BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF MAKHMUDOV v. RUSSIA
(Application
no. 35082/04)
JUDGMENT
STRASBOURG
26 July 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Makhmudov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni,
judges,
and Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 5 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35082/04) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Rustam Khamidovich
Makhmudov (“the applicant”), on 27 September 2004.
- The
applicant was represented before the Court by Mr I. Puzanov, a lawyer
practising in Moscow. The Russian Government (“the Government”)
were represented by Mr P. Laptev, Representative of the
Russian Federation before the European Court of Human Rights.
- The
applicant complained, in particular, about a violation of his right
to freedom of assembly, unlawful detention at a police station in
inhuman conditions and a lack of any compensation in this connection.
- On
9 March 2006 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having considered the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1950 and lives in Moscow. At the material time
the applicant was a district councillor.
A. Public assembly on 4 September 2003
- On
21 August 2003 the non-governmental organisation “City-wide
public council for the protection of citizens' rights in town
planning and for the protection of the environment” decided to
hold an assembly of Krylatskoye district residents at the
Zashchitnikov Neba Square in Moscow. The purposes of the assembly
were:
(1) to
protest against the Moscow mayor's failure to respond to the
resolution of the assembly held in May 2003;
(2) to
protest against the planned construction of several luxurious blocks
of flats in the place of facilities for sports and children;
(3) to
cast a vote of no confidence in the city authorities and call for
their resignation;
(4) to
discuss matters of local self-governance.
- On
25 August 2003 the applicant, together with three other co-organisers
of the assembly, informed the Prefecture of the Western
Administrative District of Moscow – the residential district of
Krylatskoye being in its jurisdiction – of the date, time,
place and purposes of the assembly. The assembly was scheduled to
take place from 6.30 to 8.30 p.m. on Thursday, 4 September 2003,
with the participation of about a hundred persons.
- On
29 August 2003 the prefect of the Western Administrative District of
Moscow issued a decision to accept the notice and instructed the
police to ensure public safety during the assembly.
- The
applicant and co-organisers informed residents of the Krylatskoye
district about the planned assembly by way of bill-posting.
- On
3 September 2003 the prefect cancelled his previous decision of 29
August 2003 “in connection with the operative information of
law-enforcement authorities about an expected outbreak of terrorist
activities in the Krylatskoye district and with a view to ensuring
the safety of the district's residents”. The police were
instructed “to take measures to prevent the assembly planned
for 4 September 2003 at the Zashchitnikov Neba Square from being
held”.
- On
4 September 2003 a few dozen residents gathered on the Zashchitnikov
Neba Square and the applicant was among them. No loud speakers were
deployed and no attempts were made to start a general discussion.
Nevertheless, the police dispersed the crowd by force.
- On 5, 6 and 7 September 2003 (Friday to Sunday) the
“Day of the City” was celebrated throughout Moscow. The
programme for the festivities had been approved by the Moscow
Government's resolution of 12 August 2003 and included sixty-one
events. The events – such as the “World-wide Tea
Festival”, the opening ceremony, “Parade of the
Festivals”, the European champions' road running cup, the
Moscow cup of the automobile all-round competition, the children's
artistic and sport performance, sound and light show, students'
parade, and many others – took place in major public
thoroughfares. The applicant submitted media reports showing that no
scheduled events had been cancelled and that the public festivities
had been attended by thousands of people.
B. The applicant's overnight detention at the police
station
- The
applicant left the Zashchitnikov Neba Square in a private car at
about 8 p.m. At a nearby crossing the police blocked his car and,
holding the driver at gun-point, took the applicant out of the car by
force and escorted him to Krylatskoye district police station (ОВД
района
«Крылатское»).
- According to the administrative-arrest record of 4
September 2003, the applicant was arrested for refusing to comply
with a lawful order of the police.
- Following the applicant's complaints about unlawful
police actions, the Kuntsevskiy District Prosecutor interviewed the
officers who had apprehended the applicant. Captain F., Officer D.
and the driver, L., stated that they had been present at the meeting
site since 6 p.m. At 8 p.m., when people were beginning to leave,
they had arrested the applicant and taken him to the police station
“for clarification of facts, namely the [legal] ground for
holding a public assembly”. Mr N., who had been the duty
officer at the police station, testified that at 8 p.m. the head of
the police station had told him to prepare a report on an
administrative offence of disobedience of police orders committed by
Mr Makhmudov, who had been “detained for conducting an
unauthorised meeting”.
- At
the police station the applicant was placed in a cell where he
remained until he was brought before a judge on the following day
(see below). The cell was dirty and covered with spittle; the
applicant was not given any food or drink.
C. Administrative proceedings against the applicant
- On
5 September 2003 the applicant was brought before a judge of the
Kuntsevskiy District Court of Moscow. He was charged with disobeying
lawful police orders and with organising an unauthorised assembly,
these being administrative offences under Articles 19.3 and 20.2 of
the Code on Administrative Offences. The two charges were examined
separately.
1. The charge of disobeying lawful police orders
- Examining the charge of disobedience, the judge found
as follows:
“During the preparation and examination of the
administrative case a number of breaches of the Code of
Administrative Offences have been revealed. These breaches are the
grounds for remitting the file to the head of the police station...
It is not clear from the case material what the
offender's stance is with regard to the offence imputed to him; it
appears from his statement that he has not committed any offence;
however, in breach of Article 28.2 of the Code, the report does not
list witnesses who could confirm the guilt of the offender; nor does
it refer to other evidence confirming the offending acts or
disobedience of police orders. Besides, it transpires from the
decision on the institution of administrative proceedings and the
opening of an administrative inquiry that on 5 September 2003 an
administrative inquiry was ordered, but no such inquiry has actually
been carried out as the file does not contain any depositions or
other additional material obtained by such an inquiry. Furthermore,
pursuant to Article 28.2 § 2 of the Code, a report on an
administrative offence punishable by administrative arrest must be
submitted for judicial examination immediately after its issuance.
