(Application no. 20756/04)
22 October 2009
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 Isayev v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 1 October 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Arrest and alleged ill-treatment by the police
1. Events between 6 and 15 March 2003
“At the same time the court considers that the materials presented by the investigating authorities - records of investigative actions and operative measures - make it sufficiently clear that the arrest of [the applicant], that is the person who may have taken part in the above-mentioned criminal offence, was well-founded and taking into account the particular dangerousness of that criminal offence committed in grave circumstances, belonging to the category of particularly serious criminal offences, the court concludes that it is impossible to apply another, more lenient, preventive measure to [the applicant].”
The applicant and his lawyer, Mr C., attended the hearing. The decision was upheld on appeal on 20 March 2003.
“... during my duty in the detention unit of the Chernoyarskiy District Police Department from 6.00 p.m. on 12 March 2003 to 9.00 a.m. on 13 March 2003 [the applicant] was in cell no. 1; [he] started hitting his head against a wall; [he] did not respond to orders [prompting him] to stop his actions. I reported to the officer on duty in the [police department] about [the applicant's] actions; after that [the applicant] was transferred to a cell for administrative arrestees. On 13 March 2003, at 8.50 a.m., during the replacement of duty officers, [the applicant] started hitting his head against the metal bar in the cell for administrative arrestees, thus causing a head injury.
I, together with a staff sergeant, police officer, Mr L., and police officer, Mr M., stopped his actions and applied special means, handcuffs. [The applicant] was provided with first aid. After that an ambulance was called.”
“[I] hereby inform you that on 13 March 2003, after the transfer, at approximately 8.50 a.m., an arrestee, [the applicant], was in a cell for administrative arrestees. [He] started hitting his head against a metal bar, thus causing injuries to himself. After that special means, handcuffs, were applied to [the applicant] and first aid was provided.”
Another escorting officer, Mr Po., submitted an identically worded report.
“A patient [the applicant], was undergoing in-patient treatment from 15 March to 10 April 2003. When admitted [to the hospital], he did not make any complaints because of his grave condition. According to the escorting persons, a week before his admission [to the hospital], while under arrest, the patient had hit his head against bars... During the treatment the patient stated that he had been beaten up by police officers.
Objectively: The general condition is grave... Locally: [there are] vast bruises, measuring from 3 to 5 centimetres, on the skin of the frontoparietal sphere; [the bruises] are covered with brown scab. There are subcutaneous yellow haematomas, measuring 4 centimetres [in width] and 5 centimetres [in length], in the middle one-third of the right forearm; in the middle one-third of the left shoulder there is a subcutaneous yellow haematoma, measuring 2 centimetres [in width] and 2 centimetres [in length]. [There is] a subcutaneous haematoma, measuring 4 centimetres [in width] and 5 centimetres [in length], on the chest (with hemosiderin). [The patient] does not control the functions of his pelvic organs, he urinates uncontrollably...
Diagnosis: A brain injury of medium severity. A subarachnoid haematoma. Injuries, bruises to the head and extremities.”
On 19 April 2003 the applicant was transferred from the hospital back to the detention unit.
“[I] hereby inform you that on 15 March 2003 information was received from the duty unit of the Chernoyarskiy District Police Department that [the applicant] had been arrested on suspicion of having committed a criminal offence proscribed by Article 105 of the Russian Criminal Code; [he], in the detention unit of the police department, had injured himself, having hit his head against the walls; after that [he] had been admitted to Chernoyarskiy District Central Hospital, from which, within a day, he had been transferred to a medical institution in Astrakhan – hospital no. 2; [he had been escorted] by two armed police officers... [The applicant's] preliminary diagnosis is a craniocerebral injury”.
“...the entrance to [the cell for administrative detainees] is through a metal lattice door which is built from metal reinforcement bars welded together. The cell is a room with concrete walls... During the examination of the cell entrance door a fallow stain, looking like blood [and] measuring 0.7 centimetre, was discovered on the door at a height of 1.30 metre from the floor, 0.85 metre from the upper part of the door and 1.15 metre from the right wall. During the examination of the metal bars of that cell a fallow stain, looking like blood and measuring 2 centimetres in width and 2.5 centimetres in length, was discovered at a height of 1.30 metre from the floor and 1.15 metre from the adjacent right wall. ... blood was collected from the scene and bagged.
During the examination of cell no. 1, fallow stains looking like blood and measuring 1 centimetre to 1 centimetre, 3 centimetres to 3 centimetres were discovered in the far right corner of the cell, on the right wall, 2.5 centimetres from the wall, facing the entrance, and 25 centimetres from the wooden bunk. Those stains are located 5 centimetres from each other. That substance was collected from the scene and bagged.”
