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]
FOURTH
SECTION
CASE OF HEINO v. FINLAND
(Application
no. 56720/09)
JUDGMENT
STRASBOURG
15
February 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Heino v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Päivi
Hirvelä,
Ledi Bianku,
Nebojša
Vučinić,
Vincent A. de Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 25 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 56720/09) against the Republic
of Finland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Finnish national, Ms Tuija Heino (“the
applicant”), on 21 October 2009.
- The
applicant was represented by Mr Markku Fredman, a lawyer practising
in Helsinki. The Finnish Government (“the Government”)
were represented by their Agent, Mr Arto Kosonen of the Ministry for
Foreign Affairs.
- The
applicant alleged, in particular, that her right to respect for home
and correspondence under Article 8 of the Convention had been
violated and that she had had no access to a court or an effective
remedy in this respect under Articles 6 and 13 of the Convention.
- On
12 January 2010 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and lives in Helsinki.
- The
applicant is an attorney. Some business transactions of her client's
spouse were investigated by the police but she herself was not a
suspect.
- On
7 October 2009 police investigators conducted a search at the
applicant's office. During the search some e-mail correspondence were
copied from her computer and certain documents were seized.
- By
letter dated 12 October 2009 the head of the investigation
(tutkinnanjohtaja, undersökningsledaren) informed the
applicant that the seizure of the data had not been successful due to
the fact that the wrong files had been copied, and that the
information copied had been destroyed. The applicant allegedly never
received a copy of the seized files so it was not possible to verify
whether the seizure of the data really had been unsuccessful. The
seized documents remained in the police's possession.
- The
pre-trial investigation has been concluded and the case has been
submitted to the public prosecutor for consideration of charges. No
court proceedings have been initiated yet.
II. RELEVANT DOMESTIC LAW
A. Constitution
- According
to Article 10 of the Finnish Constitution (perustuslaki,
grundlagen, Act no. 731/1999), the sanctity of everyone's home is
guaranteed. Measures derogating from this right, and which are
necessary for the purpose of guaranteeing basic rights and liberties
or for the investigation of crime, must be laid down by an Act.
B. Coercive Measures Act
- Chapter 5, section 1, subsection 1, of the Coercive
Measures Act (pakkokeinolaki, tvångsmedelslagen, Act no.
646/2003) provides that a search may be conducted, inter alia,
if there is reason to suspect that an offence has been committed and
provided the maximum sentence applicable exceeds six months'
imprisonment.
- According
to Chapter 5, Section 3, of the Coercive Measures Act, an official
with the power of arrest shall decide on a search of premises.
However, a police officer may carry out a search of premises without
a warrant when the purpose of the search is to locate a person to be
apprehended, arrested, detained, brought to court or subjected to a
bodily search, or to seize an object, when continuously followed or
monitored since the commission of the offence. A
police officer may carry out a search of the premises also in other
urgent cases.
- The
person whose domicile is being searched, or in his or her absence
someone else, must be given the opportunity to be present at the
search and to call a witness, unless this causes delay. If none of
the above-mentioned persons was present at the time of the search,
the person whose domicile has been searched must be immediately
informed (Chapter 5, section 4, subsection 2).
- Chapter
4, section 2, subsection 2 of the Coercive Measures Act provides that
a document shall not be seized for evidential purposes if it may be
presumed to contain information in regard to which a person referred
to in Chapter 17, section 23, of the Code of Judicial Procedure is
not allowed to give evidence at a trial and provided that the
document is in the possession of that person or the person for whose
benefit the secrecy obligation has been prescribed. A document may
nevertheless be seized if, under section 27, subsection 2 of the
Pre-Trial Investigation Act, a person referred to in Chapter 17,
Article 23, of the Code of Judicial Procedure would have been
entitled or obliged to give evidence in the pre-trial investigation
about the matter contained in the document.
C. Code of Judicial Procedure
- Under
Chapter 17, section 23, subsection 1, of the Code of Judicial
Procedure (oikeudenkäymiskaari, rättegångsbalken;
as modified by Acts no. 571/1948 and 622/1974), counsel may
not testify in respect of what a client has told him or her for the
purpose of pleading a case, unless the client consents to such
testimony. Although subsection 3 provides for an exception to this
secrecy obligation if the charges concern an offence carrying a
minimum sentence of six years' imprisonment (or attempting or aiding
and abetting such an offence), this exception does not extend to
counsel for an accused.
D. Advocates Act
16. Under
section 5c of the Advocates Act (laki asianajajista, lagen
om advokater; as modified by Act no. 626/1995) an advocate or his
assistant shall not without due permission disclose the secrets of an
individual or family or business or professional secrets which have
come to his knowledge in the course of his professional activity.