The administrative-arrest record concerning Mr Makhmudov had been
prepared at 8 p.m. on 4 September 2003 but the material was submitted
to the court only at 4.30 p.m. on 5 September 2003. Finally, the
report contains no information as to who disobeyed the order, which
police officer gave the order, where he gave the order (house number)
or what kind of lawful order it was. The administrative-arrest record
does not refer to Article 19.3 of the Code, although the breach of
that provision was the basis for the applicant's arrest, or to the
grounds for arrest; the record does not describe the detainee's
clothing, absence or presence of bodily injuries, or to whom the
information about the arrest was communicated. The information on the
identity of attesting witnesses is incomplete, the attesting witness
no. 2 did not sign the record, and witnesses for the defence have not
been examined.”
- The
judge returned the material to Krylatskoye police station for
correction of the above defects and ordered the applicant's release
at 5.10 p.m.
- On
7 October 2003 the police resubmitted the file to the court.
- On 29 October 2003 the Kuntsevskiy District Court
found that the police had not made good the defects identified in the
decision of 5 September 2003. The judge opined as follows:
“Mr Makhmudov unambiguously declared himself not
guilty of the imputed offence and listed the following [nine]
witnesses as being ready to testify that he had not committed any
illegal actions against the police officers.
Taking into account that the available material is
insufficient for finding Mr Makhmudov guilty of the
administrative offence, that the court has taken measures to make
good the defects in the material and for supplementing the evidence,
and that those defects have not been remedied, the court considers
that all the measures for proving Mr Makhmudov's guilt of the offence
have been exhausted and – as the available evidence is not
sufficient for a finding of guilt – finds it necessary to
discontinue the proceedings”.
- Following
the applicant's complaint that the legal basis for discontinuance of
the proceedings had not been set out explicitly, on 2 December
2003 that decision was quashed by a higher court and the matter
remitted for a new examination.
- On
19 December 2003 the Kuntsevskiy District Court ordered the
discontinuance of the proceedings on the ground that the two-month
prescription period had expired.
2. The charge of organising an unauthorised assembly
- Having
examined the witnesses for the defence, who denied that the assembly
had taken place, and the police officers who testified for the
prosecution, the judge found that the applicant had been in breach of
the established procedure for organising public assemblies. He had
known that the prefect's decision of 29 August 2003 had been reversed
but proceeded nevertheless with organisation of the assembly. The
judge fined the applicant 1,000 Russian roubles (approximately 30
euros).
- On
6 July 2004 the Moscow City Court upheld that decision on an appeal
by the applicant.
D. Judicial review of the prefect's decision of 3
September 2003
- The
applicant challenged the prefect's decision of 3 September 2003
before the Kuntsevskiy District Court. He claimed that it had no
legal basis, for Russian law did not permit cancellation of an
authorised assembly, that it had been issued too late, on the eve of
the assembly, and that it could not be founded on the “operative
information”. He also sought a declaration that the police had
unlawfully dispersed the assembly by force.
- The District Court asked Krylatskoye police station
and the police command of the Western Administrative District of
Moscow to produce the operative information which had been the basis
for cancelling the authorisation.
- On 16 December 2003 Krylatskoye police station replied
that there had been no such information in their possession.
- On 21 January 2004 the police command of the Western
Administrative District replied that the material requested was
classified as secret and for that reason could not be made available
to the judge.
- The applicant asked the District Court to relinquish
jurisdiction to the Moscow City Court which was competent, under
national law, to hear cases involving confidential material. In an
interim decision of 30 January 2004, the District Court refused
the request, holding that the purpose of the proceedings was to
establish whether or not the prefect's decision had been lawful
rather than whether the prefect had or had not received information
from the law-enforcement authorities.
- In a judgment of 30 January 2004, the District Court
rejected the applicant's complaint. It established that the prefect
had issued the contested decision further to a letter from the head
of the police command of the Western Administrative District of 2
September 2003. In that letter, the police officer had asked the
prefect to annul his decision of 29 August 2003 because the police
command “had received, from various sources, information about
potential terrorist attacks in Moscow, in places of mass gatherings”.
The District Court continued as follows:
“In the court's view, the information of
law-enforcement authorities about a possibility of subversive and
terrorist attacks in Moscow in places of mass gatherings potentially
presupposes the existing threat of violence not just against those
citizens who intend to take part in the meeting but also against
those citizens who had no intention of exercising their
constitutional right to freedom of mass assemblies.
No evidence contradicting the information contained in
the letter from the police command of the Western Administrative
District to the prefect of the Western Administrative District has
been produced before the court. The prefect's decision of 3 September
2003 was issued not in connection with the notice filed by the
assembly organisers but in connection with a threat of increasing
terrorist activities in the areas of mass gatherings, with a view to
ensuring the security of the Krylatskoye District's residents...
Assessing the contested decision, the court finds that
the prefect ... acted within the competence of the State body and
[his actions] were appropriate to the presumed threat and complied
with the Russian Constitution...”
As
regards the forceful actions of the police in dispersing the meeting,
the District Court found as follows:
“Taking into account the submissions by the
claimant and his representatives, by the representatives of the
police command of the Western Administrative District and of
Krylatskoye police station, and having examined the video material
submitted by the claimant and by Krylatskoye district council, the
court finds that the actions of the Krylatskoye district police,
which were aimed at preventing the mass action from taking place in
connection with a real threat to life, health and security of
citizens, were compatible with [the Moscow regulations on
co-ordinated police action during mass assemblies] and the
requirements of Article 17 § 3 of the Constitution which
prohibits violations of rights and freedom of others, including
during the exercise of the constitutional right to organise meetings,
demonstrations, marches and pickets, having regard to the special
conditions in the city of Moscow.”
