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FIFTH
SECTION
CASE OF
KOBETS v. UKRAINE
(Application
no. 16437/04)
JUDGMENT
STRASBOURG
14 February 2008
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 Kobets v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Snejana
Botoucharova,
Volodymyr
Butkevych,
Margarita
Tsatsa-Nikolovska,
Rait
Maruste,
Javier
Borrego Borrego,
Renate
Jaeger, judges,
and
Claudia Westerdiek, Section Registrar,
Having
deliberated in private on 22 January 2008,
Delivers
the following judgment, which was adopted on this date:
PROCEDURE
- The
case originated in an application (no. 16437/04) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Aleksey
Viktorovich Kobets (“the applicant”), on 25 March
2004.
- The
applicant, who had been granted legal aid, was represented by Messrs
V. Kasko and R. Kyrylyuk, lawyers practising in Kyiv, Ukraine. The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.
- On
7 September 2005 the Court decided to communicate the complaints
under Article 3 of the Convention concerning alleged ill-treatment of
the applicant by a police officer to the Government. Under the
provisions of Article 29 § 3 of the Convention, the Court
decided to examine the merits of the application at the same time as
its admissibility. The case was given priority under Rule 41 of the
Rules of the Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1977 and lives in Kyiv,
Ukraine.
A. The events of 7-8 July 2002
- On
7 July 2002 at 11 p.m. the applicant, with K. and M., had a fight
with a taxi driver, B., and damaged his car. The taxi driver informed
an operator at the taxi call centre that he had been assaulted. Two
more taxis, which at that time were nearby, arrived and the taxi
drivers tried to stop the fight. Another fight broke out, at the end
of which the applicant and K. were thrown to the ground and held face
down. M. ran away. In the meantime police arrived and arrested the
applicant and K.
- They
were brought to the Kyiv City Drug-Addiction Clinic (Київська
міська наркологічна
лікарня) where on 8
July 2002 at 1.25 a.m. the applicant was examined by a doctor, who
concluded that the applicant was drunk and
noted, inter alia,
that he had some scratches on his forehead and a bruise to his eye.
The applicant and K. were subsequently taken to the Solomyanskyy
District Police Station (Територіальне
відділення
міліції Солом'янського
районного
управління
ГУ МВС України
в м.Києві).
- According
to the applicant, the police officer, R., demanded that the applicant
sign a statement admitting that he had been involved in an assault.
When the applicant refused to do so, he was allegedly beaten with a
truncheon.
- When
the applicant complained of a headache and nausea, around 6 p.m.
an ambulance was called for him. The applicant was found to have
sustained numerous injuries to his face, head and ears. His body and
especially his back had numerous bruises from blows, possibly from
sticks. The ambulance doctor further concluded that the applicant had
symptoms of concussion. According to the ambulance medical report,
the applicant told the doctors that he had been beaten up by taxi
drivers. The doctors recommended that the applicant be hospitalised.
- On
8 July 2002 at 9 p.m. the applicant was released from the police
station. The applicant's mother called an ambulance to the police
station and at 10 p.m. the applicant was hospitalised with a closed
cerebral trauma, concussion and numerous bruises on his back. The
applicant told doctors that he had been beaten up by the police
officers during his arrest.
- On
9 July 2002 the ambulance doctor informed the police that the
applicant and K. had been hospitalised. According to the doctor, the
applicant and K. had said that they had been beaten up by the police.
The police officer, S., noted this and reported it to the head of the
Solomyanskyy District Police Station. His report was added to the
evidence in the criminal case against the applicant (see below).
- On
the same day an expert medical examination performed at the
applicant's request, revealed that the applicant had had minor
physical injuries (numerous scratches and bruises and concussion),
some of which could have been inflicted by a rubber truncheon. The
applicant told the expert that unknown persons had beaten him with
sticks on the night of 7 8 July 2002.
- On
15 July 2002 the applicant left the hospital. According to the
applicant, he was forced to leave, though he was not fully recovered;
he stayed at home afterwards for two more weeks.
