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ASATRYAN v. ARMENIA - 24173/06 [2010] ECHR 142 (9 February 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/142.html
Cite as:
[2010] ECHR 142
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THIRD
SECTION
CASE OF ASATRYAN v. ARMENIA
(Application
no. 24173/06)
JUDGMENT
STRASBOURG
9
February 2010
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 Asatryan v.
Armenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Elisabet Fura,
Boštjan M.
Zupančič,
Alvina Gyulumyan,
Ineta
Ziemele,
Luis López Guerra,
Ann Power,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 19 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 24173/06) against the Republic
of Armenia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Armenian national, Ms Silva Asatryan (“the
applicant”), on 22 May 2006.
The applicant was represented by Mr K. Mezhlumyan,
a lawyer practising in Yerevan The Armenian Government (“the
Government”) were represented by their Agent, Mr G. Kostanyan,
Representative of the Republic of Armenia at the European Court of
Human Rights.
On
6 December 2007 the President of the Third Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1960 and lives in Yerevan.
On
23 September 2005, at 5.50 p.m., the applicant was taken into custody
on suspicion of attempted murder.
On
26 September 2005 formal charges were brought against the applicant.
On
the same date the Kentron and Nork-Marash District Court of Yerevan
(Երևան
քաղաքի Կենտրոն
և Նորք-Մարաշ
համայնքների
աոաջին ատյանի
դատարան) granted
the investigator's relevant motion and ordered the applicant's
detention on remand for a period of two months, to be calculated from
23 September 2005.
On
14 November 2005 the investigator filed a motion with the District
Court, seeking to have the applicant's detention on remand prolonged
for another two months.
On
22 November 2005 the District Court examined and dismissed this
motion. This decision was subject to appeal.
On
23 November 2005 at around 11 a.m. a copy of this decision was
presented by the applicant's lawyer to the Chief of the
Yerevan-Kentron Detention Facility («Երևան-Կենտրոն»
քրեակատարողական
հիմնարկի պետ)
where the applicant was held.
On
the same date the prosecutor lodged an appeal against the above
decision.
Later
that day at 5.30 p.m. the Criminal and Military Court of Appeal (ՀՀ
քրեական և զինվորական
գործերով վերաքննիչ
դատարան)
commenced the examination of the prosecutor's appeal. The applicant
was escorted to the hearing by four national security officers in an
official car.
At
5.45 p.m. the applicant's lawyer arrived and requested a ten-minute
recess to be able to consult with the applicant. The Government
alleged that the lawyer was deliberately late for the hearing, while
the applicant claimed that her lawyer was informed by telephone about
this hearing only at 5.30 p.m.
At
5.50 p.m. the applicant's detention period authorised by the decision
of 26 September 2005 expired.
Following
the recess, the lawyer challenged the impartiality of the bench. He
first alleged that the court had not given the applicant sufficient
time to prepare her defence and also failed to ensure equality of
arms. Furthermore, there were four national security officers in the
court building who prevented the applicant, who was formally already
at liberty, from going out of the building. Thus, the fact that such
things were happening in the building of the Court of Appeal
suggested that the outcome of the proceedings was already
pre-determined.
The
court departed to the deliberation room to examine this challenge,
after which it returned and announced its decision dismissing it.
Thereafter
another twenty-minute recess was announced by the court for the
defence to be able to familiarise itself with the prosecutor's appeal
and the materials of the case. During the recess an ambulance was
called because the applicant felt unwell. Her blood pressure rose to
180/100 but no injections could be administered as she was allergic,
so the doctor recommended adjourning the hearing.
The
hearing resumed at 8.03 p.m. The applicant's lawyer requested
the adjournment of the hearing in view of the deterioration of the
applicant's health and in order for him to be able to familiarise
himself with the prosecutor's appeal in adequate conditions. The
court granted this request and adjourned the hearing until 1 p.m.
on 24 November 2005.
The
court hearing was over at around 8.30 p.m.
The
applicant alleged and the Government did not dispute that during the
entire court hearing she was monitored by four national security
officers and was not allowed to move freely, to leave the courtroom
during the breaks or to go home. After the court hearing was over,
she was forcibly taken by these officers and pushed into the same car
and taken back to the Yerevan-Kentron Detention Facility. This was
done after one of the officers had a private consultation and
received instructions from the presiding judge in the deliberation
room.