- The
applicant lodged an appeal. He submitted, in particular, that not a
single public gathering organised by the Moscow mayor's office in the
framework of the “Day of the City” had been cancelled as
a result of a potential terrorist threat. He pointed out that the
District Court had failed to supply a concrete legal basis for the
prefect's decision to cancel the assembly permit.
- On
8 April 2004 the Moscow City Court, in summary fashion, rejected the
applicant's appeal.
E. Civil claim for damages on account of unlawful
arrest
- On 13 November 2003 and 25 March 2004 the applicant
lodged a civil claim for damages against Krylatskoye police station,
the Moscow branch of the federal treasury and the Ministry of the
Interior. He sought compensation for unlawful arrest and overnight
detention in inhuman conditions, without sleep, food or drink.
- On
6 July 2004 the Kuntsevskiy District Court dismissed the applicant's
claim, finding that Article 1070 of the Civil Code did not provide
for State officials' liability for non-pecuniary damage incurred
through unlawful administrative arrest.
- On
14 April 2005 the Presidium of the Moscow City Court quashed that
decision and remitted the claim for a fresh examination.
- On
16 November 2005 the Kuntsevskiy District Court dismissed the
applicant's claim again. It noted that in cases of administrative
arrest, State officials would be liable for non-pecuniary damage only
if a fault on their part were proven. The applicant had been detained
for 21 hours and 10 minutes for his failure to comply with a lawful
police order. His arrest had been lawful because the Constitution
only required a judicial decision if the relevant period of custody
exceeded forty-eight hours. The administrative case against him had
been discontinued on a formal ground – the expiry of the
prescription period – rather than by a finding of his
innocence. Having regard to these circumstances, the District Court
found that the State officials had acted within their competence and
powers and therefore could not be held liable for non-pecuniary
damage sustained by the applicant.
- On
2 March 2006 the Moscow City Court, on an appeal by the applicant,
upheld the judgment of 16 November 2006, endorsing, in summary
fashion, the District Court's reasoning.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Public assemblies
- The
Constitution guarantees the right to freedom of peaceful assembly and
the right to hold meetings, demonstrations, marches and pickets
(Article 31).
- Decree
of the Presidium of the USSR Supreme Council no. 9306-XI of 28 July
1988 (in force at the material time pursuant to Russian Presidential
Decree no. 524 of 25 May 1992) provided that organisers of an
assembly were to serve written notice on the municipal authorities no
later than ten days before the planned assembly (§ 2). The
authority was to give its response no later than five days before the
assembly (§ 3). An assembly could be banned if its purpose was
contrary to the Constitution or threatened public order or the
security of citizens.
- The
provisional regulations on the procedure for notification of the
executive branch of the Moscow authorities about meetings, street
marches, demonstrations and pickets in streets, squares and other
public places, approved by Presidential Decree no. 765 of 24 May
1993, provided that notice of an assembly was to be served by the
assembly organisers on the executive body between the fifteenth and
tenth day before the planned assembly (§ 2). The executive body
could refuse to accept the notice if the purpose of the assembly was
contrary to the principles of the Universal Declaration of Human
Rights, generally accepted public morals, if there was no undertaking
on the part of the organisers to ensure public safety, if the
assembly coincided in time and place with another one, if it
threatened normal functioning of companies or organisations, or if it
required suspending public or rail transport (§ 4). The
executive body, in cooperation with the organisers, could suggest a
different place, time or route of the assembly in order to ensure
public safety (§ 5). Refusal to accept notice of an assembly was
amenable to judicial review (§ 10).
B. Suppression of Terrorism Act
- The
Suppression of Terrorism Act (Federal Law no. 130-FZ of 25 July
1998, in force at the material time) provided that the Ministry of
the Interior fought terrorism by way of preventing, detecting and
putting an end to terrorist offences pursuing lucrative goals
(section 7 § 3).
- Regional
executive bodies, municipal bodies, public associations and
organisations and State officials were required to assist the
authorities responsible for suppression of terrorism (section 9 §
1).
C. Administrative arrest
- The Code of Administrative Offences of 30 December
2001 provides as follows:
Article 27.3. Administrative arrest
(administrativnoye zaderzhaniye)
“1. Administrative arrest, that is a
temporary restriction of liberty of an individual, may be ordered in
exceptional circumstances where it is necessary for a correct and
prompt examination of the administrative case...”
Article 27.5. Duration of administrative
arrest
“1. The duration of administrative
arrest must not exceed three hours, except for situations described
in paragraphs 2 and 3 of the present Article...
3. Anyone who is subject to administrative
proceedings concerning an offence punishable by administrative
detention, may be placed under administrative arrest for a period not
exceeding forty-eight hours.”
- Article 19.3 provides that disobedience of a lawful
order or demand of a police officer is punishable by an
administrative fine or by up to fifteen days' administrative
detention (administrativnyi arest).
D. Compensation for unlawful deprivation of liberty
- The State or regional treasury is liable –
irrespective of any fault by State officials – for the damage
sustained by an individual on account of unlawful criminal
prosecution, unlawful application of a preventive measure in the form
of placement in custody or an undertaking not to leave the place of
residence, or an unlawful administrative penalty in the form of
detention or community work (Article 1070 § 1 of the Civil
Code). Damage incurred by an individual through unlawful acts of the
investigation or prosecution authorities in a form other than listed
above is compensated for in accordance with the general grounds
giving rise to liability for damage, that is on the condition that
the fault of the person who inflicted the damage has been proven
(Article 1069 read in conjunction with Article 1064).