2. Investigation into complaints of ill-treatment
(a) Decision of 17 March 2003 and subsequent court proceedings
- Statements by the police officers who had claimed that on 12 March 2003 the applicant, who had been detained in cell no. 1, had begun hitting his head against a wall. He had ignored policemen's orders to discontinue the unlawful behaviour and had been transferred to a special cell for administrative detainees, so that the police officers could observe him and prevent him from hurting himself. In the cell for administrative detainees the applicant had once again begun hitting his head against metal bars. Handcuffs had been applied to him and he had been provided with medical assistance.
- Testimony by the applicant's fellow inmate, Mr I., who testified that on 12 March 2003 he had been detained in cell no. 1 together with the applicant. At approximately 10 p.m. the applicant had begun hitting his head against a wall. Mr I. had called the officer on duty and the applicant had been transferred to another cell. Mr I. noted that he had not seen or heard whether the policemen had beaten the applicant up.
- Testimony by an emergency doctor, Mr B., who stated that on 12 March 2003, at approximately 10.20 p.m., he had arrived at the Chernoyarkiy District Police Department. The officer on duty had asked him and his colleagues to provide the applicant with medical assistance. According to the officer on duty, the applicant had not felt well. Mr B. had attempted to examine the applicant, but the latter had refused any examination. During the visual examination of the applicant's head, Mr B. had not noticed any injuries. The applicant had been very agitated.
- Statements by an emergency doctor, Ms K., who stated that on 13 March 2003, at approximately 9.30 a.m., she had received a call from the Chernoyarskiy District Police Department. She had been informed that a detainee had hit his head against a wall. When she had arrived at the police department, she had seen the applicant sitting on a chair with his hands handcuffed behind his back and with his head on a pillow. The applicant had been very nervous and had tried to break away. She had examined him and discovered three parallel injuries in the fibrous part of his head. She had made a bandage and given him an injection of relanium. The applicant had been diagnosed with a fit of hysteria and prescribed an examination by a surgeon and a neuropathologist.
- The record of the examination of the detention unit, including the cells where the applicant had been detained, performed on 15 March 2003.
- An expert report, according to which stains discovered during the examination of the cells in the detention unit on 15 March 2003 consisted of the blood of a person, “not excluding the applicant”.
(b) Decision of 12 September 2003
- Additional statements by an emergency doctor, Mr B., who stressed that the applicant had not had any visible injuries, including on the head, when Mr B. had seen him on 12 March 2003, at approximately 10.20 p.m..
- Statements by Mr S., who testified that he had been detained in cell no. 1 with the applicant and Mr I. On a date which Mr S. had been unable to recall, the applicant, lying on the bunk, had begun hitting his head against a wall. He had hit his head three or four times and had broken the skin on the head. Mr S. and Mr I. had called an officer on duty and asked to transfer the applicant to another cell. Their request had been satisfied. No force had been used against the applicant.
- Additional testimony by Mr I., who confirmed statements given by Mr S..
- Statements by a psychiatrist, Ms E., who submitted that on 14 March 2003 she had examined the applicant who had acted normally and answered her questions. He had complained about pain in a hip. She had examined him but had found no injuries on his hip. The applicant had had an injury on the fibrous part of his head. The injury had been medically treated.
- Statements by an escorting officer, Mr La., who noted that on 13 March 2003, at approximately 10.20 p.m., he had noticed that the applicant, who had been lying on the bunk, had started hitting his head against the wall. The applicant had been transferred to a cell for administrative arrestees. On 14 March 2003, at approximately 8.00 a.m., the applicant had grabbed the metal bars with his hands and had begun hitting his head against the bars. A police officer, Mr Lu., had stuck his hands between the bars to stop the applicant from hurting himself. At the same time, the applicant, trying to overcome Mr Lu.'s resistance, began throwing himself against the metal bars. Mr La. with the assistance from officers M. and Po. had dragged the applicant from the metal bars and had started holding him. The applicant had tried to resist the officers, attempting to hit his head against the bars. Mr Po. had run to the duty unit to call an ambulance. Mr La. had taken a towel and had attempted to stop the bleeding. Doctors had arrived at 9.20 p.m. They had unbound the injury and had applied on a bandage. After the doctors had left, soft items had been placed around the applicant and a pillow had been put under his head.
- Similar statements given by the police officer, Mr Po.