On
24 November 2005 at 1 p.m. the Court of Appeal resumed the
examination of the prosecutor's appeal. The applicant was not present
at this hearing.
The
applicant's lawyers again challenged the impartiality of the bench,
alleging that the court had manifested a biased attitude. In
particular, the court summoned a hearing on the prosecutor's appeal
immediately before the expiry of the applicant's detention period.
Furthermore, the court did not release the applicant despite the fact
that her detention had not been prolonged. Finally, after the hearing
was over, the presiding judge departed to the deliberation room where
he had a consultation with a national security officer, as a result
of which it was decided to keep the applicant in detention.
Thereafter she was transported to a national security isolation cell.
The lawyers claimed that all the above suggested that the Court of
Appeal was not impartial.
The
court examined and dismissed this challenge.
Thereafter,
one of the applicant's lawyers made a declaration stating that,
following the court hearing of 23 November 2005, the applicant had
been taken away by national security officers in an unknown
direction, despite the fact that she was already free by virtue of
the law. The lawyers refused to participate in the hearing in such
circumstances and left the courtroom.
The
Court of Appeal examined the prosecutor's appeal in their absence and
decided to quash the decision of the District Court of 22 November
2005 and to prolong the applicant's detention on remand for another
two months.
On
28 November 2005 one of the applicant's lawyers addressed a letter to
the Chief of the Yerevan-Kentron Detention Facility, complaining:
“... You ..., as the chief of administration of
the detention facility where [the applicant] is kept, at 5.45 p.m. on
23 November 2005 not only did not release her, but had her escorted
to court by four officers in an official car having State licence no.
150 SS 02, during the entire [court hearing] you monitored her
actions until 8.30 p.m. on [that date], forbidding her to move
freely, and at around 8.30-8.45, with the assistance of the same
officers, you forcibly (holding her arms, pushing her) placed her in
the above car and transported her to the Yerevan-Kentron Detention
Facility where you received her, according to the information at our
disposal, without a relevant court decision. In that period (between
9 p.m. and 11 p.m.) the defence called you on numerous occasions and
you stated that you would keep [the applicant] until the court
hearing scheduled for 1 p.m. on the next day was over...”
On
5 December 2005 the applicant's lawyers lodged an appeal on points of
law against the Court of Appeal's decision. In their appeal, they
again complained about the fact that the applicant had not been
released from custody on 23 November 2005.
On
8 December 2005 the applicant's lawyers made a similar declaration
addressed to the Prosecutor General.
By
a letter of 9 December 2005 the Court of Cassation (ՀՀ վճռաբեկ
դատարան)
returned the appeal since it was no longer competent to examine it
following the constitutional amendments.
II. RELEVANT DOMESTIC LAW
A. The Code of Criminal Procedure (CCP)
The
relevant provisions of the CCP read as follows:
Article 11: Security of person
“5. The court, the body of inquest, the
investigator and the prosecutor are obliged immediately to release
any person illegally deprived of his liberty. The chief of
administration of a detention facility does not have the right to
receive a person for purposes of detention without a relevant court
decision and is obliged immediately to release any person whose
period of detention has expired.”
Article 136: Imposition of a preventive measure
“2. Detention ... shall be imposed only
by a court decision upon the investigator's or the prosecutor's
motion or of the court's own motion during the court examination of
the criminal case...”
Article 137: Detention
“5. The court's decision to choose
detention as a preventive measure can be contested before a higher
court.”
Article 138: Detention period
“1. The accused's detention period
shall be calculated from the moment of him being actually taken into
custody at the time of the arrest...
...
3. In the pre-trial proceedings of a criminal
case the detention period cannot exceed two months, except for cases
prescribed by this Code...
4. In the pre-trial proceedings of a criminal
case the accused's detention period can be prolonged by a court for
up to one year in view of the particular complexity of the case.”
Article 139: Prolongation of the detention period
“1. If it is necessary to prolong the
accused's detention period, the investigator or the prosecutor must
submit a well-grounded motion to the court not later than ten days
before the expiry of the detention period. The court, if it agrees on
the necessity of prolonging the detention period, shall adopt an
appropriate decision not later than five days before the expiry of
the detention period.