Breach of this confidentiality obligation shall be punishable in
accordance with Chapter 38, section 1 or 2, of the Penal Code,
unless the law provides for a more severe punishment on another
count.
E. Remedies
- Chapter
4, section 13, of the Coercive Measures Act provides that, at the
request of a person whom the case concerns, the court shall decide
whether the seizure of any materials shall remain in force. A request
which has been submitted to the court before its examination of the
charges shall be considered within a week of its reception by the
court. The court shall provide those with an interest in the matter
an opportunity to be heard, but the absence of any such persons shall
not preclude a decision on the issue. A decision reviewing a
seizure is subject to a separate appeal (Chapter 4, section 16,
subsection 1).
- According
to section 118, subsection 3, of the Constitution everyone who has
suffered a violation of his or her rights or sustained loss through
an unlawful act or omission by a civil servant or other person
performing a public function shall have the right to request that the
civil servant or other person in charge of the public function be
sentenced to a punishment and that the public organisation, official
or other person in charge of a public function be held liable for
damages, as provided in more detail by an Act.
- Chapter
40, section 9, subsection 1, of the Penal Code (rikoslaki,
strafflagen, as modified by Act no. 604/2002), provides that if a
public official, when acting in office, intentionally in a manner
other than that provided above in this Chapter violates or neglects
to fulfil his official duty based on the provisions or regulations to
be followed in official functions, and the act, when assessed as a
whole, taking into consideration its detrimental and harmful effect
and the other circumstances connected with the act, is not a petty
offence, he shall be sentenced for violation of official duties to a
fine or to imprisonment for a maximum of one year.
- Chapter
40, section 10, of the Penal Code (as modified by Act no. 604/2002)
provides that if a public official, when acting in office, through
carelessness or lack of caution, in a manner other than that referred
to in section 5, subsection 2, violates or neglects to fulfil his or
her official duty based on the provisions or regulations to be
followed in official functions, and the act, when assessed as a
whole, taking into consideration its detrimental and harmful effect
and the other circumstances connected with the act, is not a petty
offence, he shall be sentenced for negligent violation of official
duties to a warning or to a fine.
- According
to Chapter 1, section 14, of the Criminal Procedure Act (laki
oikeudenkäynnistä rikosasioissa, lagen om rättegång
i brottmål, as modified by Act no. 647/2003), an injured
party may bring a private prosecution only if the public prosecutor
has decided not to press charges.
- Under
Chapters 3 and 4 of the Tort Liability Act (vahingonkorvauslaki,
skadeståndslagen, Act no. 412/1974) proceedings may be
brought against the State in respect of damage resulting from fault
or neglect by its employees in the performance of their duties.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that her right to respect for home and
correspondence had been violated as provided in Article 8 of the
Convention, which reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government contested that argument.
A. Admissibility
- The
Government argued that the applicant had not exhausted domestic
remedies as the applicant had not requested a court under Chapter 4,
section 13, of the Coercive Measures Act to decide whether the
seizure should remain in force. There appeared to be no specific
reasons absolving the applicant from exhausting this remedy. As she
had not done so, in the Government's view the application should be
declared inadmissible under Article 35 §§ 1 and 4 for
non-exhaustion of domestic remedies.
- The
applicant disagreed and pointed out that the application did not
concern the seizure but the search itself. There existed no legal
remedies, either a priori or a posteriori, under
Finnish law against a search. Even though there existed an effective
remedy in relation to a seizure, a possible favourable outcome of
such proceedings could not have had any effect on the search. The
applicant had thus fulfilled the criteria for exhaustion of domestic
remedies as no such remedies had been available in respect of the
search.
- The Court considers, in the light of the parties'
submissions, that this objection is closely related to the merits of
the applicant's complaints. It will therefore examine this
preliminary objection together with the merits of the case. The Court
concludes therefore that this complaint raises questions of fact and
law which are sufficiently serious that their determination should
depend on an examination of the merits, and that no other grounds for
declaring it inadmissible have been established. It must therefore be
declared admissible.
B. Merits
1. The parties' submissions
- The
applicant noted that there had clearly been an interference with her
right to respect for home and correspondence, and that that
interference had had a basis in Finnish law. However, the quality of
that law was problematic. There existed no legal safeguards
whatsoever in this respect. Since very strict limits were called for
as regards the conduct of searches without a warrant, the law in
question did not fulfil the “in accordance with the law”
requirements, as established by the Court. When searches were
conducted in law offices, the safeguards against arbitrariness had to
be particularly strong. It did not make any difference whether the
applicant herself was suspected of an offence or not. Professional
secrecy applied to all material in a lawyer's possession regardless
of the capacity in which he or she had obtained it. The fact that the
search had been conducted in an attorney's office only made the need
for effective legal safeguards against abuse and arbitrariness more
apparent.