- A court may hold the tortfeasor liable for
non-pecuniary damage incurred by an individual through actions
impairing his or her personal non-property rights, such as the right
to personal integrity and the right to liberty of movement (Articles
150 and 151). Non-pecuniary damage must be compensated for
irrespective of the tortfeasor's fault in the event of unlawful
conviction or prosecution, unlawful application of a preventive
measure in the form of placement in custody or an undertaking not to
leave the place of residence, or an unlawful administrative penalty
in the form of detention or community service (Article 1100 §
2).
THE LAW
I. ORDER OF EXAMINATION OF THE COMPLAINTS
- The
Court considers it appropriate to examine the applicant's complaints
in the chronological order of the events that gave rise to them. It
will first determine whether there has been a violation of the
applicant's right to freedom of assembly and subsequently examine the
issues relating to the material and legal aspects of his deprivation
of liberty and the availability of an enforceable right to
compensation.
II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
- The
applicant complained under Article 11 of the Convention that the
authorities had prevented a peaceful assembly from being held on
4 September 2003 under the pretence of a “terrorist
threat”, whereas that ground had not been invoked to cancel
mayor-sponsored festivities two days later. Article 11 reads as
follows:
“1. Everyone has the right to freedom
of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the
exercise of these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of national
security or public safety, 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...”
A. Admissibility
- The Government submitted that the applicant had not
exhausted effective domestic remedies in that he had not complained
to a prosecutor about an alleged violation of his right to freedom of
assembly.
- The applicant replied that an application to a
prosecutor was not considered an effective remedy in the Court's
case-law. In any event, he had availed himself of the right to
judicial review of the prefect's decision.
- The Court reiterates its settled
case-law to the effect that a complaint which does not give the
person submitting it a personal right to the exercise by the State of
its supervisory powers does not constitute an “effective
remedy” (see, for example, Horvat v. Croatia,
no. 51585/99, § 47, ECHR 2001 VIII). In the
Russian legal system the prosecutor is not required to hear
representations from the complainant, who is not a party to any
proceedings and is only entitled to obtain information about the way
in which the prosecutor has dealt with the complaint. It follows that
a complaint to a prosecutor was not a remedy to be exhausted. On the
other hand, the applicant could, and did, make use of the possibility
of obtaining judicial review of the prefect's decision by which the
assembly authorisation had been revoked. The Court therefore
dismisses the Government's objection as to the non-exhaustion of
domestic remedies.
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Whether there was interference
- The
Court reiterates at the outset that the right to freedom of assembly
covers both private meetings and meetings in public thoroughfares as
well as static meetings and public processions; this right can be
exercised both by individual participants and by those organising the
assembly (see Djavit An v. Turkey, no. 20652/92,
§ 56, ECHR 2003 III, and Christians against Racism
and Fascism v. the United Kingdom, no. 8440/78, Commission
decision of 16 July 1980, Decisions and Reports 21, p. 138, at p.
148). The term “restrictions” in paragraph 2 of Article
11 must be interpreted as including both measures taken before or
during the public assembly, and those – such as punitive
measures – taken after the meeting (see Ezelin v. France,
judgment of 26 April 1991, Series A no. 202, § 39).
- The
applicant in the present case attempted to organise a meeting of
local residents to protest against the Moscow government's
town-planning policy. However, permission for the assembly was
withdrawn on the eve of the day when it was due to take place. The
meeting was dispersed by the police and the applicant was fined for
having taken part in an unauthorised assembly. The Court considers
that these measures – taken before, during and after the
planned meeting – amounted to interference with the applicant's
right to freedom of assembly. Accordingly, its task is to determine
whether the interference was justified.
2. Whether the interference was justified
(a) Submissions by the parties
- The
applicant submitted that the allegation of possible terrorist attacks
in places of mass gatherings had been mere conjecture not supported
by any facts. In the domestic proceedings the police command of the
Western Administrative District of Moscow had refused to submit
relevant material to the District Court, citing its confidential
nature. In the Strasbourg proceedings the Government had not produced
any proof that such a threat had actually existed and had been real.
The burden of proof was on the party making the allegation and the
Government had failed to discharge it in the present case.
- The
applicant stressed that the festivities dedicated to the “Day
of the City” had not been cancelled despite the alleged risk of
terrorist attacks. The real reason behind the prohibition on his
assembly lay in the fact that it had been directed against the Moscow
mayor and government and that it had coincided in time with the
festivities organised by those same authorities.
- The
applicant pointed out that the interference was devoid of legal basis
because the legislation in force at the material time did not allow
the prefect to revoke a decision authorising a public assembly.
- The
Government emphasised that the applicant had been able to exercise
his right to freedom of assembly without any interference on several
occasions in the past. The restriction on his rights which is at
issue in the present case had been of an exceptional nature. It had
been imposed because the information about terrorist attacks in
places of mass gatherings had been received from the police. It had
been necessary for the prevention of disorder and crime, that is to
say terrorist attacks, and for the protection of the rights and
freedoms of citizens who had had no intention of taking part in the
meeting.
- The
Government maintained that under the Suppression of Terrorism Act the
prefect had not just a right but a legal obligation to restrict the
right to freedom of assembly if information about planned terrorist
attacks had been received from law-enforcement authorities.
- Finally,
the Government rejected as “tactless” the applicant's
reference to the successful celebration of the “Day of the
City” in support of his argument that there had been no valid
grounds for banning the assembly on 4 September 2003. They did
not elaborate on this argument.
(b) The Court's assessment
(i) General principles
- The
Court has recognised that the right of peaceful assembly enshrined in
Article 11 is a fundamental right in a democratic society and, like
the right to freedom of expression, one of the foundations of such a
society. As has been stated many times in the Court's judgments, not
only is democracy a fundamental feature of the European public order
but the Convention was designed to promote and maintain the ideals
and values of a democratic society. Democracy, the Court has
stressed, is the only political model contemplated in the Convention
and the only one compatible with it. By virtue of the wording of the
second paragraph of Article 11, the only necessity capable of
justifying an interference with the rights enshrined in that Article
is one that may claim to spring from “democratic society”
(see Christian Democratic People's Party v. Moldova,
no. 28793/02, §§ 62-63, ECHR 2006 ..., and Djavit
An, cited above, § 56).
