European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

 

 

 

CASE OF ZINOVYEVA v. RUSSIA

 

(Application no. 69272/13)

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

 

 

 

STRASBOURG

 

8 January 2019

 

 

 

This judgment is final but it may be subject to editorial revision.

In the case of Zinovyeva v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Branko Lubarda, President,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 4 December 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 69272/13) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Russian national, Ms Kristina Nikolayevna Zinovyeva ("the applicant"), on 21 October 2013.

2. The applicant was represented by Mr N. Zboroshenko, a lawyer practising in Moscow. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. On 28 August 2014 the Government were given notice of the complaints concerning the allegedly unlawful and disproportionate measures taken against participants of the demonstration of 6 May 2012 at Bolotnaya Square, the conditions of the applicant's detention at the police station and the alleged lack of domestic remedies in that regard. The remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

4. The Government did not object to the examination of the application by a Committee.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1988 and lives in Moscow.

A. Demonstration of 6 May 2012

6. The background facts relating to the planning, conduct and dispersal of the demonstration at Bolotnaya Square are set out in more detail in Frumkin v. Russia (no. 74568/12, §§ 7-65, 5 January 2016) and Yaroslav Belousov v. Russia (nos. 2653/13and 60980/14, §§ 7-33, 4 October 2016). The parties' submissions on the circumstances directly relevant to the present case are set out below.

7 . On 6 May 2012 a public demonstration entitled the "March of Millions" was held in central Moscow to protest against the allegedly rigged presidential elections. The event had been approved by the city authorities in the form of a march followed by a meeting at Bolotnaya Square which was supposed to end at 7.30 p.m. The march was peaceful and held without any disruptions, but when the marchers arrived at Bolotnaya Square it transpired that barriers installed by the police had narrowed the entrance to the meeting venue, allegedly restricting the space allocated for the meeting. To control the crowd, a police cordon forced the protesters to remain within the barriers. There were numerous clashes between the police and protesters. At 5.30 p.m. the police ordered that the meeting finish early and began to disperse the participants. It took them about two hours to clear the protesters from the square.

8. The applicant took part in the demonstration on 6 May 2012 at Bolotnaya Square. She was arrested at the venue of the event and taken to a police station, where she was charged with an administrative offence. After a night in detention the applicant was released; on 8 May 2012 she was convicted as charged but exempted from administrative liability.

B. The applicant's arrest, detention and conviction for an administrative offence

9. According to the applicant, on 6 May 2012 she participated in the demonstration at Bolotnaya Square. She conducted herself peacefully and did not take part in any acts of violence prior to her arrest. At 6 p.m. she was arrested by the police and at around 9 p.m. was taken to Taganskiy district police station of Moscow.

10 . According to the Government, the applicant was arrested at 6 p.m. at Bolotnaya Square because she had been participating in breaking the police cordon. At 7.20 p.m. she was taken to Taganskiy district police station, which was also indicated in the record of her transfer to the police station for the purpose of compiling an administrative file. She was released on 7 May 2012.

11 . The record of administrative arrest indicated that the applicant had been arrested at 8.45 p.m. at the police station. It contained no mention of the date or time of her release. It indicated that the applicant had not asked to notify anyone of her arrest. She signed an undertaking that she would attend court if ordered by the judge to do so.

12. After that an on-duty officer drew up an administrative-offence record on the basis of the reports and explanatory notes of G.S. and M.S., the police officers who had arrested the applicant. These reports and notes were drawn up using an identical template and contained no individualised information except the police officers' personal information and the applicant's name. The latter was accused of disobeying lawful orders of the police, an offence under Article 19.3 § 1 of the Code of Administrative Offences. The administrative-offence record reiterated the reports and notes of the police officers, stating as follows:

"... [the applicant], acting as part of a group of 1,500 citizens, took part in an authorised meeting ... during the event [the applicant] committed a breach of the rules on holding public events, [that is to say] she broke the police cordon ... thereby preventing police officers from carrying out their service duties, in breach of Article 19.3 § 1 of the Code of Administrative Offences."