B. Criminal proceedings against the applicant
- On
10 July 2002 the police instituted criminal proceedings against the
applicant for hooliganism.
- On
5 February 2003 the applicant was charged with the above crime.
- On
17 March 2003 the preliminary investigation was completed and the
case was referred to the court for examination.
- On
5 August 2003 the Solomyanskyy District Court of Kyiv discharged the
applicant from criminal liability in view of “the change in the
situation eliminating public danger of the offence and of the
applicant”. The applicant appealed, stating, inter alia,
that he had never agreed to the termination of the criminal
proceedings on this ground. On 7 October 2003 the Kyiv City Court of
Appeal upheld the decision of 5 August 2003. On 30 March 2004
the Supreme Court rejected the applicant's cassation appeal.
- By
a letter of 23 June 2004 the Supreme Court informed the applicant's
mother that it had been decided to request the applicant's case file
in order to decide whether to review his case under the extraordinary
review procedure. The applicant did not inform the Court of the
outcome of these proceedings.
C. The investigation into the alleged ill-treatment
- On 14 December 2002 the applicant's mother complained
of his ill-treatment and unlawful detention through the special
police hotline “The Telephone of Trust”. The applicant's
mother was then invited to a meeting with police officials at the
Ministry of Interior on 16 December 2002 to give evidence and submit
an official complaint.
- On
29 January 2003 the investigating officer, M., sent the materials of
the case related to the applicant's allegations that he had been
beaten up by the police officer, for additional scrutiny to the
Solomyanskyy District Prosecutor's Office (прокуратура
Солом'янського
району м. Києва).
- On
5 February 2003 the applicant filed with the prosecution authorities
a similar complaint about having been assaulted by the police. On 18
February 2003 the Solomyanskyy District Prosecutor's Office refused
to institute criminal proceedings for want of evidence of any
ill-treatment by the police, since they held that the injuries in
question had been inflicted upon the applicant by the taxi drivers
during the fight. On an unidentified date between March and August
2003 this decision was quashed and the case was remitted for further
investigation.
- In
a letter of 1 April 2003 the human resources officer at the Kyiv City
Police Department (Головне
управління
МВС України
в м. Києві) informed
the applicant that the materials of the internal inquiry had been
forwarded to the Solomyanskyy District Prosecutor's Office. The
unnamed officials at the Solomyanskyy District Police Station were
disciplined for keeping the applicant in custody without any record
of his detention.
- On
26 August 2003 the Solomyanskyy District Prosecutor's Office decided
not to bring any charges against the police officers for alleged
ill-treatment of the applicant.
- On
20 October 2003 the Kyiv City Prosecutor's Office (прокуратура
м. Києва) found that the
inquiry was flawed, quashed the conclusions of the Solomyanskyy
District Prosecutor's Office and ordered further inquiries into the
applicant's allegations. On 31 October 2003 the Solomyanskyy District
Prosecutor's Office instituted criminal proceedings against the
police for exceeding their powers.
- Between
February and April 2004 these proceedings were twice terminated and
subsequently reopened by the prosecutor.
- On
22 June 2004 the investigator with the Solomyanskyy District
Prosecutor's Office found that the police were not responsible for
the injuries sustained by the applicant.
- On
19 August 2004 the Kyiv City Prosecutor's Office quashed the decision
of 22 June 2004 and the case was remitted to the Shevchenkivskyy
District Prosecutor's Office (прокуратура
Шевченківського
району м. Києва)
for further inquiries.
- On
30 July 2005 the Shevchenkivskyy District Prosecutor's Office
terminated the criminal proceedings in the absence of evidence of
crime. In particular, V. and W. (taxi passengers) and B. (taxi
driver) testified that the police officers had not beaten the
applicant during his arrest. It was further found that the injuries
could have been inflicted on the applicant by the taxi drivers. It
was also stated that in a court hearing during the consideration of
the criminal case against him K. had testified that four or five taxi
drivers had beaten him and the applicant. As a result K. had had his
nose and one rib broken.