- States
must not only safeguard the right to assemble peacefully but also
refrain from applying unreasonable indirect restrictions upon that
right. In view of the essential nature of freedom of assembly and its
close relationship with democracy there must be convincing and
compelling reasons to justify an interference with this right (see
Ouranio Toxo v. Greece, no. 74989/01, § 36,
ECHR 2005 X (extracts), and Adalı v. Turkey,
no. 38187/97, § 267, 31 March 2005, with further
references).
- In
carrying out its scrutiny of the impugned interference, the Court has
to ascertain whether the respondent State exercised its discretion
reasonably, carefully and in good faith. It must also look at the
interference complained of in the light of the case as a whole and
determine whether it was “proportionate to the legitimate aim
pursued” and whether the reasons adduced by the national
authorities to justify it are “relevant and sufficient”.
In so doing, the Court has to satisfy itself that the national
authorities applied standards which were in conformity with the
principles embodied in Article 11 and, moreover, that they based
their decisions on an acceptable assessment of the relevant facts
(see, among other authorities, Christian Democratic People's
Party, § 70, cited above).
(ii) Application of the above principles
to the present case
- The
Court notes at the outset that the applicant complained about the
prohibition on the meeting scheduled for 4 September 2003 rather
than about any general measures affecting his right to freedom of
assembly. In these circumstances, the Government's argument that the
applicant had been previously able to exercise his right to freedom
of assembly is irrelevant.
- The
Government justified the lawfulness, legitimate aim and necessity of
the interference by reference to information about a possibility of a
terrorist attack which had made revocation of the permission for the
applicant's meeting imperative. The applicant denied that such
information had existed or that the threat had been actual.
- The
Court reiterates that, in assessing evidence in Convention
proceedings, it is habitually guided by the principle affirmanti,
non neganti, incumbit probatio (the burden of proof lies upon he
who affirms, not upon he who denies). The proof may follow
from the co-existence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact. In
certain instances the respondent Government alone have access to
information capable of corroborating or refuting specific
allegations. The failure on a Government's 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's
claims (see, among other authorities, Fadeyeva v.
Russia, no. 55723/00, § 79, ECHR 2005 IV, and
Ahmet Özkan and Others v. Turkey, no. 21689/93, §
426, 6 April 2004).
- The
Government's submissions in the present case were confined to the
affirmation that the information on a potential terrorist attack had
indeed been channelled by the law-enforcement authorities to the
prefect, who had taken the decision to revoke permission for the
applicant's meeting. The Court notes that the Government did not
corroborate the affirmation with any material or offer an explanation
as to why it was not possible to produce evidence substantiating
their allegation. Obviously, given the sensitive nature of the
information, solely the respondent Government, and not the applicant,
would have had access to that material.
- The
Court further notes that no evidence corroborating the necessity to
revoke the permission for the applicant's meeting was produced or
examined in the domestic proceedings. It appears that the District
Court initially considered such evidence relevant to the proceedings
on the applicant's complaint and made attempts to obtain it from the
police (see paragraph 28 above). The local police replied that it had
no such information, whereas the district police command refused to
make it available to the judge, citing its confidential character
(see paragraphs 29 and 30 above). The applicant then asked the court
to make use of the possibility provided for in domestic law of
relinquishing jurisdiction to a higher court competent to examine
classified information. The District Court refused that request,
holding that the availability of such information was no longer
relevant for determination of the lawfulness of the prefect's
decision (see paragraph 31 above). Nevertheless, in the judgment of
the same date, the District Court posited the assumption that the
information had actually existed and “presupposed the threat of
violence” against Moscow residents. It also held that the
applicant had failed to disprove that information by producing
evidence to contradict it. The Court observes that, in doing so, the
District Court shifted onto the applicant the burden of proof, which
was obviously impossible to satisfy without access to the police
files. The District Court also stated – without specifying the
reasons for that finding – that the terrorist threat had been
not merely potential but a real one which justified the police's
forcible actions in dispersing a public assembly which endangered the
life and limb of citizens (see paragraph 32 above). In reviewing the
matter on appeal, the City Court endorsed the District Court's
reasoning in summary fashion. In these circumstances, the Court finds
that the domestic judgments – in so far as they relied on
information about a “terrorist threat” as the ground for
banning the applicant's meeting – were based on assumptions
rather than on reasoned findings of fact.
- Furthermore,
examining the circumstances of the present case as a whole, the Court
perceives strong and concordant indications militating against the
Government's allegation that a potential terrorist attack had been
the true reason for banning the applicant's meeting. It was claimed
in the domestic proceedings that the prefect had been warned by the
police about an outbreak of terrorist activities “in places of
mass gatherings”. Such information, if sufficiently serious and
credible, would have required reinforced security measures in major
public thoroughfares, theatres, exhibition halls, sports facilities,
etc. The fact that alarming information was allegedly received on the
eve of mass celebrations dedicated to the “Day of the City”
would have called for heightened vigilance on the part of the
authorities and might indeed have necessitated cancelling certain
events to guarantee the security of participants. Nevertheless, it
transpires from the public documents and media reports –
submitted by the applicant and not contradicted by the Government –
that the public festivities organised by the Moscow mayor and
government had proceeded in accordance with the approved programme on
the days immediately following the scheduled date of the applicant's
meeting (see paragraph 13 above). Although the number of participants
at those festivities significantly exceeded the number expected for
the applicant's planned meeting, that meeting was the only public
event to have been cancelled on account of “an expected
outbreak of terrorist activities”.