- The
applicant agreed that the interference had pursued a legitimate aim.
She stressed that her application concerned the lack of any
safeguards to challenge the search conducted at her office. This
issue was closely linked to the “quality of the law”
requirement and therefore to the arbitrary nature of the impugned
measure.
- The
Government agreed that the search and seizure of the applicant's
office constituted an interference within the meaning of Article 8 of
the Convention. In the present case the police had been asked in 2008
to investigate an economic crime that had allegedly been committed a
few years earlier. The applicant, who represented the suspect's
spouse C., had refused to give a witness statement and therefore she
had been heard in her office on 7 October 2009. In the course of this
hearing it had become apparent that the applicant had in her
possession materials relevant to the investigation. She had refused
to hand these materials over to the police, invoking the obligation
of professional secrecy of lawyers. The police had contacted C. who
had given her consent to the delivery of the materials in question to
the police.
- The
Government noted that a new search had been conducted at the
applicant's law office on 8 October 2009. The applicant had been
present during the search and she had been informed about the
materials copied from her computer. The hard disk of her computer had
not been copied. However, the seizure of the materials from the
applicant's computer had not been successful as the materials copied
had been illegible. On 9 October 009 these materials had
been ordered to be destroyed and this had been done on 12 October
2009.
- The
Government argued that the present case differed from the cases
Sallinen and Others v. Finland (no. 50882/99, 27 September
2005) and Sorvisto v. Finland (no. 19348/04, 13 January 2009)
both as to the facts and the fact that the applicant had not been a
suspect but a witness. Also, the extent of the search had been
different. Therefore, in the Government's view,
the interference had been in accordance with the law, pursued a
legitimate aim and had been necessary in a democratic society.
2. The Court's assessment
(a) Whether there was an interference
- The
Court recalls that it has repeatedly held that the notion of “home”
in Article 8 § 1 encompasses not only a private individual's
home but may also extend, for example, to a person's office used for
professional purposes. Consequently, “home” is to be
construed as including also the registered office of a company run by
a private individual, as well as a legal person's registered office,
branches and other business premises (see, inter alia, Buck
v. Germany, no. 41604/98, § 31, 28 April 2005; Chappell
v. the United Kingdom, 30 March 1989, §§ 26 and 51,
Series A no. 152-A2-A; and Niemietz v. Germany, 16 December
1992, §§ 29-31, Series A no. 251 B).
- The
parties agree that there was an interference in respect of the
applicant's right to respect for her home and correspondence. The
Court sees no reason to differ on that point.
- The
Court must therefore examine whether this interference was in
conformity with the requirements of the second paragraph of Article
8, in other words whether it was “in accordance with the law”,
pursued one or more of the legitimate aims set out in that paragraph
and was “necessary in a democratic society” to achieve
the aim or aims in question.
(b) Was the interference justified?
(i) Was the interference “in
accordance with the law”?
- The
Court notes that the expression “in accordance with the law”,
within the meaning of Article 8 § 2 requires firstly that the
impugned measure should have some basis in domestic law. Second, the
domestic law must be accessible to the person concerned. Third, the
person affected must be able, if need be with appropriate legal
advice, to foresee the consequences of the domestic law for him, and
fourth, the domestic law must be compatible with the rule of law
(see, among many other authorities, Rotaru v. Romania [GC],
no. 28341/95, § 52, ECHR 2000 V; Liberty and Others v.
the United Kingdom, no. 58243/00, § 59, 1 July 2008; and
Kennedy v. the United Kingdom, no. 26839/05, § 151., ECHR
2010 ).
(α) Was there a legal basis in Finnish
law?
- The
Court reiterates that, in accordance with the case-law of the
Convention institutions, in relation to Article 8 § 2 of the
Convention, the term “law” is to be understood in its
substantive sense, not its formal one. In a sphere covered by written
law, the “law” is the enactment in force as the competent
courts have interpreted it (see, inter alia, Société
Colas Est and Others v. France, no. 37971/97, § 43, ECHR
2002-III). In this respect, the Court notes that its power to review
compliance with domestic law is limited, it being in the first place
for the national authorities, notably the courts, to interpret and
apply that law (see, inter alia, Chappell v. the United
Kingdom, cited above § 54).