...
3. When deciding on the prolongation of the
accused's detention period, the court shall prolong the detention
period within the limits prescribed by this Code, on each occasion
for a period not exceeding two months.”
Article 141: Obligations of the administration of a
detention facility
“The administration of a detention facility is
obliged: ... (10) immediately to release a person kept in detention
without an appropriate court decision or whose detention period
imposed by a court decision has expired.”
Article 142: Releasing the accused from detention
“1. The accused must be released from
detention upon the decision of the relevant authority dealing with
the criminal case, if: ... (4) when deciding on the question of
detention, the detention period set by the court has expired and has
not been prolonged...
...
3. ... In cases envisaged under
[sub-paragraph 4] of paragraph 1 of this Article ... the chief of
administration of the detention facility shall immediately release
the detainee.”
Article 150: Appeals against preventive measures
“2. A court decision imposing a
preventive measure can be contested before the court of appeal.”
B. The Law on Conditions for Holding Arrested and
Detained Persons («Ձերբակալված
և կալանավորված
անձանց պահելու
մասին» ՀՀ օրենք)
The
relevant provisions of the Law read as follows:
Section 13: Rights of arrested and detained persons
“An arrested or detained person is entitled to ...
lodge applications and complaints, both himself and through his
lawyer or lawful representative, with ... the courts...”
Section 18: The procedure for examining proposals,
applications and complaints of arrested and detained persons
“...[C]omplaints ... addressed to ... a judge ...
shall be sent to [him] in a sealed envelope within one day.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The
applicant complained that her detention between 5.50 p.m. on 23
November 2005 and the time when the Criminal and Military Court of
Appeal decided on 24 November 2005 to prolong her detention was
unlawful. She invoked Article 5 §§ 1 (c) and 4 of the
Convention which, in so far as relevant, reads as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...
4. 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. Article 5 § 1 (c) of the Convention
1. The parties' submissions
The
Government admitted that the applicant had indeed been deprived of
her liberty between 5.50 p.m. on 23 November 2005 and the moment when
the Criminal and Military Court of Appeal decided on the next day to
prolong her detention. They claimed, however, that she had failed to
exhaust the domestic remedies. In particular, it was the
administration of the Yerevan-Kentron Detention Facility that was
responsible for the applicant's continued unlawful detention, by not
taking any steps to release her despite having been presented with a
copy of the District Court's decision of 22 November 2005. The
applicant, however, failed to challenge the inaction of the
administration before the domestic courts.
The
Government further claimed that on 23 November 2005 the Court of
Appeal did everything possible to examine the prosecutor's appeal and
to resolve the issue. The same cannot be said of the applicant and
her lawyers who did everything possible to hamper the examination of
the prosecutor's appeal. In particular, the lawyer arrived late at
the hearing and on several occasions requested a recess which was
granted by the court. The court was not able to finish the
examination of the prosecutor's appeal and had to adjourn the hearing
due to the applicant's state of health. Thus, the main reasons for
the delay in reaching a decision on 23 November 2005 and
the eventual adjournment of the hearing were the conduct of the
applicant's lawyers and the deterioration of her health. In such
circumstances, the position adopted in the case of Giulia Manzoni
v. Italy (1 July 1997, § 25, Reports of Judgments and
Decisions 1997 IV) was also applicable in the present case.
The
applicant submitted that her detention authorised by a court, which
had not been prolonged, was to expire at 5.50 p.m. on
23 November 2005 and the law required that she be released
not later than 5.51 p.m. on that day. The court received the
prosecutor's appeal in the afternoon of that day and scheduled a
hearing for the same day, informing her lawyers about this by
telephone at around 5.30 p.m. However, when her detention period
expired, the court did not set her free and she was held in the
courtroom with the help of national security officers. She was not
even allowed to leave the courtroom during the breaks, despite being
already formally at liberty. Afterwards, following a consultation
with the presiding judge and upon his instructions, four national
security officers forcibly transported her back to the detention
facility where she was kept until the Court of Appeal decided the
next day to prolong her detention. The applicant claimed that her
detention following this decision was also unlawful, arguing that if
a detention period was over it could no longer be extended.