13. According to the applicant, at the police station she was not allowed to make a phone call, despite making insistent requests. She told the police that she was the mother of a fifteen-month-old child left at home with a babysitter and requested that her family be notified of her arrest, but this was also refused. Her passport contained no information about her baby. At the police station she was detained in a small overcrowded cell with no sanitary facilities, sleeping place or bedding. She had no access to drinking water and was given no food.

14 . The administrative case file also contained an explanatory note by the applicant. She stated that during the demonstration she had happened to be in the middle of the crowd, which had pulled her towards the police officers. At some point she had been arrested and taken to the police station, even though she had not chanted any slogans.

15. At around 6 p.m. on 7 May 2012 the applicant appeared before a justice of the peace. However, her case could not be examined that day and she was taken back to the police station. According to the applicant, she was released at about 10 p.m. that day. She signed an undertaking that she would attend the court hearing of the administrative case.

16. On 8 May 2012 the Justice of the Peace of circuit no. 100 of the Yakimanka District examined the charges against the applicant. On the basis of the police officers' reports and explanations and the records of administrative transfer and arrest, the court established that the applicant had committed an administrative offence under Article 19.3 § 1 of the Code of Administrative Offences, as described in the administrative-offence record. The applicant repeated the statements she had given in the explanatory note, but they were dismissed. The court decided, however, to absolve her from administrative liability on the grounds that her offence had not entailed serious consequences and that she had a baby born in 2011. The Justice of the Peace issued her a warning. She did not appeal against the judgment.

17. On 26 July 2012 the applicant lodged a complaint under Chapter 25 of the Code of Civil Procedure with the Dorogomilovskiy District Court of Moscow about her allegedly arbitrary arrest on 6 May 2012 and detention until 7 May 2012, the termination of the rally at Bolotnaya Square and the conditions of her detention at the police station.

18 . On 3 September 2012 the court refused to examine the complaint on the grounds that the contested acts of the police had been the matter of the administrative proceedings and could not be challenged separately. It did not examine the complaint about the conditions of detention.

19. On 20 May 2013 the Moscow City Court quashed the part of the decision of 3 September 2012 concerning the refusal to examine the complaint about the conditions of detention, and upheld the remaining part.

20. On 23 October 2013 the Dorogomilovskiy District Court dismissed the applicant's complaint about the conditions of her detention at the police station as unsubstantiated. On 28 February 2014 the Moscow City Court upheld that judgment.

II. RELEVANT DOMESTIC LAW AND PRACTICE

21. For a summary of the relevant domestic law, see Frumkin (cited above, §§ 77 and 79).

22 . Article 3.9 § 2 of the Code of Administrative Offences provides that administrative detention may not be applied to women with children under fourteen years old.

23. According to Article 2.9 of the Code of Administrative Offences, a judge examining an administrative case may exempt an offender from administrative liability and issue a warning if the offence was minor. Paragraph 1.1 (2) of Article 29.9 stipulates that if a warning is issued, the administrative proceedings must be discontinued.

24 . Chapter 25 of the Code of Civil Procedure (in force until 15 September 2015) described the procedure for examining complaints about decisions, acts or omissions of State and municipal authorities and officials. It provided that a person could lodge a complaint with a court about an act or decision by any State or municipal authority or official if he or she considered that the act or decision had violated his or her rights and freedoms (Article 254). The complaint could concern any decision, act or omission which had violated the person's rights or freedoms, had impeded their exercise, or had imposed a duty or liability on that person (Article 255). The complaint had to be lodged with a court of general jurisdiction within three months of the date on which the complainant had learnt of the breach of his rights (Article 256).