- The
Court notes that both parties appear to agree that the search and
seizure had a basis in the Coercive Measures Act. The Court is
therefore satisfied that the interference complained of had a basis
in Finnish law.
(β) “Quality of the law”
- The
second requirement which emerges from the phrase “in accordance
with the law” – the accessibility of the law – does
not raise any problems in the instant case. The same is true also for
the third requirement, the “foreseeability” of the
consequences of the domestic law for the applicant, assuming that, in
the present case, the obscurity of the notion of “pleading a
case” and its link to the issue of confidentiality are left
aside (see and compare Sallinen and Others v. Finland, cited
above, §§ 87 and 91).
- As
to the fourth requirement, the Court reiterates that Article 8 §
2 requires the law in question to be “compatible with the rule
of law”. In the context of search and seizure, the domestic law
must provide some protection to the individual against arbitrary
interference with Article 8 rights. Notwithstanding the margin of
appreciation which the Court recognises the Contracting States have
in this sphere, it must be particularly vigilant where, as in the
present case, the authorities are empowered under national law to
order and effect searches without a judicial warrant. If individuals
are to be protected from arbitrary interference by the authorities
with the rights guaranteed under Article 8, a legal framework and
very strict limits on such powers are called for (see Camenzind v.
Switzerland, 16 December 1997, § 45, Reports of
Judgments and Decisions 1997 VIII).
- The
Court must therefore examine the “quality” of the legal
rules applicable to the applicant in the instant case. It notes in
the first place that under Chapter 5 of the Coercive Measures Act, a
search may be conducted, inter alia, if there is reason to
suspect that an offence has been committed and provided the maximum
sentence applicable exceeds six months' imprisonment. The search
warrant is issued by the investigative organs themselves. A
search may be carried out even without a warrant in urgent cases.
- With
regard to the safeguards against abuse existing in the Finnish
legislation, the Court observes that, in the absence of a requirement
for prior judicial authorisation, the investigation authorities had
unfettered discretion to assess the expediency and scope of the
search and seizure. Moreover, in cases of urgency, a
search could be carried out even without a warrant. The Court
notes that in such cases the officer conducting the search was thus
competent to assess alone whether or not to conduct the search and to
what extent.
- The
Court would emphasise in this connection that search and seizure
represent a serious interference with Article 8 rights, in the
instant case a lawyer's office and her correspondence, and must
accordingly be based on a law that is particularly precise. It is
essential to have clear, detailed rules on the subject, setting out
safeguards against possible abuse or arbitrariness (see Sorvisto
v. Finland, cited above, § 118). Moreover, the Court
has repeatedly held that since persecution and harassment of members
of the legal profession strikes at the very heart of the Convention
system, the searching of lawyers' premises should be subject to
especially strict scrutiny (see Elci and Others v.
Turkey, nos. 23145/93 and 25091/94, § 669, 13 November
2003; and Kolesnichenko v. Russia, no. 19856/04, § 31,
9 April 2009).
- Turning
to the present case, the Court reiterates that it has already found
in the Sallinen and Others case (cited above, §
89), that there was no independent or judicial supervision when
granting the search warrant as the decision to authorise the order
was taken by the police themselves (see also, mutatis mutandis,
Kruslin v. France, 24 April 1990, §§ 34-35,
Series A no. 176-A; Silver and Others v. the United
Kingdom, 25 March 1983, § 90, Series A no. 61;
and Sorvisto v. Finland, cited above, § 117).
- The
Court notes that the absence of a prior judicial warrant may be
counterbalanced by the availability of an ex post factum
judicial review (see, mutatis mutandis, Smirnov v. Russia,
no. 71362/01, § 45, ECHR 2007 VII). However, in the
present case the applicant did not have any effective access, a
posteriori, to a court to have both the lawfulness of, and
justification for, the search warrant reviewed. The applicant's right
to respect for her home was thus violated by the fact that there was
no prior judicial warrant and no possibility to obtain an effective
judicial review a posteriori of either the decision to order
the search or the manner in which it was conducted (see Varga v.
Romania, no. 73957/01, § 73, 1 April 2008; and
Işıldak v. Turkey, no. 12863/02, § 52, 30
September 2008). The situation was aggravated by the fact that the
search took place in an attorney's office.
- The Court therefore concludes that, even if there
could be said to be a general legal basis for the impugned measures
in Finnish law, that law does not provide sufficient judicial
safeguards either before the granting of a search warrant or after
the search. The applicant was thus deprived of the minimum degree of
protection to which she was entitled under the rule of law in a
democratic society.
- The
Court finds that in these circumstances it cannot be said that the
interference in question was “in accordance with the law”
as required by Article 8 § 2 of the Convention.
