-100029ͯ!001-100093\S!001-100029;!001-100029ͽ!001-100029ͼ!001-100029ͻ!001-100029ͺ!001-100029͹!001-100029͸!001-100029ͷ!001-100029Ͷ!001-100093\F!001-100093\E!001-100093\D!001-100093\C!001-100093\B!001-100093\A!001-100093\@!001-100093\?!001-100093\>!001-100093\=!001-100093\<!001-100093\;!001-100093\:!001-100093\R!001-100093\Q!001-100042Д!001-100042Г!001-100042В!001-100042Б!001-100042А!001-100042Џ!001-100042Ў!001-100042Ѝ!001-100029Ϳ!001-100038 !001-100038 !001-100038 !001-100038 !001-100038 !001-100038!001-100038!001-100038!001-100038!001-100038!001-100038!001-100038!001-100042Л!001-100042К!001-100042Й!001-100042И!001-100042З!001-100042Ж!001-100042Е!001-100038!001-100038!001-100038!001-100038!001-100038!001-100038!001-100038!001-100038!001-100038!001-100038!001-100038!001-100038!001-100038!001-100038!001-100040>!001-100040=!001-100040<!001-100040;!001-100040:!001-1000409!001-100040F!001-100040E!001-100040D!001-100040C!001-100040B!001-100040A!001-100040@!001-100040?!001-100026t!001-100036ӣ!001-100040J!001-100040I!001-100040H!001-100040G!001-100036ө!001-100036Ө!001-100036ӧ!001-100036Ӧ!001-100026z!001-100036Ӣ!001-100036Ӫ!001-100026y!001-100026x!001-100036ӡ!001-100026w!001-100026v!001-100026u!001-100099TU!001-100099TT!001-100099TS!001-100099TR!001-100099TQ!001-100099TP!001-100099TO!001-100099TN!001-100099TM!001-100099TL!001-100099TK!001-100099TJ!001-100099TI!001-100099TH!001-100099TG!001-100099TF!001-100099TE!001-100099TD!001-100099TC!001-100099TB!001-100099TA!001-100099T@!001-100099T?!001-100099T>!001-100099T=!001-100099T<w!001-100036ӹ!001-100036Ӹ!001-100036ӷ!001-100036Ӷ!001-100036ӵ!001-100036Ӵ!001-100036ӳ!001-100036Ӳ!001-100036ӱ!001-100036Ӱ!001-100036ӯ!001-100036Ӯ!001-100036ӭ!001-100036Ӭ!001-100036ӫ!001-100036Ӥ!001-100036ӥ!001-100095D!001-100095D!001-100083!001-100033!001-100033!001-100033!001-100033!001-100033~!001-100033}!001-100033|!001-100033{!001-100033z!001-100033y!001-100033x!001-100033w!001-100033v!001-100033u!001-100033t!001-100033s!001-100033r!001-100033q!001-100033p!001-100033o!001-100033n!001-100033m!001-100033l!001-100033k!001-100033j!001-100024!001-100024!001-100024!001-100024!001-100024!001-100022 !001-100022!001-100022!001-100022!001-100022!001-100022!001-100022!001-100022!001-100018!001-100018!001-100018!001-100018!001-100018!001-100018  J 9 (   ~ m \ K : )   ;*0np_N=,RAq`O>tcsbQ@/ ]L- raP?. xgVE4#yhWF5$ z i X G 6 %   { j Y H 7 &   | k Z I 8 '   } l [o^M<+ !001-100099Ts!001-100105)Q!001-100105)T!001-100105)S!001-100105)V!001-100105)U!001-100135&!001-100135&!001-100143!001-100143!001-100143!001-100143!001-100143!001-100143!001-100152!001-100150Z!001-100150Y!001-100143!001-100143!001-100143!001-100143!001-100143!001-100143!001-100143!001-100143!001-100143!001-100143!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182~!001-100182}!001-100182|!001-100182{!001-100182z!001-100182y!001-100182x!001-100182w!001-100182v!001-100182u!001-100182t!001-100182s!001-100152!001-100152!001-100143!001-100143!001-100143!001-100143!001-100143!001-100143!001-100135&!001-100135&!001-100135&!001-100135&!001-100135&!001-100105)X!001-100105)W!001-100105)R!001-100141J!001-100141I!001-100141H!001-100141G!001-100141F!001-100141E!001-100141D!001-100141C!001-100099Tr!001-100110Z!001-100110Z!001-100110Z!001-100110Z!001-100110Z~!001-100110Z}!001-100110Z|!001-100148!P!001-100148!O!001-100139F!001-100139E!001-100099Tq!001-100099Tp!001-100099To!001-100099Tn!001-100099Tm!001-100099Tl!001-100099Tk!001-100099Tj!001-100099Ti!001-100099Th!001-100099Tg!001-100099Tf!001-100099Te!001-100099Td!001-100099Tc!001-100099Tb!001-100099Ta!001-100099T`!001-100099T_!001-100099T^!001-100099T]!001-100099T\!001-100099T[!001-100099TZ!001-100099TY!001-100099TX!001-100099TW!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182!001-100182by two Turkish nationals, Mr Sait Uysal and Mr \u0130skan Osal (\u201cthe applicants\u201d), on 20 November 2002.","elements":[]},{"content":"2.\u00a0\u00a0The applicants were represented by Mr F. G\u00fcm\u00fc\u015f, a lawyer practising in . The Turkish Government (\u201cthe Government\u201d) did not designate an Agent for the purposes of the proceedings before the Court.","elements":[]},{"content":"3.\u00a0\u00a0On 29 January 2007 the Court decided to give notice of the application to the Government. Applying Article 29 \u00a7 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"THE CIRCUMSTANCES OF THE CASE","elements":[{"content":"4.\u00a0\u00a0The applicants were born in 1974 and 1972 respectively and live in \u015e\u0131rnak.","elements":[]},{"content":"5.\u00a0\u00a0The applicants were taken into police custody on 27 June 1992 and 24\u00a0May 1992 respectively on suspicion of their membership of an illegal organisation, the PKK (the Kurdistan Workers' Party). On 9 July 1992 and 8 June 1992 respectively, the applicants were brought before the investigating judge, who ordered their detention on remand.","elements":[]},{"content":"6.\u00a0\u00a0On 1 September 1992 the Diyarbak\u0131r State Security Court Public Prosecutor filed an indictment against 49 accused persons, including the applicants. He accused the applicants of carrying out activities aimed at breaking up the unity of the State and removing part of the national territory from the State's control. The prosecutor requested the court to sentence the applicants in accordance with Article 125 of the Criminal Code.","elements":[]},{"content":"7.\u00a0\u00a0On 12 June 1998 the applicants were released pending trial. On an unspecified date in 1998 the second applicant went abroad.","elements":[]},{"content":"8.\u00a0\u00a0On 3 July 1998 the , composed of three judges including a military judge, delivered its judgment. The court found the applicants guilty of aiding and abetting an illegal organisation and sentenced them to three years and nine months' imprisonment, pursuant to Article 169 of the Criminal Code. The applicants appealed.","elements":[]},{"content":"9.\u00a0\u00a0In the meantime, on 18 June 1999 the Constitution was amended and the military judges sitting on the bench of the State Security Courts were replaced by civilian judges.","elements":[]},{"content":"10.\u00a0\u00a0On 14 October 1999 the Court of Cassation quashed the judgment of the .","elements":[]},{"content":"11.\u00a0\u00a0On 30 December 1999 the , composed of three civilian judges, recommenced the trial of the applicants. The court further decided to summon all the accused, including the applicants, to the next hearing to submit their views on the Court of Cassation's decision.","elements":[]},{"content":"12.\u00a0\u00a0During the proceedings, the court repeatedly summoned the applicants; however, the second applicant did not respond. As a result, on 24 December 2002 the decided that the file concerning the second applicant be separated and given another file number. It further found the first applicant guilty of membership of a terrorist organisation and sentenced him to twelve years and six months' imprisonment pursuant to Article 168 of the Criminal Code.","elements":[]},{"content":"13.\u00a0\u00a0On 10 April 2003 the Court of Cassation held that the first applicant's prison sentence should be recalculated and quashed the judgment of the .","elements":[]},{"content":"14.\u00a0\u00a0On 30 September 2003 the recalculated the first applicant's prison sentence and decided that he should be sentenced to eight years and four months' imprisonment. This decision became final on 26 February 2004.","elements":[]},{"content":"15.\u00a0\u00a0On 7 May 2004 State Security Courts were abolished following a constitutional amendment and the second applicant's case was transferred to the .","elements":[]},{"content":"16.\u00a0\u00a0On 14 July 2006 the court ordered an arrest warrant for the second applicant. According to the information in the case file, the trial is still pending before the .","elements":[]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 5 \u00a7 3 OF THE CONVENTION","elements":[{"content":"17.