25 . In Ruling no. 2 of 10 February 2009 the Plenary Supreme Court of Russia stated that the procedure under Chapter 25 of the Code of Civil Procedure was not applicable to challenges against actions, omissions or decisions for which the Code of Administrative Offences did not establish a review procedure and which, being intrinsically linked to a given case of administrative offence charges, were not amenable to a separate review (paragraph 7). The above statement was relevant for evidence in cases where certain measures were recorded, for instance in a record of transfer to a police station or a record of administrative arrest. In such circumstances, arguments relating to the inadmissibility of a piece of evidence or measure could be presented during examination of the administrative offence case or on appeal against a decision in such a case. However, where administrative proceedings were discontinued, any actions taken during the proceedings could then be challenged under Chapter 25 of the Code of Civil Procedure, if they impinged upon the person's rights or freedoms, created obstacles to their being exercised, or imposed liability unlawfully.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

26. The applicant complained that the conditions of her detention at the police station had been poor. She relied on Article 3 of the Convention, which reads as follows:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

27. The Government contested that argument. They relied on the findings of the domestic courts and submitted that the conditions of the applicant's detention had been satisfactory.

28. The Court observes that the Government did not raise the issue of the applicant's compliance with the six-month rule. It has previously found that the application of that rule should not be set aside solely because a Government have not made a preliminary objection based on it (see Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006-III, and Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I). The Court therefore considers it appropriate to address this issue in the present case.

29. The Court notes that the treatment complained of ceased on 7 May 2012, when the applicant was released from the police station. It reiterates that, under the current approach, recourse to civil proceedings under Chapter 25 of the Code of Civil Procedure would not be considered an effective remedy in condition-of-detention cases (see Ananyev and Others v. Russia , nos. 42525/07and 60800/08, §§ 107-12 and 119, 10 January 2012). The applicant should have been aware of the ineffectiveness of the judicial avenue she had made use of before she lodged her application with the Court. The complaint about the conditions of her detention should have been lodged no later than 7 November 2012, whereas it was actually lodged on 10 July 2014.

30. It follows that this complaint is inadmissible for non-compliance with the six-month rule set out in Article 35 § 1 of the Convention, and must be rejected pursuant to Article 35 § 4.

II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

31. The applicant complained that her arrest on 6 May 2012 followed by overnight detention at a police station had been unlawful and arbitrary. She relied on Article 5 § 1, 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; ..."

A. Admissibility

32 . The Government submitted that the applicant had not exhausted domestic remedies and had missed the six-month term in respect of her complaints under Article 5 of the Convention. They referred to her failure to appeal against the judgment of 8 May 2012 and stated that the civil proceedings initiated by her had not constituted an appropriate remedy for those complaints. The Government drew attention, in that connection, to the decision of 3 September 2012.

33 . The applicant argued that lodging an appeal in the administrative proceedings could not be considered an effective remedy to be exhausted.

34 . The Court observes that, under the provisions of the Code of Administrative Offences in force at the relevant time, if a decision to issue a warning was taken, the administrative proceedings would be terminated (see paragraph 23 above). Consequently, if the administrative proceedings were discontinued, any actions taken during the proceedings could be challenged under Chapter 25 of the Code of Civil Procedure (see paragraph 25 above). Given that the applicant's administrative arrest and subsequent detention at the police station impinged upon her right to liberty, she was entitled to challenge these measures in separate civil proceedings. She lodged this complaint with the Court on 21 October 2013, while the final decision was delivered on 20 May 2013. She has therefore complied with the six-month rule.

35. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties' submissions

36. The applicant submitted that the police had had no grounds to arrest her as they could have compiled the administrative-offence record on the spot. Moreover, her overnight detention at the police station after her arrest had been unlawful. Under domestic law, women who had children under fourteen years old could not be sentenced to administrative detention (administrative imprisonment) by the court. At the same time, administrative arrest not exceeding forty-eight hours could only be applied to persons subject to administrative proceedings concerning an offence punishable by administrative detention or offences involving the unlawful crossing of the Russian border. The applicant contended that the police had not given her an opportunity to notify her relatives of her arrest and to ask them about providing the police with a birth certificate for her baby, as grounds for her release. In any case, the domestic authorities had arrested and detained her in order to secure her attendance at a hearing before a justice of the peace the next day. However, they had failed to provide justification for such a measure, such as a risk of her absconding or otherwise obstructing the course of justice.