- On
31 May 2006 the Shevchenkivskyy District Court quashed this decision
and remitted the case for a further investigation to the
Shevchenkivskyy District Prosecutor's Office. The court pointed out
that B. and K. had not been properly questioned about the argument
which had led to another fight; other taxi drivers had not been
questioned; confrontations had not been held, in particular, between
the applicant and R. Moreover, the court found that after the case
had been remitted for further investigation the investigating
officer, M., had not taken any action and had based his decision
entirely on already existing materials.
The
investigation still appears to be pending.
D. Proceedings related to the applicant's detention
- On
an unidentified date the applicant instituted proceedings in the
Solomyanskyy District Court of Kyiv complaining of unlawful detention
on 8 July 2002. On 11 May 2006 the court rejected the applicant's
complaint. On 25 May 2006 the Kyiv City Court of Appeal quashed this
decision and found that the applicant's detention had been unlawful.
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine, 1996
- The
relevant provision of the Constitution of Ukraine reads as follows:
Article 28
“Everyone has the right to respect for his or her
dignity.
No one shall be subjected to torture, cruel, inhuman or
degrading treatment or punishment that violates his or her dignity.
...”
B. Code of Criminal Procedure, 1961
- Article 4
of the Code provides that the court, prosecutor or investigator must,
to the extent that it is within their power to do so, institute
criminal proceedings in every case where evidence of a crime has been
discovered, take all necessary measures provided by law to establish
whether a crime has been committed and the identity of the
perpetrators and punish them.
- Articles 99(1) and 215 of the Code provides that an
investigator's decision not to institute or to discontinue the
proceedings can be appealed against to the prosecutor or to the
court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
- The
applicant complained under Article 3 of the Convention that he had
been subjected to ill-treatment by the police officer, R., and that
there had been no adequate or effective investigation of his
complaints. The applicant further complained under Article 13 of the
Convention of the absence of effective remedies for his complaints.
The relevant Articles read as follows:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 13
“Everyone 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.”
A. Admissibility
- In
their observations of 2 December 2005 the Government submitted that
the applicant had not exhausted effective domestic remedies in
respect of the alleged violations of Article 3 of the Convention as
he had failed to challenge in court the decision of 30 July 2005 by
which the criminal proceedings had been terminated.
- In
his observations of 1 February 2006 the applicant submitted that
there were no grounds to declare his complaints inadmissible. In
particular, the applicant stated that he had learned about the
decision of 30 July 2005 only from the Government's observations and,
in any event, an appeal to the court against the decision to
terminate criminal proceedings would not render the investigation
effective since these proceedings had already lasted for a
considerable period of time and had been marked by numerous flaws.
- The
Court notes that the Government's objection is closely linked to the
substance of the applicant's complaints under Articles 3 and 13 of
the Convention. In these circumstances, it joins the objection to the
merits of the applicant's complaints.
- The
Court further finds that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The submissions of the parties
- The
Government admitted that the applicant had indeed sustained minor
physical injuries. However, the Government
maintained that there were no indications that the applicant had ever
been assaulted by the police officers. According to them, the
injuries in question had been sustained by the applicant during his
fight with the taxi drivers. The Government pointed out that
although during the first medical examination of the applicant, which
took place on 8 July 2002 at 1.25 a.m., it had been revealed that the
applicant had had only some scratches on his
forehead and a bruise to his eye, this examination had been limited
to verifying whether the applicant had been intoxicated. Therefore,
the doctor did not check whether the applicant had other injuries but
noted only the most visible ones. The Government further submitted
that it had only been when the applicant was hospitalised that he had
been diagnosed with concussion because due to the applicant's being
under the influence of alcohol it had been impossible to diagnose it
earlier. Moreover, once the applicant had complained that he was not
feeling well an ambulance had immediately been called for him by the
police officers. The Government further indicated that the applicant
had changed his allegations several times as to who had beaten him
up. On different occasions he had told doctors that he had been
beaten by unknown persons, by the taxi drivers and by the police
officers on his arrest but he had never stated that he had been
beaten up in the police station. Furthermore, the Government
maintained that the investigation in the applicant's case had been
adequate and effective. In particular, all important witnesses of the
events at issue had been questioned (police officers, taxi drivers
and passengers and so on). Although the outcome of the investigation
had not been favourable for the applicant, this did not automatically
mean that the investigation had been ineffective. Therefore, the
Government contended that there had been no violation of Article 3 of
the Convention in the present case.