\u00a0\u00a0The applicants complained that the length of their police custody exceeded the reasonable time, in breach of Article 5 \u00a7 3 of the Convention.","elements":[]},{"content":"18.\u00a0\u00a0The Court notes that the applicants' police custody ended on 9 July 1992 and 8 June 1992 respectively. However, the application was lodged with the Court on 20 November 2002, which is more than six months from the date of the facts giving rise to the alleged violation.","elements":[]},{"content":"19.\u00a0\u00a0It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 \u00a7\u00a7 1 and 4 of the Convention.","elements":[]}]},{"content":"II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION","elements":[{"content":"A.\u00a0\u00a0Independence and impartiality of the Diyarbak\u0131r State Security Court","elements":[{"content":"20.\u00a0\u00a0The applicants maintained under Article 6 of the Convention that they were not tried by an independent and impartial court due to the presence of a military judge on the bench of the .","elements":[]},{"content":"21.\u00a0\u00a0The Government referred to the constitutional amendment of 1999 whereby military judges could no longer sit on such courts.","elements":[]},{"content":"22.\u00a0\u00a0The Court observes that the criminal proceedings against the second applicant are still pending before the . His complaint is therefore premature and should be rejected for non-exhaustion of domestic remedies within the meaning of Article 35 \u00a7\u00a7 1 and 4 of the Convention.","elements":[]},{"content":"23.\u00a0\u00a0As regards the first applicant, the Court recalls that it has examined similar cases in the past and has concluded that there was a violation of Article 6 \u00a7 1 of the Convention (see \u00d6zel v. Turkey, no. 42739/98, \u00a7\u00a7 33-34, 7 November 2002 and \u00d6zdemir v. Turkey, no. 59659/00, \u00a7\u00a7 35-36, 6 February 2003). However, the present application may be distinguished for the following reasons.","elements":[]},{"content":"24.\u00a0\u00a0The Court notes that although the first applicant was convicted by the , whose composition included a military judge, this judgment was subsequently quashed by the Court of Cassation on 14 October 1999. In the meantime, while the appeal proceedings were pending, in June 1999 the Constitution was amended and the military judge sitting on the bench of the was replaced by a civilian judge. As a result, following the decision of the Court of Cassation, the first applicant was tried afresh before the Diyarbak\u0131r State Security Court, which was composed of three civilian judges with all of the procedural safeguards provided for by the ordinary criminal procedure (see Ya\u015far v. Turkey (dec.), no. 46412/99, 31 March 2005; Tarlan v. Turkey (dec.), no. 31096/02, 30 March 2006 and Pakkan v. Turkey, no. 13017/02, \u00a7\u00a7 33-34, 31 October 2006).","elements":[]},{"content":"25.\u00a0\u00a0In the light of the foregoing, the Court finds that the first applicant's complaint concerning the independence and impartiality of the Diyarbak\u0131r State Security Court should be rejected as being manifestly ill-founded, pursuant to Article 35 \u00a7\u00a7 3 and 4 of the Convention.","elements":[]}]},{"content":"B.\u00a0\u00a0Length of the proceedings","elements":[{"content":"26.\u00a0\u00a0The applicants complained that the length of the proceedings had been incompatible with the \u201creasonable time\u201d requirement, laid down in Article 6 \u00a7 1 of the Convention, which reads as follows:","elements":[]},{"content":"\u201cIn the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...\u201d","elements":[]},{"content":"27.\u00a0\u00a0The Government submitted that the case was complex, as the proceedings included 49 accused and the charges they faced were very serious. It was therefore difficult to gather the evidence and determine the facts. They also maintained that the applicants and their lawyer did not attend many hearings. Finally, the second applicant contributed to the length of the proceedings by absconding.","elements":[]},{"content":"1.\u00a0\u00a0Admissibility","elements":[{"content":"28.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","elements":[]}]},{"content":"2.\u00a0\u00a0The period to be taken into consideration","elements":[{"content":"29.\u00a0\u00a0The period to be taken into consideration began on 27 June 1992 with the first applicant's arrest and ended on 30 September 2003 with the decision of the . It thus lasted eleven years and three months for five levels of jurisdiction in respect of the first applicant.","elements":[]},{"content":"30.\u00a0\u00a0The Court notes that the proceedings in respect of the second applicant commenced on 24 May 1992 with his arrest and are still pending. They have therefore lasted more than fifteen years for three levels of jurisdiction. However, the Court observes that the second applicant left the country during 1998 while his trial was still pending and failed to return when the proceedings resumed. It recalls that the flight of an accused person has in itself certain repercussions on the scope of the guarantee provided by Article 6 \u00a7 1 of the Convention as regards the duration of proceedings. When an accused person absconds, it may be assumed that he or she is not entitled to complain of the unreasonable duration of proceedings following that flight, unless sufficient reason can be shown to rebut this assumption (see Ventura v. Italy, no. 7438/76, Commission's report of 15\u00a0December 1980, Decisions and Reports (DR) 23, p. 91, \u00a7 197). However, in the absence of any concrete indication that the applicant was avoiding being brought to justice in his own country in the initial stages of his absence, the relevant period must be regarded as having ended on 30 December 1999, the day on which the Diyarbak\u0131r State Security Court summoned the second applicant to the next hearing to submit his views on the Court of Cassation's decision and following which the applicant failed to appear (see Vayi\u00e7\u00a0v. , no.\u00a018078/02, \u00a7\u00a044, ECHR 2006... (extracts)). The relevant period to be taken into account is therefore over seven years and six months for two levels of jurisdiction.","elements":[]}]},{"content":"3.\u00a0\u00a0Merits","elements":[{"content":"31.\u00a0\u00a0The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities (see, among many other authorities, P\u00e9lissier and Sassi v. France [GC], no. 25444/94, \u00a7 67, ECHR 1999-II)","elements":[]},{"content":"32.\u00a0\u00a0The Court has frequently found violations of Article 6 \u00a7 1 of the Convention in cases raising issues similar to the one in the present case (see P\u00e9lissier and Sassi, cited above).","elements":[]},{"content":"33.\u00a0\u00a0Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the \u201creasonable time\u201d requirement.","elements":[]},{"content":"There has accordingly been a breach of Article 6 \u00a7 1.","elements":[]}]}]}]},{"content":"III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION","elements":[{"content":"34.\u00a0\u00a0Article 41 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Damage","elements":[{"content":"35.\u00a0\u00a0The applicants claimed 100,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.","elements":[]},{"content":"36.\u00a0\u00a0The Government contested the claim.","elements":[]},{"content":"37.\u00a0\u00a0The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. In respect of non-pecuniary damage, ruling on an equitable basis, it awards the first applicant EUR 2,400 and the second applicant EUR 1,800.","elements":[]}]},{"content":"B.\u00a0\u00a0Costs and expenses","elements":[{"content":"38.\u00a0\u00a0Referring to the Diyarbak\u0131r Bar Association's scale of fees, the applicants' representative claimed 10,100 New Turkish liras (YTL) (approximately EUR 5,800) for 26 hours' legal work, spent in the preparation and presentation of this case before the Court.","elements":[]},{"content":"39.