37. The Government contended that the applicant had been transferred (escorted) to the police station within two hours of her arrest, which had not been "manifestly unreasonable". She had been transferred in accordance with Article 27.2 of the Code of Administrative Offences, which had empowered the police to take individuals to a police station for the purpose of drawing up an administrative-offence record. Once the applicant had been issued the administrative-offence record, she had been administratively arrested (Article 27.3 of the Code). The term of such an arrest had to be calculated from the time a person was taken to a police station and could not exceed forty-eight hours, in accordance with Article 27.5 of the Code. The applicant had spent less than twenty-four hours at the police station, which had not exceeded the statutory limit. Overall, the Government considered that the applicant's deprivation of liberty had complied with domestic law and with the requirements of Article 5 § 1 of the Convention.

2. The Court's assessment

38. The Court reiterates that the expressions "lawful" and "in accordance with a procedure prescribed by law" in Article 5 § 1 of the Convention essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. However, the "lawfulness" of detention under domestic law is not always the decisive element. The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent individuals from being deprived of their liberty in an arbitrary fashion. Furthermore, the list of exceptions to the right to liberty secured in Article 5 § 1 of the Convention is an exhaustive one, and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his or her liberty (see Giulia Manzoni v. Italy , 1 July 1997, § 25, Reports of Judgments and Decisions 1997-IV).

39. The Court observes that the applicant was first taken to the police station in accordance with Article 27.2 of the Code of Administrative Offences and then, once at the police station, administratively arrested in accordance with Article 27.3 of the Code (see paragraphs 10-11 above). The applicant was then detained at the police station for about twenty-four hours before her release (see paragraph 14 above).

40. As regards the transfer procedure, the record of administrative transfer stated that the applicant had been taken to the police station for the purpose of drawing up an administrative-offence record. Article 27.2 of the Code of Administrative Offences provides that a suspect may be transferred to a police station for this purpose only if a record cannot be compiled at the place where the offence was detected. Even though the Government have not argued that in the applicant's case this was impossible, the Court is ready to accept that in the context of the general commotion and violence which was happening at Bolotnaya Square, the police could hardly draw up the record on the spot (compare with Novikova and Others , nos. 25501/07and 4 others, §§ 182-83, 26 April 2016).

41. As regards the applicant's administrative detention, the Court notes that once the administrative-offence record had been drawn up, the objective of transferring the applicant to the police station had been met and she could have been discharged. However, she was formally remanded in custody despite signing an undertaking that she would attend court if ordered by the judge to do so. She was released a day after her arrest only because her case could not be examined as scheduled, on signing an undertaking that she would attend court again. The Court observes that the Government have provided no justification for the applicant's detention at the police station, as required by Article 27.3 of the Code of Administrative Offences. In particular, they have not argued that it was an "exceptional case" for applying such measure, or that it was necessary for the prompt and proper examination of the alleged administrative offence or to secure the enforcement of any penalty to be imposed. Moreover, the Government have given no explanation for the failure of the police to release the applicant one they learnt that she had a baby, given that in the circumstances she should not have been detained for more than three hours (as stated in Articles 3.9 (2) and 27.5 of the Code of Administrative Offences).

42 . For these reasons, the Court is not satisfied that the applicant's administrative detention complied with Russian law so as to be "lawful" within the meaning of Article 5 § 1 of the Convention. There has accordingly been a violation of that provision.

III. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

43. The applicant alleged a violation of her right to peaceful assembly. She complained, in particular, about the security measures implemented at the site of the demonstration at Bolotnaya Square, the early termination of the protest and her arrest. She relied on Article 11 of the Convention, which, in so far as relevant, reads as follows:

"1. Everyone has the right to freedom of peaceful assembly ...