The
applicant further submitted that she had exhausted all available
domestic remedies. In particular, given that she was at the Court of
Appeal when her detention period expired and the court did not
release her from detention in spite of the requirements of Article 11
§ 5 of the CCP, she lodged a challenge against the bench.
Furthermore, she lodged an appeal on points of law against the Court
of Appeal's decision of 24 November 2005, in which she also raised
this complaint. Moreover, the Government's argument placing all the
blame for the failure to release her on the administration of the
detention facility was ill-founded, because she was in court when her
detention period expired and it was the court's duty to release her.
Thus, the applicant's continued unlawful detention was the joint
responsibility of the court, the national security officers and the
administration of the detention facility.
2. The Court's assessment
(a) Admissibility
The
Court notes at the outset that the applicant raised her complaint
about the alleged unlawfulness of her detention following the Court
of Appeal's decision of 24 November 2005 for the first time in her
observations to the Court submitted on 11 November 2008. It follows
that this complaint was lodged out of time and must be rejected in
accordance with Article 35 §§ 1 and 4 of the Convention.
As
regards the complaint concerning the alleged unlawfulness of the
detention period between 5.50 p.m. on 23 November 2005 and the time
when the Criminal and Military Court of Appeal decided on
24 November 2005 to prolong her detention, the Court
considers that the Government's claim as to non-exhaustion is closely
linked to the substance of this complaint and should therefore be
joined to the merits.
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
(b) Merits
The
Court reiterates that any detention must be lawful. The words “in
accordance with a procedure prescribed by law” essentially
refer to domestic law and lay down an obligation to comply with its
substantive and procedural provisions, but also require that any
measure depriving the individual of his liberty must be compatible
with the purpose of Article 5, namely to protect the individual from
arbitrariness (see Winterwerp v. the Netherlands, 24 October
1979, § 39, Series A no. 33, and Lukanov v. Bulgaria, 20
March 1997, § 41, Reports of Judgments and Decisions
1997 II).
The
Court further reiterates that the list of exceptions to the right to
liberty secured in Article 5 § 1 is an exhaustive one and only a
narrow interpretation of those exceptions is consistent with the aim
and purpose of that provision (see Quinn v. France, 22 March
1995, § 42, Series A no. 311; Giulia Manzoni, cited
above, § 25; K.-F. v. Germany, 27 November 1997, §§
70, Reports of Judgments and Decisions 1997 VII; Labita
v. Italy [GC], no. 26772/95, § 170, ECHR 2000 IV;
and Nikolov v. Bulgaria, no. 38884/97, § 80,
30 January 2003).
The
Court has previously accepted that, in certain circumstances, there
may be some limited delay before a detained person is released.
However, this has been in cases where the period of detention ended
as a result of a court order and not conditions laid down by statute.
Practical considerations relating to the running of the courts and
the completion of administrative formalities mean that the execution
of such a court order may take time which, nevertheless, should be
kept to a minimum and, in any event, not exceed several hours (see
Quinn, cited above, § 42; Giulia Manzoni, cited
above, § 25; Labita, cited above, § 171; and
Nikolov, cited above, § 82). However, where the maximum
detention period and the release are conditioned by law, as opposed
to a court order, the authorities are under a duty to take all
necessary precautions to ensure that the permitted duration is not
exceeded (see K.-F., cited above, §§ 72, in which
even a delay of 45 minutes was found to be in breach of Article 5 §
1 (c), since the maximum period of detention was known in advance and
was absolute).
Turning
to the circumstances of the present case, the Court notes that
pursuant to Article 136 § 2 of the CCP detention can be imposed
only by a court decision. Pursuant to Article 138 of the CCP a
detention period is calculated from the moment that a person is
actually taken into custody and cannot exceed two months unless
prolonged by a court. The applicant was taken into custody at 5.50
p.m. on 23 September 2005. Thus, her detention period authorised by
the decision of the Kentron and Nork-Marash District Court of Yerevan
of 26 September 2005 was valid until 5.50 p.m. on 23 November
2005. On 22 November 2005 the District Court refused to prolong the
applicant's detention period. However, the applicant was not released
from detention at 5.50 p.m. on the next day. Instead, 20 minutes
before the expiry of her detention period she was taken to court to
take part in the hearing on the appeal lodged by the prosecutor
against the decision of 22 November 2005. Moreover, after this
hearing was adjourned at around 8.30 p.m., the applicant was taken
back to the detention facility despite the fact that Article 141 of
the CCP required the administration of the detention facility
immediately to release a detainee when his or her detention period
authorised by a court had expired.
