BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF STEPANYAN v. ARMENIA
(Application
no. 45081/04)
JUDGMENT
STRASBOURG
27 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 Stepanyan v.
Armenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Elisabet Fura,
Corneliu
Bîrsan,
Boštjan M. Zupančič,
Alvina
Gyulumyan,
Egbert Myjer,
Luis López
Guerra, judges,
and Stanley Naismith, Deputy
Section Registrar,
Having
deliberated in private on 6 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 45081/04) 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, Mr Stepan Stepanyan (“the
applicant”), on 7 December 2004.
- The applicant was represented by Mr M. Muller, Mr T.
Otty, Mr K. Yildiz, Ms A. Stock and Ms L. Claridge, lawyers
of the Kurdish Human Rights Project (KHRP) based in London, and Mr T.
Ter-Yesayan, 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
9 July 2008 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 1951 and lives in Artashat, Armenia. He is a
member of the National Democratic Union (NDU) political party. He is
also the party's representative in the Ararat Region of Armenia.
1. The applicant's alleged harassment and political
persecution
- In
2003 a presidential election was held in Armenia with its first and
second rounds taking place on 19 February and 5 March respectively.
The applicant was involved with the work of the main opposition
candidate and his responsibilities included monitoring the voting
process. He alleges that, following the election, he prepared a
report on various irregularities which had allegedly taken place
during the election, but high officials from the Government and the
Ararat Region tried to prevent him from making his report public,
which he refused.
- The
applicant further alleges that from February 2003 until his arrest on
20 May 2004 he was repeatedly harassed because of his political
activity. In particular, the police frequently called him to the
local police station without any reasons and demanded that he stop
his political activities. Furthermore, on 9 April 2004 his son was
arrested and subjected to an administrative fine for disobeying the
lawful orders of police officers and using foul language. Finally,
from the date of his participation in a major demonstration held on
10 April 2004 until 19 May 2004, the police officers of the Ararat
Police Department visited his home on a daily basis between 5 a.m.
and 9 a.m., demanding that his whereabouts be disclosed. As a result
of these actions, he was forced to stay away from his home and
returned there only on 20 May 2004 after, in reply to his complaint,
he had allegedly been assured by the Ombudsman that these visits
would stop.
2. The administrative proceedings against the applicant
- On
20 May 2004 the applicant was taken to Ararat Police Department.
According to the record on bringing the applicant into custody
(արձանագրություն
անձին բերման
ենթարկելու
մասին), he was brought to
the police station by two police officers at 1.15 p.m. for disobeying
the lawful orders of a police officer and for using foul language.
- At
the Police Department an administrative case was prepared against the
applicant. One of the arresting police officers reported to the Chief
of Police:
“On 20 May at 1 p.m. [we] were in the yard of
building no. 26 on Kharazyan Street in Artashat where the resident of
flat no. 55 of the same building, [the applicant], was speaking
loudly with an unknown man. We approached and demanded [the
applicant] to lower his voice and not to violate public order. Having
heard this, [the applicant] turned from the unknown man towards us
and spoke to us in the same manner, saying that it was not our
business to judge how he was speaking and then he said that we should
stop poking our noses into everything and pestering. We tried to calm
him down but he continued insulting us and using insulting language.
This lasted about five minutes, after which he was brought to the
police station.”
- A
record of an administrative arrest was drawn up in which it was
stated that the applicant had “disobeyed lawful orders and used
foul language” which constituted an offence under Article 182
of the Code of Administrative Offences (CAO). It was also stated that
the applicant had refused to make any statements. This record was
signed by the applicant.
- On
the same date the applicant was taken to the Ararat Regional Court
(Արարատի
մարզի առաջին
ատյանի դատարան)
where Judge S. examined his case and found him guilty under
Article 182 of the CAO, sentencing him to eight days of
administrative detention. This decision stated the following:
“On 20 May 2004 at around 1.15 p.m. next to
building no. 26 on Kharazyan Street in Artashat the resident of the
same building, [the applicant], was speaking loudly and making a loud
noise with an unknown person, disturbing public order[. In this
connection the police officers of the Ararat Police Department] tried
to call him to order but [the applicant] continued to make a loud
noise and to use foul language, not obeying the lawful orders of [the
police officers].
[The applicant] refused to give explanations at the
court hearing.