- The
applicant contested the Government's submissions. He maintained that
he had been beaten up by the police officer, R., and that such
treatment had amounted to torture. The applicant maintained that he
had had only some scratches and a bruise when he had been taken to
the police station, but had been suffering from more serious injuries
when he had been released 22 hours later. The applicant stated that
his first medical examination had included a check for evidence of
injected drugs, so he had had to remove his upper clothes. Moreover,
he had been wearing a T-shirt with short sleeves. Therefore, if the
applicant had had significant physical bodily injuries at that time
the doctor should have noted them. The applicant also stated that the
State authorities had already been aware of the assaults on him on 9
July 2005, when the ambulance doctor had informed the police of his
hospitalisation, but that no action had been taken, and his
allegations had not been investigated. In any event, when the
criminal proceedings had finally been instituted, the investigation
had not been adequate and effective.
2. The Court's assessment
a. Concerning the alleged ill-treatment
- The
Court reiterates that Article 3 of the Convention enshrines one of
the most fundamental values of a democratic society. It prohibits in
absolute terms torture or inhuman or degrading treatment or
punishment, irrespective of the circumstances or the victim's
behaviour (see, among other authorities, Labita v. Italy
[GC], no 26772/95, § 119, ECHR 2000-IV). It has also found that
the distinction between “torture” and “inhuman or
degrading treatment” was intended to “attach a special
stigma to deliberate inhuman treatment causing very serious and cruel
suffering” (see Ireland v. the United Kingdom, judgment
of 18 January 1978, Series A no. 25, § 167).
- To fall under Article 3 of the Convention,
ill-treatment must attain a minimum level of severity. The assessment
of this minimum level of severity is relative; it depends on all the
circumstances of the case, such as the duration of the treatment, its
physical and mental effects and, in some cases, the gender, age and
state of health of the victim (see Valašinas v. Lithuania,
no. 44558/98, §§ 100-01, ECHR 2001-VIII). The Court
has considered treatment to be “inhuman” because, inter
alia, it was premeditated, was applied for hours at a stretch and
caused either actual bodily injury or intense physical and mental
suffering. It has deemed treatment to be “degrading”
because it was such as to arouse in the victims feelings of fear,
anguish and inferiority capable of humiliating and debasing them (see
Kudła v. Poland [GC], no. 30210/96, § 92,
ECHR 2000 XI).
- The Court is sensitive to the subsidiary nature of its
role and recognises that it must be cautious in taking on the role of
a first-instance tribunal of fact, where this is not rendered
unavoidable by the circumstances of a particular case (see, for
example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4
April 2000). Nonetheless, where allegations are made under Article 3
of the Convention the Court must apply a particularly thorough
scrutiny even if certain domestic proceedings and investigations have
already taken place (see, mutatis mutandis, Ribitsch v.
Austria, judgment of 4 December 1995, Series A no. 336,
§ 32, and Avşar v. Turkey, no. 25657/94,
§ 283, ECHR 2001 VII (extracts)).
- The
Court reiterates its jurisprudence confirming the standard of proof
“beyond reasonable doubt” in its assessment of evidence
(see Avşar v. Turkey, cited above, § 282). Such
proof may follow from the coexistence of sufficiently strong, clear
and concordant inferences or of similar unrebutted presumptions of
fact.
- Turning to the facts of the case, the Court considers
that there is sufficient evidence (see paragraphs 6-11) that the
applicant sustained injuries which were sufficiently serious to
amount to ill-treatment within the meaning of Article 3. It
remains to be considered whether the State authorities should be held
responsible under Article 3 for having inflicted those injuries.