\u00a0\u00a0The Government contested the claim.","elements":[]},{"content":"40.\u00a0\u00a0According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR\u00a01,500 to the applicants under this head.","elements":[]}]},{"content":"C.\u00a0\u00a0Default interest","elements":[{"content":"41.\u00a0\u00a0The 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.","elements":[]}]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT UNANIMOUSLY","elements":[{"content":"1.\u00a0\u00a0Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;","elements":[]},{"content":"2.\u00a0\u00a0Holds that there has been a violation of Article 6 \u00a7 1 of the Convention;","elements":[]},{"content":"3.\u00a0\u00a0Holds","elements":[]},{"content":"(a)\u00a0\u00a0that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7 2 of the Convention, the following amounts to be converted into New Turkish liras at the rate applicable at the date of settlement and free of any taxes or charges that may be payable:","elements":[]},{"content":"(b)\u00a0\u00a0that 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;","elements":[]},{"content":"4.\u00a0\u00a0Dismisses the remainder of the applicants' claim for just satisfaction.","elements":[]},{"content":"Done in English, and notified in writing on 13 December 2007, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.","elements":[]}],"section_name":"conclusion"}]cant, finding no fault on the part of the Bailiffs. On 18\u00a0June\u00a02001 the Lugansk Regional Court of Appeal upheld the decision of the first-instance court.","elements":[]},{"content":"8.\u00a0\u00a0On 1\u00a0February\u00a02002 the Bailiffs\u2019 Service informed the applicant that the judgment given in his favour could not be enforced due to the large number of enforcement proceedings against the debtor and the fact that the procedure for the forced sale of assets belonging to the debtor had been suspended because of the moratorium on the forced sale of property belonging to State enterprises introduced by the Law of 29\u00a0November 2001.","elements":[]},{"content":"9.\u00a0\u00a0In March\u00a02002 the applicant instituted proceedings in the Leninskyi District Court of Lugansk against the Bailiffs\u2019 Service, seeking compensation for failure to enforce the judgment in his favour. On 7\u00a0May\u00a02002 the court rejected his claim as being unsubstantiated. On 8\u00a0August\u00a02002 and 9\u00a0January\u00a02003, respectively, the Lugansk Regional Court of Appeal and the Supreme Court of Ukraine upheld that decision.","elements":[]},{"content":"10.\u00a0\u00a0On 27\u00a0April\u00a02005 the applicant received the full amount of the judgment debt.","elements":[]}]},{"content":"II.\u00a0\u00a0RELEVANT DOMESTIC LAW","elements":[{"content":"11.\u00a0\u00a0The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, \u00a7\u00a7 16-18, 27 July 2004).","elements":[]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0ADMISSIBILITY","elements":[{"content":"12.\u00a0\u00a0The applicant complained about the State authorities\u2019 failure to enforce the judgment of the Leninskyi District Court of Lugansk of 26\u00a0May\u00a02000 in due time. He further alleged that he had no effective domestic remedy by which to recover the debt owed to him by the debtor. He invoked Articles\u00a06\u00a0\u00a7\u00a01 and 13 of the Convention, which provides, insofar as relevant, as follows:","elements":[]},{"content":"Article 6 \u00a7 1","elements":[{"content":"\u201cIn the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...\u201d","elements":[]}]},{"content":"Article 13","elements":[{"content":"\u201cEveryone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\u201d","elements":[]}]},{"content":"A.\u00a0\u00a0The Government\u2019s preliminary objections","elements":[{"content":"13.\u00a0\u00a0The Government raised objections regarding the applicant\u2019s victim status and exhaustion of domestic remedies similar to those which the Court has already dismissed in the case of Romashov v. Ukraine (cited above, \u00a7\u00a7\u00a023-33). The Court considers that the present objections must be rejected for the same reasons.","elements":[]},{"content":"14.\u00a0\u00a0The Court concludes that the complaint under Article\u00a06\u00a0\u00a7\u00a01 raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It finds no ground for declaring it inadmissible.","elements":[]},{"content":"15.\u00a0\u00a0The Court does not find it necessary in the circumstances to consider the same complaint under Article\u00a013 of the Convention (see Derkach and Palek v. Ukraine, nos. 34297/02 and 39574/02, \u00a7 42, 21 December 2004; and, a contrario, Voytenko v. Ukraine, no. 18966/02, 29 June 2004).","elements":[]}]},{"content":"B.\u00a0\u00a0Other complaints","elements":[{"content":"16.\u00a0\u00a0The applicant further complained about a violation of Article\u00a04\u00a0of the Convention (freedom from slavery) on account of the non-enforcement of the judgment in his favour.","elements":[]},{"content":"17.\u00a0\u00a0The Court finds that this part of the application is wholly unsubstantiated and must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 \u00a7\u00a7 3 and 4 of the Convention.","elements":[]}]}]},{"content":"II.\u00a0\u00a0MERITS","elements":[{"content":"19.\u00a0\u00a0The applicant disagreed.","elements":[]},{"content":"20.\u00a0\u00a0The Court notes that the judgment of the Leninskyi District Court of Lugansk of 26\u00a0May\u00a02000 remained unenforced for almost five years.","elements":[]},{"content":"21.\u00a0\u00a0The Court recalls that it has already found violations of Article\u00a06\u00a0\u00a7\u00a01 of the Convention in cases raising issues similar to the present application (see Romashov judgment, cited above, \u00a7\u00a7\u00a042-46).","elements":[]},{"content":"22.\u00a0\u00a0Having examined all the material submitted, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present case. There has, accordingly, been a violation of Article\u00a06\u00a0\u00a7\u00a01 of the Convention.","elements":[]}]},{"content":"III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION","elements":[{"content":"23.\u00a0\u00a0Article 41 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"A.\u00a0\u00a0Damage","elements":[{"content":"24.\u00a0\u00a0The applicant claimed EUR\u00a01,500 in respect of non-pecuniary damage.","elements":[]},{"content":"25.\u00a0\u00a0The Government left the matter to the Court\u2019s discretion.","elements":[]},{"content":"26.\u00a0\u00a0Making its assessment on an equitable basis, as required by Article\u00a041 of the Convention, the Court considers it reasonable to award the applicant the requested amount of EUR\u00a01,500 in respect of non-pecuniary damage.","elements":[]}]},{"content":"B.\u00a0\u00a0Costs and expenses","elements":[{"content":"27.\u00a0\u00a0The applicant did not submit any claim under this head. The Court therefore makes no award.","elements":[]}]},{"content":"C.\u00a0\u00a0Default interest","elements":[{"content":"28.\u00a0\u00a0The 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.","elements":[]}]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT UNANIMOUSLY","elements":[{"content":"1.\u00a0\u00a0Declares the applicant\u2019s complaint under Articles\u00a06\u00a0\u00a7\u00a01 of the Convention admissible, and the remainder of the application inadmissible;","elements":[]},{"content":"2.\u00a0\u00a0Holds that there has been a violation of Article\u00a06\u00a0\u00a7\u00a01 of the Convention;","elements":[]},{"content":"3.