Police officers of the Ararat Police Department [N.S.
and G.N.] stated that indeed on 20 May 2004 at around 1.15 p.m. next
to building no. 26 on Kharazyan Street the resident of the same
building, [the applicant], while being called to order, used foul
language, telling them: “stop poking your noses into everything
and pestering”, and [using] other disrespectful words, and
disobeyed their lawful orders.
The court finds that [the applicant] has violated public
order and disobeyed the lawful orders of [the police officers] so he
should be subjected to an administrative penalty.”
- According
to the record of the court hearing, the hearing started at 4.30 p.m.
with the participation of the applicant and the two arresting police
officers. The applicant did not wish to have a lawyer and did not
file any motions. The judge read out the materials of the
administrative case. The applicant refused to make any submissions.
The two arresting police officers testified, repeating their earlier
statements. The judge departed to a deliberation room, after which he
came back and pronounced the decision.
- The
applicant contests the circumstances of his trial as presented in the
above record and alleges that he was taken to Judge S.'s office where
the hearing took place at 3 p.m. He was not allowed legal
representation. Nor was he allowed properly to familiarise himself
with the materials of the case but was only told of the formal
charges against him. Despite his requests he was not allowed to make
any submissions, to question the two arresting police officers or to
call other witnesses. The entire hearing lasted about 10 to 15
minutes.
- Following
the hearing the applicant was taken to a detention facility. It
appears that, while serving his sentence, he decided to go on a
hunger strike.
- It
appears that on 26 May 2004 the administration of the detention
facility applied to the Regional Court, seeking to have the detention
imposed on the applicant changed to some other administrative penalty
due to the deterioration of the applicant's health.
- On
26 May 2004 the same Judge S. examined this request and decided to
grant it partially. While refusing to change the type of penalty
imposed on the applicant, the judge ordered that the applicant be
released and the sentence be postponed for one month.
- On
3 June 2004 the applicant lodged an extraordinary appeal with the
President of the Criminal and Military Court of Appeal (ՀՀ
քրեական և զինվորական
գործերով վերաքննիչ
դատարանի նախագահ).
In his appeal, he argued in general terms that the decision of the
Regional Court had been unfounded and unlawful and had been taken in
violation of the procedural law. The Regional Court had failed to
carry out an objective and thorough examination of the case and had
convicted him without any compelling evidence, relying on the false
testimony of the police officers. In support of his allegations the
applicant presented in detail his account of the events of 20 May
2004. He submitted that this account could be confirmed by a number
of witnesses, including his neighbours and family members, but the
Regional Court had not summoned and examined them. Finally, he
complained about the persecution by the police to which, allegedly,
he had been subjected in the past.
- On
8 June 2004 the President of the Criminal and Military Court of
Appeal, on the basis of the written materials of the case, reviewed
the decision of the Regional Court of 20 May 2004 with the following
reasoning:
“[The applicant] was subjected to eight days of
administrative detention under Article 182 of the CAO by the decision
of the Ararat Regional Court of 20 May 2004 for having made loud
noise, violated public order and maliciously disobeyed the lawful
orders of the police officers who tried to prevent those acts, next
to building no. 26 on Kharazyan Street in Artashat on 20 May 2004 at
around 1 p.m. ...
By applying to the Criminal and Military Court of Appeal
[the applicant] seeks to have [the above decision] quashed and the
proceedings terminated in view of the fact that he has not committed
an administrative offence.
Having acquainted myself with the appeal and the
materials of the administrative case (the reports [and] the records),
I find that the appeal must be dismissed because [the applicant] did
commit the acts in question on 20 May 2004, in connection with which
he had been brought to the police station, an appropriate record had
been drawn up and an administrative penalty under Article 182 of the
CAO had been imposed by the first instance court.”
- The
President of the Court of Appeal nevertheless decided, due to the
applicant's state of health, to mitigate the sentence to six days of
administrative detention, which the applicant had already served.
II. RELEVANT DOMESTIC LAW
- For
a summary of the relevant provisions concerning administrative
proceedings see the judgment in the case of Galstyan v. Armenia
(no. 26986/03, § 26, 15 November 2007). The relevant
provisions of the CAO which were not cited in the above judgment, as
in force at the material time, provide:
Article 182: Maliciously disobeying a lawful order or
demand of a police officer or a member of the voluntary police
“Maliciously disobeying a lawful order or demand
of a police officer or a member of the voluntary police made in the
performance of his duties of preserving public order leads to an
imposition of a fine of between 50% and double the fixed minimum
wage, or of correctional labour between one and two months with
deduction of 20% of earnings or, in cases where, in the circumstances
of the case, taking into account the offender's personality, the
application of these measures would be deemed insufficient, of
administrative detention not exceeding 15 days.”