(c) Decision of 30 September 2003
(d) Decision of 15 December 2003
- The applicant testified that between 6 and 8 March 2003 police officers had severely beaten him up in the police station in an attempt to extract a confession from him. On 8 March 2003, after the first meeting with his lawyer, Mr C., he had complained about the beatings to a prosecutor. On 9 March 2003 he had been examined by a medical expert. He had complained to the expert about pain in the head, neck, chest and right hip; however, the expert had only examined his head. On the same day he had again been beaten up by a police officer, Mr Po. According to the applicant, several days later two police officers had lifted him up and had thrown him against metal bars in a cell for administrative arrestees. The applicant had lost consciousness. When he had regained consciousness, he had discovered that he had been handcuffed to a metal bar. He had fainted again and had only regained consciousness in the hospital.
- Mr B., the emergency doctor, supplemented his previous statement. He noted that on 9 March 2003, at approximately 7.20 p.m., he had been called to the Chernoyarskiy District Police Department to assist the applicant who had been complaining about a headache. He had examined the applicant and had not discovered any injuries on his body and head. On 12 March 2003, at approximately 10.20 p.m., he had again been called to the Police Department to treat the applicant. The latter had not had any injuries.
- The expert stated that on 9 March 2003 an investigator and police officers had brought the applicant for a medical examination. In their presence he had examined the applicant, who had complained about the pain in the head and right hip. The applicant had refused to explain the nature and cause of the pain. The expert had examined the applicant's chest, stomach, back, legs, hands, head and neck and had not discovered any injuries.
“Having heard the parties and studied the case-file, the court decides to dismiss the complaint. The court is taking this decision on the basis of the materials in the case-file submitted and examined at the court hearing.
On 10 December 2003 the Chernoyarskiy District Prosecutor decided to annul the decision of 30 September 2003 and to perform an additional investigation into the events concerning the infliction of injuries on [the applicant]. An assistant prosecutor, Ms S., was entrusted with the performance of the investigation. In the course of the investigation certain violations of the law, which had occurred during the investigation,... [leading] to the decision of 30 September 2003, were remedied. Thus [the investigator] questioned [the applicant], the police officers, the emergency doctors and other persons who had been present in the cell of the temporary detention unit of the Chernoyarskiy District Police Department during the infliction of injuries by [the applicant].
Assessing the foregoing, the court does not doubt the impartiality of the investigator Ms S. who performed the investigation... The statements by the police officers, the emergency doctors and staff of the temporary detention unit of the Chernoyarskiy District Police Department, as well as by the detainees Mr S. and Mr I., do not contradict each other and draw a full picture of the events leading to the self-infliction of the injuries by [the applicant]...”
“Having examined the arguments of the defence, as stated in their complaint, having heard the submissions of the Chernoyarskiy District Prosecutor, and having studied the material in the case-file, the court draws the following conclusion.
On 6 March 2003 [the applicant] was arrested on suspicion of having committed a criminal offence, as provided for by paragraph 2 of Article 105 of the Criminal Code of the Russian Federation. On 8 March 2003 he wrote a confession statement. The lawyer in his complaint argues that [the applicant] made this confession under duress inflicted by the police officers. However, this fact was not proven by the documents included with the material of the investigation. Upon the lawyer's request, a forensic medical examination was ordered; as shown by [the expert] report of 9 March 2003, at the time of his examination, [the applicant] did not have any injuries... Moreover, that expert examination fully excluded the possibility of [the applicant's] severe systematic beatings, torture and psychological pressure by the policemen in order to force him to confess to the murder of Ms P.
As shown by the material of the investigation examined by the court, [the applicant] received injuries on 13-14 March 2003; that is confirmed by the emergency doctor Ms K., the police officers Mr M., Mr Lu., Mr Sm., and by the forensic medical expert report of 29 September 2003. The determination of the means of infliction of injuries lies within the competence of the expert... The expert report can only be assessed in the course of the [applicant's] trial. The fact that [the applicant] caused the injuries to himself on 13-14 March 2003 is confirmed by the statements of Mr S. and Mr I. who had been detained together with [the applicant] in cell no. 1 in the temporary detention unit of the Chernoyarskiy District Police Department; [Mr S. and Mr I.] stated that [the applicant] had begun hitting his head against a wall without any apparent reason.
Moreover, the defence did not provide any reason for inflicting injuries on [the applicant] on 13-14 March 2003, that is after he had confessed to having murdered Ms P. (the confession statement was made on 8 March 2003), the defence did not substantiate what was the aim of torturing [the applicant] in the [later] period.
In such circumstances, the court is of the opinion that the defence's arguments about the unlawfulness and unreasonableness of the decision of 15 December 2003 of the assistant prosecutor Ms S. ... were not corroborated and the complaint is to be dismissed.”