\u00a0\u00a0Holds","elements":[]},{"content":"(a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article\u00a044\u00a0\u00a7\u00a02 of the Convention, EUR\u00a01,500 (one thousand five hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable on the date of settlement;","elements":[]},{"content":"(b)\u00a0\u00a0that 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;","elements":[]},{"content":"Done in English, and notified in writing on 13 December 2005, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.","elements":[]}],"section_name":"conclusion"}] RREQ 3333)+ y001-71607CASE OF KOTLYAROV v. UKRAINECHAMBERECLI:CE:ECHR:2005:1213JUD00435930243593/022005-11-22 00:00:002002-10-25 00:00:002005-12-13 00:00:002005-12-13 00:00:00ENGSecond SectionCourt533.03173828125UKR48[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in an application (no. 43593/02) against lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Ukrainian national, Mr Valeriy Aleksandrovich Kotlyarov (\u201cthe applicant\u201d), on 25 October 2002.","elements":[]},{"content":"2.\u00a0\u00a0The Ukrainian Government (\u201cthe Government\u201d) were represented by their Agent, Mrs V. Lutkovska.","elements":[]},{"content":"3.\u00a0\u00a0On 24\u00a0March\u00a02005 the Court decided to communicate the application to the Government. Under the provisions of Article 29 \u00a7 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE","elements":[{"content":"4.\u00a0\u00a0The applicant was born in 1945 and lives in Lugansk.","elements":[]},{"content":"5.\u00a0\u00a0On 26\u00a0May\u00a02000, the Leninskyi District Court of Lugansk ordered the State Enterprise \u201cLuganskyi Stankobudivelnyi Zavod\u201d to pay the applicant UAH\u00a01,240.65 in salary arrears and other payments.","elements":[]},{"content":"6.\u00a0\u00a0On 8\u00a0June\u00a02000 the Leninskyi District Bailiffs\u2019 Service of Lugansk instituted enforcement proceedings.","elements":[]},{"content":"7.\u00a0\u00a0In August\u00a02003 the applicant instituted proceedings in the same court against the Bailiffs\u2019 Service for failure to enforce the judgment in his favour. On 15\u00a0May\u00a02001 the court found against the applihe applicant applied to the exchange commission for an exchange of that sum. On 25 March 1991 the commission (\u0420\u0435\u0448\u0435\u043d\u0438\u0435 \u043a\u043e\u043c\u0438\u0441\u0441\u0438\u0438 \u042f\u043b\u0442\u0438\u043d\u0441\u043a\u043e\u0433\u043e \u0413\u043e\u0440\u043e\u0434\u0441\u043a\u043e\u0433\u043e \u0421\u043e\u0432\u0435\u0442\u0430 \u043d\u0430\u0440\u043e\u0434\u043d\u044b\u0445 \u0434\u0435\u043f\u0443\u0442\u0430\u0442\u043e\u0432 \u043f\u043e \u043e\u0431\u043c\u0435\u043d\u0443 \u0434\u0435\u043d\u0435\u0436\u043d\u044b\u0445 \u0437\u043d\u0430\u043a\u043e\u0432) refused to exchange the full amount because of an alleged lack of proof as to the legality of the source of income, and limited the exchange to 2,462 roubles. The remaining sum of 227,538 roubles was not compensated.","elements":[]},{"content":"11.\u00a0\u00a0The applicant challenged that decision before the higher exchange commission of the . On 6 May 1991 the latter upheld the decision of the exchange commission.","elements":[]},{"content":"12.\u00a0\u00a0The Government submit that, in accordance with the resolution of the Cabinet of Ministers of the USSR no. 2 of 22\u00a0January\u00a01991, which regulated the procedure for the exchange of bank-notes, this decision of 6\u00a0May\u00a01991 was final.","elements":[]},{"content":"13.\u00a0\u00a0At the same time the State Security Service checked the legality of the applicant's business and found no irregularities.","elements":[]},{"content":"14.\u00a0\u00a0On 19 July 1991 the applicant instituted proceedings in the Yalta City Court against the exchange commission for its refusal to exchange the full sum of 230,000 roubles.","elements":[]},{"content":"15.\u00a0\u00a0On 22 July 1991 the Yalta City Court (\u041e\u043f\u0440\u0435\u0434\u0435\u043b\u0435\u043d\u0438\u0435 \u042f\u043b\u0442\u0438\u043d\u0441\u043a\u043e\u0433\u043e \u0433\u043e\u0440\u043e\u0434\u0441\u043a\u043e\u0433\u043e \u043d\u0430\u0440\u043e\u0434\u043d\u043e\u0433\u043e \u0441\u0443\u0434\u0430) rejected the claim for lack of jurisdiction.","elements":[]},{"content":"16.\u00a0\u00a0The applicant appealed to the against the judgment of the Yalta City Court. On 26 August 1991 the former quashed the judgment of the latter and remitted the case for further consideration.","elements":[]},{"content":"17.\u00a0\u00a0On 16 October 1991 the Yalta City Court (\u0420\u0435\u0448\u0435\u043d\u0438\u0435 \u042f\u043b\u0442\u0438\u043d\u0441\u043a\u043e\u0433\u043e \u0433\u043e\u0440\u043e\u0434\u0441\u043a\u043e\u0433\u043e \u043d\u0430\u0440\u043e\u0434\u043d\u043e\u0433\u043e \u0441\u0443\u0434\u0430) found for the applicant and ordered the executive committee of the Yalta City Council to exchange all the money deposited by the applicant (230,000 roubles).","elements":[]},{"content":"18.\u00a0\u00a0On 8 April 1992 the (\u041e\u043f\u0440\u0435\u0434\u0435\u043b\u0435\u043d\u0438\u0435 \u041a\u0440\u044b\u043c\u0441\u043a\u043e\u0433\u043e \u043e\u0431\u043b\u0430\u0441\u0442\u043d\u043e\u0433\u043e \u0441\u0443\u0434\u0430) upheld this judgment.","elements":[]},{"content":"19.\u00a0\u00a0On 17 April 1992 the judgments of 16 October 1991 and 8 April 1992 were quashed by the Presidium of the (\u041f\u043e\u0441\u0442\u0430\u043d\u043e\u0432\u043b\u0435\u043d\u0438\u0435 \u041f\u0440\u0435\u0437\u0438\u0434\u0438\u0443\u043c\u0430 \u041a\u0440\u044b\u043c\u0441\u043a\u043e\u0433\u043e \u043e\u0431\u043b\u0430\u0441\u0442\u043d\u043e\u0433\u043e \u0441\u0443\u0434\u0430).","elements":[]},{"content":"20.\u00a0\u00a0On 14 April 1993 the Civil Chamber of the Supreme Court of Ukraine (\u0423\u0445\u0432\u0430\u043b\u0430 \u0412\u0435\u0440\u0445\u043e\u0432\u043d\u043e\u0433\u043e \u0421\u0443\u0434\u0443 \u0423\u043a\u0440\u0430\u0457\u043d\u0438) quashed the latter judgment and upheld the judgments of 16 October 1991 and 8 April 1992 in the applicant's favour. This judgment was final.","elements":[]},{"content":"21.\u00a0\u00a0The judgment was not fully enforced for several years. On various occasions the applicant lodged claims to have the awarded sum adjusted to the inflation rate. On 23 May 1996, 10 December 1996, 27 May 1997 and 23 June 1998, the Yalta City Court granted the claims due to the longstanding non-enforcement of the judgment in the applicant's favour. The latter court decision increased the amount to UAH 349,387.82.","elements":[]},{"content":"22.\u00a0\u00a0By letter of 26 June 1998, the Yalta City Mayor requested the Deputy Prosecutor General to intervene by lodging an appeal for supervisory review (protest) against the judgment of the Supreme Court of Ukraine given in favour of the applicant.","elements":[]},{"content":"23.\u00a0\u00a0On 30 June 1998 the Chairman of the Court ordered the suspension of any further enforcement of the judgement until the supervisory review appeal had been considered.","elements":[]},{"content":"24.\u00a0\u00a0On 9 September 1998 the Deputy Chairman of the Supreme Court of Ukraine lodged a supervisory review appeal with the Plenary of the Supreme Court (\u041f\u043e\u0441\u0442\u0430\u043d\u043e\u0432\u0430 \u041f\u043b\u0435\u043d\u0443\u043c\u0443 \u0412\u0435\u0440\u0445\u043e\u0432\u043d\u043e\u0433\u043e \u0421\u0443\u0434\u0443 \u0423\u043a\u0440\u0430\u0457\u043d\u0438) against the judgments in the applicant's favour.","elements":[]},{"content":"25.\u00a0\u00a0On 25 September 1998 the Plenary allowed the appeal and quashed the said judgments, upholding the initial judgment of the Yalta City Court of 22 July 1991 to reject the applicant's claim for lack of jurisdiction. The Plenary decided that, since the exchange of banknotes was regulated by the Government Decree of 1991 (paragraph 9) which provided for the non-judicial review of the decisions of exchange commissions, the dispute was outside the courts' jurisdiction under the legislation in force in 1991.","elements":[]},{"content":"26.\u00a0\u00a0The Yalta Mayor then requested the Yalta City Court to reverse the enforcement of the quashed judgment and to recover from the applicant the money which had been already paid to him (15% of the sum originally awarded). According to the Government, the court did not examine that request because, under an agreement between the parties, the applicant returned the money which had been paid to him.","elements":[]},{"content":"27.