- These
elements – the respondent Government's failure to produce any
evidence capable of substantiating the affirmation of a “terrorist
threat” as the ground for banning the applicant's meeting,
viewed in the light of the fact that solely the meeting directed
against the Moscow government's policies had been cancelled, whereas
the public festivities organised by the Moscow government had been
allowed to proceed without incident notwithstanding the alleged
“terrorist threat” – lead the Court to the
conclusion that, in banning the applicant's meeting, the domestic
authorities acted in an arbitrary manner. The Court finds that there
was no justification for the interference with the applicant's right
to freedom of association.
- There
has therefore been a violation of Article 11 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3
OF THE CONVENTION
- The
applicant complained that his detention at the police station had
been unlawful and that he had not been brought promptly before a
judge. The relevant parts of Article 5 provide as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so...
...
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge...”
A. Admissibility
- The
applicant's complaints concerned two aspects of his arrest and
detention. Firstly, he alleged that his arrest had been unlawful
because he had not breached any police order. Secondly, he claimed
that his appearance before a judge had not been secured in a “prompt”
manner.
- As
regards the lawfulness of the applicant's arrest, the Court
considers, in the light of the parties' submissions, that this aspect
of the complaint raises serious issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. The Court concludes therefore that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. No other ground for declaring it inadmissible has
been established.
- The
Court further observes that the applicant appeared before a judge
twenty-one hours after his arrest. It considers that this period can
be regarded as “prompt” for the purposes of Article 5 §
3 of the Convention (see, for example, Aquilina v. Malta [GC],
no. 25642/94, § 51, ECHR 1999 III). It follows that
this part of the complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
B. Merits
1. Submissions by the parties
- The
applicant pointed out that at the moment of his arrest he had already
left the meeting place and was being driven home. The police had
resorted to disproportionate force, blocking his car and holding the
driver at gun-point. He had not committed any offence of
disobedience, whether actual or alleged. Furthermore, his arrest had
not been necessary for the purpose of bringing him before a competent
authority or preventing him from re-offending or fleeing. Being a
prominent public figure and law-abiding citizen, there had been no
reason to believe that he would not appear before a judge. In a
judgment of 5 September 2003, he had not been found guilty of
the imputed offence of disobedience and, by virtue of the presumption
of innocence, should have been presumed innocent.
- The
Government submitted that the applicant had been subject to
administrative arrest for the offence of disobedience of a lawful
police order. That offence being punishable by, in particular,
administrative detention, the statutory period for holding the
suspect in custody was not to exceed forty-eight hours. As the
applicant had actually been deprived of his liberty for no more than
twenty-one hours, there had been no violation of Article 5 § 1
of the Convention.
2. The Court's assessment
- The
Court reiterates at the outset that an essential part of the
safeguard against arbitrary arrest and detention laid down in Article
5 § 1 (c) of the Convention is the “reasonableness”
of the suspicion on which an arrest must be based. Having a
“reasonable suspicion” presupposes the existence of facts
or information which would satisfy an objective observer that the
person concerned might have committed the offence (see K.-F. v.
Germany, judgment of 27 November 1997, Reports of Judgments
and Decisions 1997 VII, § 57, and Fox, Campbell
and Hartley v. the United Kingdom, judgment of 30 August
1990, Series A no. 182, § 32).
- According
to the formal arrest record, the applicant's arrest was effected in
connection with the offence of disobedience of a lawful police order
(see paragraph 15 above). Of the two offences imputed to the
applicant, only the offence of disobedience – but not the
offence of organising an unauthorised assembly – was punishable
by deprivation of liberty and therefore permitted administrative
arrest for up to forty-eight hours (see paragraphs 45 and 46 above).
- The
Court notes that the applicant consistently denied that he had
disobeyed any police order. The police, who formally invoked
disobedience of a lawful order as a ground for his arrest, were
unable to indicate to the domestic courts any facts or information
concerning the offence imputed to the applicant, let alone any
evidence in its support. The arresting officers – who had been
present at the site and would normally be presumed to have first-hand
knowledge of the circumstances of the offence of disobedience –
stated to a prosecutor that they had apprehended the applicant and
taken him to the police station for clarification of the legal basis
for holding the meeting rather than for disobedience of police
orders. They did not mention any orders which the applicant might
have disobeyed (see paragraph 16 above). In fact, the allegation of
disobedience was mentioned for the first time by the head of the
police station who told the duty officer – neither of them
having been present during the applicant's arrest – to draft a
report on the administrative offence allegedly committed by the
applicant (ibid.).
- As
pointed out in the District Court's judgment of 5 September 2003 (see
paragraph 19 above), the report prepared at the police station did
not indicate why the applicant had been suspected of disobedience;
nor did it specify who had given the order, where and when it had
been given, or what that order had been. Even after the police had
been afforded a second opportunity to clarify the nature of the
suspicion which had led to the applicant's arrest, they had failed to
do so, and this prompted the court to discontinue the proceedings
(see paragraph 22 above). The submissions by the respondent
Government to the Court contained no facts or information relating to
the offence of disobedience, which had allegedly been the basis for
the applicant's arrest.
- Furthermore,
if the police had indeed harboured a suspicion of the applicant's
involvement in the commission of an offence, it was incumbent on them
to carry out an investigation with a view to confirming or dispelling
the concrete suspicion grounding the applicant's arrest (see Brogan
and Others v. the United Kingdom, judgment of 29 November
1988, Series A no. 145 B, § 53). However, no
such investigation was carried out and the police made no attempt to
collect evidence capable of proving or disproving any suspicion
against the applicant which they might have had (see the District
Court's judgments of 5 September and 29 October 2003).
- In
these circumstances, the Court does not discern any facts or
information which could satisfy an objective observer that the
applicant might have committed the offence of disobedience which was
invoked as the basis for his arrest. It finds that the applicant's
arrest on 4 September 2003 was not based on a “reasonable
suspicion” and was therefore arbitrary.
- There
has therefore been a violation of Article 5 § 1 (c) of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that the conditions of his overnight detention
at Krylatskoye police station had been incompatible with Article 3 of
the Convention which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government claimed that the applicant had never mentioned the
allegedly inhuman conditions of his detention in many of his
complaints to prosecutors, the Ministry of the Interior or the
courts. They submitted that he had failed to exhaust domestic
remedies. In the civil proceedings he had not lodged an appeal
against the Kuntsevskiy District Court's judgment of 6 July
2004.
- The
applicant pointed out that the appalling conditions of his detention
had been described in his statement of claim lodged with the
Kuntsevskiy District Court. The District Court, however, had rejected
his claim in respect of non-pecuniary damage.
- Neither
the applicant nor the Government made submissions on the merits of
this complaint.
- As
regards the exhaustion of domestic remedies, the Court reiterates
that it is incumbent on the Government claiming non-exhaustion to
satisfy the Court that the remedy invoked was “effective”
in the sense either of preventing the alleged violation or its
continuation, or of providing adequate redress for any violation that
had already occurred (see Kudła v. Poland [GC],
no. 30210/96, § 158, ECHR 2000-XI).
- Given
the brevity of the applicant's detention at the police station, a
complaint to the authorities could obviously not have brought about
an improvement of the conditions of the detention before it ended. It
follows that the only “effective” remedies available to
the applicant were those capable of providing redress for the alleged
violation that had already occurred. A complaint to a prosecutor or
higher police officer would have perhaps resulted in disciplinary
measures against officers responsible for operation of the detention
wing but it would not have afforded any redress to the applicant
himself. In these circumstances, the applicant could have reasonably
expected that a civil action based on the general law of tort would
be an effective remedy and might lead to an award of compensation. It
appears from the applicant's statement of claim to the Kuntsevskiy
District Court that a reference to allegedly inhuman conditions of
his detention formed part of his claim for compensation (see
paragraph 35 above). The District Court, however, did not deal with
that part of the claim, confining its inquiry to the authorities'
compliance with procedural – rather than substantive –
aspects of the deprivation of liberty. Nevertheless, the applicant
did not raise this matter again on appeal or in the subsequent
proceedings following the quashing of the Kuntsevskiy District
Court's judgment by the Presidium of the Moscow City Court.
- It
follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
V. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE
CONVENTION
- The
applicant complained that he was unable to obtain compensation for
the detention which he considered unlawful. He relied on Article 5 §
5 which reads as follows:
“Everyone who has been the victim of arrest or
detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
A. Admissibility
- The
Government claimed that the applicant had not exhausted domestic
remedies because at the time he lodged his application with the Court
– on 27 September 2004 – the Presidium of Moscow City
Court had not yet considered his supervisory-review application.
- The
Court reiterates that the last stage of domestic remedies may be
reached shortly after the lodging of the application, but before the
Court is called upon to pronounce on admissibility (see Sağat,
Bayram and Berk v. Turkey (dec.), no. 8036/02, 6 March 2007,
and Ringeisen v. Austria, judgment of 16 July 1971, Series A
no. 13, § 91).
- At
the time the applicant lodged his application with the Court, his
application for supervisory review of the District Court's judgment
of 6 July 2004 was pending before the Moscow City Court. As the
Russian Code of Civil Procedure required regional courts to examine
applications for supervisory review within one month (Article 381 §
1), the applicant could have reasonably expected that the Presidium's
decision would be issued shortly thereafter. There is nothing to
indicate that the delay of several months in examining his
application for supervisory review was attributable to him. In any
event, the Court reiterates that an application for supervisory
review is not a remedy for purposes of exhaustion under Article 35
§ 1 of the Convention (see Denisov v. Russia (dec.), no.
33408/03, 6 May 2004). The Court therefore dismisses the Government's
objection.
- The
Court considers, in the light of the parties' submissions, that the
complaint raises serious issues of fact and law under the Convention,
the determination of which requires an examination of the merits. The
Court concludes therefore that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. No other ground for declaring it inadmissible has been
established.
B. Merits
- The
applicant emphasised that the right to compensation for unlawful
administrative arrest was not secured in Russian law. By contrast
with an arrest in criminal proceedings, in the case of administrative
arrest the victim had to prove that State officials were at fault.
- The
Government submitted that under the Russian law of tort, unlawful
administrative arrest constituted a cause of action in respect of
pecuniary and non-pecuniary damage. The applicant had made use of the
possibility of lodging a civil action, which had been examined at two
instances and dismissed because the courts had found his arrest
lawful. The Government emphasised that the administrative proceedings
against the applicant had been discontinued on account of the expiry
of the prescription period. That particular ground did not give rise
to liability of State authorities for any inconvenience which might
have been caused to the applicant.
- The
Court reiterates that Article 5 § 5 is complied with where it is
possible to apply for compensation in respect of a deprivation of
liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4.
The right to compensation set forth in paragraph 5 therefore
presupposes that a violation of one of the preceding paragraphs of
Article 5 has been established, either by a domestic authority or by
the Court (see Fedotov v. Russia, no. 5140/02, § 83,
25 October 2005, and N.C. v. Italy [GC], no. 24952/94, § 49,
ECHR 2002 X).
- In
the present case the Court has found a violation of paragraph 1 of
Article 5 in that the applicant's arrest was not based on a
“reasonable suspicion” of his having committed any
offence. It must therefore establish whether or not the applicant had
an enforceable right to compensation for the breach of Article 5.