- The
Court reiterates that where an individual is taken into police
custody in good health but is found to be injured at the time of
release, it is incumbent on the State to provide a plausible
explanation of the cause of the injury, failing which a clear issue
arises under Article 3 of the Convention (see Tomasi v. France,
judgment of 27 August 1992, Series A no. 241 A,
p. 4-41, §§ 108-111, and Ribitsch, cited above,
p. 26, § 34).
- In
the present case, the applicant's arrest by the police officers was
preceded by a fight first between the applicant, K. and B., and later
between them and two more taxi drivers. It is unclear from the
parties' submissions whether this fight could have resulted in the
injuries sustained by the applicant. However, the fight ended when
the applicant and K. were thrown to the ground, which implies that
physical force of some degree was used on the applicant and K.
- It
is also true that the first medical examination of the applicant (see
paragraph 6) mentioned that the applicant had only some scratches on
his forehead and a bruise to his eye. However, it is undisputed that
that examination was primarily aimed at checking the level (if any)
of the applicant's intoxication and it is unclear whether the doctor
had an opportunity to check all physical injuries sustained by the
applicant and to report them and whether it was particularly required
of him.
- In
these circumstances, the Court considers that it is not obvious that
the applicant was taken into police custody still in good health.
- Moreover,
in his explanations to the doctors about the nature of his injuries,
the applicant gave different accounts and never said that he had been
beaten up by the police officers in the police station. Although some
of these explanations were given by the applicant while he was in the
police station, where he could have been reluctant to reveal the true
nature of his injuries because he might have feared possible
reprisals by the police officers, after being released the applicant
still told the ambulance doctors and the medical expert that he had
been beaten up by the police officers during his arrest or by unknown
persons (see paragraphs 9 and 11).
- Given
all of the information in its possession, the Court cannot conclude
“beyond reasonable doubt” that the applicant's injuries
were caused by the actions of the police officer, R. Therefore, there
is no violation of the substantive limb of Article 3 of the
Convention.
b. Concerning the alleged inadequacy of
the investigation
- The Court reiterates that where an individual raises
an arguable claim that he has been seriously ill-treated by the State
authorities in breach of Article 3, that provision, read in
conjunction with the State's general duty under Article 1 of the
Convention, requires by implication that there should be an effective
official investigation. As with an investigation under Article 2,
such an investigation should be capable of leading to the
identification and punishment of those responsible. Otherwise, the
general legal prohibition of torture and inhuman and degrading
treatment and punishment would, despite its fundamental importance,
be ineffective in practice and it would be possible in some cases for
agents of the State to abuse the rights of those within their control
with virtual impunity (see Assenov and Others v. Bulgaria,
judgment of 28 October 1998, Reports of Judgments and Decisions
1998 VIII, p. 3290, § 102, and Labita, cited above,
§ 131).
- The
investigation into arguable allegations of ill-treatment must also be
thorough. This means that the authorities must always make a serious
attempt to find out what happened and should not rely on hasty or
ill-founded conclusions in order to close their investigation or as
the basis of their decisions (see Assenov and Others, cited
above, §§ 103 et seq.). They must take all reasonable
steps available to them to obtain evidence concerning the incident,
including, inter alia, eyewitness testimony and forensic
evidence (see Tanrıkulu v. Turkey [GC],
no. 23763/94, ECHR 1999-IV, §§ 104 et seq.,
and Gül v. Turkey, no. 22676/93, § 89,
14 December 2000).
- The
Court notes at the outset that the national authorities were aware of
the applicant's complaints from the day after the events in question,
when the ambulance doctor informed the police that the applicant had
alleged that he had been beaten up by the police officers. However,
the first decision on these allegations was not taken until seven
months later, and it took more than a year to institute criminal
proceedings following the applicant's complaints. These proceedings
lasted for nearly four years and were suspended several times but,
following the applicant's complaints to a higher prosecutor or to a
court, were reopened and remitted for further investigation.