\u00a0\u00a0By a letter of 25 November 1998, the Constitutional Court of Ukraine informed the applicant that it had no jurisdiction to review the decisions of the ordinary courts.","elements":[]},{"content":"28.\u00a0\u00a0By a resolution of 9\u00a0December\u00a01998, the proceedings on the applicant's case were closed due to the quashing of the judgment of 16\u00a0October\u00a01991 by the Plenary of the Supreme Court.","elements":[]}]},{"content":"II.\u00a0\u00a0RELEVANT DOMESTIC LAW","elements":[{"content":"29.\u00a0\u00a0At the material time, Chapter 42 of the Code of Civil Procedure subjected final and binding judgments to a possible supervisory review. When a final judgment was given by the Supreme Court of Ukraine, it could be appealed under the supervisory review procedure by the Chairman of the Supreme Court of Ukraine, the Prosecutor General of and his or her Deputies (Article 328), and had to be considered by the Plenary of the Supreme Court (Article 329). The judgments of the Plenary were not subject to any further review.","elements":[]},{"content":"30.\u00a0\u00a0The supervisory review procedure was repealed in June 2001.","elements":[]}]}],"section_name":"facts"},{"content":"THE LAW","elements":[{"content":"I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION","elements":[{"content":"31.\u00a0\u00a0The applicant complained under Article 6 \u00a7 1 of the Convention that the final and binding judgment in his favour had been quashed following the supervisory review and that the procedure before the Plenary of the Supreme Court of Ukraine had been \u201cunfair\u201d. The applicant further complained that, by the Plenary's judgment, he had been denied access to a court in the determination of his civil rights. Article 6 \u00a7 1 provides as relevant:","elements":[]},{"content":"\u201cIn the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...\u201d","elements":[]},{"content":"1.\u00a0The submissions of the parties","elements":[{"content":"32.\u00a0\u00a0The Government stated that the supervisory review procedure had existed in Ukrainian civil procedural legislation until 21 June 2001. In the Government's opinion, this procedure was aimed at the \u201cstrengthening of legality and the legal order, the protection of the rights and legitimate interests of citizens and organisations, and the observance of legal principles in the administration of justice.\u201d The Government argued that, unlike in the Brum\u0103rescu v. Romania case ([GC] no.\u00a028342/95, judgment of 28\u00a0October\u00a01999), in the instant application the protest had been lodged not by the prosecutor but by the Deputy Chairman of the Court. The Government further submitted that the supervisory review procedure had been actively used by citizens and had been considered by them to be an effective remedy. In the instant case, in the Government's view, the judgment of the Plenary of the Supreme Court of Ukraine had corrected the wrong application of the law in force in 1991. Therefore, there had been no violation of the applicant's right to fair hearing under Article 6 \u00a7 1 of the Convention.","elements":[]},{"content":"33.\u00a0\u00a0The applicant disagreed, stating that, by quashing the final and binding court decision given in his favour, the Supreme Court had violated the principle of legal certainty and his right to a fair hearing.","elements":[]}]},{"content":"2.\u00a0\u00a0The Court's assessment","elements":[{"content":"34.\u00a0\u00a0The Court observes that at the material time the Deputy Chairman of the Supreme Court of Ukraine had the power under Article 328 of the Code of Civil Procedure to lodge an application for the supervisory review of a final judgment. The exercise of that power was not subject to any time-limit, so that judgments were liable to challenge indefinitely.","elements":[]},{"content":"35.\u00a0\u00a0The Court notes that, by allowing the application lodged under that power, the Supreme Court of Ukraine set at naught an entire judicial process which had ended in a final and binding judicial decision and thus res judicata, and which had, moreover, been partially executed.","elements":[]},{"content":"36.\u00a0\u00a0In so far as the Government argued that the instant case differed from the Brum\u0103rescu v. Romania judgment ([GC] no.\u00a028342/95, 28\u00a0October\u00a01999), since the application for supervisory review was lodged not by a prosecutor, who is a member of the executive, but by a judge, the Court notes that the supervisory review procedure existed in a number of Contracting States and had common features, including the range of persons authorised to lodge an application for such review: prosecutors and chairmen of the courts and their deputies. This Court has previously considered cases involving supervisory review initiated by both prosecutors and judges. As in the Ryabykh v. Russia judgment (no. 52854/99, 24\u00a0July\u00a02003), where the application for supervisory review was also lodged by a judge, the Court is of the opinion that the issue should be regarded as one of legal certainty and not just an interference by the executive.","elements":[]},{"content":"37.\u00a0\u00a0The Court considers that, by using the supervisory review procedure to set aside the judgment of 14\u00a0April\u00a01993, the Plenary of the Supreme Court of Ukraine infringed the principle of legal certainty and the applicant's \u201cright to a court\u201d under Article 6 \u00a7 1 of the Convention.","elements":[]},{"content":"38.\u00a0\u00a0There has accordingly been a violation of that Article.","elements":[]}]},{"content":"1.\u00a0\u00a0The submissions of the parties","elements":[{"content":"39.\u00a0\u00a0The Government further maintained that the supervisory review procedure had been explicitly provided for by law and had contained considerable guarantees, as well as the necessary guarantees of the independence and impartiality of the courts.","elements":[]},{"content":"40.\u00a0\u00a0The applicant called into question the purported procedural guarantees. He submitted in particular that he had not been present before the court, and that the review had been limited to an examination of the appeal lodged by the Deputy Chairman of the Supreme Court.","elements":[]}]},{"content":"2.\u00a0\u00a0The Court's assessment","elements":[{"content":"41.\u00a0\u00a0The Court finds that, having concluded that there has been an infringement of the applicant's \u201cright to a court\u201d by the very use of the supervisory review procedure, it is not necessary to consider separately whether the procedural guarantees of Article 6 of the Convention were respected during those proceedings (see Ryabykh v. Russia, no. 52854/99, \u00a7\u00a059, 24\u00a0July\u00a02003).","elements":[]}]},{"content":"1.\u00a0\u00a0The submissions of the parties","elements":[{"content":"42.\u00a0\u00a0The Government maintained that the Plenary of the Supreme Court aimed to secure the correct application of the legislation which was in force in 1991. That legislation did not envisage a judicial control of the decisions of the exchange commissions, but provided for a different (non-judicial) appeal procedure. They further maintained that the Plenary of the Supreme Court had simply revived the ruling of the Yalta City Court of 22\u00a0July\u00a01991, and that there had been no violation of the applicant's right of access to a court.","elements":[]},{"content":"43.\u00a0\u00a0The applicant in his reply contended that the Supreme Court of Ukraine had misinterpreted the legislation and had given priority to the specific norms of the Decree of the Cabinet of Ministers of 22\u00a0January\u00a01991 (paragraphs 9 and 12 above) over the general norms of the Constitution and laws, even though the latter had higher force.","elements":[]}]},{"content":"2.\u00a0\u00a0The Court's assessment","elements":[{"content":"44.