B. Detention on remand
1. Detention from April to 6 November 2003
2. Examination of an application for release
“Taking into consideration copies of the material in the criminal case file examined at the hearing - records of investigative actions and decisions of the pre-trial investigation organs and a court - the court notes that [the applicant] has been charged with a particularly serious criminal offence, which presents great public danger; as can be seen from the decision of 11 March 2003, when determining the issue of the preventive measure [to be imposed on the applicant], the pre-trial investigation bodies had provided the court with the material from the investigative actions which contained objective data allowing the conclusion that the accused, if released, could obstruct justice in the case and influence witnesses. During the pre-trial investigation in the case until the present time that information has existed among the material in the case file. The fact that the decision of 11 March 2003 became final confirms that [the applicant's] family situation, his place of residence and personal characteristics were taken into account when determining the possible preventive measure. The court notes that at the present time the family situation and the personal characteristics of the accused have not changed. [The applicant's] illness cannot serve as the reason for his release, under the provisions of the Code of Criminal Procedure.
Moreover, according to the decision of the Chernoyarskiy District Court of 31 October 2003 [the applicant's] detention on remand was extended until 6 December 2003. That decision was upheld on appeal by the Astrakhan Regional Court on 10 November 2003. Those decisions established that [the applicant's] detention had been authorised and extended reasonably and in accordance with the law on criminal procedure ...
The court notes that the fact that the pre-trial investigation ended and that the applicant started reading the case file cannot serve as evidence to show that the grounds for [the applicant's] detention in the present case ceased to exist ...”
3. Extension of the applicant's detention until 6 December 2003 (detention order of 31 October 2003)
4. Request for release and the decision of 26 November 2003
5. Extension of detention until 6 January 2004 (detention order of 5 December 2003)
6. Decision of 9 January 2004 (detention from 6 January to 2 March 2004)
7. Further detention orders (detention from 2 March to 13 July 2004). The applicant's release on bail
8. Return to custody on 8 October 2004. Subsequent detention orders
“Having studied the material presented by the prosecution..., having assessed the statements by witnesses, spouses Mr and Ms G., who had testified that physical force and threats had been used against Mr G., the court finds that the presented evidence confirms the fact that [the applicant] may obstruct the proceedings in the criminal case and that that circumstance is the ground for a change in the preventive measure; at the same time, taking into account the fact that the criminal offence with which [the applicant] is charged under Article 105 § 1 of the Russian Criminal Code belongs to the category of particularly serious offences and relying on the gravity of the charge, [the preventive measure should be changed] to detention on remand.”
“In order to substantiate its authorisation of the change in the preventive measure [imposed on the applicant]... [the Town] court relied on the [information] pertaining to [the applicant's] having committed actions which amount to obstruction of the judicial proceedings in the criminal case.
The above-mentioned conclusions of the [Town] court are well-founded as they are confirmed by the statements of the witnesses, Mr and Ms G.”
C. Trial and appeal proceedings on the charges of murder and weapon possession
II. RELEVANT DOMESTIC LAW
A. Investigation into criminal offences
B. Detention matters
1. Preventive measures
2. Authorities ordering detention
The new CCrP requires a judicial decision by a district or town court on a reasoned request by a prosecutor, supported by appropriate evidence (Article 108 §§ 1, 3-6).
3. Grounds for remand in custody
(a) Two types of remand in custody
(b) Time-limits for detention “during investigation”
5. Time-limits for trial proceedings
C. Case-law of the Constitutional Court
“A practice of keeping a person in detention without a specific legal basis, but because of a lack of clear rules governing the detainee's situation, with the result that a person may be deprived of his liberty for an unlimited period without judicial authorisation, is incompatible with the principles of legal certainty and protection from arbitrariness. The detention of a person for several months on the sole ground that the case has been transmitted to the court cannot be considered 'lawful' within the meaning of Article 5 § 1 of the Convention and is in itself incompatible with the principle of legal certainty, which is one of the common threads of the rule of law (see Baranowski v. Poland, no. 28358/95, §§ 54-57, ECHR 2000-III; and Ječius v. Lithuania, no. 34578/97, §§ 62 and 63, ECHR 2000-IX).”
In part 3.2. of the ruling the Constitutional Court analysed and interpreted the domestic provisions in the light of the above principles:
“The second part of Article 22 of the Constitution of the Russian Federation provides that ... detention is permitted only on the basis of a court order ... Consequently, if the term of detention as defined in the court order expires, the court must decide on the extension of the detention, otherwise the accused person must be released ...