THE LAW
I. COMPLIANCE WITH THE SIX-MONTH RULE AS REGARDS THE
DECISION OF 20 MAY 2004
- The
Government submitted that the final decision in the applicant's case
was taken by the Ararat Regional Court on 20 May 2004 and therefore
the application was lodged out of time.
- The
applicant submitted that the decision of the President of the
Criminal and Military Court of Appeal of 8 June 2004 restarted the
running of the six-month period in respect of his complaints.
Therefore his application was lodged within the prescribed
time-limit.
- The
Court observes that the applicant raised a number of complaints in
connection with his conviction of 20 May 2004. In particular, he
alleged under Article 5 §§ 1 and 2 that his arrest and
detention were arbitrary and unlawful and that he was not informed of
the reasons for his arrest, and under Article 5 § 4 and 13 that
there was no clear and accessible procedure for appeal against his
conviction. Under Article 6 §§ 1 and 3 (b-d) he alleged
that there was no equality of arms, that he was not allowed to call
witnesses, to have a lawyer and to have sufficient time and
facilities to prepare his defence, that he was not informed of the
accusation against him, that the hearing was brief and not public and
that the court failed to give reasons for its decision. The applicant
further alleged that his conviction violated his rights guaranteed by
Articles 8, 10, 11 and 14 of the Convention and Article 3 of Protocol
No. 1.
- The Court reiterates that, pursuant to Article 35 §
1 of the Convention, it may only deal with a matter where it has been
introduced within six months from the date of the final decision in
the process of exhaustion of domestic remedies (see, among other
authorities, Danov v. Bulgaria, no. 56796/00, § 56,
26 October 2006). However, the obligation under Article 35 requires
only that an applicant should have normal recourse to the remedies
likely to be effective, adequate and accessible (see, among other
authorities, Sejdovic v. Italy [GC], no. 56581/00, § 45,
ECHR 2006-III). Where no effective remedy is available to the
applicant, the time-limit expires six months after the date of the
acts or measures complained of, or after the date of knowledge of
that act or its effect or prejudice on the applicant (see Younger
v. the United Kingdom (dec.), no. 57420/00, ECHR
2003-I). Thus, the pursuit of remedies which fall short of the above
requirements will have consequences for the identification of the
“final decision” and, correspondingly, for the
calculation of the starting point for the running of the six-month
rule (see Prystavska v. Ukraine (dec.), no. 21287/02, 17
December 2002).
- The
Court observes that it has consistently rejected applications in
which the applicants have submitted their complaints within six
months from the decisions rejecting their requests for reopening of
the proceedings on the ground that such decisions could not be
considered “final decisions” for the purpose of Article
35 § 1 of the Convention (see, among other authorities,
Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR
2004-II; Riedl-Riedenstein and Others v. Germany (dec.),
no. 48662/99, 22 January 2002; and Babinsky
v. Slovakia (dec.), no. 35833/97, 11 January 2000).
However, the Court has also accepted that situations in which a
request to reopen the proceedings is successful and actually results
in a reopening may be an exception to this rule (see Pufler v.
France, no. 23949/94, Commission decision of 18 May 1994,
Decisions and Reports 77-B, p. 140; Korkmaz v. Turkey (dec.),
no. 42576/98, 17 January 2006; and Atkın v. Turkey,
no. 39977/98, § 33, 21 February 2006).
- Turning
to the circumstances of the present case, the Court notes that the
applicant raised a number of complaints in his application in
connection with the decision of the Ararat Regional Court of 20 May
2004. This decision, however, was final and there were no further
sufficiently accessible and effective remedies to exhaust, including
the extraordinary remedies which could be initiated under Article 294
of the CAO with a prosecutor or the president of a higher court (see
Galstyan, cited above, §§ 40-42). The applicant
nevertheless tried one of these avenues for review by submitting an
appeal to the President of the Criminal and Military Court of Appeal.