\u00a0\u00a0The Court notes that the ratio decidendi of the judgment of the Plenary of the Supreme Court of Ukraine was that the courts had no jurisdiction whatsoever to decide particular types of civil disputes such as the action for recovery of the value of the possessions in the instant case. It considers that such an exclusion is in itself contrary to the right of access to a tribunal guaranteed by Article 6\u00a0\u00a7\u00a01 of the Convention (see, mutatis mutandis, the Vasilescu v. Romania judgment of 22 May 1998, Reports of Judgments and Decisions 1998-III, pp. 1075-76, \u00a7\u00a7\u00a039-41; Brum\u0103rescu v. Romania, cited above, \u00a7\u00a065).","elements":[]},{"content":"45.\u00a0\u00a0There has thus been a violation of Article 6 \u00a7 1 in this respect also.","elements":[]}]}]},{"content":"II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION","elements":[{"content":"46.\u00a0\u00a0The applicant complained that his right to the peaceful enjoyment of his possessions had been violated as a result of the quashing of the final and binding court decision in his favour. He invoked Article 1 of Protocol No. 1 which provides as relevant:","elements":[]},{"content":"\u201cEvery natural ... person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\u201d","elements":[]},{"content":"47.\u00a0\u00a0Both parties agreed that the final and binding judgment of 14\u00a0April 1993 in the applicant's favour conferred a \u201cpossession\u201d on him within the meaning of Article 1 of Protocol No. 1 to the Convention. The Court, in the light of its consistent case-law, shares this view.","elements":[]},{"content":"1.\u00a0\u00a0The submissions of the parties","elements":[{"content":"48.\u00a0\u00a0The Government agreed that the quashing of the judgment of 14\u00a0April 1993 in the applicant's favour constituted an interference with the applicant's right to the peaceful enjoyment of his possessions. Nevertheless, the Government maintained that such interference had originally taken place in 1991, when the exchange commission refused to exchange the applicant's money, and that the Supreme Court had only corrected previous mistakes and highlighted the impossibility of challenging the decision of the exchange commission before the courts in 1991.","elements":[]},{"content":"49.\u00a0\u00a0The applicant maintained that it was the quashing of the final and binding judgment given in his favour that deprived him of his property.","elements":[]}]},{"content":"2.\u00a0\u00a0The Court's assessment","elements":[{"content":"50.\u00a0\u00a0The Court recalls that the issue before it in the present case is the quashing of the final and binding judgment given in favour of the applicant (paragraph 20 above) and not the property dispute in 1991 between the applicant and the Yalta exchange commission (paragraph 10 above). Moreover, the latter dispute is outside the Court's competence ratione temporis (see the admissibility decision of 21\u00a0October\u00a02003).","elements":[]},{"content":"51.\u00a0\u00a0The Court notes that, under its constant case-law, the quashing of a final and binding judgment that conferred a \u201cpossession\u201d on the applicant constitutes an interference with the applicant's right to that property. The Court finds in the instant case that there was interference with the applicant's rights in the form of a deprivation of property, within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1.","elements":[]}]},{"content":"1.\u00a0\u00a0The submissions of the parties","elements":[{"content":"52.\u00a0\u00a0The Government submitted that the interference complied with the law, was aimed at securing the correct application of the law, and served the general interest, since payment of the debt by the Yalta City Council would have rendered the expenditures for social and other needs of the city impossible.","elements":[]},{"content":"53.\u00a0\u00a0The applicant submitted in reply that, by quashing the final and binding judgment in his favour, the State failed to strike a \u201cfair balance\u201d between the general interests and his property rights. The applicant maintained that the Government's social programme argument was unsound, since there could have been other ways and resources to enforce the judgment in his favour.","elements":[]}]},{"content":"2.\u00a0\u00a0The Court's assessment","elements":[{"content":"The Court reiterates that a deprivation of property can only be justified if it is shown, inter alia, to be \u201cin the public interest\u201d and \u201csubject to the conditions provided for by law\u201d. Moreover, any interference with property must also satisfy the requirement of proportionality. As the Court has repeatedly stated, a \u201cfair balance\u201d must be struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights, the search for such a fair balance being inherent throughout the Convention. The Court further observes that the requisite balance will not be struck where the person concerned bears an \u201cindividual and excessive burden\u201d (see the Brum\u0103rescu judgment cited above, \u00a7\u00a078).","elements":[]},{"content":"54.\u00a0\u00a0The Government offered two justifications for the interference with applicant's property rights: In so far as the Government submit that the interference aimed to secure the correct application of the law, the Court notes that this argument is similar to those submitted by them under Article 6\u00a0\u00a7\u00a01 of the Convention. Having found a violation of Article 6\u00a0\u00a7\u00a01 of the Convention, the Court concludes that, although the correct application of the law is undeniably a \u201cpublic interest\u201d, in the circumstances of the present case it was pursued in violation of the fundamental principles of legal certainty and access to court. Therefore, this argument must be dismissed. In so far as the Government submit that the payment of the State's debt to the applicant under the quashed judgment would endanger the social programmes of local government, the Court reiterates that it is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment debt (see Burdov v.\u00a0Russia, no.\u00a059498/00, \u00a7 35, ECHR 2002III). Nor could the alleged inability of the State to honour its debt under a final and binding judgment serve as justification for quashing that judgment.","elements":[]},{"content":"55.\u00a0\u00a0In the circumstances, therefore, the Court finds that the \u201cfair balance\u201d was upset and that the applicant bore and continues to bear an individual and excessive burden. There has accordingly been and continues to be a violation of Article 1 of Protocol No. 1.","elements":[]}]}]},{"content":"III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION","elements":[{"content":"56.\u00a0\u00a0Article 41 of the Convention provides:","elements":[]},{"content":"\u201cIf 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.\u201d","elements":[]},{"content":"57.\u00a0\u00a0The applicant maintained that the direct damage caused by the violation of his rights amounted to 319,891 euros (EUR), corresponding to the 230,000 Soviet roubles of which he was deprived in 1991. The applicant further estimated his loss of profit from 1991 until 2004 at EUR 2,000,000. Thus the applicant claimed a total of EUR 2,319,891 euros in respect of pecuniary damage.","elements":[]},{"content":"58.\u00a0\u00a0The Government denied the existence of any causal link between the violation at issue and the pecuniary damage claimed. The Government maintained that, if a violation of Article 1 of Protocol No.1 were found, the applicant could claim only UAH 349,387.82 (EUR 53,657.81), the sum to which he had been entitled when the alleged violation occurred.","elements":[]},{"content":"59.\u00a0\u00a0The Court recalls that the issue before it in the present case is the quashing in 1998 of the final and binding judgment awarding the applicant UAH 349,387.82, and not the interference with the applicant's property rights in 1991.","elements":[]},{"content":"60.