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others ..."

A. Admissibility

44. The parties reiterated their submissions under Article 5 § 1 of the Convention as regards the admissibility of this complaint.

45. The Court observes that the applicant did not appeal against the judgment of 8 May 2012 by which she was found guilty of an administrative offence but absolved from administrative liability. Instead, she initiated civil proceedings complaining about the termination of the rally, dispersal of the protesters and her arrest, relying, in particular, on Article 11. This remedy was provided for by domestic law at the material time (see paragraphs 24-25 above). The Government did not elaborate on their comment why civil proceedings under Chapter 25 of the Code of Civil Procedure constituted an inappropriate remedy for the applicant's complaints under Article 11. They merely referred to the domestic judicial decisions, according to which the contested acts of the police had been the matter of the administrative proceedings and could not therefore be subject to a separate review. At the same time, the Court notes that the justice of the peace did not examine the adequacy of the security measures applied at the venue of the demonstration or the reasons why it was terminated and the participants dispersed, and instead focused on the question of the applicant's disobedience to the police. The issue of the broader lawfulness of the police acts interrupting the assembly were not part of the administrative proceedings, and the Government did not allege that the justice of the peace could have made an assessment of them.

46. In the circumstances of the present case, the Court has insufficient grounds to conclude that the lack of appeal against the decision absolving the applicant of administrative liability constituted a failure to exhaust domestic remedies in respect of her complaint concerning the authorities' decision to terminate the demonstration at Bolotnaya Square and disperse the protesters. It therefore rejects the Government's preliminary objection.

47. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties' submissions

48. The Government's submissions as regards the general measures implemented at Bolotnaya Square were identical to those in Frumkin (cited above, §§ 83-85). As regards the particular circumstances of the case, they considered that there had been no interference with the exercise of the applicant's right to peaceful assembly, and that in any event this interference had not been manifestly disproportionate to the offence committed by her. The charges brought against the applicant had stemmed from a specific act of disobedience committed after the end of the authorised meeting, rather than from her disagreement with the decision to terminate it early. The Government pointed out that the applicant had been exempted from administrative liability and had incurred no sanctions. They concluded that both the general measures taken in relation to the protest as a whole and the individual measures taken against the applicant personally had been justified under Article 11 § 2 of the Convention. In particular, the measures had complied with domestic law, had been necessary "for the prevention of disorder or crime" and "for the protection of the rights and freedoms of others" and had remained strictly proportionate.

49. The applicant alleged that the authorities had failed to ensure peaceful conduct of the authorised demonstration at Bolotnaya Square. Moreover, they had had no reason to terminate it early because there had been no serious public disorder. She considered that the order of the police to stop the demonstration had not been justified. As regards her arrest, the applicant submitted that she had conducted herself peacefully and had not committed any unlawful acts.

2. The Court's assessment

50. The Court has previously held that the protest in Bolotnaya Square on 6 May 2012 fell within the scope of Article 11 of the Convention (see Yaroslav Belousov , cited above, §§ 168-71). Noting that the present case contains no element capable of altering this conclusion, the Court adheres to that finding.

51. As to whether the applicant could personally rely on the provisions of Article 11, the Court reiterates that peaceful participants of a protest tarnished by isolated acts of violence committed by other participants do not cease to enjoy the right to peaceful assembly (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 94, ECHR 2015, and Ziliberberg v. Moldova (dec.), no. 61821/00, 4 May 2004). It does not appear from any of the submissions that the applicant was among those responsible for the initial acts of aggression which contributed to the deterioration of the protest's initially peaceful nature. As regards the breaking through of the police cordon imputed to the applicant, she denied pushing through it and, even if she had found herself beyond the cordon, there is no evidence that this was the result of her deliberate efforts. According to the material in the case file, the cordon rupture had resulted from the pressure of the crowd which had built up because of the unexpected and unannounced change by the authorities of the venue layout (see Frumkin , cited above, §§ 113-16 and 132). Apart from that, the applicant's behaviour remained strictly peaceful. The Court therefore considers that she enjoyed the protection of Article 11 in the present case.