On 8 June 2004 the President of the Criminal and Military Court of
Appeal decided to review the final decision of the Regional Court of
20 May 2004, on the basis of the applicant's extraordinary
appeal. The applicant lodged his application with the Court on 7
December 2004, which is more than six months from the date of the
Regional Court's decision but less than six months from the date of
the decision of the Court of Appeal. It is therefore necessary to
determine whether the decision of the Court of Appeal taken on the
basis of the applicant's extraordinary appeal restarted the running
of the six-month period as far as the final decision of the Regional
Court is concerned.
- The
Court observes that it has already examined a situation similar to
the one in the present case in a number of cases against Armenia and
has concluded that the mere fact of reopening proceedings will not
restart the running of the six month period. In cases where
proceedings are reopened or a final decision is reviewed the running
of the six month period in respect of the initial set of proceedings
or the final decision will be interrupted only in relation to those
Convention issues which served as a ground for such a review or
reopening and were the object of examination before the extraordinary
appeal body (see Sapeyan v.
Armenia, no. 35738/03, § 24,
13 January 2009; Amiryan v. Armenia, no.
31553/03, § 22, 13 January 2009; and Gasparyan
v. Armenia (no. 1), no. 35944/03, §
31, 13 January 2009).
- In
the present case, the Court notes that the applicant did not raise in
his extraordinary appeal to the Court of Appeal, either explicitly or
in substance, any of the complaints which he is currently raising
before the Court in connection with the decision of 20 May 2004 (see
paragraphs 16 and 22 above). It further notes that the Court of
Appeal did not address of its own motion any of those issues either,
apart from upholding the applicant's conviction under Article 182 of
the CAO and decreasing the sentence imposed by the Regional Court.
Thus, the complaints raised by the applicant before the Court in
connection with the decision of the Regional Court were not the
object of examination before the Court of Appeal and the grounds on
which the Court of Appeal decided to review the final decision of the
Regional Court cannot be seen as being in any way related to those
complaints. The Court therefore concludes that the review of the
final decision of the Regional Court by the Court of Appeal upon the
applicant's extraordinary appeal did not re-start the running of the
six-month period in respect of those complaints (see, mutatis
mutandis, Amiryan and Gasparyan, cited above).
- It
follows that the applicant's complaints concerning the decision of 20
May 2004 were lodged out of time and must be rejected in accordance
with Article 35 §§ 1 and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS
REGARDS THE DECISION OF 8 JUNE 2004
- The
applicant complained about the proceedings before the Criminal and
Military Court of Appeal and invoked Article 6 of the Convention,
which, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”
A. Admissibility
1. Applicability of Article 6
- The
Court points out that Article 6 of the Convention applies to
proceedings where a person is charged with a criminal offence until
that charge is finally determined. It further reiterates that Article
6 does not apply to proceedings concerning a failed request to reopen
a case. Only the new proceedings, after the reopening has been
granted, can be regarded as concerning the determination of a
criminal charge (see Vanyan v. Russia, no. 53203/99,
§ 56, 15 December 2005).
- The
Court notes that the President of the Criminal and Military Court of
Appeal examined the applicant's extraordinary appeal against the
decision of the Ararat Regional Court of 20 May 2004. In doing so,
the President reviewed the applicant's case, upheld his conviction
and imposed a new sentence.
- In
view of the above, the Court considers that the proceedings before
the President of the Criminal and Military Court of Appeal concerned
the determination of a criminal charge against the applicant. It
finds, and this was not disputed between the parties, that Article 6
§ 1 of the Convention under its criminal head applies to those
proceedings.
2. Substantive issues
- The
Government submitted that the proceedings before the Criminal and
Military Court of Appeal were compatible with the requirements of
Article 6.
- The
applicant alleged that the Court of Appeal had failed to provide a
reasoned decision. Furthermore, he was deprived of effective access
to that court because of the lack of a clear procedure for appeal.
Finally, no proper notice was given to him or his lawyers of the
appeal hearing and as a consequence the appeal was heard in their
absence.
(a) The right to a reasoned judgment
- The
Court reiterates that, according to its established case-law
reflecting a principle linked to the proper administration of
justice, judgments of courts and tribunals should adequately state
the reasons on which they are based. The extent to which this duty to
give reasons applies may vary according to the nature of the decision
and must be determined in the light of the circumstances of the case.