\u00a0\u00a0Like the Government, the Court does not discern any causal link between the violation found and the extensive pecuniary damage alleged. However, in respect of the violation of Article 1 of Protocol No. 1 which the Court has found, the Court considers it appropriate to award the applicant EUR 53,657.81, which is the equivalent of the amount awarded to him by the domestic courts under the quashed judgment.","elements":[]},{"content":"61.\u00a0\u00a0The applicant claimed EUR 3,198,903 in respect of non-pecuniary damage","elements":[]},{"content":"62.\u00a0\u00a0The Government asserted that this claim was excessive and that a finding of a violation would constitute sufficient just satisfaction under this head.","elements":[]},{"content":"63.\u00a0\u00a0The Court takes the view that the applicant has suffered some non-pecuniary damage as a result of the violations found which cannot be made good by the Court's mere finding of a violation. Nevertheless, the amount claimed is excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 5,000 in respect of moral damage.","elements":[]},{"content":"1.\u00a0\u00a0Domestic proceedings","elements":[{"content":"64.\u00a0\u00a0The applicant did not submit any claim under this head within the set time-limit; the Court therefore makes no award in this respect.","elements":[]}]},{"content":"2.\u00a0\u00a0Convention proceedings","elements":[{"content":"65.\u00a0\u00a0The applicant claimed EUR 15,696.27 for costs and expenses incurred in the Convention proceedings. He presented an invoice for that sum from his lawyer.","elements":[]},{"content":"66.\u00a0\u00a0The Government maintained that the applicant had failed to submit details of the work performed by his lawyer, the hourly rates, etc. Moreover, the applicant did not submit any contract confirming that he was under a legal obligation to pay the invoice submitted to the Court. The Government invited the Court to reject the applicant's claim for costs and expenses as he had not furnished any sustainable evidence to support this claim.","elements":[]},{"content":"67.\u00a0\u00a0The applicant submitted that, given the length of the proceedings, his claim was reasonable.","elements":[]},{"content":"68.\u00a0\u00a0The Court reiterates that, in order for costs and expenses to be included in an award under Article\u00a041, it must be established that they were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were reasonable as to quantum (see, among many other authorities, Nilsen and Johnsen v. Norway [GC], no.\u00a023118/93, \u00a7 62, ECHR 1999-VIII).","elements":[]},{"content":"69.\u00a0\u00a0The Court considers that these requirements have not been met in the instant case. It notes that the case is not particularly complex. Moreover, it appears from the documents in its possession that the lawyer's activities were limited to submitting the application form on the applicant's behalf and forwarding his correspondence, including his observations and just satisfaction claim, prepared by the applicant himself. Finally, the Court agrees with the Government regarding the absence of any detailed breakdown and justification for this claim. However, it is clear that the applicant incurred some costs and expenses for his representation before the Court.","elements":[]},{"content":"Regard being had to the information in its possession and to the above considerations, the Court awards the applicant EUR\u00a01,000 for costs and expenses.","elements":[]},{"content":"70.\u00a0\u00a0The 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.","elements":[]}]}]}],"section_name":"law"},{"content":"FOR THESE REASONS, THE COURT UNANIMOUSLY","elements":[{"content":"1.\u00a0\u00a0Holds that there has been a violation of Article\u00a06 \u00a7 1 of the Convention by reason of the quashing of the final judgment in the applicant's favour by way of a supervisory review;","elements":[]},{"content":"2.\u00a0\u00a0Holds that it is not necessary to consider separately the allegation of procedural unfairness in the supervisory review proceedings;","elements":[]},{"content":"3.\u00a0\u00a0Holds that there has been a violation of Article\u00a06 \u00a7 1 of the Convention by reason of a denial of access to court;","elements":[]},{"content":"4.\u00a0\u00a0Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;","elements":[]},{"content":"5.\u00a0\u00a0Holds","elements":[]},{"content":"(a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article\u00a044\u00a0\u00a7\u00a02 of the Convention, the following amounts:","elements":[]},{"content":"(b)\u00a0\u00a0that 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;","elements":[]},{"content":"6.\u00a0\u00a0Dismisses the remainder of the applicant's claim for just satisfaction.","elements":[]},{"content":"Done in English, and notified in writing on 2 November 2004, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.","elements":[]}],"section_name":"conclusion"}] zzbGQ 33)- G001-67248CASE OF TREGUBENKO v. UKRAINECHAMBERECLI:CE:ECHR:2004:1102JUD00613330061333/002004-11-02 00:00:002004-11-02 00:00:00ENGSecond SectionCourt500.118835449219UKR48;[{"content":"PROCEDURE","elements":[{"content":"1.\u00a0\u00a0The case originated in an application (no. 61333/00) against lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Ukrainian national, Mr Leonid Tregubenko (\u201cthe applicant\u201d), on 23\u00a0March\u00a01999.","elements":[]},{"content":"2.\u00a0\u00a0The applicant was represented by Mrs Anne-Marie Neu, a lawyer practising in . The Ukrainian Government (\u201cthe Government\u201d) were represented by their Agents \u2013 Mrs V. Lutkovska, succeeded by Mrs\u00a0Z.\u00a0Bortnovska.","elements":[]},{"content":"3.\u00a0\u00a0The applicant alleged, in particular, that the quashing of the final and binding court decision given in his favour in supervisory review proceedings violated his rights under Article 6 \u00a7 1 of the Convention and Article 1 of Protocol No. 1.","elements":[]},{"content":"4.\u00a0\u00a0The application was allocated to the Second Section of the Court (Rule\u00a052 \u00a7\u00a01 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 \u00a7 1 of the Convention) was constituted as provided in Rule 26 \u00a7 1.","elements":[]},{"content":"5.\u00a0\u00a0By a decision of 21 October 2003, the Court declared the application partly admissible.","elements":[]},{"content":"6.\u00a0\u00a0The applicant and the Government each filed observations on the merits (Rule 59 \u00a7 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 \u00a7 3 in fine), the parties replied in writing to each other's observations.","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE","elements":[{"content":"7.\u00a0\u00a0The applicant was born in 1947 and lives in the city of .","elements":[]},{"content":"8.\u00a0\u00a0As of 1988 the applicant ran a business in the city of , , keeping a part of his profit in cash.","elements":[]},{"content":"9.\u00a0\u00a0By the Presidential Decree of 22\u00a0January\u00a01991, the bank-notes of 50\u00a0and 100 Soviet roubles issued in 1961 ceased to circulate and had to be exchanged for the notes of the same nomination issued in 1991. The Decree of the Cabinet of Ministers of the same date specified the procedure of exchange, providing, inter alia, that a special sub-commission (hereinafter the exchange commission) should be created within the executive committees of the City or District Councils to decide on the exchange of bank-notes. The exchange commissions were empowered to allow or refuse exchanges fully or in part, depending on the legality of the source of income being proved.","elements":[]},{"content":"10.