- The
Court further observes that the Code of the Criminal Procedure
provides for an appeal against a decision not to institute or to
terminate criminal proceedings to a higher prosecutor or directly to
a court. The applicant availed himself of the former possibility and
as a result, by the time the decision of 30 July 2005 was taken, the
case had already been remitted five times for additional enquiries or
investigation. In such circumstances, the Court doubts that a further
appeal against such a decision to a court, as had been suggested by
the Government, would have rendered the investigation of the
applicant's allegations effective.
- The
Court further notes that when the decision of 30 July 2005 was indeed
appealed against to a court it was quashed and the case was
re-submitted for further investigation, which has been pending since
then for more than two years. In its decision the court pointed out
the inadequacy of the investigation in question and indicated a
number of actions which should be taken by the investigating
authorities. Apparently, so far no actions recommended by the court
have been taken by the investigating authorities.
- In these circumstances, the Court concludes that in
the present case there is a violation of the procedural limb of
Article 3 of the Convention. It follows that the Government's
preliminary objection (see paragraph 34 above) must be
dismissed.
- Having
regard to its finding under Article 3, the Court considers that it is
not necessary to examine whether in this case there has also been a
violation of Article 13 of the Convention.
II. ALLEGED VIOLATIONS OF ARTICLES 5 AND 6 OF THE
CONVENTION
-
The applicant complained under Article 5 of the Convention of
unlawful arrest and detention.
The
applicant further complained under Article 6 §§ 1, 2 and 3
(a) and (d) of an unfair trial in the criminal case against him.
These
Articles read as follows:
Article 5
“Everyone has the right to liberty and security of
person....”
Article 6
“1. In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
2. Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence
has the following minimum rights:
(a) to be informed promptly, in a language
which he understands and in detail, of the nature and cause of the
accusation against him;
...
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him..”
- The
Court considers that, in the light of all the materials in its
possession and insofar as the matters complained of are within its
competence, they do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols.
- It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 903.04 Ukrainian hryvnas (UAH)
in respect of pecuniary damage, which is equivalent to the earnings
lost by the applicant during his medical treatment, and 10,000 euros
(EUR) in respect of non-pecuniary damage.
- The
Government submitted that there was no causal link between the
alleged violation and the pecuniary loss allegedly sustained, since
such a link can be established only in case of finding a violation of
Article 1 of Protocol No. 1, not of Article 3 of the Convention. The
Government further consider that the finding of a violation, if any,
will constitute sufficient compensation for any non-pecuniary damage
sustained.
- The
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, having regard to its case-law in comparable cases and
making its assessment on an equitable basis, it awards the applicant
EUR 2,000 in respect of non-pecuniary damage.
B. Costs and expenses
- On
1 February 2006 the applicant claimed EUR 2,000 for the costs and
expenses incurred before the domestic authorities and the Court
without providing any relevant vouchers or bills.
- On
1 and 23 March 2006 the applicant further claimed 780
US dollars (USD) and USD 71,
respectively, as costs of the translation of his observations into
English. On 26 April 2006 the applicant submitted additional claims
for UAH 817.30
for postal expenses. These claims are supported by relevant bills but
were submitted out of time.
- The
Government pointed out that the applicant had failed to submit
relevant documents or vouchers in support of the claims he had made
on 1 February 2006.
- The
Court observes that the applicant has not lodged in time any
particular evidence in support of his claims for costs and expenses.
It therefore decides not to award any sum under this head.
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
- Decides to join to the merits the
Government's preliminary objection as to the exhaustion of domestic
remedies in respect of Article 3 of the Convention, and dismisses it;
2. Declares the applicant's complaints under Articles 3 and 13
of the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 3 of the Convention under its substantive limb;
- Holds that there has been a violation of Article
3 of the Convention under its procedural;
- Holds that there is no need to examine the
complaint under Article 13 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 2,000 (two thousand euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable;
(b) that
the above amount shall be converted into the national currency of the
respondent State at the rate applicable at the date of settlement;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 14 February 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