52. The Court found in Frumkin (cited above, §§ 100-30) that the domestic authorities had failed to discharge their positive obligation to ensure the peaceful conduct of the assembly at Bolotnaya Square. The Government's submissions in this case were identical to those in Frumkin , and the Court sees no reason to reach a different conclusion on the same point.

53 . As regards the termination of the demonstration, it appears that the justification for that decision and the manner of its implementation were not subject to judicial assessment in the domestic proceedings. The domestic courts abstained from examining the wider context of the applicant's arrest (see paragraph 18 above) and her arguments about the unlawfulness of the order to disperse; likewise, they did not address her defence argument that it had been impossible to leave the venue of the assembly owing to the general commotion. It follows that no domestic balancing exercise was carried out, which would have allowed the Russian courts to weigh considerations of "prevention of disorder" or "protection of the rights and freedoms of others" against the applicant's right to freedom of peaceful assembly. Accordingly, the Court finds that the applicant's situation was not substantially different from that of Mr Frumkin, and that the dispersal of the demonstration involving the applicant's arrest had a similar chilling effect, that is, of discouraging her and others from attending protest rallies. It concludes that the security measures implemented at the site of the demonstration at Bolotnaya Square, its early termination and the dispersal amounted to a violation of the applicant's right to freedom of peaceful assembly.

54. There has accordingly been a violation of Article 11 of the Convention in respect of the applicant.

IV. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION

55. The applicant complained that the termination of her participation in a public protest and subsequent arrest and detention had pursued the aim of undermining her right to liberty and freedom of assembly. She complained of a violation of Article 18 of the Convention, which reads as follows:

"The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed."

56. In their submissions concerning this complaint the Government reiterated their arguments as regards the alleged interference with the right to freedom of assembly and the reasons for the applicant's deprivation of liberty. The applicant did not comment.

57. The Court notes that this complaint is linked to the complaints examined above under Articles 5 and 11 of the Convention and must therefore likewise be declared admissible.

58. The Court has already found that the applicant's arrest was not lawful and justified, and that this had the effect of preventing or discouraging her and others from participating in protest rallies and engaging actively in opposition politics (see paragraphs 42 and 53 above).

59. Having regard to those findings, the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 18 of the Convention.

V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

60. In the light of all the material in its possession, and in so far as the matters complained of are within its competence and the scope of the present case, the Court finds that the applicant's remaining complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

61. 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

62. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.

63. The Government considered that if the Court were to find a violation of the Convention in that case, this finding would constitute in itself sufficient just satisfaction. They stated that any award to be made by the Court should in any event take into account the applicant's individual circumstances, in particular the circumstances of her arrest, the approach of the courts to the examination of her case and the seriousness of the penalty imposed.

64. The Court has found violations of Articles 5 § 1 and 11 of the Convention in the present case. Making it assessment on an equitable basis, it awards the applicant EUR 7,500 in respect of non-pecuniary damage.

B. Costs and expenses

65. The applicant did not submit any claims under this head. Accordingly, there is no call to award her any sum on that account.

C. Default interest

66. The Court considers it appropriate that the default interest rate 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,

1. Declares the complaints under Articles 5, 11 and 18 of the Convention admissible and the remainder of the application inadmissible;

 

2. Holds that there has been a violation of Article 5 § 1 of the Convention;

 

3. Holds that there has been a violation of Article 11 of the Convention;

 

4. Holds that there is no need to examine the complaint under Article 18 of the Convention;

 

5. Holds

(a) that the respondent State is to pay the applicant, within three months

EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

 

6. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 8 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Branko Lubarda
Deputy Registrar President