Although Article 6 § 1 obliges courts to give reasons for their
decisions, it cannot be understood as requiring a detailed answer to
every argument. Thus, in dismissing an appeal, an appellate court
may, in principle, simply endorse the reasons for the lower court's
decision (see García Ruiz v. Spain [GC], no. 30544/96,
§ 26, ECHR 1999 I, and Hirvisaari v. Finland,
no. 49684/99, § 30, 27 September 2001).
- In
the present case, the applicant was convicted under Article 182 of
the CAO for disobeying the lawful orders of police officers and using
foul language. This reason, including the underlying facts, was
indicated in the decision of the Ararat Regional Court of 20 May
2004. The Court of Appeal, in its decision of 8 June 2004,
recapitulated the findings of the Regional Court and decided to
uphold them. The Court considers that the fact that the Court of
Appeal endorsed the findings of the Regional Court does not suggest
that it failed to adopt a reasoned decision.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
(b) The right of access to court
- The
Court observes that this complaint is in essence a restatement of the
complaint concerning the lack of a clear and accessible procedure for
appeal against the decision of the Ararat Regional Court. The
applicant, however, has failed to comply with the six-month rule when
lodging this complaint (see paragraph 27 above).
- It
follows that this part of the application was similarly lodged out of
time and must be rejected in accordance with Article 35 §§
1 and 4 of the Convention.
(c) The right to an oral hearing
- Lastly,
the applicant complained that no proper notice was given to him or
his lawyers of the hearing before the Criminal and Military Court of
Appeal and he was therefore deprived of the possibility to be present
during the examination of his case before that court. The Court
observes, however, that the President of the Criminal and Military
Court of Appeal did not hold an oral hearing on the applicant's
extraordinary appeal, which was examined on the basis of written
documents (see paragraph 17 above). The applicant's complaint
therefore in essence concerns the lack of an oral hearing before that
court.
- 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 an oral, and public, hearing constitutes a
fundamental principle enshrined in Article 6 § 1. This principle
is particularly important in the criminal context, where generally
there must be at first instance a tribunal which fully meets the
requirements of Article 6 and where an applicant has an entitlement
to have his case “heard”, with the opportunity inter
alia to give evidence in his own defence, hear the evidence
against him and examine and cross-examine the witnesses (see Jussila
v. Finland [GC], no. 73053/01, § 40, ECHR 2006 ...).
- However,
the personal attendance of the defendant does not necessarily take on
the same significance for an appeal hearing (see Belziuk v.
Poland, 25 March 1998, § 37, Reports of Judgments and
Decisions 1998 II). The manner of application of Article 6
to proceedings before courts of appeal depends on the special
features of the proceedings involved; account must be taken of the
entirety of the proceedings in the domestic legal order and of the
role of the appellate court therein. Provided that there has been a
public hearing at first instance, the absence of “public
hearings” before a second or third instance may be justified by
the special features of the proceedings at issue. Thus,
leave-to-appeal proceedings and proceedings involving only questions
of law, as opposed to questions of fact, may comply with the
requirements of Article 6, although the appellant was not given an
opportunity of being heard in person by the appeal or cassation court
(see Ekbatani v. Sweden, 26 May 1988, §§ 27 and 31,
Series A no. 134).
- Furthermore,
even where an appellate court has full jurisdiction to review the
case on questions of both fact and law, Article 6 does not always
require a right to a public hearing and a right to be present in
person. Regard must be had to the nature of the issues to be decided
by the appellate court (see Helmers v. Sweden, 29 October
1991, § 36, Series A no. 212 A; Kremzow v. Austria,
21 September 1993, § 58, Series A no. 268 B; Belziuk,
cited above, § 37; and Jussila, cited above, § 42).
What is at stake for the appellant may also be of relevance (see
Helmers, cited above, § 38, and Botten v. Norway,
19 February 1996, §§ 51-52, Reports of Judgments and
Decisions 1996 I).
- In
the present case, it is not clear from the relevant provisions of the
CAO whether the jurisdiction of the President of the Criminal and
Military Court of Appeal was limited only to questions of law or also
fact (see, in particular, Article 294 of the CAO as cited in the
Galstyan judgment, cited above). However, it appears from the
substance of the President's decision of 8 June 2004, and in
particular its finding that “[the applicant] did commit the
acts in question” that the President was competent to examine
not only questions of law but also of fact. Furthermore, the
President was competent to make a full assessment of the applicant's
guilt or innocence and to impose a sentence, which he did on the
basis of the written materials of the case.