The
Court observes that the Government admitted that the applicant had
indeed been deprived of her liberty between 5.50 p.m. on
23 November 2005 and the time when the Court of Appeal
decided on 24 November 2005 to quash the decision of the
District Court and to prolong her detention. They claimed, however,
that the approach adopted in the Giulia Manzoni case, cited
above, was to be applied. The Court does not agree with the
Government's claim. In particular, that and other similar cases
concerned a situation in which the court ordered the applicant's
release but some time was necessary for the authorities to complete
all the relevant administrative formalities in order to execute that
order. In the present case, however, the District Court, by its
decision of 22 November 2005, did not order the applicant's
release but simply refused to prolong her detention. Thus, the
applicant's authorised detention period continued to run and was to
expire on the next day, a fact of which the authorities were aware
and with which they were obliged to comply unless in the meantime the
District Court's decision was overturned. In that sense the present
case is more similar to the case of K.-F., cited above, than
the case pointed out by the Government. However, it must be
distinguished even from that case for the following reasons.
The
Government argued that the delayed examination of the applicant's
case in the Court of Appeal was attributable to the applicant's
lawyers, while after being taken to the detention facility she failed
to contest the inaction of its administration. The Court, however, is
not convinced by these arguments. It reiterates that it is for the
Contracting States to organise their legal system in such a way that
their law-enforcement authorities can meet the obligation to avoid
unjustified deprivation of liberty (see Shukhardin v. Russia,
no. 65734/01, § 93, 28 June 2007, and Matyush
v. Russia, no. 14850/03, §
73, 9 December 2008). The Court observes that Article 139 of the CCP
required that a motion seeking the prolongation of a detention period
be submitted to the trial court and examined by it not later than ten
and five days respectively before the expiry of the detention period.
However, both the investigator and the District Court failed to
comply with these time-limits, thereby creating undue delays in the
examination of the question of prolongation of the applicant's
detention (see paragraphs 8 and 9 above). Furthermore, the
applicant was brought before the Court of Appeal only 20 minutes
before the expiry of her detention period. The Government, however,
failed to come up with any explanation for these delays. In such
circumstances, the applicant cannot reasonably be blamed for the
failure of the Court of Appeal to finish the examination of the
question of prolongation of her detention period before its expiry,
especially in view of the fact that the entire hearing before that
court lasted much longer than 20 minutes, namely about three hours,
and was, moreover, eventually adjourned.
In
any event, even assuming that a short delay at the beginning of the
appeal hearing could be attributable to the applicant's lawyer, this
does not affect the fact that the applicant's authorised detention
period expired shortly after the start of such a belatedly scheduled
hearing and the law required that she be set free. In spite of this,
the Court of Appeal continued to treat the applicant as a detainee.
Not only did the court not set her free at 5.50 p.m., when her
authorised detention period expired, but even after the hearing was
adjourned. Furthermore, the applicant alleged, which the Government
did not dispute, that her transfer back to the detention facility was
effected in full knowledge of the court and even upon its informal
instructions. In such circumstances, it appears that the authorities
had no intention of setting the applicant free until the appeal
against the District Court's decision of 22 November 2005 received
its final determination. No steps were taken to that effect and all
the attempts made by the applicant's lawyers to secure her release
were simply ignored. Thus, the present case does not concern a
certain delay in complying with the legal rules requiring a
detainee's release, as in the case of K.-F., cited above, but
rather the reluctance of the authorities, including the courts, to
comply with such rules.
In such circumstances, it is doubtful that a separate
complaint lodged with the courts against the failure of the
administration of the detention facility to release the applicant
after she was taken there following the court hearing could have
produced any different results and secured the applicant's release.
Furthermore, the Government failed to specify what judicial procedure
the applicant had at her disposal that could have provided her with
an effective and immediate remedy capable of leading to her release,
given the specificities of her case. In this respect, it should
firstly be noted that the applicant was taken back to the detention
facility at a relatively late hour and, in any event, outside regular
working hours. Furthermore, the period of her unauthorised stay at
the detention facility was relatively short, about seventeen hours.