\u00a0\u00a0In January 1991 the applicant put the amount of 230,000 Soviet roubles in 50 and 100 notes into an account at the Yalta Branch of the USSR State Bank. At the same time ts the Court in Polish (Rule 34 \u00a7\u00a03), a hearing took place in public in the Human Rights Building, Strasbourg, on 7 October 1999.","elements":[]},{"content":"There appeared before the Court:","elements":[]},{"content":"The Court heard addresses by Mr So\u0142haj and Mr Drzewicki, and also Mr\u00a0Drzewicki's and Mr Tor's replies to questions put by the judges of the Court.","elements":[]}],"section_name":"procedure"},{"content":"THE FACTS","elements":[{"content":"I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE","elements":[{"content":"6.\u00a0\u00a0The applicant, born in 1946, is disabled in that he is blind in one eye and his sight in the other is severely impaired.","elements":[]},{"content":"7.\u00a0\u00a0On 5 May 1994 at noon the applicant, with the dog he uses as a guide dog, went to Krak\u00f3w Post Office no. 30 to check his post-office boxes. He was accompanied by W.K. The applicant's post-office boxes had been opened and were empty. The applicant complained to the post-office clerks who subsequently called the police, alleging that the applicant was drunk and behaving offensively.","elements":[]},{"content":"8.\u00a0\u00a0On the same day, at 12.20 p.m., the applicant was taken by police officers to the Krak\u00f3w sobering-up centre (Izba Wytrze\u017awie\u0144) and detained there for six hours and thirty minutes. The staff of the centre filled out a form recording the applicant's stay.","elements":[]},{"content":"9.\u00a0\u00a0The form was pre-printed. It bore the number 006107/94 and was entitled \u201cCard recording a stay in a sobering-up centre\u201d. It had been filled out by hand. After details of the applicant's identity, the form was divided into seven sections. The first section, entitled \u201cRequest for admission\u201d, indicated that the applicant had arrived at the centre at 12.45 p.m. The reason for the arrest was partly typed and partly handwritten. The operative part of section 40(1) of the Law of 26 October 1982 (cited below in paragraph 26) was typed in. The handwritten note read:","elements":[]},{"content":"\u201c[The applicant] made a row at the post office in Urocza Osiedle.\u201d","elements":[]},{"content":"10.\u00a0\u00a0The second section, entitled \u201cDoctor's assessment\u201d and signed by a doctor, read:","elements":[]},{"content":"\u201c1.\u00a0\u00a0Anamnesis:","elements":[]},{"content":"(1)\u00a0\u00a0Circumstances, kind and quantity of alcohol drunk, facts surrounding intoxication: [handwriting] evident smell of alcohol \u2013 refused to take a breath test","elements":[]},{"content":"...","elements":[]},{"content":"2.\u00a0\u00a0Examination of the person brought in:","elements":[]},{"content":"(1)\u00a0\u00a0Behaviour: lucid; unconscious; somnolent; talkative; calm; rowdy; reticent; composed [the words \u201clucid\u201d and \u201ctalkative\u201d were underlined by hand]","elements":[]},{"content":"(2)\u00a0\u00a0Mood: cheerful; depressed, average; excited [the word \u201caverage\u201d was underlined by hand]","elements":[]},{"content":"(3)\u00a0\u00a0Walk: steady; unsteady; lack of balance [the word \u201cunsteady\u201d was underlined by hand]","elements":[]},{"content":"(4)\u00a0\u00a0Speech: clear; blurred; mumbling [the word \u201cblurred\u201d was underlined by hand]","elements":[]},{"content":"(5)\u00a0\u00a0Traces of vomit: visible; invisible [the word \u201cinvisible\u201d was underlined by hand]","elements":[]},{"content":"(6)\u00a0\u00a0Pulse: regular; irregular; strong; weak [the words \u201cregular\u201d and \u201cstrong\u201d were underlined by hand]","elements":[]},{"content":"(7)\u00a0\u00a0Heart: regular beat; irregular beat; clear tones; unclear [the words \u201cregular beat\u201d and \u201cclear tones\u201d were underlined by hand]","elements":[]},{"content":"(8)\u00a0\u00a0Pupils: wide; normal; abnormal; narrow; slow to react; no reaction [the word \u201cnormal\u201d was underlined by hand]","elements":[]},{"content":"(9)\u00a0\u00a0Skin: pale; red; normal supply of blood; blue [the words \u201cnormal supply of blood\u201d were underlined by hand]","elements":[]},{"content":"(10)\u00a0\u00a0Lungs: [illegible handwriting]","elements":[]},{"content":"(11)\u00a0\u00a0State of abdominal cavity: [handwriting] abdomen [illegible adjective]","elements":[]},{"content":"(12)\u00a0\u00a0Injuries: [handwriting] none","elements":[]},{"content":"(13)\u00a0\u00a0Other ailments: [handwriting] sight seriously impaired","elements":[]},{"content":"(14)\u00a0\u00a0Description of the state of the person examined: [handwriting] state of moderate intoxication","elements":[]},{"content":"[Print] As a result of the examination I find that the person brought in:","elements":[]},{"content":"(1)\u00a0\u00a0is in a state of intoxication justifying keeping him in a sobering-up centre for [handwriting] 6 [print] hours [that entry was underlined by hand]","elements":[]},{"content":"(2)\u00a0\u00a0should be taken to a public health-care establishment [not selected]","elements":[]},{"content":"(3)\u00a0\u00a0should not be placed in a sobering-up centre [not selected]\u201d","elements":[]},{"content":"11.\u00a0\u00a0The subsequent sections were entitled \u201cIII.\u00a0\u00a0Decision of the head of the centre/shift\u201d and \u201cIV.\u00a0\u00a0Objects to be kept in the centre's custody\u201d. This section listed the objects taken from the applicant as follows:","elements":[]},{"content":"\u201c... identity card [no.] DB 3429943; [illegible description of other documents]; 654,700 [old] zlotys (PLZ); Polyot watch [made of] golden metal; tear-gas gun; [illegible description of other items]; keys (eighteen); purse; jacket; shirt; trousers; belt; shoes.\u201d","elements":[]},{"content":"12.\u00a0\u00a0Section V, entitled \u201cAlcohol taken from [the person concerned]\u201d, contained no entry. Section VI, entitled \u201cStay in the sobering-up centre\u201d, contained a list of the measures which could be applied to an intoxicated person (they included administering medicines, a warm or cold bath, solitary confinement, physical restraint by means of belts or a strait-jacket) and a description of his behaviour. The applicant's behaviour, mental and physical state were assessed as \u201cgood\u201d. The last section, \u201cVII.\u00a0\u00a0Release from the sobering-up centre\u201d, recorded that after six and a half hours the applicant had been assessed by the doctor as \u201csober\u201d and released at 7.15 p.m. A handwritten note indicated that the applicant had refused to sign the card.","elements":[]},{"content":"13.\u00a0\u00a0On 10 May 1994 the applicant requested the Krak\u00f3w District Prosecutor (Prokurator Rejonowy) to institute criminal proceedings against the police officers who had arrested him on 5 May 1994 and against the staff of the Krak\u00f3w sobering-up centre. He alleged that the policemen had beaten him and complained about the behaviour of the staff of the centre.","elements":[]},{"content":"14.\u00a0\u00a0On 29 May 1994 the applicant sued the Treasury in the Krak\u00f3w Regional Court (S\u0105d Wojew\u00f3dzki), seeking compensation \u201cfor unlawful attacks by agents of the State on 5 May 1994 and theft of personal possessions\u201d. The court considered that the applicant's claim should be examined as a claim for compensation for manifestly unjustified arrest, under Article 487 of the Code of Criminal Procedure.","elements":[]},{"content":"15.\u00a0\u00a0On 28 November 1994 the Krak\u00f3w Regional Court dismissed the claim, finding that the applicant's arrest had been justified. That decision reads as follows:","elements":[]},{"content":"\u201cOn the basis of [the applicant's] testimony, written information from the XIIth Police Station and the [materials] contained in file no. 2 DS 1842/94 of the Krak\u00f3w District Prosecutor, that is, the detention form ... no. 006107 containing the request for admission, we find that on 5 May 1994 [the applicant], being under the influence of alcohol, caused a disturbance of public order [zak\u0142\u00f3ci\u0142 porz\u0105dek publiczny] in Post Office no. 30 ... in Krak\u00f3w. The police intervened at the request of the postal clerks.