- The
Court observes that in this respect the circumstances of the present
case are similar to those in the above case of Ekbatani, in
which the Court was called upon to examine how the “public
hearing” requirement should apply in appeal proceedings before
a court with jurisdiction as to both the facts and the law. The
applicant in that case denied the facts upon which the charge against
him was founded. However, he was convicted by the District Court on
the basis of the evidence given by the complainant. For the Court of
Appeal the crucial question therefore concerned the credibility of
the two persons involved. Nevertheless, the Court of Appeal decided,
without a public hearing, to confirm the District Court's conviction,
which led to a finding of a violation of Article 6 § 1 (see
Ekbatani, cited above, §§ 32 and 33).
- In
the present case, the applicant's conviction was based on the
evidence given by the two arresting police officers, who acted as the
main and only witnesses in the case. The applicant, in his
extraordinary appeal, denied in detail the account of events as
presented by the police officers in question. However, the President
of the Criminal and Military Court of Appeal upheld the applicant's
conviction without having heard him and the above-mentioned police
officers. The Court considers that, in the particular circumstances
of the case, the applicant's guilt or innocence could not, as a
matter of fair trial, have been properly determined without a direct
assessment of the evidence given in person by the applicant and the
two police officers in question.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Articles 3 and 8 of the Convention
that from 2003 until his conviction he had been subjected to
continual harassment by the authorities for his political activities,
in the form of frequent visits to his home by the police, preventing
his election report from becoming public and subjecting his son to an
administrative fine.
- Having
regard to all the material in its possession, and in so far as these
complaints fall within its competence, the Court finds that they do
not disclose any appearance of a violation of the rights and freedoms
set out in the Convention or its Protocols. It follows that this part
of the application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
IV. 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 EUR 10,000 in respect of non-pecuniary damage.
- The
Government claimed that, should the Court find a violation of the
applicant's rights under the Convention, the amount claimed was
excessive.
- The
Court considers that the applicant has undoubtedly suffered
non-pecuniary damage on account of the breach of the Convention found
in the present judgment. Ruling on an equitable basis, the Court
awards the applicant EUR 1,200.
B. Costs and expenses
- The
applicant also claimed 2,850 United States dollars (USD) and 4,123.73
pounds sterling (GBP) for the costs and expenses incurred before the
Court. The applicant submitted detailed time sheets stating hourly
rates in respect of his domestic lawyer and the three KHRP lawyers.
- The
Government submitted that these claims were not duly substantiated
with documentary proof.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, the Court notes at the
outset that no invoice or even a time sheet has been submitted by the
applicant to substantiate the fees allegedly paid to the United
Kingdom-based barrister. As regards the three KHRP lawyers, the Court
observes that only one of these lawyers, Ms L. Claridge, was
indicated among the applicant's representatives and no power of
attorney has ever been submitted to the Court in respect of the
remaining two lawyers (see paragraph 2 above). The Court therefore
rejects the claims submitted in connection with the above lawyers.
- The
Court further reiterates that legal costs are only recoverable in so
far as they relate to the violation found (see Beyeler v. Italy
[GC], no. 33202/96, § 27, ECHR 2000-I). The Court
notes that in the present case only a violation of Article 6 was
found on one count while the entirety of the written pleadings,
including the initial application and the subsequent observations,
concerned numerous Articles of the Convention and Protocol No.
1. Therefore the claim cannot be allowed in full and a considerable
reduction must be applied. Making its assessment on an equitable
basis, the Court awards the applicant a total sum of EUR 1,000 for
costs and expenses, to be paid in pounds sterling into his
representatives' bank account in the United Kingdom.
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
- Declares the complaint concerning the lack of an
oral hearing before the Criminal and Military Court of Appeal
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 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
1,200 (one thousand two hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
the national currency of the respondent State at the rate applicable
at the date of settlement;
(ii) EUR 1,000 (one thousand euros), plus any tax that may
be chargeable to the applicant, in respect of costs and expenses, to
be converted into pounds sterling at the rate applicable at the date
of settlement and to be paid into his representatives' bank account
in the United Kingdom;
(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 27 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Josep Casadevall
Deputy Registrar President