However, Section 18 of the Law on Conditions for Holding Arrested and
Detained Persons did not require any immediacy in such matters and
even allowed up to one day for detainees' complaints to be sent to a
judge. The Court reiterates that the only remedies to be exhausted
are those which are effective and accessible, that is available in
theory and in practice at the relevant time, and which are capable of
providing redress in respect of the applicant's complaints and offer
reasonable prospects of success (see Kalashnikov v. Russia
(dec.), no. 47095/99, 18 September 2001, and Melnik v.
Ukraine, no. 72286/01, § 67, 28 March 2006).
In view of the above, the Court considers that the Government's claim
as to non-exhaustion must be dismissed.
The
Court concludes that between 5.50 p.m. on 23 November 2005 and the
time when the Court of Appeal decided on 24 November 2005 to prolong
her detention the applicant continued to be deprived of her liberty,
despite the fact that there was no court decision authorising her
detention for that period as required by law. It follows that the
applicant's deprivation of liberty during that period was unlawful.
Accordingly,
there has been a violation of Article 5 § 1 (c) of the
Convention.
B. Article 5 § 4 of the Convention
The
Court notes that the applicant also invoked Article 5 § 4 of the
Convention in connection with the same facts, alleging that her
unauthorised detention also gave rise to a violation of that
provision.
The
Court considers, however, that this complaint results from the main
issues arising in the case under Article 5 § 1 (c) of the
Convention. Having regard to its findings in respect of Article 5 §
1 (c), it does not consider it necessary to examine separately the
admissibility and merits of this complaint.
II. 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 5,000 euros (EUR) in respect of non-pecuniary
damage as she had suffered distress and frustration as a result of
the failure of the domestic authorities to release her from
detention.
The
Government claimed that the applicant had failed to adduce any
evidence to support her allegation that she had suffered
non-pecuniary damage. Even assuming that she had suffered such
damage, a finding of a violation would be sufficient just
satisfaction. In any event, the amount claimed was excessive.
The
Court takes the view that the applicant has suffered non-pecuniary
damage as a result of her unlawful detention. Ruling on an equitable
basis, it awards the applicant EUR 2,000 in respect of non-pecuniary
damage.
B. Costs and expenses
The
applicant also claimed EUR 6,000 for the costs and expenses incurred
before the Court. These included EUR 5,000 for legal costs and EUR
1,000 for translation and administrative costs, such as postal,
photocopying and other expenses. As regards legal costs, the
applicant submitted that under Armenian law, once a lawyer had taken
over the case, he could no longer withdraw. She did not pay any money
to the lawyer for lodging complaints with the domestic authorities
and bringing her case before the Court, but the lawyer performed his
work conscientiously. Therefore, no payment proof exists which could
be submitted to the Court.
The
Government submitted that these claims must be rejected since the
applicant had not produced any proof that the expenses had been
actually incurred. Nor did she substantiate that these alleged costs
were necessary and reasonable.
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 applicant admitted
that she had not paid any money to her lawyer who represented her
both before the domestic courts and the Court. Nor was she bound by
any contract to make such a payment in the future. As to the alleged
translation costs, no documentary proof was submitted substantiating
these costs either. Therefore, these claims must be dismissed. On the
other hand, the Court considers it appropriate to award the applicant
EUR 500 for the costs incurred in the proceedings before it.
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
objection as to non-exhaustion and to dismiss it;
Declares the applicant's complaint concerning
the unlawfulness of her detention between 5.50 p.m. on 23 November
2005 and the time when the Criminal and Military Court of Appeal
decided on 24 November 2005 to prolong her detention
admissible under Article 5 § 1 (c) of the
Convention;
Holds that there has been a violation of Article
5 § 1 (c) of the Convention;
Holds that it is not necessary to examine
separately the admissibility and merits of the complaint under
Article 5 § 4 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
2,000 (two thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Armenian drams
at the rate applicable at the date of settlement;
(ii) EUR
500 (five hundred euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses, to be converted into
Armenian drams at the rate applicable at the date of settlement;
(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 9 February 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