- In
adjudicating the applicant's claim for compensation, the domestic
courts confined their review to the compliance of State officials
with the formal procedural requirements applicable in cases of
administrative arrest, leaving the reasonableness of the suspicion
grounding his arrest outside the scope of their inquiry. Noting that
the administrative proceedings against the applicant had been
discontinued upon expiry of the prescription period rather than by a
declaration of innocence, they determined that the applicant's arrest
and ensuing detention had been lawful under domestic law.
- The
Court further notes that the Russian law of tort limits strict
liability for unlawful detention to specific procedural forms of
deprivation of liberty which include, in particular, deprivation of
liberty in criminal proceedings and administrative punishment, but
exclude administrative arrest (see paragraphs 47 and 48 above). Since
the applicant was subject to administrative arrest, a mere finding of
its unlawfulness would not be sufficient for an award of
compensation; he would also have to prove that the State officials
were at fault (ibid.). Furthermore, where an individual was arrested
lawfully under domestic law but in breach of paragraph 1 of Article 5
of the Convention, that violation could not give rise, either before
or after the findings made by the European Court in the present
judgment, to an enforceable claim for compensation before the
domestic courts (compare Brogan and Others, cited above, §
67). It follows that the applicant did not have an enforceable right
to compensation for the administrative arrest effected in breach of
Article 5 § 1.
- There
has therefore been a violation of Article 5 § 5 of the
Convention.
VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
the domestic proceedings had been excessively long and that the
courts had been partial and biased because they had ruled against
him. He also complained under Article 1 of Protocol No. 1 about the
imposition of an administrative fine. In so far as the applicant
complained about the unfavourable outcome of the judicial proceedings
concerning his right to freedom of assembly, the Court notes that
this issue has already been addressed above and has led to a finding
of a violation of Article 11 of the Convention. The proceedings
lasted less than one year, which is not in excess of a “reasonable
time”, and the allegation of partiality and bias is not
supported by any material in the case-file. It follows that these
complaints are manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
- The
applicant lastly complained under Article 14 of the Convention that
during his detention the police officers had made disparaging
statements about his Tatar ethnic origin and that the prosecutor had
neglected to investigate this matter. The Court reiterates that
discrimination on account of one's ethnic origin or religion is a
form of racial discrimination, which is a particularly invidious kind
of discrimination and, in view of its perilous consequences, requires
from the authorities special vigilance and a vigorous reaction (see
Igor Artyomov v. Russia (dec.), no. 17582/05, 7 December
2006, and Timishev v. Russia, nos. 55762/00 and 55974/00, §
56, ECHR 2005-XII). However, Article 14 has no independent existence,
since it has effect solely in relation to the rights and freedoms
safeguarded by those provisions (see Inze v. Austria, judgment
of 28 October 1987, Series A no. 126, § 36). It follows
that this complaint is incompatible ratione materiae with the
provisions of the Convention within the meaning of Article 35 § 3
and must be rejected in accordance with Article 35 § 4.
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 120,000 euros (EUR) in respect of non-pecuniary
damage in connection with a violation of Article 3, EUR 100,000 for a
violation of Article 5, EUR 20,000 for a violation of Article 6 §
1, EUR 30,000 for a violation of Article 11, EUR 5,000 for a
violation of Article 1 of Protocol No. 1, EUR 5,000 for a violation
of Article 13, and EUR 20,000 for a violation of Article 14.
- The
Government considered that the amounts claimed were excessive and
that a finding of a violation would constitute sufficient just
satisfaction.
- The
Court notes that it has found a combination of serious human-rights
violations in the present case. The public assembly which the
applicant had attempted to organise was arbitrarily banned. He was
arrested without there being a reasonable suspicion of his having
committed any offence and was detained overnight. He did not have an
enforceable right to compensation for the unlawful arrest and
detention. Making a global assessment on an equitable basis, the
Court awards the applicant EUR 12,000 in respect of compensation
for non-pecuniary damage, plus any tax that may be chargeable on that
amount, and rejects the remainder of his claim.
B. Costs and expenses
- The
applicant claimed EUR 5,000 in respect of legal fees, 100 Russian
roubles (RUR) for certification of an authority form, RUR 1,934.05
for posting eighteen letters to the Court, RUR 8,226.96 for
translation of his observations into English, and subsequent expenses
in the event of an oral hearing being necessary. The applicant
submitted copies of postal and translation receipts and of a
legal-services contract providing for his obligation to pay his
representative EUR 2,000 for the preparation of written submissions
and EUR 3,000 for oral submissions at a hearing if necessary.
- The
Government pointed out the applicant was claiming EUR 3,000 in
legal fees and a further unspecified amount in respect of future
expenses relating to an oral hearing. These expenses, however, had
not been actually incurred. Furthermore, they claimed that the postal
expenses were unreasonable as to quantum because of an excessive
number of letters sent to the Court.
- The
Court is satisfied that the legal-services contract between the
applicant and his lawyer created a legally enforceable obligation to
pay the amounts indicated therein. However, since no oral hearing has
been held in the case, that obligation only extended to the amount
due for the preparation of written submissions. The expenses for
translation of the memorandum appear reasonable as to quantum and
should be reimbursed in full. The Court lastly notes that the number
of letters sent by the applicant's representative was excessive and
that a certain reduction of postal expenses must be applied. Having
regard to these elements, the Court awards the applicant EUR 2,250 in
respect of costs and expenses, plus any tax that may be chargeable on
that amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning an alleged
violation of the applicant's right to freedom of assembly, the
lawfulness of his arrest and the availability of the right to
compensation for unlawful arrest, admissible and the remaining
complaints inadmissible;
- Holds that there has been a violation of Article
11 of the Convention;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds that there has been a violation of Article
5 § 5 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
12,000 (twelve thousand euros) in respect of non-pecuniary damage;
(ii) EUR
2,250 (two thousand two hundred and fifty euros) in respect of costs
and expenses;
(iii) any
tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 26 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