- There
has therefore been a violation of Article 8 of the Convention. For
the above reasons, the Court dismisses the Government's preliminary
objection based on non-exhaustion of domestic remedies.
(ii) Legitimate aim and necessity of the interference
- Having
regard to the above conclusion, the Court does not consider it
necessary to review compliance with the other requirements of
Article 8 § 2 in this case (see, for example,
Kopp v. Switzerland, 25 March 1998, Reports of
Judgments and Decisions 1998-II, § 76).
II. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE
CONVENTION
- The
applicant complained under Articles 6 and 13 of the Convention about
the lack of access to a court and lack of an effective remedy in this
respect. The Court notes that, although the applicant invoked both
Articles 6 and 13 of the Convention, her complaint is more properly
examined under the latter Article alone. Article13 of the Convention
reads as follows:
“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.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
B. Merits
1. The parties' submissions
- The applicant reiterated that her application only
concerned the search of her law office, not seizure of items. There
were no explicit or, for that matter, any provisions or case-law even
suggesting that a person subject to a search could have access to a
court in order to challenge that search. It was true that the civil
liability of the officers conducting the search could be invoked but
this possibility was neither effective nor capable of providing
redress for the interference with her right to respect for her home
as she would have to show that she had actually suffered damage. Nor
could a private prosecution be regarded as access to a court. The
threshold for “reason to suspect” was very low and none
of the private prosecutions initiated against officers having
conducted or ordered a search had been successful. This remedy was
therefore theoretical as well as illusory. The same was true for
lodging a complaint with the Parliamentary Ombudsman (eduskunnan
oikeusasiamies, riksdagens justitieombudsman) and
the Chancellor of Justice (oikeuskansleri,
justitiekanslern). If the Court were to find no violation of
Article 6 of the Convention, there was in any event a violation of
Article 13 taken together with Article 8 of the Convention.
- The
Government contended that, according to the Court's case-law, it was
not required that there must exist a possibility to challenge the
legality of a search before it was conducted but that there should
exist a possibility to rely on effective remedies after the search.
Under Chapter 4, section 13, of the Coercive Measures Act the
legality of a seizure could be examined by a court. An unlawful
search could also result in the civil or criminal liability of the
State or the officer carrying out the search. Moreover, an injured
party could bring a private prosecution if the public prosecutor had
decided not to press charges. Also the possibility for the
Parliamentary Ombudsman and the Chancellor of Justice to control the
legality of measures taken by national authorities should be taken
into account. In the Government's view the applicant had thus had
access to a court in respect of the search and seizure conducted at
her office. In the Government's view, Article 13 was of relevance
only in the situations of ex post factum judicial review. As
no charges had yet been pressed in the present case, there was not
yet an arguable claim. In any event, the applicant had had several
effective remedies at her disposal but had failed to use any of them.
2. The Court's assessment
- Having
regard to the finding relating to Article 8 of the Convention (see
paragraph 48 above), the Court considers that it is not necessary to
examine separately whether, in this case, there has been an
additional violation of Article 13 of the Convention (see Liberty
and Others v. the United Kingdom, cited above, § 73).
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 4,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government found the applicant's claim excessive as to quantum and
considered that the total amount of compensation for non-pecuniary
damage should not exceed EUR 1,500.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards the applicant the
full sum claimed.
B. Costs and expenses
- The
applicant also claimed EUR 241.56 for the costs and expenses incurred
before the domestic authorities and EUR 2,898.72 for those incurred
before the Court.
- As
to the costs and expenses incurred before the domestic authorities,
the Government pointed out that the applicant had not been involved
in any domestic proceedings and that her claim should therefore be
rejected. As to the costs and expenses incurred before the Court, the
Government found the applicant's claim excessive as to quantum and
considered that the total amount of compensation for costs and
expenses should not exceed EUR 2,000 (inclusive of value-added tax).
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, the Court finds that
the applicant has incurred some costs and expenses before the
domestic authorities. Regard being had to the documents in its
possession and the above criteria, the Court considers it reasonable
to award the sum of EUR 2,500 (inclusive of value-added tax) covering
costs under all heads.
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 of the case the Government's objection based on
non-exhaustion of domestic remedies and declares the
application admissible;
- Holds that there has been a violation of Article
8 of the Convention and dismisses in consequence the
Government's above-mentioned preliminary objection;
- Holds that there is no need to examine
separately 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, the following
amounts:
(i) EUR
4,000 (four thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
2,500 (two thousand five hundred euros), plus any tax that may be
chargeable to her, in respect of costs and expenses;
(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 15 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