These rules are common to all stages of criminal proceedings, and also cover the transition from one stage to another. ... The transition of the case to another stage does not automatically put an end to the preventive measure applied at previous stages.
Therefore, when the case is transmitted by the prosecution to the trial court, the preventive measure applied at the pre-trial stage ... may continue to apply until the expiry of the term for which it has been set by the relevant court decision [imposing it] ...
[Under Articles 227 and 228 of the Code of Criminal Procedure] a judge, after having received the criminal case concerning a detained defendant, should, within 14 days, set a hearing and establish 'whether the preventive measure applied should be lifted or changed'. This wording implies that the decision to detain the accused or extend his detention, taken at the pre-trial stage, may stand, after the completion of the pre-trial investigation and transmission of the case to the court, only until the end of the term for which the preventive measure has been set.
The prosecution, in its turn, when approving the bill of indictment and transferring the case file to the court, should check whether the term of detention has not expired and whether it is sufficient to allow the judge to take a decision [on the further detention on remand of the accused]. If by the time of transfer of the case file to the court this term has expired, or if it appears to be insufficient to allow the judge to take a decision [on detention], the prosecutor, applying Articles 108 and 109 of the Code of Criminal Procedure, [must] ask the court to extend the period of detention.”
I. PRELIMINARY CONSIDERATIONS
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Submissions by the parties
B. The Court's assessment
(a) General principles
(i) As to the scope of Article 3
(ii) As to the establishment of the facts
(b) Application of the above principles in the present case
(i) Establishment of facts and application of the rule on the minimum level of severity
(ii) Alleged ill-treatment by the police
(iii) Alleged inadequacy of the investigation
III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so...”
A. Submissions by the parties
A. The Court's assessment
(a) Six-month issue
(b) Exhaustion issue
121. In this connection, the Court firstly reiterates its finding made in a number of cases that where there is a practice of non-observance of certain Convention provisions, the remedies prescribed will of necessity be side-stepped or rendered inadequate (see Donnelly and Others v. the United Kingdom, no. 5577-5583/72, Commission's report of 5 April 1973, Decisions and Reports (DR) 16, p. 264). Bearing in mind the Government's argument that the situation in which the applicant had found himself from 6 to 9 January 2004 derived from the “well-established law-enforcement practice” of the Russian courts and, having regard to the subject matter of the applicant's complaint, the Court finds it questionable whether, in such a situation the applicant would have been able to argue his case before a court or even state the cause of his complaint such as to pass the admissibility stage. The stance of the Russian courts at the material time made it unreasonable for claimants such as the applicant to expect any form of redress until a change in the existing interpretation of Article 255 of the Russian Code of Criminal Procedure was introduced by the Russian Constitutional Court.
(a) General principles
(b) Application of the general principles to the present case
(i) The applicant's detention from 6 November 2003 to 6 January 2004
(ii) The applicant's detention from 6 to 9 January 2004
“... for the detention to meet the standard of 'lawfulness', it must have a basis in domestic law. The Government, however, did not point to any legal provision which permitted a defendant to continue to be held in custody once the authorised detention period had expired. The Russian Constitution and the rules of criminal procedure vested the power to order or prolong detention on remand in the courts. No exceptions to that rule were permitted or provided for. Even though, as indicated by the Government, the domestic courts interpreted Article 255 § 2 of the Code of Criminal Procedure as permitting a six-month detention “during the trial” without a court order, that interpretation was condemned by the Russian Constitutional Court as incompatible with the Constitution and Article 5 § 1 of the Convention. As noted above, in the period from 5 to 22 January 2004 there was no judicial decision authorising the applicant's detention. In these circumstances the Court finds that the detention was not 'lawful' for Convention purposes” (ibid, § 60).
3. Summary of the findings
IV. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be... entitled to trial within a reasonable time or to release pending trial...”
A. Submissions by the parties
B. The Court's assessment
1. General principles
It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest that might justify, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000 IV).
2. Application of the general principles to the present case
(a) Period to be taken into consideration
(b) Grounds for continued detention
(c) Conduct of the proceedings
(d) Overall assessment
V. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful...”
A. Submissions by the parties
B. The Court's assessment
(a) General principles
(b) Application of the general principles to the present case
(i) Applications for release lodged in October and November 2003
(ii) Application for release lodged on 17 March 2004
VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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 1,000 (one thousand euros) in respect of non-pecuniary damage;
(ii) EUR 2,424.16 (two thousand four hundred and twenty-four euros and sixteen cents) in respect of costs and expenses incurred before the Court;
(iii) any tax that may be chargeable to the applicant on the above amounts;
(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;
Done in English, and notified in writing on 22 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis